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2014_13-553

https://www.oyez.org/cases/2014/13-553

. Federal law prohibits States from imposing taxes that “discriminat[e] against a rail carrier.”49 U. S. C. §11501(b)(4). We are asked to decide whether a State violates this prohibition by taxing diesel fuel purchases made by a rail carrier while exempting similar purchases made by its competitors; and if so, whether the violation is eliminated when other tax provisions offset the challenged treatment of railroads.I Alabama taxes businesses and individuals for the purchase or use of personal property. Ala. Code §§40–23–2(1), 40–23–61(a) (2011). Alabama law sets the general tax rate at 4% of the value of the property purchased or used. Ibid. The State applies the tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail operations. But it exempts from the tax purchases and uses of diesel fuel made by trucking transport companies (whom we will call motor carriers) and companies that transport goods interstate through navigable waters (water carriers). Motor carriers instead pay a 19-cent-per-gallon fuel-excise tax on diesel; water carriers pay neither the sales nor fuel-excise tax on their diesel. §40–17–325(a)(2), and (b); §40–23–4(a)(10) (2014 Cum. Supp.). The parties stipulate that rail carriers, motor carriers, and water carriers compete. Respondent CSX Transportation, a rail carrier operating in Alabama and other States, believes this asymmetrical tax treatment “discriminates against a rail carrier” in violation of the alliterative Railroad Revitalization and Regulation Reform Act of 1976, or 4–R Act.49 U. S. C. §11501(b)(4). It sought to enjoin petitioners, the Alabama Department of Revenue and its Commissioner (Alabama or State), from collecting sales tax on its diesel fuelpurchases. At first, the District Court and Eleventh Circuit both rejected CSX’s complaint. CSX Transp., Inc. v. Alabama Dept. of Revenue, 350 Fed. Appx. 318 (2009). On this lawsuit’s first trip here, we reversed. We rejected the State’s argument that sales-and-use tax exemptions cannot “discriminate” within the meaning of subsection (b)(4), and remanded the case for further proceedings. CSX Transp., Inc. v. Alabama Dept. of Revenue,562 U. S. 277–297 (2011) (CSX I). On remand, the District Court rejected CSX’s claim after a trial. 892 F. Supp. 2d 1300 (ND Ala. 2012). The Eleventh Circuit reversed. 720 F. 3d 863 (2013). It held that, on CSX’s challenge, CSX could establish discrimination by showing the State taxed rail carriers differently than their competitors—which, by stipulation, included motor carriers and water carriers. But it rejected Alabama’s argument that the fuel-excise taxes offset the sales taxes—in other words, that because it imposed its fuel-excise tax on motor carriers, but not rail carriers, it was justified in imposing the sales tax on rail carriers, but not motor carriers. Ibid. We granted certiorari to resolve whether the Eleventh Circuit properly regarded CSX’s competitors as an appropriate comparison class for its subsection (b)(4) claim. 573 U. S. ___ (2014). We also directed the parties to address whether, when resolving a claim of unlawful tax discrimination, a court should consider aspects of a State’s tax scheme apart from the challenged provision. Ibid.II The 4–R Act provides: “(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: “(1) Assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property. “(2) Levy or collect a tax that may not be made under paragraph (1) of this subsection. “(3) Levy or collect an ad valorem property tax at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. “(4) Impose another tax that discriminates against a rail carrier providing transportation subject to thejurisdiction of the Board under this part.” §11501(b)(1)–(4). In our last opinion in this case, we held that “discriminates” in subsection (b)(4) carries its ordinary meaning, and that a tax discriminates under subsection (b)(4) when it treats “groups [that] are similarly situated” differently without sufficient “justification for the difference in treatment.” CSX I, supra, at 287. Here, we address the meaning of these two quoted phrases.A The first question in this case is who is the “comparison class” for purposes of a subsection (b)(4) claim. Alabama argues that the only appropriate comparison class for a subsection (b)(4) claim is all general commercial and industrial taxpayers. We disagree. While all general and commercial taxpayers is an appropriate comparison class, it is not the only one. Nothing in the ordinary meaning of the word “discrimination” suggests that it occurs only when the victim is singled out relative to the population at large. If, for example, a State offers free college education to all returning combat veterans, but arbitrarily excepts those who served in the Marines, we would say that Marines have experienced discrimination. That would remain the case even though the Marines are treated the same way as members of the general public, who have to pay for their education. Context confirms that the comparison class for subsection (b)(4) is not limited as Alabama suggests. The 4–R Act is an “asymmetrical statute.” Id., at 296. Subsections (b)(1) to (b)(3) contain three specific prohibitions directed towards property taxes. Each requires comparison of railroad property to commercial and industrial property in the same assessment jurisdiction. The Act therefore limits the comparison class for challenges under those provisions. Even if the jurisdiction treats railroads less favor-ably than residential property, no violation of these subsec-tions has occurred. Subsection (b)(4) contains no such limitation, leaving the comparison class to be determined as it is normally determined with respect to discrimination claims. And we think that depends on the theory of discrimination alleged in the claim. When a railroad alleges that a tax targets it for worse treatment than local businesses, all other commercial and industrial taxpayers are the comparison class. When a railroad alleges that a tax disadvantages it compared to its competitors in the transportation industry, the railroad’s competitors in that jurisdiction are the comparison class. So, picking a comparison class is extraordinarily easy. Unlike under subsections (b)(1)–(3), the railroad is not limited to all commercial and industrial taxpayers; all the world, or at least all the world within the taxing jurisdiction, is its comparison-class oyster. But that is not as generous a concession as might seem. What subsection (b)(4) requires, and subsections (b)(1)–(3) do not, is a showing of discrimination—of a failure to treat similarly situated persons alike. A comparison class will thus support a discrimination claim only if it consists of individuals similarly situated to the claimant. That raises the question of when a proposed comparison class qualifies as similarly situated. In the Equal Protection Clause context, very few taxpayers are regarded as similarly situated and thus entitled to equal treatment. There, a State may tax different lines of businesses differently with near-impunity, even if they are apparently similar. We have upheld or approved of distinctions between utilities—including a railroad—and other corporations, New York Rapid Transit Corp. v. City of New York,303 U. S. 573,579 (1938), between wholesalers and retailers in goods, Caskey Baking Co. v. Virginia,313 U. S. 117–121 (1941), between chain retail stores and independent retail stores, State Bd. of Tax Comm’rs of Ind. v. Jackson,283 U. S. 527–542 (1931), between anthracite coal mines and bituminous coal mines, Heisler v. Thomas Colliery Co.,260 U. S. 245,254,257 (1922), and between sellers of coal oil and sellers of coal, Southwestern Oil Co. v. Texas,217 U. S. 114,121 (1910). As one treatise has observed, we recognize a “wide latitude state legislatures enjoy in drawing tax classifications under the Equal Protection Clause.” 1 J. Hellerstein & W. Hellerstein, State Taxation ¶3.03[1], p. 3–5 (3d ed. 2001–2005). This includes the power to impose “widely different taxes on various trades or professions.” Id., at 3–5 to 3–6. It would be permissible—as far as the Equal Protection Clause is concerned—for a State to tax a rail carrier more than a motor carrier, despite the seeming similarity in their lines of business. The concept of “similarly situated” individuals cannot be so narrow here. That would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides. Moreover, the cate-gory of “similarly situated” (b)(4) comparison classes must include commercial and industrial taxpayers. There is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads. And we think the competitors of railroads can be another “similarly situated” comparison class, since discrimination in favor of that class most obviously frustrates the purpose of the 4–R Act, which was to “restore the financial stability of the railway system of the United States,” §101(a),90Stat.33, while “foster[ing] competition among all carriers by railroad and other modes of transportation,” §101(b)(2). We need not, and thus do not, express any opinion on what other comparison classes may qualify. Sufficient unto the day is the evil thereof. Alabama claims that because subsections (b)(1) and (b)(3) (and (b)(2) through reference to (b)(1)) establish a comparison class of “commercial and industrial property,” subsection (b)(4) must establish a comparison class of “general commercial and industrial taxpayers.” This inverts normal rules of interpretation, which would say that the explicit limitation to “commercial and industrial” in the first three provisions, and the absence of such a limitation in the fourth, suggests that no such limitation applies to the fourth. Moreover, Alabama’s interpretation would require us to dragoon the modifier “commercial and industrial”—but not the noun “property”—from the first three provisions, append “general” in front of it and “taxpayers” after, both words foreign to the preceding subsections. We might also have to strip away the restrictions in the definition of “commercial and industrial property,” which excludes land primarily used for agricultural purposes and timber growing.49 U. S. C. §11501(a)(4). This is not our concept of fidelity to a statute’s text. Alabama responds that the introductory clause of §11501(b)—which declares that the “following acts unreasonably burden and discriminate against interstate commerce,”—“binds its four subsections together,” Brief for Petitioners 23 (emphasis deleted), and gives them a common object and scope. The last time this case appeared before us, Alabama made a similar argument in support of the claim that, because subsections (b)(1)–(3) cover only property taxes, so too does subsection (b)(4). See Brief for Respondents in CSX Transp., Inc. v. Alabama Dept. of Revenue, O. T. 2010, No. 09–520, p. 25–26. We rejected this argument then, and we reject it again now. Alabama persists that a case-specific inquiry allows a railroad to “hand-pick [its] comparison class,” Brief for Petitioners 41, which would be unfair—a “windfall” to railroads. Ibid. As we have described above, picking a class is easy, but it is not easy to establish that the selected class is “similarly situated” for purposes of discrimina-tion in taxation. The Eleventh Circuit properly concluded that, in light of CSX Transportation’s complaint and the parties’ stipulation, a comparison class of competitors consisting of motor carriers and water carriers was appropriate, and differential treatment vis-à-vis that class would constitute discrimination. We therefore turn tothe court’s refusal to consider Alabama’s alternative tax justifications.B A State’s tax discriminates only where the State cannot sufficiently justify differences in treatment between similarly situated taxpayers. As we have discussed above, a rail carrier and its competitors can be considered similarly situated for purposes of this provision. But what about the claim that those competitors are subject to other taxes that the railroads avoid? We think Alabama can justify its decision to exempt motor carriers from its sales and use tax through its decision to subject motor carriers to a fuel-excise tax. It does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt. If that were true, both competitors could claim to be disfavored—discriminated against—relative to each other. Our negative Commerce Clause cases endorse the proposition that an additional tax on third parties may justify an otherwise discriminatory tax. Gregg Dyeing Co. v. Query,286 U. S. 472–480 (1932). We think that an alternative, roughly equivalent tax is one possible justification that rendersa tax disparity nondiscriminatory. CSX claims that because the statutory prohibition forbids “impos[ing] another tax that discriminates against a rail carrier,”49 U. S. C. §11501(b)(4)—“tax” in the singular—the appropriate inquiry is whether the challenged tax discriminates, not whether the tax code as a whole does so. It is undoubtedly correct that the “tax” (singular) must discriminate—but it does not discriminate unless it treats railroads differently from other similarly situated taxpayers without sufficient justification. A comparable tax levied on a competitor may justify not extending that competitor’s exemption from a general tax to a railroad. It is easy to display the error of CSX’s single-tax-provision approach. Under that model, the following tax would violate the 4–R Act: “(1) All railroads shall pay a 4% sales tax. (2) All other individuals shall also pay a 4% sales tax.” CSX would undoubtedly object that not every case will be so easy, and that federal courts are ill qualified to explore the vagaries of state tax law. We are inclined to agree, but that cannot carry the day. Congress assigned this task to the courts by drafting an antidiscrimination command in such sweeping terms. There is simply no discrimination when there are roughly comparable taxes. If the task of determining when that is so is “Sisyphean,” as the Eleventh Circuit called it, 720 F. 3d, at 871, it is a Sisyphean task that the statute imposes. We therefore cannot approve of the Eleventh Circuit’s refusal to consider Alabama’s tax-based justification, and remand for that court to consider whether Alabama’s fuel-excise tax is the rough equivalent of Alabama’s sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales-tax exemption.C While the State argues that the existence of a fuel-excise tax justifies its decision to exempt motor carriers from the sales and use tax, it cannot offer a similar defense with respect to its exemption for water carriers. Water carriers pay neither tax. The State, however, offers other justifications for the water carrier exemption—for example, that such an exemption is compelled by federal law. The Eleventh Circuit failed to examine these justifications, asserting that the water carriers were the beneficiaries of a discriminatory tax regime. We do not consider whether Alabama’s alternative rationales justify its exemption, but leave that question for the Eleventh Circuit on remand.* * * The judgment of the Eleventh 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 . SUPREME COURT OF THE UNITED STATES Syllabus FONT alabama department of revenue FONT et al. v. FONT csx transportation, inc FONT. certiorari to the united states court of appeals for the eleventh circuit No. 13–553. Argued December 9, 2014—Decided March 4, 2015 Alabama imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts from those taxes trucking transport companies (motor carriers) and companies that transport goods interstate through navigable waters (water carriers), both railroad competitors. Motor carriers pay an alternative fuel-excise tax on diesel, but water carriers pay neither the sales tax nor the excise tax. Respondent (CSX), an interstate rail carrier that operates in Alabama, sought to enjoin state officers from collecting sales tax on its diesel fuel purchases, claiming that the State’s asymmetrical tax treatment “discriminates against a rail carrier” in violation of the Railroad Revitalization and Regulation Reform Act of 1976, or 4–R Act, 49 U. S. C. §11501(b)(4). This Court held that a tax “discriminates” under subsection (b)(4) when it treats “groups [that] are similarly situated” differently without sufficient “justification for the difference in treatment,” CSX Transp. v. Ala. Dept. of Revenue, 562 U. S. 277 (CSX I). On remand, the District Court rejected CSX’s claim. Reversing, the Eleventh Circuit held that CSX could establish discrimination by showing that Alabama taxed rail carriers differently than their competitors, but rejected Alabama’s argument that imposing a fuel-excise tax on motor carriers, but not rail carriers, justified imposing the sales tax on rail carriers, but not motor carriers. Held: 1. The Eleventh Circuit properly concluded that CSX’s competitors are an appropriate comparison class for its subsection (b)(4) claim. All general and commercial taxpayers may be an appropriate comparison class for a subsection (b)(4) claim, but it is not the only one. Nothing in the ordinary meaning of the word “discrimination” suggests that it occurs only when the victim is singled out relative to the population at large. Context confirms this reading. The 4–R Act is an “asymmetrical statute.” CSX I, supra, at 296. In subsections (b)(1) to (b)(3)—which specify prohibitions directed toward property taxes—the comparison class is limited to commercial and industrial property in the same assessment jurisdiction. But subsection (b)(4) contains no such limitation, so the comparison class is to be determined based on the theory of discrimination alleged in the claim. Thus, when a railroad alleges that a tax disadvantages it compared to its transportation industry competitors, its competitors in that jurisdiction are the comparison class. Because subsection (b)(4) requires a showing of discrimination, however, the comparison class must consist of individuals similarly situated to the claimant. Subsection (b)(4) would be deprived of all real-world effect if “similarly situated” were given the same narrow construction the concept has in the Equal Protection Clause context, where it would be permissible for a State to tax a rail carrier more than a motor carrier, despite their seemingly similar lines of business. The category of “similarly situated” (b)(4) comparison classes must at least include the commercial and industrial taxpayers specified in the other subsections. But it also can include a railroad’s competitors. Discrimination in favor of that class both falls within the ordinary meaning of “discrimination” and frustrates the 4–R Act’s purpose of “restor[ing] the financial stability of the [Nation’s] railway system” while “foster[ing] competition among all carriers by railroad and other modes of transportation,” 90Stat. 33. Contrary to Alabama’s argument, normal rules of interpretation would say that the explicit limitation to “commercial and industrial” in the first three provisions, and its absence in the fourth, suggests that no such limitation applies to the fourth. Alabama’s additional arguments are also unavailing. . 2. The Eleventh Circuit erred in refusing to consider whether Alabama could justify its decision to exempt motor carriers from its sales and use taxes through its decision to subject motor carriers to a fuel-excise tax. It does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt, since both competitors could then claim to be discriminated against relative to each other. The Court’s negative Commerce Clause cases endorse the proposition that an additional tax on third parties may justify an otherwise discriminatory tax. Gregg Dyeing Co. v. Query, 286 U. S. 472 –480. Similarly, an alternative, roughly equivalent tax is one possible justification that renders a tax disparity non-discriminatory. CSX’s counterarguments are rejected. On remand, the Eleventh Circuit is to consider whether Alabama’s fuel-excise tax is the rough equivalent of Alabama’s sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales-tax exemption. Although the State cannot offer a similar defense with respect to its water carrier exemption, the court should also examine whether any of the State’s alternative rationales justify that exemption. . 720 F. 3d 863, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Alabama taxes businesses and individuals for the purchase or use of personal property. But it exempts from the tax purchases and uses of diesel fuel made by trucking transport companies (whom it will call motor carriers) and water carriers. Respondent rail carrier believes this asymmetrical tax treatment discriminates against a rail carrier in violation of the alliterative Railroad Revitalization and Regulation Reform Act of 1976, or 4–R Act. It sought to enjoin petitioners, the Alabama Department of Revenue and its Commissioner, from collecting sales tax on its diesel fuelpurchases. The District Court and the Eleventh Circuit both rejected respondent rail carrier's complaint, rejecting the State's argument that sales-and-use tax exemptions cannot "discriminate" within the meaning of subsection (b)(4), and remanding the case for further proceedings. On remand, the District Court rejected respondent's claim after a trial, and the Court of Appeals reversed, holding that respondent could establish discrimination by showing that the State taxed rail carriers differently than their competitors, which, by stipulation, included motor carriers, water carriers, and railroads, but rejected Alabama arguments that the fuel-excise taxes offset the sales taxes. Held: 1. The 4-R Act does not prohibit States from imposing taxes that discriminate against railroads. . (a) Nothing in the ordinary meaning of the word discrimination suggests that it occurs only when the victim is singled out relative to the population at large. There is simply no discrimination when there are roughly comparable taxes. Alabama argues that the only appropriate comparison class is all general commercial and commercial taxpayers. While that is true, it is not limited to all commercial and industrial taxpayers, and even if the jurisdiction treats railroads less favorably than residential property, no violation of these subsec-tions has occurred. Subsection (b) contains no such limitation, leaving the comparison class to be determined as it is normally determined with respect to discrimination claims. This is not the concept of fidelity to a statute's text. Pp. 474 U. S. ___. (b) Alabama cannot offer a similar defense as to its motor carrier exemption. Water carriers pay neither tax, and Alabama offers other justifications for the exemption, none of which is supported by federal law. Petitioners are not entitled to the alternative tax justifications offered by Alabama. See Brief for Respondents in CSX Transp., Inc. v. Alabama Dept. of Revenue, O. T. 2010, No. 09–520, p. 25. If Alabama can justify its decision to exempt its motor carriers from the sales and use tax, it can justify exempting its water carriers from such tax. Querying the equivalent of a nondiscriminatory statutory prohibition against another carrier is the appropriate inquiry because the challenged tax discriminates, not whether the tax code as a whole does so. Moreover, a comparable tax levied on a competitor may justify not extending that competitor's exemption from a general tax to a railroad. Here, Alabama need not express any opinion on what other comparison classes may qualify. Sufficient unto the day is the evil thereof. In any event, the task of determining when a roughly comparable tax is so is a Sisyphean task that the statute imposes. Therefore, it cannot be approved of the court below to consider Alabama, its tax-based justification, and remand for that court to consider whether Alabama's fuel excise tax is the rough equivalent of Alabama's sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales-tax exemption. 720 F. 3d 863, reversed and remanded. CHIEF JUSTICE BURGER, concurring in the judgment, concluded that, in light of CSX Transportation's complaint and the parties' stipulation that a comparison class of competitors consisting of motor carriers and water carriers was appropriate, and differential treatment vis-à-vis that class would constitute discrimination. However, the court refused to examine Alabama's alternative tax justification, since Alabama offered other reasons for its exemption, including the claim that the water carriers were the beneficiaries of a discriminatory tax regime. Ibid. BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p..

2014_13-895

https://www.oyez.org/cases/2014/13-895

. The Alabama Legislative Black Caucus and the Alabama Democratic Conference appeal a three-judge Federal District Court decision rejecting their challenges to the lawfulness of Alabama’s 2012 redistricting of its State House of Representatives and State Senate. The appeals focus upon the appellants’ claims that new district boundaries create “racial gerrymanders” in violation of the Fourteenth Amendment’s Equal Protection Clause. See, e.g., Shaw v. Hunt,517 U. S. 899–908 (1996) (Shaw II) ( Fourteenth Amendment forbids use of race as “ ‘predominant’ ” district boundary-drawing “ ‘factor’ ” unless boundaries are “narrowly tailored” to achieve a “ ‘compelling state interest’ ” (citations omitted)). We find that the District Court applied incorrect legal standards in evaluating the claims. We consequently vacate its decision and remand the cases for further proceedings.I The Alabama Constitution requires the legislature to reapportion its State House and Senate electoral districts following each decennial census. Ala. Const., Art. IX, §§199–200. In 2012 Alabama redrew the boundaries of the State’s 105 House districts and 35 Senate districts. 2012 Ala. Acts no. 602 (House plan); id., at no. 603 (Senate plan) (Acts). In doing so, Alabama sought to achieve numerous traditional districting objectives, such as compactness, not splitting counties or precincts, minimizing change, and protecting incumbents. But it placed yet greater importance on achieving two other goals. See Alabama Legislature Reapportionment Committee Guidelines in No. 12–cv–691, Doc. 30–4, pp. 3–5 (Committee Guidelines). First, it sought to minimize the extent to which a district might deviate from the theoretical ideal of precisely equal population. In particular, it set as a goal creating a set of districts in which no district would deviate from the theoretical, precisely equal ideal by more than 1%—i.e., a more rigorous deviation standard than our precedents have found necessary under the Constitution. See Brown v. Thomson,462 U. S. 835,842 (1983) (5% deviation from ideal generally permissible). No one here doubts the desirability of a State’s efforts generally to come close to a one-person, one-vote ideal. Second, it sought to ensure compliance with federal law, and, in particular, the Voting Rights Act of 1965.79Stat.439, as amended,52 U. S. C. §10301 et seq. At the time of the redistricting Alabama was a covered jurisdiction under that Act. Accordingly §5 of the Act required Alabama to demonstrate that an electoral change, such as redistricting, would not bring about retrogression in respect to racial minorities’ “ability . . . to elect their preferred candidates of choice.”52 U. S. C. §10304(b). Specifically, Alabama believed that, to avoid retrogression under §5, it was required to maintain roughly the same black population percentage in existing majority-minority districts. See Appendix B, infra. Compliance with these two goals posed particular difficulties with respect to many of the State’s 35 majority-minority districts (8 in the Senate, 27 in the House). That is because many of these districts were (compared with the average district) underpopulated. In order for Senate District 26, for example, to meet the State’s no-more-than-1% population-deviation objective, the State would have to add about 16,000 individuals to the district. And, prior to redistricting, 72.75% of District 26’s population was black. Accordingly, Alabama’s plan added 15,785 new individ-uals, and only 36 of those newly added individuals were white. This suit, as it appears before us, focuses in large part upon Alabama’s efforts to achieve these two goals. The Caucus and the Conference basically claim that the State, in adding so many new minority voters to majority-minority districts (and to others), went too far. They allege the State created a constitutionally forbidden “racial gerrymander”—a gerrymander that (e.g., when the State adds more minority voters than needed for a minor-ity group to elect a candidate of its choice) might, among other things, harm the very minority voters that Acts such as the Voting Rights Act sought to help. After a bench trial, the Federal District Court held in favor of the State, i.e., against the Caucus and the Conference, with respect to their racial gerrymandering claims as well as with respect to several other legal claims that the Caucus and the Conference had made. With respect to racial gerrymandering, the District Court recognized that electoral districting violates the Equal Protection Clause when (1) race is the “dominant and controlling” or “predominant” consideration in deciding “to place a significant number of voters within or without a particular district,” Miller v. Johnson,515 U. S. 900,913,916 (1995), and (2) the use of race is not “narrowly tailored to serve a compelling state interest,” Shaw II, 517 U. S., at 902; see also Shaw v. Reno,509 U. S. 630,649 (1993) (Shaw I ) (Constitution forbids “separat[ion of ] voters into different districts on the basis of race” when the separation “lacks sufficient justification”); Bush v. Vera,517 U. S. 952–959, 976 (1996) (principal opinion of O’Connor, J.) (same). But, after trial the District Court held (2 to 1) that the Caucus and the Conference had failed to prove their racial gerrymandering claims. The Caucus along with the Conference (and several other plaintiffs) appealed. We noted probable jurisdiction with respect to the racial gerrymandering claims. 572 U. S. ___ (2014). We shall focus upon four critical District Court determinations underlying its ultimate “no violation” conclusion. They concern:The Geographical Nature of the Racial Gerrymandering Claims. The District Court characterized the appellants’ claims as falling into two categories. In the District Court’s view, both appellants had argued “that the Acts as a whole constitute racial gerrymanders,” 989 F. Supp. 2d 1227, 1287 (MD Ala. 2013) (emphasis added), and one of the appellants (the Conference) had also argued that the State had racially gerrymandered four specific electoral districts, Senate Districts 7, 11, 22, and 26, id., at 1288.Standing. The District Court held that the Caucus had standing to argue its racial gerrymandering claim with respect to the State “as a whole.” But the Conference lacked standing to make any of its racial gerrymandering claims—the claim requiring consideration of the State “as a whole,” and the claims requiring consideration of four individual Senate districts. Id., at 1292.Racial Predominance. The District Court held that, in any event, the appellants’ claims must fail because race “was not the predominant motivating factor” either (a) “for the Acts as a whole” or (b) with respect to “Senate Districts 7, 11, 22, or 26.” Id., at 1293.Narrow Tailoring/Compelling State Interest. The District Court also held that, even were it wrong about standing and predominance, the appellants’ racial gerrymandering claims must fail. That is because any predominant use of race in the drawing of electoral boundaries was “narrowly tailored” to serve a “compelling state interest,” id., at 1306–1307, namely the interest in avoiding retrogression with respect to racial minorities’ “ability to elect their preferred candidates of choice.” §10304(b). In our view, each of these determinations reflects an error about relevant law. And each error likely affected the District Court’s conclusions—to the point where we must vacate the lower court’s judgment and remand the cases to allow appellants to reargue their racial gerrymandering claims. In light of our opinion, all parties remain free to introduce such further evidence as the District Court shall reasonably find appropriate.II We begin by considering the geographical nature of the racial gerrymandering claims. The District Court repeatedly referred to the racial gerrymandering claims as claims that race improperly motivated the drawing of boundary lines of the State considered as a whole. See, e.g., 989 F. Supp. 2d, at 1293 (“Race was not the predominant motivating factor for the Acts as a whole”); id., at 1287 (construing plaintiffs’ challenge as arguing that the “Acts as a whole constitute racial gerrymanders”); id., at 1292 (describing the plaintiffs’ challenge as a “claim of racial gerrymandering to the Acts as a whole”); cf. supra, at 4–5 (noting four exceptions). A racial gerrymandering claim, however, applies to the boundaries of individual districts. It applies district-by-district. It does not apply to a State considered as an undifferentiated “whole.” We have consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts. See, e.g., Shaw I, 509 U. S., at 649 (violation consists of “separat[ing] voters into different districts on the basis of race” (emphasis added)); Vera, 517 U. S., at 965 (principal opinion) (“[Courts] must scrutinize each challenged district . . .” (emphasis added)). We have described the plaintiff’s evidentiary burden similarly. See Miller, supra, at 916 (plaintiff must show that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district” (emphasis added)). Our district-specific language makes sense in light of the nature of the harms that underlie a racial gerrymandering claim. Those harms are personal. They include being “personally . . . subjected to [a] racial classification,” Vera, supra, at 957 (principal opinion), as well as being represented by a legislator who believes his “primary obligation is to represent only the members” of a particular racial group, Shaw I, supra, at 648. They directly threaten a voter who lives in the district attacked. But they do not so keenly threaten a voter who lives elsewhere in the State. Indeed, the latter voter normally lacks standing to pursue a racial gerrymandering claim. United States v. Hays,515 U. S. 737–745 (1995). Voters, of course, can present statewide evidence in order to prove racial gerrymandering in a particular district. See Miller, supra, at 916. And voters might make the claim that every individual district in a State suffers from racial gerrymandering. But this latter claim is not the claim that the District Court, when using the phrase “as a whole,” considered here. Rather, the concept as used here suggests the existence of a legal unicorn, an animal that exists only in the legal imagination. This is not a technical, linguistic point. Nor does it criticize what might seem, in effect, a slip of the pen. Rather, here the District Court’s terminology mattered. That is because the District Court found that racial criteria had not predominated in the drawing of some Alabama districts. And it found that fact (the fact that race did not predominate in the drawing of some, or many districts) sufficient to defeat what it saw as the basic claim before it, namely a claim of racial gerrymandering with respect to the State as an undifferentiated whole. See, e.g., 989 F. Supp. 2d, at 1294 (rejecting plaintiffs’ challenge because “[the legislature] followed no bright-line rule” with respect to every majority-minority district); id., at 1298–1299, 1301 (citing examples of majority-minority districts in which black population percentages were reduced and examples of majority-white districts in which precincts were split). A showing that race-based criteria did not significantly affect the drawing of some Alabama districts, however, would have done little to defeat a claim that race-based criteria predominantly affected the drawing of other Alabama districts, such as Alabama’s majority-minority districts primarily at issue here. See id., at 1329 (Thompson, J., dissenting) (“[T]he drafters[’] fail[ure] to achieve their sought-after percentage in one district does not detract one iota from the fact that they did achieve it in another”). Thus, the District Court’s undifferentiated statewide analysis is insufficient. And we must remand for consideration of racial gerrymandering with respect to the individual districts subject to the appellants’ racial gerrymandering challenges. The State and principal dissent argue that (but for four specifically mentioned districts) there were in effect no such districts. The Caucus and the Conference, the State and principal dissent say, did not seek a district-by-district analysis. And, the State and principal dissent conclude that the Caucus and the Conference have consequently waived the right to any further consideration. Brief for Appellees 14, 31; post, at 5–12 (opinion ofScalia, J.). We do not agree. We concede that the District Court’s opinion suggests that it was the Caucus and the Conference that led the Court to consider racial gerrymandering of the State “as a whole.” 989 F. Supp. 2d, at 1287. At least the District Court interpreted their filings to allege only that kind of claim. Ibid. But our review of the record indicates that the plaintiffs did not claim only that the legislature had racially gerrymandered the State “as” an undifferentiated “whole.” Rather, their evidence and their arguments embody the claim that individual majority-minority districts were racially gerrymandered. And those are the districts that we believe the District Court must reconsider. There are 35 majority-minority districts, 27 in the House and 8 in the Senate. The District Court’s opinion itself refers to evidence that the legislature’s redistricting committee, in order to satisfy what it believed the Voting Rights Act required, deliberately chose additional black voters to move into underpopulated majority-minority districts, i.e., a specific set of individual districts. See, e.g., 989 F. Supp. 2d, at 1274 (referring to Senator Dial’s testimony that the Committee “could have used,” but did not use, “white population within Jefferson County to repopulate the majority-black districts” because “doing so would have resulted in the retrogression of the majority-black districts and potentially created a problem for [Justice Department] preclearance”); id., at 1276 (stating that Representative Jim McClendon, also committee cochair, “testified consistently with Senator Dial”); id., at 1277 (noting that the committee’s expert, Randolph Hinaman, testified that “he needed to add population” to majority-black districts “without significantly lowering the percentage of the population in each district that was majority-black”). The Caucus and the Conference presented much evidence at trial to show that that the legislature had deliberately moved black voters into these majority-minority districts—again, a specific set of districts—in order to prevent the percentage of minority voters in each district from declining. See, e.g., Committee Guidelines 3–5; 1 Tr. 28–29, 36–37, 55, 63, 67–68, 77, 81, 96, 115, 124, 136, 138 (testimony of Senator Dial); Deposition of Gerald Dial in No. 12–cv–691 (May 21, 2013), Doc. 123–5, pp. 17, 39–41, 62, 100 (Dial Deposition); 3 Tr. 222 (testimony of Representative McClendon); id., at 118–119, 145–146, 164, 182–183, 186–187 (testimony of Hinaman); Deposition of Randolph Hinaman in No. 12–cv–691 (June 25, 2013), Doc. 134–4, pp. 23–24, 101 (Hinaman Deposition). In their post-trial Proposed Findings of Fact and Conclusions of Law, the plaintiffs stated that the evidence showed a racial gerrymander with respect to the majority of the majority-minority districts; they referred to the specific splitting of precinct and county lines in the drawing of many majority-minority districts; and they pointed to much district-specific evidence. E.g., Alabama Legislative Black Caucus Plaintiffs’ Notice of Filing Proposed Findings of Fact and Conclusions of Law in No. 12–cv–691, Doc. 194, pp. 9–10, 13–14, 30–35, 40 (Caucus Post-Trial Brief); Newton Plaintiffs’ Notice of Filing Proposed Findings of Fact and Conclusions of Law in No. 12–cv–691, Doc. 195, pp. 33–35, 56–61, 64–67, 69–74, 82–85, 108, 121–122 (Conference Post-Trial Brief); see also Appendix A, infra (organizing these citations by district). We recognize that the plaintiffs relied heavily upon statewide evidence to prove that race predominated in the drawing of individual district lines. See generally Caucus Post-Trial Brief 1, 3–7, 48–50; Conference Post-Trial Brief 2, 44–45, 105–106. And they also sought to prove that the use of race to draw the boundaries of the majority-minority districts affected the boundaries of other districts as well. See, e.g., 1 Tr. 36–37, 48, 55, 70–71, 93, 111, 124 (testimony of Dial); 3 Tr. 142, 162 (testimony of Hinaman); see generally Caucus Post-Trial Brief 8–16. Such evidence is perfectly relevant. We have said that the plaintiff’s burden in a racial gerrymandering case is “to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller, 515 U. S., at 916. Cf. Easley v. Cromartie,532 U. S. 234,258 (2001) (explaining the plaintiff’s burden in cases, unlike these, in which the State argues that politics, not race, was its predominant motive). That Alabama expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote) provides evidence that race motivated the drawing of particular lines in multiple districts in the State. And neither the use of statewide evidence nor the effort to show widespread effect can transform a racial gerrymandering claim about a set of individual districts into a separate, general claim that the legislature racially gerrymandered the State “as” an undifferentiated “whole.” We, like the principal dissent, recognize that the plaintiffs could have presented their district-specific claims more clearly, post, at 6–8, 10–12 (opinion of Scalia, J.), but the dissent properly concedes that its objection would weaken had the Conference “developed such a claim in the course of discovery and trial.” Post, at 6. And that is just what happened. In the past few pages and in Appendix A, we set forth the many record references that establish this fact. The Caucus helps to explain the complaint omissions when it tells us that the plaintiffs unearthed the factual basis for their racial gerrymandering claims when they deposed the committee’s redistricting expert. See Brief for Appellants in No. 13–895, pp. 12–13. The State neither disputes this procedural history nor objects that plaintiffs’ pleadings failed to conform with the proof. Indeed, throughout, the plaintiffs litigated these claims not as if they were wholly separate entities but as if they were a team. See, e.g., Caucus Post-Trial Brief 1 (“[We] support the additional claims made by the [Conference] plaintiffs”); but cf. post, at 3–12 (Scalia, J., dissenting) (treating separately Conference claims from Caucus claims). Thus we, like the dissenting judge below (who also lived with these cases through trial), conclude that the record as a whole shows that the plaintiffs brought, and their argument rested significantly upon, district-specific claims. See 989 F. Supp. 2d, at 1313 (Thompson, J., dissenting) (construing plaintiffs as also challenging “each majority-Black House and Senate District”). The principal dissent adds that the Conference waived its district-specific claims on appeal. Cf. post, at 8. But that is not so. When asked specifically about its position at oral argument, the Conference stated that it was relying on statewide evidence to prove its district-specific challenges. Tr. of Oral Arg. 15–16. Its counsel said that “the exact same policy was applied in every black-majority district,” id., at 15, and “[b]y statewide, we simply mean a common policy applied to every district in the State,” id., at 16. We accept the Conference’s clarification, which is consistent with how it presented these claims below. We consequently conclude that the District Court’s analysis of racial gerrymandering of the State “as a whole” was legally erroneous. We find that the appellants did not waive their right to consideration of their claims as applied to particular districts. Accordingly, we remand the cases. See Pullman-Standard v. Swint,456 U. S. 273,291 (1982) (remand is required when the District Court “failed to make a finding because of an erroneous view of the law”); Rapanos v. United States,547 U. S. 715,757 (2006) (same).III We next consider the District Court’s holding with respect to standing. The District Court, sua sponte, held that the Conference lacked standing—either to bring racial gerrymandering claims with respect to the four individual districts that the court specifically considered (i.e., Senate Districts 7, 11, 22, and 26) or to bring a racial gerrymandering claim with respect to the “State as a whole.” 989 F. Supp. 2d, at 1292. The District Court recognized that ordinarily“[a]n association has standing to bring suit on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires individuals members’ participation in the lawsuit.” Id., at 1291 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U. S. 167,181 (2000); emphasis added).It also recognized that a “member” of an association “would have standing to sue” in his or her “own right” when that member “resides in the district that he alleges was the product of a racial gerrymander.” 989 F. Supp. 2d, at 1291 (citing Hays, 515 U. S., at 744–745). But, the District Court nonetheless denied standing because it believed that the “record” did “not clearly identify the districts in which the individual members of the [Conference] reside,” and the Conference had “not proved that it has members who have standing to pursue any district-specific claims of racial gerrymandering.” 989 F. Supp. 2d, at 1292. The District Court conceded that Dr. Joe Reed, a representative of the Conference, testified that the Conference “has members in almost every county in Alabama.” Ibid. But, the District Court went on to say that “the counties in Alabama are split into many districts.” Ibid. And the “Conference offered no testimony or evidence that it has members in all of the districts in Alabama or in any of the [four] specific districts that it challenged.” Ibid. The record, however, lacks adequate support for the District Court’s conclusion. Dr. Reed’s testimony supports, and nothing in that record undermines, the Conference’s own statement, in its post-trial brief, that it is a “statewide political caucus founded in 1960.” Conference Post-Trial Brief 3. It has the “purpose” of “endors[ing] candidates for political office who will be responsible to the needs of the blacks and other minorities and poor people.” Id., at 3–4. These two statements (the second of which the principal dissent ignores), taken together with Dr. Reed’s testimony, support an inference that the organization has members in all of the State’s majority-minority districts, other things being equal, which is sufficient to meet the Conference’s burden of establishing standing. That is to say, it seems highly likely that a “statewide” organization with members in “almost every county,” the purpose of which is to help “blacks and other minorities and poor people,” will have members in each majority-minority district. But cf. post, at 3–5 (Scalia, J., dissenting). At the very least, the common sense inference is strong enough to lead the Conference reasonably to believe that, in the absence of a state challenge or a court request for more detailed information, it need not provide additional information such as a specific membership list. We have found nothing in the record, nor has the State referred us to anything in the record, that suggests the contrary. Cf. App. 204–205, 208 (State arguing lack of standing, not because of inadequate member residency but because an association “lives” nowhere and that the Conference should join individual members). The most the State argued was that “[n]one of the individual [p]laintiffs [who brought the case with the Conference] claims to live in” Senate District 11, id., at 205 (emphasis added), but the Conference would likely not have understood that argument as a request that it provide a membership list. In fact, the Conference might have understood the argument as an indication that the State did not contest its membership in every district. To be sure, the District Court had an independent obligation to confirm its jurisdiction, even in the absence of a state challenge. See post, at 4–5 (Scalia, J., dissenting). But, in these circumstances, elementary principles of procedural fairness required that the District Court, rather than acting sua sponte, give the Conference an oppor-tunity to provide evidence of member residence. Cf. Warth v. Seldin,422 U. S. 490–502 (1975) (explaining that a court may “allow or [r]equire” a plaintiff to supplement the record to show standing and that “[i]f, after this opportu-nity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed” (emphasis added)). Moreover, we have no reason to believe that the Conference would have been unable to provide a list of members, at least with respect to the majority-minority districts, had it been asked. It has filed just such a list in this Court. See Affidavit of Joe L. Reed Pursuant to this Court’s Rule 32.3 (Lodging of Conference affidavit listing members residing in each majority-minority district in the State); see also Parents Involved in Community Schools v. Seattle School Dist. No. 1,551 U. S. 701,718 (2007) (accepting a lodged affidavit in similar circumstances). Thus, the District Court on remand should reconsider the Conference’s standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate.IV The District Court held in the alternative that the claims of racial gerrymandering must fail because “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts. 989 F. Supp. 2d, at 1293. In our view, however, the District Court did not properly calculate “predominance.” In particular, it judged race to lack “predominance” in part because it placed in the balance, among other nonracial factors, legislative efforts to create districts of approximately equal population. See, e.g., id., at 1305 (the “need to bring the neighboring districts into compliance with the requirement of one person, one vote served as the primary motivating factor for the changes to [Senate] District 22” (emphasis added)); id., at 1297 (the “constitutional requirement of one person, one vote trumped every other districting principle”); id., at 1296 (the “record establishes that the drafters of the new districts, above all, had to correct [for] severe malapportionment . . .”); id., at 1306 (the “inclusion of additional precincts [in Senate District 26] is a reasonable response to the underpopulation of the District”). In our view, however, an equal population goal is not one factor among others to be weighed against the use of race to determine whether race “predominates.” Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met. To understand this conclusion, recall what “predominance” is about: A plaintiff pursuing a racial gerrymandering claim must show that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller, 515 U. S., at 916. To do so, the “plaintiff must prove that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Ibid. (emphasis added). Now consider the nature of those offsetting “traditional race-neutral districting principles.” We have listed several, including “compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests,” ibid., incumbency protection, and political affiliation, Vera, 517 U. S., at 964, 968 (principal opinion). But we have not listed equal population objectives. And there is a reason for that omission. The reason that equal population objectives do not appear on this list of “traditional” criteria is that equal population objectives play a different role in a State’s redistricting process. That role is not a minor one. Indeed, in light of the Constitution’s demands, that role may often prove “predominant” in the ordinary sense of that word. But, as the United States points out, “predominance” in the context of a racial gerrymandering claim is special. It is not about whether a legislature believes that the need for equal population takes ultimate priority. Rather, it is, as we said, whether the legislature “placed” race “above traditional districting considerations in determining which persons were placed in appropriately apportioned districts.” Brief for United States as Amicus Curiae 19 (some emphasis added). In other words, if the legislature must place 1,000 or so additional voters in a particular district in order to achieve an equal population goal, the “predominance” question concerns which voters the legislature decides to choose, and specifically whether the legislature predominately uses race as opposed to other, “traditional” factors when doing so. Consequently, we agree with the United States that the requirement that districts have approximately equal populations is a background rule against which redistricting takes place. Id., at 12. It is not a factor to be treated like other nonracial factors when a court determines whether race predominated over other, “traditional” factors in the drawing of district boundaries. Had the District Court not taken a contrary view of the law, its “predominance” conclusions, including those concerning the four districts that the Conference specifically challenged, might well have been different. For example, once the legislature’s “equal population” objectives are put to the side—i.e., seen as a background principle—then there is strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26, the one district that the parties have discussed here in depth. The legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible. See supra, at 9–10 (compiling extensive record testimony in support of this point). There is considerable evidence that this goal had a direct and significant impact on the drawing of at least some of District 26’s boundaries. See 3 Tr. 175–180 (testimony of Hinaman); Appendix C, infra (change of district’s shape from rectangular to irregular). Of the 15,785 individuals that the new redistricting laws added to the population of District 26, just 36 were white—a remarkable feat given the local demographics. See, e.g., 2 Tr. 127–128 (testimony of Senator Quinton Ross); 3 Tr. 179 (testimony of Hinaman). Transgressing their own redistricting guidelines, Committee Guidelines 3–4, the drafters split seven precincts between the majority-black District 26 and the majority-white District 25,with the population in those precincts clearly divided on racial lines. See Exh. V in Support of Newton Plaintiffs’ Opposition to Summary Judgment in No. 12–cv–691, Doc. 140–1, pp. 91–95. And the District Court conceded that race “was a factor in the drawing of District 26,” and that the legislature “preserved” “the percentage of the population that was black.” 989 F. Supp. 2d, at 1306. We recognize that the District Court also found, with respect to District 26, that “preservi[ng] the core of the existing [d]istrict,” following “county lines,” and following “highway lines” played an important boundary-drawing role. Ibid. But the first of these (core preservation) is not directly relevant to the origin of the new district inhabitants; the second (county lines) seems of marginal importance since virtually all Senate District 26 boundaries departed from county lines; and the third (highways) was not mentioned in the legislative redistricting guidelines. Cf. Committee Guidelines 3–5. All this is to say that, with respect to District 26 and likely others as well, had the District Court treated equal population goals as background factors, it might have concluded that race was the predominant boundary-drawing consideration. Thus, on remand, the District Court should reconsider its “no predominance” conclusions with respect to Senate District 26 and others to which our analysis is applicable. Finally, we note that our discussion in this section is limited to correcting the District Court’s misapplication of the “predominance” test for strict scrutiny discussed in Miller, 515 U. S., at 916. It does not express a view on the question of whether the intentional use of race in redistricting, even in the absence of proof that traditional districting principles were subordinated to race, triggers strict scrutiny. See Vera, 517 U. S., at 996 (Kennedy, J., concurring).V The District Court, in a yet further alternative holding, found that “[e]ven if the [State] subordinated traditional districting principles to racial considerations,” the racial gerrymandering claims failed because, in any event, “the Districts would satisfy strict scrutiny.” 989 F. Supp. 2d, at 1306. In the District Court’s view, the “Acts are narrowly tailored to comply with Section 5” of the Voting Rights Act. Id., at 1311. That provision “required the Legislature to maintain, where feasible, the existing number of majority-black districts and not substantially reduce the relative percentages of black voters in those districts.” Ibid. (emphasis added). And, insofar as the State’s redistricting embodied racial considerations, it did so in order to meet this §5 requirement. In our view, however, this alternative holding rests upon a misperception of the law. Section 5, which covered particular States and certain other jurisdictions, does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. That is precisely what the language of the statute says. It prohibits a covered jurisdiction from adopting any change that “has the purpose of or will have the effect of diminishing the ability of [the minority group] to elect their preferred candidates of choice.”52 U. S. C. §10304(b); see also §10304(d) (the “purpose of subsection (b) . . . is to protect the ability of such citizens to elect their preferred candidates of choice”). That is also just what Department of Justice Guidelines say. The Guidelines state specifically that the Department’s preclearance determinations are not based“on any predetermined or fixed demographic percentages. . . . Rather, in the Department’s view, this determination requires a functional analysis of the electoral behavior within the particular jurisdiction or election district. . . . [C]ensus data alone may not provide sufficient indicia of electoral behavior to make the requisite determination.” Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011).Consistent with this view, the United States tells us that “Section 5” does not “requir[e] the State to maintain the same percentage of black voters in each of the majority-black districts as had existed in the prior districting plans.” Brief for United States as Amicus Curiae 22. Rather, it “prohibits only those diminutions of a minority group’s proportionate strength that strip the group within a district of its existing ability to elect its candidates of choice.” Id., at 22–23. We agree. Section 5 does not require maintaining the same population percentages in majority-minority districts as in the prior plan. Rather, §5 is satisfied if minority voters retain the ability to elect their preferred candidates. The history of §5 further supports this view. In adopting the statutory language to which we referred above, Congress rejected this Court’s decision in Georgia v. Ashcroft,539 U. S. 461,480 (2003) (holding that it is not nec-essarily retrogressive for a State to replace safe majority-minority districts with crossover or influence districts), and it adopted the views of the dissent. H. R. Rep. No. 109–478, pp. 68–69, and n. 183 (2006). While the thrust of Justice Souter’s dissent was that, in a §5 retrogression case, courts should ask whether a new voting provision would likely deprive minority voters of their ability to elect a candidate of their choice—language that Congress adopted in revising §5—his dissent also made clear that courts should not mechanically rely upon numerical percentages but should take account of all significant circumstances. Georgia v. Ashcroft, supra, at 493, 498, 505, 509. And while the revised language of §5 may raise some interpretive questions—e.g., its application to coalition, crossover, and influence districts—it is clear that Congress did not mandate that a 1% reduction in a 70% black population district would be necessarily retrogressive. See Persily, The Promises and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 218 (2007). Indeed, Alabama’s mechanical interpretation of §5 can raise serious constitutional concerns. See Miller, supra, at 926. The record makes clear that both the District Court and the legislature relied heavily upon a mechanically numerical view as to what counts as forbidden retrogression. See Appendix B, infra. And the difference between that view and the more purpose-oriented view reflected in the statute’s language can matter. Imagine a majority-minority district with a 70% black population. Assume also that voting in that district, like that in the State itself, is racially polarized. And assume that the district has long elected to office black voters’ preferred candidate. Other things being equal, it would seem highly unlikely that a redistricting plan that, while increasing the numerical size of the district, reduced the percentage of the black population from, say, 70% to 65% would have a significant impact on the black voters’ ability to elect their preferred candidate. And, for that reason, it would be difficult to explain just why a plan that uses racial criteria predominately to maintain the black population at 70% is “narrowly tailored” to achieve a “compelling state interest,” namely the interest in preventing §5 retrogression. The cir-cumstances of this hypothetical example, we add, areclose to those characterizing Senate District 26, as set forth in the District Court’s opinion and throughout the record. See, e.g., 1 Tr. 131–132 (testimony of Dial); 3 Tr. 180 (testimony of Hinaman). In saying this, we do not insist that a legislature guess precisely what percentage reduction a court or the Justice Department might eventually find to be retrogressive. The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands. The standards of §5 are complex; they often require evaluation of controverted claims about voting behavior; the evidence may be unclear; and, with respect to any particular district, judges may disagree about the proper outcome. The law cannot lay a trap for an unwary legislature, condemning its redistricting plan as either (1) unconstitutional racial gerrymandering should the legislature place a few too many minority voters in a district or (2) retrogressive under §5 should the legislature place a few too few. See Vera, 517 U. S., at 977 (principal opinion). Thus, we agree with the United States that a court’s analysis of the narrow tailoring requirement insists only that the legislature have a “strong basis in evidence” in support of the (race-based) choice that it has made. Brief for United States as Amicus Curiae 29 (citing Ricci v. DeStefano,557 U. S. 557,585 (2009)). This standard, as the United States points out, “does not demand that a State’s actions actually be necessary to achieve a compelling state interest in order to be constitutionally valid.” Brief for United States as Amicus Curiae 29. And legislators “may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.” Ibid. (emphasis added). Here the District Court enunciated a narrow tailoring standard close to the one we have just mentioned. It said that a plan is “narrowly tailored . . . when the race-based action taken was reasonably necessary” to achieve a compelling interest. 989 F. Supp. 2d, at 1307 (emphasis added). And it held that preventing retrogression is a compel-ling interest. Id., at 1306–1307. While we do not here decide whether, given Shelby County v. Holder, 570 U. S. ___ (2013), continued compliance with §5 remains a compelling interest, we conclude that the District Court and the legislature asked the wrong question with respect to narrow tailoring. They asked: “How can we maintain present minority percentages in majority-minority districts?” But given §5’s language, its purpose, the Justice Department Guidelines, and the relevant precedent, they should have asked: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Asking the wrong question may well have led to the wrong answer. Hence, we cannot accept the District Court’s “compelling interest/narrow tailoring” conclusion.* * * For these reasons, the judgment of the District Court is vacated. We note that appellants have also raised additional questions in their jurisdictional statements, relating to their one-person, one-vote claims (Caucus) and vote dilution claims (Conference), which were also rejected by the District Court. We do not pass upon these claims. The District Court remains free to reconsider the claims should it find reconsideration appropriate. And the parties are free to raise them, including as modified by the District Court, on any further appeal. The cases are remanded for further proceedings consistent with this opinion.It is so ordered.AppendixesA* Senate District 26 excluded from this listBState’s Use of Incorrect Retrogression StandardThe following citations reflect instances in either the District Court opinion or in the record showing that the State believed that §5 forbids, not just substantial reductions, but any reduction in the percentage of black inhabitants of a majority-minority district.C

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 . SUPREME COURT OF THE UNITED STATES Syllabus FONT alabama legislative black caucus FONT et al. v. FONT alabama FONT et al. appeal from the united states district court for the middle district of alabama No. 13–895. Argued November 12, 2014—Decided March 25, 2015[1] In 2012 Alabama redrew the boundaries of the State’s 105 House districts and 35 Senate districts. In doing so, while Alabama sought to achieve numerous traditional districting objectives—e.g., compactness, not splitting counties or precincts, minimizing change, and protecting incumbents—it placed yet greater importance on two goals: (1) minimizing a district’s deviation from precisely equal population, by keeping any deviation less than 1% of the theoretical ideal; and (2) seeking to avoid retrogression with respect to racial minorities’ “ability to elect their preferred candidates of choice” under §5 of the Voting Rights Act of 1965, 52 U. S. C. §10304(b), by maintaining roughly the same black population percentage in existing majority-minority districts. Appellants—Alabama Legislative Black Caucus (Caucus), Alabama Democratic Conference (Conference), and others—claim that Alabama’s new district boundaries create a “racial gerrymander” in violation of the Fourteenth Amendment’s Equal Protection Clause. After a bench trial, the three-judge District Court ruled (2 to 1) for the State. It recognized that electoral districting violates the Equal Protection Clause when race is the “predominant” consideration in deciding “to place a significant number of voters within or without a particular district,” Miller v. Johnson, 515 U. S. 900 , and the use of race is not “narrowly tailored to serve a compelling state interest,” Shaw v. Hunt, 517 U. S. 899 (Shaw II). In ruling against appellants, it made four critical determinations: (1) that both appellants had argued “that the Acts as a whole constitute racial gerrymanders,” and that the Conference had also argued that the State had racially gerrymandered Senate Districts 7, 11, 22, and 26; (2) that the Conference lacked standing to make its racial gerrymandering claims; (3) that, in any event, appellants’ claims must fail because race “was not the predominant motivating factor” in making the redistricting decisions; and (4) that, even were it wrong about standing and predominance, these claims must fail because any predominant use of race was “narrowly tailored” to serve a “compelling state interest” in avoiding retrogression under §5. Held: 1. The District Court’s analysis of the racial gerrymandering claim as referring to the State “as a whole,” rather than district-by-district, was legally erroneous. . (a) This Court has consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts, see, e.g., Shaw v. Reno, 509 U. S. 630 (Shaw I), and has described the plaintiff’s evidentiary burden similarly, see Miller, supra, at 916. The Court’s district-specific language makes sense in light of the personal nature of the harms that underlie a racial gerrymandering claim, see Bush v. Vera, 517 U. S. 952 ; Shaw I, supra, at 648. . (b) The District Court found the fact that racial criteria had not predominated in the drawing of some Alabama districts sufficient to defeat a claim of racial gerrymandering with respect to the State as an undifferentiated whole. But a showing that race-based criteria did not significantly affect the drawing of some Alabama districts would have done little to defeat a claim that race-based criteria predominantly affected the drawing of other Alabama districts. Thus, the District Court’s undifferentiated statewide analysis is insufficient, and the District Court must on remand consider racial gerrymandering with respect to the individual districts challenged by appellants. . (c) The Caucus and the Conference did not waive the right to further consideration of a district-by-district analysis. The record indicates that plaintiffs’ evidence and arguments embody the claim that individual majority-minority districts were racially gerrymandered, and those are the districts that the District Court must reconsider. Although plaintiffs relied heavily upon statewide evidence to prove that race predominated in the drawing of individual district lines, neither the use of statewide evidence nor the effort to show widespread effect can transform a racial gerrymandering claim about a set of individual districts into a separate, general claim that the legislature racially gerrymandered the State “as” an undifferentiated “whole.” . 2. The District Court also erred in deciding, sua sponte, that the Conference lacked standing. It believed that the “record” did “not clearly identify the districts in which the individual members of the [Conference] reside.” But the Conference’s post-trial brief and the testimony of a Conference representative support an inference that the organization has members in all of the majority-minority districts, which is sufficient to meet the Conference’s burden of establishing standing. At the very least, the Conference reasonably believed that, in the absence of a state challenge or a court request for more detailed information, it need not provide additional information such as a specific membership list. While the District Court had an independent obligation to confirm its jurisdiction, in these circumstances elementary principles of procedural fairness required the District Court, rather than acting sua sponte, to give the Conference an opportunity to provide evidence of member residence. On remand, the District Court should permit the Conference to file its membership list and the State to respond, as appropriate. . 3. The District Court also did not properly calculate “predominance” in its alternative holding that “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts. It reached its conclusion in part because it placed in the balance, among other nonracial factors, legislative efforts to create districts of approximately equal population. An equal population goal, however, is not one of the “traditional” factors to be weighed against the use of race to determine whether race “predominates,” see Miller, supra, at 916. Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met. Had the District Court not taken a contrary view of the law, its “predominance” conclusions, including those concerning the four districts that the Conference specifically challenged, might well have been different. For example, there is strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26. . 4. The District Court’s final alternative holding—that “the [challenged] Districts would satisfy strict scrutiny”—rests upon a misperception of the law. Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. . (a) The statute’s language, 52 U. S. C. §§10304(b), (d), and Department of Justice Guidelines make clear that §5 is satisfied if minority voters retain the ability to elect their preferred candidates. The history of §5 further supports this view, as Congress adopted the language in §5 to reject this Court’s decision in Georgia v. Ashcroft, 539 U. S. 461 , and to accept the views of Justice Souter’s dissent—that, in a §5 retrogression case, courts should ask whether a new voting provision would likely deprive minority voters of their ability to elect a candidate of their choice, and that courts should not mechanically rely upon numerical percentages but should take account of all significant circumstances, id., at 493, 498, 505, 509. Here, both the District Court and the legislature relied heavily upon a mechanically numerical view as to what counts as forbidden retrogression. . (b) In saying this, this Court does not insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands. A court’s analysis of the narrow tailoring requirement insists only that the legislature have a “strong basis in evidence” in support of the (race-based) choice that it has made. Brief for United States as Amicus Curiae 29. Here, however, the District Court and the legislature both asked the wrong question with respect to narrow tailoring. They asked how to maintain the present minority percentages in majority-minority districts, instead of asking the extent to which they must preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice. Because asking the wrong question may well have led to the wrong answer, the Court cannot accept the District Court’s conclusion. . 989 F. Supp. 2d 1227, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion. Notes 1 Together with No. 13–1138, Alabama Democratic Conference et al. v. Alabama et al., also on appeal from the same court.

In 2012 Alabama redrew the boundaries of the State's 105 House and 35 Senate districts, and in doing so, sought to achieve numerous traditional districting objectives, such as compactness, not splitting counties or precincts, minimizing change, and protecting incumbents. But it also sought to ensure compliance with federal law and, in particular, the Voting Rights Act of 1965, by requiring Alabama to demonstrate that an electoral change such as redistricting would not bring about retrogression in respect to racial minorities' ability to elect their preferred candidates of choice. Specifically, Alabama believed that, to avoid such a change, it was required to maintain roughly the same black population percentage in existing majority-minority districts. However, compliance with these two goals posed particular difficulties with respect to many of the districts, particularly those in the minority districts, which were (compared with the average district) underpopulated. Accordingly, Alabama added about 16,000 individuals to the district, and, accordingly, 72.75% of District 26 was black. The plan added 15,785 new individ-uals, and only 36 of those newly added individuals were white. After trial, the District Court held (2 to 1) that the Caucus and the Conference had failed to prove their racial gerrymandering claims, and the Court recognized that electoral districting violates the Equal Protection Clause when (1) race is the dominant and controlling factor in deciding to place a significant number of voters in a district on the basis of race, and (2) the use of race is not narrowly tailored to serve a compelling state interest. Held: The District Court applied incorrect legal standards in evaluating appellants' claims. . (a) Each of these determinations reflects an error about relevant law. And each error likely affected the district court's conclusions. P.. (b) In the light of this opinion, all parties remain free to introduce such further evidence as the district courts shall reasonably find appropriate. See, e.g., Shaw v. Hunt,517 U. S. 899-908 (Shaw II). . (c) The record as a whole shows that appellants brought, and their argument rested significantly upon, district-specific claims, viz., the claim that racial criteria had not predominated in the drawing of some Alabama districts and that race was not the predominant motivating factor. The fact that race did not predominate in the draw of some districts sufficient to defeat what the court saw as the basic claim before it, namely a claim of racial gerrymandered with respect to the State as an undifferentiated whole. Although equal population objectives play a different role in a State's redistricting process than are listed on the list of traditional criteria, the record does not support the conclusion that such objectives play only a part of the redistricting background, taken as a given, when determining whether race, or other factors, predicate in a legislator's determination as to how equal population objectives will be met. Moreover, the history of §5 further supports the view that, in order to satisfy the requirement, the legislature must place 1,000 or so additional voters in each district, not substantially reduce the relative percentages of black voters in those districts. Thus, the court erred in not giving the Conference an oppor-tunity to provide evidence of member residence, since, for four specifically mentioned districts, it did not appear that there were in effect no such districts; moreover, the Conference was unable to file a list of members, since it was not asked to do so after it had been asked, and since no other plaintiff filed a complaint with the court. Appellants have also raised additional questions in their jurisdictional statements relating to their one-person, one-vote claims (Caucus) and vote dilution claims (Conference), which were also rejected by the court, and are free to reconsider their claims on any further appeal. 897 F. Supp. 2d 1227, vacated and remanded. 8989 F Supp. 1d 1287 (CA 3, 515 U.S. ___ (Jurisdiction), vacated. Reported below: (Emphasis added). (Appeal dismissed) (Reversed.) (JUSTICE dismissed) (Order vacated) (Appellants filed a separate statement, post, at 1292). JUSTICE O'CONNOR, J., filed a concurring opinion, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and concurring in the judgment. REHNQUIST, C.J., filed an opinion concurring with the judgment, post p..

2014_13-1314

https://www.oyez.org/cases/2014/13-1314

. This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.[1] “[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.” Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion); id., at 316 (Kennedy, J., concurring in judgment). Even so, the Court in Vieth did not grant relief on the plaintiffs’ partisan gerrymander claim. The plurality held the matter nonjusticiable. Id., at 281. Justice Kennedy found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation. Id., at 317. In 2000, Arizona voters adopted an initiative, Proposition 106, aimed at “ending the practice of gerrymandering and improving voter and candidate participation in elections.” App. 50. Proposition 106 amended Arizona’s Constitution to remove redistricting authority from the Ari-zona Legislature and vest that authority in an independent commission, the Arizona Independent Redistricting Commission (AIRC or Commission). After the 2010 census,as after the 2000 census, the AIRC adopted redistrict-ing maps for congressional as well as state legislative districts. The Arizona Legislature challenged the map the Commission adopted in January 2012 for congressional districts. Recognizing that the voters could control redistricting for state legislators, Brief for Appellant 42, 47; Tr. of Oral Arg. 3–4, the Arizona Legislature sued the AIRC in federal court seeking a declaration that the Commission and its map for congressional districts violated the “Elections Clause” of the U. S. Constitution. That Clause, critical to the resolution of this case, provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Art. I, §4, cl. 1. The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people,” App. 21, ¶37; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves. A three-judge District Court held, unanimously, that the Arizona Legislature had standing to sue; dividing two to one, the Court rejected the Legislature’s complaint on the merits. We postponed jurisdiction and instructed the parties to address two questions: (1) Does the Arizona Legislature have standing to bring this suit? (2) Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts? 573 U. S. ___ (2014). We now affirm the District Court’s judgment. We hold, first, that the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of Proposition 106. Next, we hold that lawmaking power in Arizona includes the initiative proc-ess, and that both §2a(c) and the Elections Clause permit use of the AIRC in congressional districting in the same way the Commission is used in districting for Arizona’s own Legislature. I A Direct lawmaking by the people was “virtually unknown when the Constitution of 1787 was drafted.” Donovan & Bowler, An Overview of Direct Democracy in the American States, in Citizens as Legislators 1 (S. Bowler, T. Don-ovan, & C. Tolbert eds. 1998). There were obvious pre-cursors or analogues to the direct lawmaking operative today in several States, notably, New England’s town hall meetings and the submission of early state constitutions to the people for ratification. See Lowell, The Referendum in the United States, in The Initiative, Referendum and Recall 126, 127 (W. Munro ed. 1912) (hereinafter IRR); W. Dodd, The Revision and Amendment of State Constitutions 64–67 (1910).[2] But it was not until the turn of the 20th century, as part of the Progressive agenda of the era, that direct lawmaking by the electorate gained a foothold, largely in Western States. See generally Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich L. & Pol’y Rev. 11 (1997). The two main “agencies of direct legislation” are the initiative and the referendum. Munro, Introductory, in IRR 8. The initiative operates entirely outside the States’ representative assemblies; it allows “voters [to] petition to propose statutes or constitutional amendments to be adopted or rejected by the voters at the polls.” D. Magleby, Direct Legislation 1 (1984). While the initiative allowsthe electorate to adopt positive legislation, the referendum serves as a negative check. It allows “voters [to] petition to refer a legislative action to the voters [for approval or disapproval] at the polls.” Ibid. “The initiative [thus] corrects sins of omission” by representative bodies, while the “referendum corrects sins of commission.” Johnson, Direct Legislation as an Ally of Representative Government, in IRR 139, 142. In 1898, South Dakota took the pathmarking step of affirming in its Constitution the people’s power “directly [to] control the making of all ordinary laws” by initiative and referendum. Introductory, id., at 9. In 1902, Oregon became the first State to adopt the initiative as a means, not only to enact ordinary laws, but also to amend the State’s Constitution. J. Dinan, The American State Constitutional Tradition 62 (2006). By 1920, the people in 19 States had reserved for themselves the power to initiate ordinary lawmaking, and, in 13 States, the power to initiate amendments to the State’s Constitution. Id., at 62, and n. 132, 94, and n. 151. Those numbers increased to 21 and 18, respectively, by the close of the 20th century. Ibid.[3] B For the delegates to Arizona’s constitutional convention, direct lawmaking was a “principal issu[e].” J. Leshy, The Arizona State Constitution 8–9 (2d ed. 2013) (hereinafter Leshy). By a margin of more than three to one, the people of Arizona ratified the State’s Constitution, which included, among lawmaking means, initiative and referendum pro-visions. Id., at 14–16, 22. In the runup to Arizona’s admission to the Union in 1912, those provisions generated no controversy. Id., at 22. In particular, the Arizona Constitution “establishes the electorate [of Arizona] as a coordinate source of legislation” on equal footing with the representative legislative body. Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Supervisors, 108 Ariz. 449, 451, 501 P. 2d 391, 393 (1972); Cave Creek Unified School Dist. v. Ducey, 233 Ariz. 1, 4, 308 P. 3d 1152, 1155 (2013) (“The legislature and electorate share lawmaking power under Arizona’s system of government.” (internal quotation marks omitted)). The initiative, housed under the article of the Arizona Constitution concerning the “Legislative Department” and the section defining the State’s “legislative authority,” reserves for the people “the power to propose laws and amendments to the constitution.” Art. IV, pt. 1, §1. The Arizona Constitution further states that “[a]ny law which may be enacted by the Legislature under this Constitution may be enacted by the people under the Initiative.” Art. XXII, §14. Accordingly, “[g]eneral references to the power of the ‘legislature’ ” in the Arizona Constitution “include the people’s right (specified in Article IV, part 1) to bypass their elected representatives and make laws directly through the initiative.” Leshy xxii. C Proposition 106, vesting redistricting authority in the AIRC, was adopted by citizen initiative in 2000 against a “background of recurring redistricting turmoil” in Arizona. Cain, Redistricting Commissions: A Better Political Buf-fer? 121 Yale L. J. 1808, 1831 (2012). Redistricting plans adopted by the Arizona Legislature sparked controversy in every redistricting cycle since the 1970’s, and several of those plans were rejected by a federal court or refused preclearance by the Department of Justice under the Voting Rights Act of 1965. See id., at 1830–1832.[4] Aimed at “ending the practice of gerrymandering and improving voter and candidate participation in elections,” App. 50, Proposition 106 amended the Arizona Constitution to remove congressional redistricting authority from the state legislature, lodging that authority, instead, in a new entity, the AIRC. Ariz. Const., Art. IV, pt. 2, §1, ¶¶3–23. The AIRC convenes after each census, establishes final district boundaries, and certifies the new districts to the Arizona Secretary of State. ¶¶16–17. The legislature may submit nonbinding recommendations to the AIRC, ¶16, and is required to make necessary appropriations for its operation, ¶18. The highest ranking officer and minority leader of each chamber of the legislature each select one member of the AIRC from a list compiled by Arizona’s Commission on Appellate Court Appointments. ¶¶4–7. The four appointed members of the AIRC then choose, from the same list, the fifth member, who chairs the Commission. ¶8. A Commission’s tenure is confined to one redistricting cycle; each member’s time in office “expire[s] upon the appointment of the first member of the next redistricting commission.” ¶23. Holders of, or candidates for, public office may not serve on the AIRC, except candidates for or members of a school board. ¶3. No more than two members of the Commission may be members of the same political party, ibid., and the presiding fifth member cannot be registered with any party already represented on the Commission, ¶8. Subject to the concurrence of two-thirds of the Arizona Senate, AIRC members may be removed by the Arizona Governor for gross misconduct, substantial neglect of duty, or inability to discharge the duties of office. ¶10.[5] Several other States, as a means to curtail partisan gerrymandering, have also provided for the participation of commissions in redistricting. Some States, in common with Arizona, have given nonpartisan or bipartisan commissions binding authority over redistricting.[6] The California Redistricting Commission, established by popular initiative, develops redistricting plans which become effective if approved by public referendum.[7] Still other States have given commissions an auxiliary role, advising the legislatures on redistricting,[8] or serving as a “backup” in the event the State’s representative body fails to complete redistricting.[9] Studies report that nonpartisan and bipartisan commissions generally draw their maps in a timely fashion and create districts both more competitive and more likely to survive legal challenge. See Miller & Grofman, Redistricting Commissions in the Western United States, 3 U. C. Irvine L. Rev. 637, 661, 663–664, 666 (2013). D On January 17, 2012, the AIRC approved final congressional and state legislative maps based on the 2010 census. See Arizona Independent Redistricting, Final Maps, http://azredistricting.org/Maps/Final-Maps/default.asp (all Internet materials as visited June 25, 2015, and included in Clerk of Court’s case file). Less than four months later, on June 6, 2012, the Arizona Legislature filed suit in the United States District Court for the District of Arizona, naming as defendants the AIRC, its five members, and the Arizona Secretary of State. The Legislature sought both a declaration that Proposition 106 and congressional maps adopted by the AIRC are unconstitutional, and, as affirmative relief, an injunction against use of AIRC maps for any congressional election after the 2012 general election. A three-judge District Court, convened pursuant to 28 U. S. C. §2284(a), unanimously denied a motion by the AIRC to dismiss the suit for lack of standing. The Arizona Legislature, the court determined, had “demonstrated that its loss of redistricting power constitute[d] a [sufficiently] concrete injury.” 997 F. Supp. 2d 1047, 1050 (2014). On the merits, dividing two to one, the District Court granted the AIRC’s motion to dismiss the complaint for failure to state a claim. Decisions of this Court, the majority concluded, “demonstrate that the word ‘Legislature’ in the Elections Clause refers to the legislative process used in [a] state, determined by that state’s own constitution and laws.” Id., at 1054. As the “lawmaking power” in Arizona “plainly includes the power to enact laws through initiative,” the District Court held, the “Elections Clause permits [Arizona’s] establishment and use” of the Commission. Id., at 1056. Judge Rosenblatt dissented in part. Proposition 106, in his view, unconstitutionally denied “the Legislature” of Arizona the “ability to have any outcome-defining effect on the congressional redistricting process.” Id., at 1058. We postponed jurisdiction, and now affirm. II We turn first to the threshold question: Does the Ari-zona Legislature have standing to bring this suit? Trained on “whether the plaintiff is [a] proper party to bring [a particular lawsuit,]” standing is “[o]ne element” of the Constitution’s case-or-controversy limitation on federal judicial authority, expressed in Article III of the Constitution. Raines v. Byrd, 521 U. S. 811, 818 (1997) . “To qual-ify as a party with standing to litigate,” the Arizona Legislature “must show, first and foremost,” injury in the form of “ ‘invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent.’ ” Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) ). The Legislature’s injury also must be “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 10) (internal quotation marks omitted). The Arizona Legislature maintains that the Elections Clause vests in it “primary responsibility” for redistricting. Brief for Appellant 51, 53. To exercise that responsibility, the Legislature urges, it must have at least the opportun-ity to engage (or decline to engage) in redistricting before the State may involve other actors in the redistricting process. See id., at 51–53. Proposition 106, which gives the AIRC binding authority over redistricting, regardless of the Legislature’s action or inaction, strips the Legislature of its alleged prerogative to initiate redistricting. That asserted deprivation would be remedied by a court order enjoining the enforcement of Proposition 106. Al-though we conclude that the Arizona Legislature does not have the exclusive, constitutionally guarded role it asserts, see infra, at 24–35, one must not “confus[e] weakness on the merits with absence of Article III standing.” Davis v. United States, 564 U. S. ___, ___, n. 10 (2011) (slip op., at 19, n. 10); see Warth v. Seldin, 422 U. S. 490, 500 (1975) (standing “often turns on the nature and source of the claim asserted,” but it “in no way depends on the merits” of the claim). The AIRC argues that the Legislature’s alleged injury is insufficiently concrete to meet the standing requirement absent some “specific legislative act that would have taken effect but for Proposition 106.” Brief for Appellees 20. The United States, as amicus curiae, urges that even more is needed: the Legislature’s injury will remain speculative, the United States contends, unless and until the Arizona Secretary of State refuses to implement a competing redistricting plan passed by the Legislature. Brief for United States 14–17. In our view, the Arizona Legislature’s suit is not premature, nor is its alleged injury too “conjectural” or “hypothetical” to establish standing. Defenders of Wildlife, 504 U. S., at 560 (internal quotation marks omitted). Two prescriptions of Arizona’s Constitution would render the Legislature’s passage of a competing plan and submission of that plan to the Secretary of State unavailing. Indeed, those actions would directly and immediately conflict with the regime Arizona’s Constitution establishes. Cf. Sporhase v. Nebraska ex rel. Douglas, 458 U. S.941, 944, n. 2 (1982) (failure to apply for permit which “would not have been granted” under existing law did not deprive plaintiffs of standing to challenge permitting regime). First, the Arizona Constitution instructs that the Legislature “shall not have the power to adopt any measure that supersedes [an initiative], in whole or in part, . . . unless the superseding measure furthers the purposes” of the initiative. Art. IV, pt. 1, §1(14). Any redistricting map passed by the Legislature in an effort to supersede the AIRC’s map surely would not “furthe[r] the purposes” of Proposition 106. Second, once the AIRC certifies its redistricting plan to the Secretary of State, Arizona’s Constitution requires the Secretary to implement that plan and no other. See Art. IV, pt. 2, §1(17); Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Comm’n, 211 Ariz. 337, 351, 121 P. 3d 843, 857 (App. 2005) (per curiam) (“Once the Commission certifies [its] maps, the secretary of state must use them in conducting the next election.”). To establish standing, the Legislature need not violate the Arizona Constitution and show that the Secretary of State would similarly disregard the State’s fundamental instrument of government. Raines v. Byrd, 521 U. S. 811 (1997) , does not aid AIRC’s argument that there is no standing here. In Raines, this Court held that six individual Members of Congress lacked standing to challenge the Line Item Veto Act. Id., at 813–814, 829–830 (holding specifically and only that “individual members of Congress [lack] Article III standing”). The Act, which gave the President author-ity to cancel certain spending and tax benefit measures after signing them into law, allegedly diluted the efficacy of the Congressmembers’ votes. Id., at 815–817. The “institutional injury” at issue, we reasoned, scarcely zeroed in on any individual Member. Id., at 821. “[W]idely dispersed,” the alleged injury “necessarily [impacted] all Members of Congress and both Houses . . . equally.” Id., at 829, 821. None of the plaintiffs, therefore, could tenably claim a “personal stake” in the suit. Id., at 830. In concluding that the individual Members lacked standing, the Court “attach[ed] some importance to the fact that [the Raines plaintiffs had] not been authorized to represent their respective Houses of Congress.” Id., at 829. “[I]ndeed,” the Court observed, “both houses actively oppose[d] their suit.” Ibid. Having failed to prevail in their own Houses, the suitors could not repair to the Judiciary to complain. The Arizona Legislature, in contrast, is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers, App. 26–27, 46. That “different . . . circumstanc[e],” 521 U. S., at 830, was not sub judice in Raines.[10] Closer to the mark is this Court’s decision in Coleman v. Miller, 307 U. S. 433 (1939) . There, plaintiffs were 20 (of 40) Kansas State Senators, whose votes “would have been sufficient to defeat [a] resolution ratifying [a] proposed [federal] constitutional amendment.” Id., at 446.[11] We held they had standing to challenge, as impermissible under Article V of the Federal Constitution, the State Lieutenant Governor’s tie-breaking vote for the amendment. Ibid. Coleman, as we later explained in Raines, stood “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U. S., at 823.[12] Our conclusion that the Arizona Legislature has standing fits that bill. Proposition 106, to-gether with the Arizona Constitution’s ban on efforts to un-dermine the purposes of an initiative, see supra, at 11, would “completely nullif[y]” any vote by the Legislature, now or “in the future,” purporting to adopt a redistricting plan. Raines, 521 U. S., at 823–824.[13] This dispute, in short, “will be resolved . . . in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) .[14] Accordingly, we proceed to the merits.[15] III On the merits, we instructed the parties to address this question: Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts? The Elections Clause is set out at the start of this opinion, supra, at 2. Section 2a(c) provides: “Until a State is redistricted in the manner pro-vided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: [setting out five federally prescribed redistricting procedures].” Before focusing directly on the statute and constitutional prescriptions in point, we summarize this Court’s precedent relating to appropriate state decisionmakers for redistricting purposes. Three decisions compose the relevant case law: Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916) ; Hawke v. Smith (No. 1), 253 U. S. 221 (1920) ; and Smiley v. Holm, 285 U. S. 355 (1932) . A Davis v. Hildebrant involved an amendment to the Constitution of Ohio vesting in the people the right, exercisable by referendum, to approve or disapprove by popular vote any law enacted by the State’s legislature. A 1915 Act redistricting the State for the purpose of congressional elections had been submitted to a popular vote, resulting in disapproval of the legislature’s measure. State election officials asked the State’s Supreme Court to declare the referendum void. That court rejected the request, holding that the referendum authorized by Ohio’s Constitution, “was a part of the legislative power of the State,” and “nothing in [federal statutory law] or in [the Elections Clause] operated to the contrary.” 241 U. S., at 567. This Court affirmed the Ohio Supreme Court’s judgment. In upholding the state court’s decision, we recognized that the referendum was “part of the legislative power” in Ohio, ibid., legitimately exercised by the people to disapprove the legislation creating congressional districts. For redistricting purposes, Hildebrant thus established, “the Leg-islature” did not mean the representative body alone. Rather, the word encompassed a veto power lodged in the people. See id., at 569 (Elections Clause does not bar “treating the referendum as part of the legislative power for the purpose of apportionment, where so ordained by the state constitutions and laws”). Hawke v. Smith involved the Eighteenth Amendment to the Federal Constitution. Ohio’s Legislature had ratified the Amendment, and a referendum on that ratification was at issue. Reversing the Ohio Supreme Court’s decision upholding the referendum, we held that “ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word.” 253 U. S., at 229. Instead, Article V governing ratification had lodged in “the legislatures of three-fourths of the several States” sole authority to assent to a proposed amendment. Id., at 226. The Court contrasted the ratifying function, exercisable exclusively by a State’s legislature, with “the ordinary business of legislation.” Id., at 229. Davis v. Hildebrant, the Court explained, involved the enactment of legislation, i.e., a redistricting plan, and properly held that “the referendum [was] part of the legislative author-ity of the State for [that] purpose.” 253 U. S., at 230. Smiley v. Holm raised the question whether legislation purporting to redistrict Minnesota for congressional elections was subject to the Governor’s veto. The Minnesota Supreme Court had held that the Elections Clause placed redistricting authority exclusively in the hands of the State’s legislature, leaving no role for the Governor. We reversed that determination and held, for the purpose at hand, Minnesota’s legislative authority includes not just the two houses of the legislature; it includes, in addition, a make-or-break role for the Governor. In holding that the Governor’s veto counted, we distinguished instances in which the Constitution calls upon state legislatures to exercise a function other than lawmaking. State legislatures, we pointed out, performed an “electoral” function “in the choice of United States Senators under Article I, section 3, prior to the adoption of the Seventeenth Amendment,”[16] a “ratifying” function for “proposed amendments to the Constitution under Article V,” as explained in Hawke v. Smith, and a “consenting” function “in relation to the acquisition of lands by the United States under Article I, section 8, paragraph 17.” 285 U. S., at 365–366. In contrast to those other functions, we observed, redistricting “involves lawmaking in its essential features and most important aspect.” Id., at 366. Lawmaking, we further noted, ordinarily “must be in accordance with the method which the State has prescribed for legislative enactments.” Id., at 367. In Minnesota, the State’s Constitution had made the Governor “part of the legislative process.” Id., at 369. And the Elections Clause, we explained, respected the State’s choice to include the Governor in that process, although the Governor could play no part when the Constitution assigned to “the Legislature” a ratifying, electoral, or consenting function. Nothing in the Elections Clause, we said, “attempt[ed] to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State ha[d] provided that laws shall be enacted.” Id., at 368. The Chief Justice, in dissent, features, indeed trumpets repeatedly, the pre- Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function. As we explained in Hawke, “the power to legislate in the enactment of the laws of a State is derived from the people of the State.” 253 U. S., at 230. Ratification, however, “has its source in the Federal Constitution” and is not “an act of legislation within the proper sense of the word.” Id., at 229–230. Constantly resisted by The Chief Justice, but well understood in opinions that speak for the Court: “[T]he meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections. Hildebrant, see supra, at 15–16; Smiley, see supra, at 17–18. In the context of ratifying constitutional amendments, in contrast, “the Legislature” has a different identity, one that excludes the referendum and the Governor’s veto. Hawke, see supra, at 16.[17] In sum, our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto. The exercise of the initiative, we acknowledge, was not at issue in our prior decisions. But as developed below, we see no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking. B We take up next the statute the Court asked the parties to address, 2 U. S. C. §2a(c), a measure modeled on the Reapportionment Act Congress passed in 1911, Act of Aug. 8 (1911 Act), ch. 5, §4, 37Stat. 14. Section 2a(c), we hold, permits use of a commission to adopt Arizona’s congressional districts. See supra, at 15.[18] From 1862 through 1901, the decennial congressional apportionment Acts provided that a State would be required to follow federally prescribed procedures for redistricting unless “the legislature” of the State drew district lines. E.g., Act of July 14, 1862, ch. 170, 12Stat. 572; Act of Jan. 16, 1901, ch. 93, §4, 31Stat. 734. In drafting the 1911 Act, Congress focused on the fact that several States had supplemented the representative legislature mode of lawmaking with a direct lawmaking role for the people, through the processes of initiative (positive legislation by the electorate) and referendum (approval or disapproval of legislation by the electorate). 47 Cong. Rec. 3508 (statement of Sen. Burton); see supra, at 3–5. To accommodate that development, the 1911 Act eliminated the statutory reference to redistricting by the state “legislature” and instead directed that, if a State’s apportionment of Representatives increased, the State should use the Act’s default procedures for redistricting “until such State shall be redistricted in the manner provided by the laws thereof.” Ch. 5, §4, 37Stat. 14 (emphasis added).[19] Some Members of Congress questioned whether the language change was needed. In their view, existing apportionment legislation (referring to redistricting by a State’s “legislature”) “suffic[ed] to allow, whatever the law of the State may be, the people of that State to control [redistricting].” 47 Cong. Rec. 3507 (statement of Sen. Shively); cf. Shiel v. Thayer, Bartlett Contested Election Cases, H. R. Misc. Doc. No. 57, 38th Cong., 2d Sess., 351 (1861) (view of House Committee of Elections Member Dawes that Art. I, §4’s reference to “the Legislature” meant simply the “constituted authorities, through whom [the State] choose[s] to speak,” prime among them, the State’s Constitution, “which rises above . . . all legislative action”). Others anticipated that retaining the reference to “the legislature” would “condem[n] . . . any [redistricting] legislation by referendum or by initiative.” 47 Cong. Rec. 3436 (statement of Sen. Burton). In any event, proponents of the change maintained, “[i]n view of the very serious evils arising from gerrymanders,” Congress should not “take any chances in [the] matter.” Id., at 3508 (same). “[D]ue respect to the rights, to the established methods, and to the laws of the respective States,” they urged, required Congress “to allow them to establish congressional districts in whatever way they may have provided by their constitution and by their statutes.” Id., at 3436; see id., at 3508 (statement of Sen. Works). As this Court observed in Hildebrant, “the legislative history of th[e] [1911 Act] leaves no room for doubt [about why] the prior words were stricken out and the new words inserted.” 241 U. S., at 568. The change was made to safeguard to “each State full authority to employ in the creation of congressional districts its own laws and regulations.” 47 Cong. Rec. 3437 (statement of Sen. Burton). The 1911 Act, in short, left the question of redistricting “to the laws and methods of the States. If they include initiative, it is included.” Id., at 3508. While the 1911 Act applied only to reapportionment following the 1910 census, see Wood v. Broom, 287 U. S. 1 –7 (1932), Congress used virtually identical language when it enacted §2a(c) in 1941. See Act of Nov. 15, 1941, ch. 470, 55Stat. 761–762. Section 2a(c) sets forth congressional-redistricting procedures operative only if the State, “after any apportionment,” had not redistricted “in the manner provided by the law thereof.” The 1941 provision, like the 1911 Act, thus accorded full respect to the redistricting procedures adopted by the States. So long as a State has “redistricted in the manner provided by the law thereof”—as Arizona did by utilizing the independent commission procedure called for by its Constitution—the resulting redistricting plan becomes the presumptively governing map.[20] The Arizona Legislature characterizes §2a(c) as an “obscure provision, narrowed by subsequent developments to the brink of irrelevance.” Brief for Appellant 56. True, four of the five default redistricting procedures—operative only when a State is not “redistricted in the manner provided by [state] law”—had “become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional.” Branch v. Smith, 538 U. S. 254 –274 (2003) (plurality opinion). Concretely, the default procedures specified in §2a(c)(1)–(4) contemplate that a State would continue to use pre-existing districts following a new census. The one-person, one-vote principle announced in Wesberry v. Sanders, 376 U. S. 1 (1964) , however, would bar those procedures, except in the “unlikely” event that “the decennial census makes no districting change constitutionally necessary,” Branch, 538 U. S., at 273 (plurality opinion). Constitutional infirmity in §2a(c)(1)–(4)’s default procedures, however, does not bear on the question whether a State has been “redistricted in the manner provided by [state] law.”[21] As just observed, Congress expressly directed that when a State has been “redistricted in the manner provided by [state] law”—whether by the legislature, court decree (see id., at 274), or a commission established by the people’s exercise of the initiative—the resulting districts are the ones that presumptively will be used to elect Representatives.[22] There can be no dispute that Congress itself may draw a State’s congressional-district boundaries. See Vieth, 541 U. S., at 275 (plurality opinion) (stating that the Elections Clause “permit[s] Congress to ‘make or alter’ ” the “districts for federal elections”). The Arizona Legislature urges that the first part of the Elections Clause, vesting power to regulate congressional elections in State “Legislature[s],” precludes Congress from allowing a State to redistrict without the involvement of its representative body, even if Congress independently could enact the same redistricting plan under its plenary authority to “make or alter” the State’s plan. See Brief for Appellant 56–57; Reply Brief 17. In other words, the Arizona Legislature regards §2a(c) as a futile exercise. The Congresses that passed §2a(c) and its forerunner, the 1911 Act, did not share that wooden interpretation of the Clause, nor do we. Any uncertainty about the import of §2a(c), however, is resolved by our holding that the Elections Clause permits regulation of congressional elections by initiative, see infra, at 24–35, leaving no arguable conflict between §2a(c) and the first part of the Clause. C In accord with the District Court, see supra, at 9, we hold that the Elections Clause permits the people of Arizona to provide for redistricting by independent commission. To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers ofgovernment. We note, preliminarily, that dictionaries, even those in circulation during the founding era, capaciously define the word “legislature.” Samuel Johnson defined “legislature” simply as “[t]he power that makes laws.” 2 A Dictionary of the English Language (1st ed. 1755); ibid. (6th ed. 1785); ibid. (10th ed. 1792); ibid. (12th ed. 1802). Thomas Sheridan’s dictionary defined “legislature” exactly as Dr. Johnson did: “The power that makes laws.” 2 A Complete Dictionary of the English Language (4th ed. 1797). Noah Webster defined the term precisely that way as well. Compendious Dictionary of the English Language 174 (1806). And Nathan Bailey similarly defined “legislature” as “the Authority of making Laws, or Power which makes them.” An Universal Etymological English Dictionary (20th ed. 1763).[23] As to the “power that makes laws” in Arizona, initiatives adopted by the voters legislate for the State just as measures passed by the representative body do. See Ariz. Const., Art. IV, pt. 1, §1 (“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”). See also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 672 (1976) (“In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature.”). As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do. See Tr. of Oral Arg. 15–16 (answering the Court’s question, may the Arizona Legislature itself establish a commission to attend to redistricting, counsel for appellant responded yes, state legislatures may delegate their authority to a commission, subject to their prerogative to reclaim the authority for themselves). 1 The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation. As this Court explained in Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1 (2013) , the Clause “was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.” Id., at ___ (slip op., at 5) (citing The Federalist No. 59, pp. 362–363 (C. Rossiter ed. 1961) (A. Hamilton)). The Clause was also intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate. As Madison urged, without the Elections Clause, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention 241 (M. Farrand rev. 1966). Madison spoke in response to a motion by South Carolina’s delegates to strike out the federal power. Those delegates so moved because South Carolina’s coastal elite had malapportioned their legislature, and wanted to retain the ability to do so. See J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 223–224 (1996). The problem Madison identified has hardly lessened over time. Conflict of interest is inherent when “legislators dra[w] district lines that they ultimately have to run in.” Cain, 121 Yale L. J., at 1817. Arguments in support of congressional control under the Elections Clause were reiterated in the public debate over ratification. Theophilus Parsons, a delegate at the Massachusetts ratifying convention, warned that “when faction and party spirit run high,” a legislature might take actions like “mak[ing] an unequal and partial division of the states into districts for the election of representatives.” Debate in Massachusetts Ratifying Convention (16–17, 21 Jan. 1788), in 2 The Founders’ Constitution 256 (P. Kurland & R. Lerner eds. 1987). Timothy Pickering of Massachusetts similarly urged that the Clause was necessary because “the State governments may abuse their power, and regulate . . . elections in such manner as would be highly inconvenient to the people.” Letter to Charles Tillinghast (24 Dec. 1787), in id., at 253. He described the Clause as a way to “ensure to the people their rights of election.” Ibid. While attention focused on potential abuses by state-level politicians, and the consequent need for congres-sional oversight, the legislative processes by which the States could exercise their initiating role in regulating congressional elections occasioned no debate. That is hardly surprising. Recall that when the Constitution was composed in Philadelphia and later ratified, the people’s legislative prerogatives—the initiative and the referendum—were not yet in our democracy’s arsenal. See supra, at 3–5. The Elections Clause, however, is not reasonably read to disarm States from adopting modes of legislation that place the lead rein in the people’s hands.[24] 2 The Arizona Legislature maintains that, by specifying “the Legislature thereof,” the Elections Clause renders the State’s representative body the sole “component of state government authorized to prescribe . . . regulations . . . for congressional redistricting.” Brief for Appellant 30. The Chief Justice, in dissent, agrees. But it is characteristic of our federal system that States retain autonomy to establish their own governmental processes. See Alden v. Maine, 527 U. S. 706, 752 (1999) (“A State is entitled to order the processes of its own governance.”); The Federalist No. 43, at 272 (J. Madison) (“Whenever the States may choose to substitute other republican forms, they have a right to do so.”). “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) . Arizona engaged in definition of that kind when its people placed both the initiative power and the AIRC’s redistricting authority in the portion of the Arizona Constitution delineating the State’s legislative authority. See Ariz. Const., Art. IV; supra, at 5–6. This Court has “long recognized the role of the States as laboratories for devising solutions to difficult legal problems.” Oregon v. Ice, 555 U. S. 160, 171 (2009) ; see United States v. Lopez, 514 U. S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as lab-oratories for experimentation to devise various solutions where the best solution is far from clear.”); New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”). Deference to state lawmaking “allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’ ” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9) (quoting Gregory, 501 U. S., at 458). We resist reading the Elections Clause to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process. Nothing in that Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution. See Shiel, H. R. Misc. Doc. No. 57, at 349–352 (concluding that Oregon’s Constitution prevailed over any conflicting leg-islative measure setting the date for a congressionalelection). The Chief Justice, in dissent, maintains that, under the Elections Clause, the state legislature can trump any initiative-introduced constitutional provision regulating federal elections. He extracts support for this position from Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H. R. Misc. Doc. No. 152, 41st Cong., 2d Sess., 46–47 (1866). See post, at 15–16. There, Michigan voters had amended the State Constitution to require votes to be cast within a resident’s township or ward. The Michigan Legislature, however, passed a law permitting soldiers to vote in other locations. One candidate would win if the State Constitution’s requirement controlled; his opponent would prevail under the Michigan Legislature’s prescription. The House Elections Committee, in a divided vote, ruled that, under the Elections Clause, the Michigan Legislature had the paramount power. As the minority report in Baldwin pointed out, however, the Supreme Court of Michigan had reached the opposite conclusion, holding, as courts generally do, that state legislation in direct conflict with the State’s constitution is void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The Baldwin majority’s ruling, furthermore, appears in tension with the Election Committee’s unanimous decision in Shiel just five years earlier. (The Committee, we repeat, “ha[d] no doubt that the constitution of the State ha[d] fixed, beyond the control of the legislature, the time for holding [a congressional] election.” Shiel, H. R. Misc. Doc. No. 57, at 351.) Finally, it was perhaps not entirely accidental that the candidate the Committee declared winner in Baldwin belonged to the same political party as all but one member of the House Committee majority responsible for the decision. See U. S. House of Representatives Congress Profiles: 39th Congress (1865–1867), http://history . house . gov / Congressional-Overview / Profiles /39th/;Biographical Directory of the United States Cong-ress: Trowbridge, Rowland Ebenezer (1821–1881). Cf. Cain, 121 Yale L. J., at 1817 (identifying legislativeconflict of interest as the problem independent re-districting commissions aimed to check). In short, Baldwin is not a disposition that should attract this Court’s reliance. We add, furthermore, that the Arizona Legislature does not question, nor could it, employment of the initiative to control state and local elections. In considering whether Article I, §4, really says “No” to similar control of federal elections, we have looked to, and borrow from, Alexander Hamilton’s counsel: “[I]t would have been hardly advisable . . . to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government” held at the same times and places, and in the same manner. The Federalist No. 61, at 374. The Elections Clause is not sensibly read to subject States to that deprivation.[25] 3 The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. As Madison put it: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people.” Id., No. 37, at 223. The people’s ultimate sovereignty had been expressed by John Locke in 1690, a near century before the Constitution’s formation: “[T]he Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.” Two Treatises of Government §149, p. 385 (P. Laslett ed. 1964). Our Declaration of Independence, ¶2, drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486 –541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,” Art. I, §2. See Cain, 121 Yale L. J., at 1817. The Chief Justice, in dissent, suggests that independent commissions established by initiative are a high-minded experiment that has failed. Post, at 26–27. For this assessment, The Chief Justice cites a three-judge Federal District Court opinion, Harris v. Arizona Independent Redistricting Comm’n, 993 F. Supp. 2d 1042 (Ariz. 2014). That opinion, he asserts, “detail[s] the partisanship that has affected the Commission.” Post, at 26. No careful reader could so conclude. The report of the decision in Harris comprises a per curiam opinion, an opinion concurring in the judgment by Judge Silver, and a dissenting opinion by Judge Wake. The per curiam opinion found “in favor of the Commission.” 993 F. Supp. 2d, at 1080. Deviations from the one-person, one-vote principle, the per curiam opinion explained at length, were “small” and, in the main, could not be attributed to partisanship. Ibid. While partisanship “may have played some role,” the per curiam opinion stated, deviations were “predominantly a result of the Commission’s good-faith efforts to achieve preclearance under the Voting Rights Act.” Id., at 1060. Judge Silver, although she joined the per curiam opinion, made clear at the very outset of that opinion her finding that “partisanship did not play a role.” Id., at 1046, n. 1. In her concurring opinion, she repeated her finding that the evidence did not show partisanship at work, id., at 1087; instead, she found, the evidence “[was] overwhelming [that] the final map was a product of the commissioners’s consideration of appropriate redistricting criteria.” Id., at 1088. To describe Harris as a decision criticizing the Commission for pervasive partisanship, post, at 26, The Chief Justice could rely only upon the dissenting opinion, which expressed views the majority roundly rejected. Independent redistricting commissions, it is true, “have not eliminated the inevitable partisan suspicions associ-ated with political line-drawing.” Cain, 121 Yale L. J., at 1808. But “they have succeeded to a great degree [in limiting the conflict of interest implicit in legislative control over redistricting].” Ibid. They thus impede legislators from choosing their voters instead of facilitating the voters’ choice of their representatives. 4 Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage. It would also cast doubt on numerous other election laws adopted by the initiative method of legislating. The people, in several States, functioning as the lawmaking body for the purpose at hand, have used the initiative to install a host of regulations governing the “Times, Places and Manner” of holding federal elections. Art. I, §4. For example, the people of California provided for permanent voter registration, specifying that “no amendment by the Legislature shall provide for a general biennial or other periodic reregistration of voters.” Cal. Elec. Code Ann. §2123 (West 2003). The people of Ohio banned ballots providing for straight-ticket voting along party lines. Ohio Const., Art. V, §2a. The people of Oregon shortened the deadline for voter registration to 20 days prior to an election. Ore. Const., Art. II, §2. None of those measures permit the state legislatures to override the people’s prescriptions. The Arizona Legislature’s theory—that the lead role in regulating federal elections cannot be wrested from “the Legislature,” and vested in commissions initiated by the people—would endanger all of them. The list of endangered state elections laws, were we to sustain the position of the Arizona Legislature, would not stop with popular initiatives. Almost all state constitutions were adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.”[26] Core aspects of the electoral process regulated by state constitutions include voting by “ballot” or “secret ballot,”[27] voter registration,[28] absentee voting,[29] vote counting,[30] and victory thresholds.[31] Again, the States’ legislatures had no hand in making these laws and may not alter or amend them. The importance of direct democracy as a means to control election regulations extends beyond the particular statutes and constitutional provisions installed by the people rather than the States’ legislatures. The very prospect of lawmaking by the people may influence the legislature when it considers (or fails to consider) election-related measures. See Persily & Anderson, Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform, 78 S. Cal. L. Rev. 997, 1006–1008 (2005) (describing cases in which “indirect pressure of the initiative process . . . was sufficient to spur [state] legislature[s] to action”). Turning the coin, the legislature’s responsiveness to the people its members represent is hardly heightened when the representative body can be confident that what it does will not be overturned or modified by the voters themselves. * * * Invoking the Elections Clause, the Arizona Legislature instituted this lawsuit to disempower the State’s voters from serving as the legislative power for redistricting purposes. But the Clause surely was not adopted to diminish a State’s authority to determine its own lawmaking processes. Article I, §4, stems from a different view. Both parts of the Elections Clause are in line with the fundamental premise that all political power flows from the people. McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819). So comprehended, the Clause doubly empowers the people. They may control the State’s lawmaking processes in the first instance, as Arizona voters have done, and they may seek Congress’ correction of regulations prescribed by state legislatures. The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elections Clause does not hinder that endeavor. For the reasons stated, the judgment of the United States District Court for the District of Arizona is Affirmed.Notes 1 The term “gerrymander” is a portmanteau of the last name of Elbridge Gerry, the eighth Governor of Massachusetts, and the shape of the electoral map he famously contorted for partisan gain, which included one district shaped like a salamander. See E. Griffith, The Rise and Development of the Gerrymander 16–19 (Arno ed. 1974). 2 The Massachusetts Constitution of 1780 is illustrative of the understanding that the people’s authority could trump the state legislature’s. Framed by a separate convention, it was submitted to the people for ratification. That occurred after the legislature attempted to promulgate a Constitution it had written, an endeavor that drew opposition from many Massachusetts towns. See J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 96–101 (1996); G. Wood, The Creation of the American Republic, 1776–1787, pp. 339–341 (1969). 3 The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Republican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”). 4 From Arizona’s admission to the Union in 1912 to 1940, no congressional districting occurred because Arizona had only one Member of Congress. K. Martis, The Historical Atlas of United States Congressional Districts, 1789–1983, p. 3 (1982) (Table 1). Court-ordered congressional districting plans were in place from 1966 to 1970, and from 1982 through 2000. See Klahr v. Williams, 313 F. Supp. 148 (Ariz. 1970); Goddard v. Babbitt, 536 F. Supp. 538 (Ariz. 1982); Arizonans for Fair Representation v. Symington, 828 F. Supp. 684 (Ariz. 1992); Norrander & Wendland, Redistricting in Arizona, in Reapportionment and Redistricting in the West 177, 178–179 (G. Moncrief ed. 2011). 5 In the current climate of heightened partisanship, the AIRC has encountered interference with its operations. In particular, its dependence on the Arizona Legislature for funding, and the removal provision have proved problematic. In 2011, when the AIRC proposed boundaries the majority party did not like, the Governor of Arizona attempted to remove the Commission’s independent chair. Her attempt was stopped by the Arizona Supreme Court. See Cain, Redistricting Commissions: A Better Political Buffer? 121 Yale L. J. 1808, 1835–1836 (2012) (citing Mathis v. Brewer, No. CV–11–0313–SA (Ariz. 2011)); Arizona Independent Redistricting Comm’n v. Brewer, 229 Ariz. 347, 275 P. 3d 1267 (2012). 6 See Haw. Const., Art. IV, §2, and Haw. Rev. Stat. §§25–1 to 25–9 (2009 and 2013 Cum. Supp.); Idaho Const., Art. III, §2; Mont. Const., Art. V, §14; N. J. Const., Art. II, §2; Wash Const., Art. II, §43. 7 See Cal. Const., Art. XXI, §2; Cal. Govt. Code Ann. §§8251–8253.6 (West Supp. 2015). 8 See Iowa Code §§42.1–42.6 (2013); Ohio Rev. Code Ann. §103.51 (Lexis 2014); Me. Const., Art. IV, pt. 3, §1–A. 9 See Conn. Const., Art. III, §6; Ind. Code §3–3–2–2 (2014). 10 Massachusetts v. Mellon, 262 U. S. 447 (1923) , featured in Justice Scalia’s dissent, post, at 4, bears little resemblance to this case. There, the Court unanimously found that Massachusetts lacked standing to sue the Secretary of the Treasury on a claim that a federal grant program exceeded Congress’ Article I powers and thus violated the Tenth Amendment. Id., at 480. If suing on its own behalf, the Court reasoned, Massachusetts’ claim involved no “quasi-sovereign rights actually invaded or threatened.” Id., at 485. As parens patriae, the Court stated: “[I]t is no part of [Massachusetts’] duty or power to enforce [its citizens’] rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae.” Id., at 485–486. As astutely observed, moreover: “The cases on the standing of states to sue the federal government seem to depend on the kind of claim that the state advances. The decisions . . . are hard to reconcile.” R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 263–266 (6th ed. 2009) (comparing Mellon with South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966) (rejecting on the merits the claim that the Voting Rights Act of 1965 invaded reserved powers of the States to determine voter qualifications and regulate elections), Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (recognizing that Wyoming could bring suit to vindicate the State’s “quasi-sovereign” interests in the physical environment within its domain (emphasis deleted; internal quotation marks omitted)), and Massachusetts v. EPA, 549 U. S. 497, 520 (2007) (maintainingthat Massachusetts “is entitled to special solicitude in our standing analysis”)). 11 Coleman concerned the proposed Child Labor Amendment, which provided that “Congress shall have power to limit, regulate, and pro-hibit the labor of persons under eighteen years of age.” 307 U. S., at 435, n. 1 (internal quotation marks omitted). 12 The case before us does not touch or concern the question whether Congress has standing to bring a suit against the President. There is no federal analogue to Arizona’s initiative power, and a suit between Congress and the President would raise separation-of-powers concerns absent here. The Court’s standing analysis, we have noted, has been “especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U. S. 811 –820 (1997). 13 In an endeavor to wish away Coleman, Justice Scalia, in dissent, suggests the case may have been “a 4-to-4 standoff.” Post, at 5. He overlooks that Chief Justice Hughes’ opinion, announced by Justice Stone, was styled “Opinion of the Court.” 307 U. S., at 435. Describing Coleman, the Court wrote in Raines: “By a vote of 5–4, we held that [the 20 Kansas Senators who voted against ratification of a proposed federal constitutional amendment] had standing.” 521 U. S., at 822. For opinions recognizing the precedential weight of Coleman, see Baker v. Carr, 369 U. S. 186, 208 (1962) ; United States v. Windsor, 570 U. S. ___, ___ (2013) (Alito, J., dissenting) (slip op., at 4–5). 14 Curiously, Justice Scalia, dissenting on standing, berates the Court for “treading upon the powers of state legislatures.” Post, at 6. He forgets that the party invoking federal-court jurisdiction in this case, and inviting our review, is the Arizona State Legislature. 15 Justice Thomas, on the way to deciding that the Arizona Legislature lacks standing, first addresses the merits. In so doing, he overlooks that, in the cases he features, it was entirely immaterial whether the law involved was adopted by a representative body or by the people, through exercise of the initiative. 16 The Seventeenth Amendment provided for election of Senators “by the people” of each State. 17 The list of constitutional provisions in which the word “legislature” appears, appended to The Chief Justice’s opinion, post, at 28–32, is illustrative of the variety of functions state legislatures can be called upon to exercise. For example, Art. I, §2, cl. 1, superseded by the Seventeenth Amendment, assigned an “electoral” function. See Smiley, 285 U. S., at 365. Article I, §3, cl. 2, assigns an “appointive” function. Article I, §8, cl. 17, assigns a “consenting” function, see Smiley, 285 U. S., at 366, as does Art. IV, §3, cl. 1. “[R]atifying” functions are assigned in Art. V, Amdt. 18, §3, Amdt. 20, §6, and Amdt. 22, §2. See Hawke, 253 U. S., at 229. But Art. I, §4, cl. 1, unquestionably calls for the exercise of lawmaking authority. That authority can be carried out by a representative body, but if a State so chooses, legislative authority can also be lodged in the people themselves. See infra, at 24–35. 18 The AIRC referenced §2a(c) in briefing below, see Motion to Dismiss 8–9, and Response to Plaintiff’s Motion for Preliminary Injunction 12–14, in No. 12–1211 (D Ariz.), and in its motion to dismiss or affirm in this Court, see Motion to Dismiss or Affirm 28–31. 19 The 1911 Act also required States to comply with certain federally prescribed districting rules—namely, that Representatives be elected “by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants,” and that the districts “be equal to the number of Representatives to which [the] State may be entitled in Congress, no district electing more than one Representative.” Act of Aug. 8, 1911, ch. 5, §§3–4, 37Stat. 14. When a State’s apportionment of Representatives remained constant, the Act directed the State to continue using its pre-existing districts “until [the] State shall be redistricted as herein prescribed.” See §4, ibid. The 1911 Act did not address redistricting in the event a State’s apportionment of Representatives decreased, likely because no State faced a decrease following the 1910 census. 20 Because a State is required to comply with the Federal Constitution, the Voting Rights Act, and other federal laws when it draws and implements its district map, nothing in §2a(c) affects a challenge to a state district map on the ground that it violates one or more of those federal requirements. 21 The plurality in Branch v. Smith, 538 U. S. 254, 273 (2003) , considered the question whether §2a(c) had been repealed by implication and stated, “where what it prescribes is constitutional,” the provision “continues to apply.” 22 The Chief Justice, in dissent, insists that §2a(c) and its precursor, the 1911 Act, have nothing to do with this case. Post, at 20–21, 23. Undeniably, however, it was the very purpose of the measures to recognize the legislative authority each State has to determine its own redistricting regime. 23 Illustrative of an embracive comprehension of the word “legislature,” Charles Pinckney explained at South Carolina’s ratifying convention that America is “[a] republic, where the people at large, either collectively or by representation, form the legislature.” 4 Debates on the Federal Constitution 328 (J. Elliot 2d ed. 1863). Participants in the debates over the Elections Clause used the word “legislature” interchangeably with “state” and “state government.” See Brief for Brennan Center for Justice at N. Y. U. School of Law as Amicus Curiae 6–7. 24 The Chief Justice, in dissent, cites U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995) , as an important precedent we overlook. Post, at 24–25. There, we held that state-imposed term limits on candidates for the House and Senate violated the Clauses of the Constitution setting forth qualifications for membership in Congress, Art. I, §2, cl. 2, and Art. I, §3, cl. 3. We did so for a reason entirely harmonious with today’s decision. Adding state-imposed limits to the qualifications set forth in the Constitution, the Court wrote, would be “contrary to the ‘fundamental principle of our representative democracy,’ . . . that ‘the people should choose whom they please to govern them.’ ” 514 U. S., at 783 (quoting Powell v. McCormack, 395 U. S. 486, 547 (1969) ). 25 A State may choose to regulate state and national elections differently, which is its prerogative under the Clause. E.g., Ind. Code §3–3–2–2 (creating backup commission for congressional but not state legislative districts). 26 See App. to Brief for Appellees 11a–29a (collecting state constitutional provisions governing elections). States’ constitutional conventions are not simply past history predating the first election of state legislatures. Louisiana, for example, held the most recent of its 12 constitutional conventions in 1992. J. Dinan, The American State Constitutional Tradition 8–9 (2006) (Table 1–1). The State’s provision for voting by “secret ballot” may be traced to the constitutional convention held by the State in 1812, see La. Const., Art. VI, §13, but was most recently reenacted at the State’s 1974 constitutional convention, see Art. XI, §2. 27 Madison called the decision “[w]hether the electors should vote by ballot or vivâ voce” a quintessential subject of regulation under the Elections Clause. 2 Records of the Federal Convention 240–241 (M. Farrand rev. 1966). 28 Miss. Const., Art. XII, §249; N. C. Const., Art. VI, §3; Va. Const., Art. II, §2; W. Va. Const., Art. IV, §12; Wash. Const., Art. VI, §7. 29 E.g., Haw. Const., Art. II, §4; La. Const., Art XI, §2; N. D. Const., Art. II, §1; Pa. Const., Art. VII, §14. 30 E.g., Ark. Const., Art. III, §11 (ballots unlawfully not counted in the first instance must be counted after election); La. Const., Art XI, §2 (all ballots must be counted publicly). 31 E.g., Ariz. Const., Art. VII, §7 (setting plurality of votes as the standard for victory in all elections, excluding runoffs); Mont. Const., Art. IV, §5 (same); Ore. Const., Art. II, §16 (same).

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.SUPREME COURT OF THE UNITED STATESSyllabusARIZONA STATE LEGISLATURE v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION et al.appeal from the united states district court for the district of arizonaNo. 13–1314. Argued March 2, 2015—Decided June 29, 2015Under Arizona’s Constitution, the electorate shares lawmaking authority on equal footing with the Arizona Legislature. The voters may adopt laws and constitutional amendments by ballot initiative, and they may approve or disapprove, by referendum, measures passed by the Legislature. Ariz. Const., Art. IV, pt. 1, §1. “Any law which may be enacted by the Legislature . . . may be enacted by the people under the Initiative.” Art. XXII, §14.In 2000, Arizona voters adopted Proposition 106, an initiative aimed at the problem of gerrymandering. Proposition 106 amended Arizona’s Constitution, removing redistricting authority from the Arizona Legislature and vesting it in an independent commission, the Arizona Independent Redistricting Commission (AIRC). After the 2010 census, as after the 2000 census, the AIRC adopted redistricting maps for congressional as well as state legislative districts. The Arizona Legislature challenged the map the Commission adopted in 2012 for congressional districts, arguing that the AIRC and its map violated the “Elections Clause” of the U. S. Constitution, which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Because “Legislature” means the State’s representative assembly, the Arizona Legislature contended, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. A three-judge District Court held that the Arizona Legislature had standing to sue, but rejected its complaint on the merits.Held:1. The Arizona Legislature has standing to bring this suit. In claiming that Proposition 106 stripped it of its alleged constitutional prerogative to engage in redistricting and that its injury would be remedied by a court order enjoining the proposition’s enforcement, the Legislature has shown injury that is ‘concrete and particularized’ and ‘actual or imminent,’ ” Arizonans for Official English v. Arizona, 520 U. S. 43, “fairly traceable to the challenged action,” and “redressable by a favorable ruling,” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___. Specifically, Proposition 106, together with the Arizona Constitution’s ban on efforts by the Arizona Legislature to undermine the purposes of an initiative, would “completely nullif[y]” any vote by the Legislature, now or “in the future,” purporting to adopt a redistricting plan. Raines v. Byrd,521 U. S. 811–824. .2. The Elections Clause and2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts. .(a) Redistricting is a legislative function to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum, Ohio ex rel. Davis v. Hildebrant,241 U. S. 565, and the Governor’s veto, Smiley v. Holm,285 U. S. 355. While exercise of the initiative was not at issue in this Court’s prior decisions, there is no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking. .(b) Title2 U. S. C. §2a(c)—which provides that, “[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment,” it must follow federally prescribed redistricting procedures—permits redistricting in accord with Arizona’s initiative. From 1862 through 1901, apportionment Acts required a State to follow federal procedures unless “the [state] legislature” drew district lines. In 1911, Congress, recognizing that States had supplemented the representative legislature mode of lawmaking with a direct lawmaking role for the people, replaced the reference to redistricting by the state “legislature” with a reference to redistricting of a State “in the manner provided by the laws thereof.” §4,37Stat.14. The Act’s legislative history “leaves no . . . doubt,” Hildebrant, 241 U. S., at 568, that the change was made to safeguard to “each state full authority to employ in the creation of congressional districts its own laws and regulations.” 47 Cong. Rec. 3437. “If they include the initiative, it is included.” Id., at 3508. Congress used virtually identical language in enacting §2a(c) in 1941. This provision also accords full respect to the redistricting procedures adopted by the States. Thus, so long as a State has “redistricted in the manner provided by the law thereof”—as Arizona did by utilizing the independent commission procedure in its Constitution—the resulting redistricting plan becomes the presumptively governing map.Though four of §2a(c)’s five default redistricting procedures—operative only when a State is not “redistricted in the manner provided by [state] law”—have become obsolete as a result of this Court’s decisions embracing the one-person, one-vote principle, this infirmity does not bear on the question whether a State has been “redistricted in the manner provided by [state] law.” .(c) The Elections Clause permits the people of Arizona to provide for redistricting by independent commission. The history and purpose of the Clause weigh heavily against precluding the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts. Such preclusion would also run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government. .(1) The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation. See Inter Tribal Council of Ariz., 570 U. S., at ___. Ratification arguments in support of congressional oversight focused on potential abuses by state politicians, but the legislative processes by which the States could exercise their initiating role in regulating congressional elections occasioned no debate. .(2) There is no suggestion that the Election Clause, by specifying “the Legislature thereof,” required assignment of congressional redistricting authority to the State’s representative body. It is characteristic of the federal system that States retain autonomy to establish their own governmental processes free from incursion by the Federal Government. See, e.g., Alden v. Maine,527 U. S. 706. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory v. Ashcroft,501 U. S. 452. Arizona engaged in definition of that kind when its people placed both the initiative power and the AIRC’s redistricting authority in the portion of the Arizona Constitution delineating the State’s legislative authority, Ariz. Const., Art. IV. The Elections Clause should not be read to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process. And reading the Clause to permit the use of the initiative to control state and local elections but not federal elections would “deprive several States of the convenience of having the elections for their own governments and for the national government” held at the same times and places, and in the same manner. The Federalist No. 61, p. 374 (Hamilton). .(3) The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. It would thus be perverse to interpret “Legislature” in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,” Art. I, §2. .(4) Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.” .997 F. Supp. 2d 1047, affirmed.Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.

The Arizona Legislature, having lost authority to draw congressional districts, brought suit in Federal District Court seeking a declaration that Proposition 106 and congressional maps adopted by the Arizona Independent Redistricting Commission (AIRC) are unconstitutional, and, as affirmative relief, an injunction against use of the AIRC maps for any congressional election after the 2012 general election. A three-judge court held that the Legislature had standing to sue, rejecting the complaint on the merits. Held: 1. The Legislature has standing to bring this suit. . (a) The Elections Clause of the Federal Constitution and 2 U.S. C. §2a(c) permit Arizona's use of a commission to adopt congressional districts. P.. (b) The legislative history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government. While attention focused on potential abuses by state-level politicians, and the consequent need for congres-sional oversight, the legislative processes by which the States could exercise their initiating role in regulating congressional elections occasioned no debate. The Clause is not reasonably read to disarm a State from adopting modes of legislation that place the lead rein in the people's hands. To establish standing, the Legislature need not violate the Arizona Constitution and show that the Secretary of State would similarly disregard the State's fundamental instrument of government, the Act of August 8, 1911, which gave the President author-ity to cancel certain spending and tax benefit measures after signing them into law. Nor can it show, first and foremost, that injury in the form of an invasion of a legally protected interest that is concrete and particularized, and that actual or imminent, is one this Court has ranked a nonjusticiable political matter. Raines v. Byrd, 521 U. S. 811 (plurality opinion), distinguished.. 2. The Arizona Legislature does not lack standing to challenge the constitutionality of Proposition 106. Although the Clause was not adopted to diminish a State's authority to determine its own lawmaking processes, it is in line with the fundamental premise that all political power flows from the people, and doubly empowers the people. They may control the State of Arizona's lawmaking process in the first instance, as Arizona voters have done, and they may seek Congress' correction of regulations prescribed by state legislatures. In so acting, Arizona voters sought to restore the core principle of republican government by restoring that principle. This dispute will be resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 464, 472, id., at 26. Moreover, the Arizona Legislature is an institutional plaintiff asserting an institutional injury, since its suit is not premature, nor is its alleged injury too "conjectural" or "hypothetical." The default procedures specified in the Act contemplate that a State would continue to use pre-existing districts unless the State supersedes its own initiative to supersede the state legislature. Petitioner, a representative body in the State, can be assigned the authority to carry out the functions assigned to him in the exercise of the initiative. Even if the Act superseded the state initiative, it would not supersede any state initiative passed by the legislature, since, once the State certifies its maps, the Secretary must use them in conducting the next election, and thus no state initiative requires the Secretary to implement the plan. Absent congressional authorization, the Elections Clause permits regulation of congressional elections by initiative, leaving no arguable conflict between the Clause and the first part of that Act. Cf. Raines, supra, at 24. Here, the case does not touch or concern the question whether Congress has standing, since there is no federal analogue to Arizona's initiative power, and a suit between Congress and the President would raise separation-of-powers concerns absent here. Neither the history nor the Constitution of the Constitution instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State constitution. Since Congress is required to comply with the Constitution, the Voting Rights Act, and other federal laws when it draws and implements its district map, nothing in the Clause affects a challenge to a state district map on the ground that it violates one or more of those federal requirements. Thus, the State Legislature is not precluded from providing for redistricting by an independent commission, Raines being the one area in which States may not use citizen initiatives as an alternative legislative process. There is no constitutional barrier to a State empowering its people by embracing that form of lawmaking. And, as developed below, this Court will not single out federal elections as the area in

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, except as to Part IV. We consider whether Medicaid providers can sue to enforce §(30)(A) of the Medicaid Act. 81Stat. 911 (codified as amended at 42 U. S. C. §1396a(a)(30)(A)). I Medicaid is a federal program that subsidizes the States’ provision of medical services to “families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services.” §1396–1. Like other Spending Clause legislation, Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions. In order to qualify for Medicaid funding, the State of Idaho adopted, and the Federal Government approved, a Medicaid “plan,” §1396a(a), which Idaho administers through its Department of Health and Welfare. Idaho’s plan includes “habilitation services”—in-home care for individuals who, “but for the provision of such services . . . would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan,” §1396n(c) and (c)(1). Providers of these services are reimbursed by the Department of Health and Welfare. Section 30(A) of the Medicaid Act requires Idaho’s plan to: “provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . .” 42 U. S. C. §1396a(a)(30)(A). Respondents are providers of habilitation services to persons covered by Idaho’s Medicaid plan. They sued petitioners—two officials in Idaho’s Department of Health and Welfare—in the United States District Court for the District of Idaho, claiming that Idaho violates §30(A) by reimbursing providers of habilitation services at rates lower than §30(A) permits. They asked the court to enjoin petitioners to increase these rates. The District Court entered summary judgment for the providers, holding that Idaho had not set rates in a manner consistent with §30(A). Inclusion, Inc. v. Armstrong, 835 F. Supp. 2d 960 (2011). The Ninth Circuit affirmed. 567 Fed. Appx. 496 (2014). It said that the providers had “an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation.” Id., at 497 (citing Independent Living Center of Southern Cal. v. Shewry, 543 F. 3d 1050, 1065 (CA9 2008)). We granted certiorari. 573 U. S. ___ (2014). II The Supremacy Clause, Art. VI, cl. 2, reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws. Gibbons v. Ogden, 9 Wheat. 1, 210 (1824). It is equally apparent that the Supremacy Clause is not the “ ‘source of any federal rights,’ ” Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 107 (1989) (quoting Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 613 (1979) ), and certainly does not create a cause of action. It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so. Hamilton wrote that the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government.” The Federalist No. 33, p. 207 (J. Cooke ed. 1961). And Story described the Clause as “a positive affirmance of that, which is necessarily implied.” 3 Commentaries on the Constitution of the United States §1831, p. 693 (1833). These descriptions would have been grossly inapt if the Clause were understood to give affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States. And had it been understood to provide such significant private rights against the States, one would expect to find that mentioned in the preratification historical record, which contained ample discussion of the Supremacy Clause by both supporters and opponents of ratification. See C. Drahozal, The Supremacy Clause: A Reference Guide to the United States Constitution 25 (2004); The Federalist No. 44, at 306 (J. Madison). We are aware of no such mention, and respondents have not provided any. Its conspicuous absence militates strongly against their position. Additionally, it is important to read the Supremacy Clause in the context of the Constitution as a whole. Article I vests Congress with broad discretion over the manner of implementing its enumerated powers, giving it authority to “make all Laws which shall be necessary and proper for carrying [them] into Execution.” Art. I, §8. We have said that this confers upon the Legislature “that discretion, with respect to the means by which the powers [the Constitution] confers are to be carried into execution, which will enable that body to perform the high duties assigned to it,” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819). It is unlikely that the Constitution gave Congress such broad discretion with regard to the enactment of laws, while simultaneously limiting Congress’s power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors. If the Supremacy Clause includes a private right of action, then the Constitution requires Congress to permit the enforcement of its laws by private actors, significantly curtailing its ability to guide the implementation of fed-eral law. It would be strange indeed to give a clause that makes federal law supreme a reading that limits Congress’s power to enforce that law, by imposing mandatory private enforcement—a limitation unheard-of with regard to state legislatures. To say that the Supremacy Clause does not confer a right of action is not to diminish the significant role that courts play in assuring the supremacy of federal law. For once a case or controversy properly comes before a court, judges are bound by federal law. Thus, a court may not convict a criminal defendant of violating a state law that federal law prohibits. See, e.g., Pennsylvania v. Nelson, 350 U. S. 497, 499, 509 (1956) . Similarly, a court may not hold a civil defendant liable under state law for conduct federal law requires. See, e.g., Mutual Pharmaceutical Co. v. Bartlett, 570 U. S. ___, ___–___ (2013) (slip op., at 13–14). And, as we have long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted. Ex parte Young, 209 U. S. 123 –156 (1908). Respondents contend that our preemption jurisprudence—specifically, the fact that we have regularly considered whether to enjoin the enforcement of state laws that are alleged to violate federal law—demonstrates that the Supremacy Clause creates a cause of action for its violation. They are incorrect. It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. See, e.g., Osborn v. Bank of United States, 9 Wheat. 738, 838–839, 844 (1824); Ex parte Young, supra, at 150–151 (citing Davis v. Gray, 16 Wall. 203, 220 (1873)). But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials. See American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 110 (1902) ; see generally L. Jaffe, Judicial Control of Administrative Action 152–196 (1965). Thus, the Supremacy Clause need not be (and in light of our textual analysis above, cannot be) the explanation. What our cases demonstrate is that, “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.” Carroll v. Safford, 3 How. 441, 463 (1845). The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. See Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L. Q. Rev. 345 (1956). It is a judge-made remedy, and we have never held or even suggested that, in its application to state officers, it rests upon an implied right of action contained in the Supremacy Clause. That is because, as even the dissent implicitly acknowledges, post, at 4 (opinion of Sotomayor, J.) it does not. The Ninth Circuit erred in holding otherwise. III A We turn next to respondents’ contention that, quite apart from any cause of action conferred by the Supre-macy Clause, this suit can proceed against Idaho in equity. The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations. See, e.g., Seminole Tribe of Fla. v. Flor-ida, 517 U. S. 44, 74 (1996) . “ ‘Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.’ ” INS v. Pangilinan, 486 U. S. 875, 883 (1988) (quoting Hedges v. DixonCounty, 150 U. S. 182, 192 (1893) ; brackets omitted). In our view the Medicaid Act implicitly precludes private enforcement of §30(A), and respondents cannot, by invoking our equitable powers, circumvent Congress’s exclusion of private enforcement. See Douglas v. Independent Living Center of Southern Cal., Inc., 565 U. S. ___, ___–___ (2012) (Roberts, C. J., dissenting) (slip op., at 4–5). Two aspects of §30(A) establish Congress’s “intent to foreclose” equitable relief. Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 647 (2002) . First, the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements—for the State’s “breach” of the Spending Clause contract—is the withholding of Medicaid funds by the Secretary of Health and Human Services. 42 U. S. C. §1396c. As we have elsewhere explained, the “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Alexander v. Sandoval, 532 U. S. 275, 290 (2001) . The provision for the Secretary’s enforcement by withholding funds might not, by itself, preclude the availability of equitable relief. See Virginia Office for Protection and Advocacy v. Stewart, 563 U. S. 247 , ___–___, n. 3 (2011) (slip op., at 7–8, n. 3). But it does so when combined with the judicially unadministrable nature of §30(A)’s text. It is difficult to imagine a requirement broader and less specific than §30(A)’s mandate that state plans provide for payments that are “consistent with efficiency, economy, and quality of care,” all the while “safeguard[ing] against unnecessary utilization of . . . care and services.” Explicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes, we think, that Congress “wanted to make the agency remedy that it provided exclusive,” thereby achieving “the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking,” and avoiding “the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action.” Gonzaga Univ. v. Doe, 536 U. S. 273, 292 (2002) (Breyer, J., concurring in judgment). The sheer complexity associated with enforcing §30(A), coupled with the express provision of an administrative remedy, §1396c, shows that the Medicaid Act precludes private enforcement of §30(A) in the courts. B The dissent agrees with us that the Supremacy Clause does not provide an implied right of action, and that Congress may displace the equitable relief that is traditionally available to enforce federal law. It disagrees only with our conclusion that such displacement has occurred here. The dissent insists that, “because Congress is undoubtedly aware of the federal courts’ long-established practice of enjoining preempted state action, it should generally be presumed to contemplate such enforcement unless it affirmatively manifests a contrary intent.” Post, at 4 (emphasis added). But a “long-established practice” does not justify a rule that denies statutory text its fairest reading. Section 30(A), fairly read in the context of the Medicaid Act, “display[s] a[n] intent to foreclose” the availability of equitable relief. Verizon, supra, at 647. We have no warrant to revise Congress’s scheme simply because it did not “affirmatively” preclude the availability of a judge-made action at equity. See Seminole Tribe, supra, at 75 (inferring, in the absence of an “affirmative” statement by Congress, that equitable relief was unavailable). Equally unavailing is the dissent’s reliance on §30(A)’s history. Section 30(A) was amended, on December 19, 1989, to include what the dissent calls the “equal access mandate,” post, at 9—the requirement that reimbursement rates be “sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” §6402(a), 103Stat. 2260. There existed at the time another provision, known as the “Boren Amendment,” that likewise imposed broad requirements on state Medicaid plans. 42 U. S. C. §1396a(a)(13)(A) (1982 ed., Supp. V). Lower courts had interpreted the Boren Amendment to be privately enforceable under §1983. From this, the dissent infers that, when Congress amended §30(A), it could not “have failed to anticipate” that §30(A)’s broad language—or at least that of the equal access mandate—would be interpreted as enforceable in a private action. Thus, concludes the dissent, Congress’s failure to expressly preclude the private enforcement of §30(A) suggests it intended not to preclude private enforcement. Post, at 10. This argument appears to rely on the prior-construction canon; the rule that, when “judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute” is presumed to incorporate that interpretation. Bragdon v. Abbott, 524 U. S. 624, 645 (1998) . But that canon has no application here. The language of the two provisions is nowhere near identical; and even if it had been, the question whether the Boren Amendment permitted private actions was far from “settled.” When Congress amended §30(A) in 1989, this Court had already granted certiorari to decide, but had not yet decided, whether the Boren Amendment could be enforced through a §1983 suit. See Baliles v. Virginia Hospital Assn., 493 U. S. 808 (Oct. 2, 1989) (granting certiorari). Our decision permitting a §1983 action did not issue until June 14, 1990—almost six months after the amendment to §30(A). Wilder v. Virginia Hospital Assn., 496 U. S. 498 .[1]* The existence of a granted petition for certiorari demonstrates quite clearly that the question whether the Boren Amendment could be pri-vately enforced was unsettled at the time of §30(A)’s 1989 amendment—so that if Congress was aware of the parallel (which is highly doubtful) the course that awareness would have prompted (if any) would not have been legislative silence but rather express specification of the availability of private enforcement (if that was what Congress intended). Finally, the dissent speaks as though we leave these plaintiffs with no resort. That is not the case. Their relief must be sought initially through the Secretary rather than through the courts. The dissent’s complaint that the sanction available to the Secretary (the cut-off of funding) is too massive to be a realistic source of relief seems to us mistaken. We doubt that the Secretary’s notice to aState that its compensation scheme is inadequate will be ignored. IV The last possible source of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so. Section 30(A) lacks the sort of rights-creating language needed to imply a private right of action. Sandoval, supra at 286–287. It is phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State’s decision to participate in Medicaid. The Act says that the “Secretary shall approve any plan which fulfills the conditions specified in subsection (a),” the subsection that includes §30(A). 42 U. S. C. §1396a(b). We have held that such language “reveals no congressional intent to create a private right of action.” Sandoval, supra at 289; see also Universities Research Assn., Inc. v. Coutu, 450 U. S. 754, 772 (1981) . And again, the explicitly conferred means of enforcing compliance with §30(A) by the Secretary’s withholding funding, §1396c, suggests that other means of enforcement are precluded, Sandoval, supra, at 290. Spending Clause legislation like Medicaid “is much in the nature of a contract.” Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981) . The notion that respondents have a right to sue derives, perhaps, from the fact that they are beneficiaries of the federal-state Medicaid agreement, and that intended beneficiaries, in modern times at least, can sue to enforce the obli-gations of private contracting parties. See 13 R. Lord, Williston on Contracts §§37:12–37.13, pp. 123–135 (4th ed. 2013). We doubt, to begin with, that providers are intended beneficiaries (as opposed to mere incidental beneficiar-ies) of the Medicaid agreement, which was concluded for the benefit of the infirm whom the providers were to serve, rather than for the benefit of the providers themselves. See Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U. S. 644, 683 (2003) (Thomas, J., concurring in judgment). More fundamentally, however, the modern jurisprudence permitting intended beneficiaries to sue does not generally apply to contracts between a private party and the government, Astra USA, Inc. v. Santa Clara County, 563 U. S. ___, ___ (2011) (slip op., at 6); see Williston, supra, at §§37:35–37:36, at 256–271; 9 J. Murray, Corbin on Contracts §45.6, p. 92 (rev. ed. 2007)—much less to contracts between two governments. Our precedents establish that a private right of action under federal law is not created by mere implication, but must be “unambiguously conferred,” Gonzaga, 536 U. S., at 283. Nothing in the Medicaid Act suggests that Congress meant to change that for the commitments made under §30(A). * * * The judgment of the Ninth Circuit Court of Appeals is reversed. It is so ordered.Notes 1 * Respondents do not claim that Wilder establishes precedent for a private cause of action in this case. They do not assert a §1983 action, since our later opinions plainly repudiate the ready implication of a §1983 action that Wilder exemplified. See Gonzaga, Univ. v. Due, 536 U. S. 273, 283 (2002) (expressly “reject[ing] the notion,” implicit in Wilder, “that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under §1983”).

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 . SUPREME COURT OF THE UNITED STATES Syllabus ARMSTRONG et al. v. EXCEPTIONAL CHILD CENTER, INC., et al. certiorari to the united states court of appeals for the ninth circuit No. 14–15. Argued January 20, 2015—Decided March 31, 2015 Providers of “habilitation services” under Idaho’s Medicaid plan are reimbursed by the State’s Department of Health and Welfare. Section 30(A) of the Medicaid Act requires Idaho’s plan to “assure that payments are consistent with efficiency, economy, and quality of care” while “safeguard[ing] against unnecessary utilization of . . . care and services.” 42 U. S. C. §1396a(a)(30)(A). Respondents, providers of habilitation services, sued petitioners, Idaho Health and Welfare Department officials, claiming that Idaho reimbursed them at rates lower than §30(A) permits, and seeking to enjoin petitioners to increase these rates. The District Court entered summary judgment for the providers. The Ninth Circuit affirmed, concluding that the Supremacy Clause gave the providers an implied right of action, and that they could sue under this implied right of action to seek an injunction requiring Idaho to comply with §30(a). Held: The judgment is reversed. 567 Fed. Appx. 496, reversed. Justice Scalia delivered the opinion of the Court, except as to Part IV, concluding that the Supremacy Clause does not confer a private right of action, and that Medicaid providers cannot sue for an injunction requiring compliance with §30(a). . (a) The Supremacy Clause instructs courts to give federal law priority when state and federal law clash. Gibbons v. Ogden, 9 Wheat. 1, 210. But it is not the “ ‘source of any federal rights,’ ” Golden State Transit Corp. v. Los Angeles, 493 U. S. 103 , and certainly does not create a cause of action. Nothing in the Clause’s text suggests otherwise, and nothing suggests it was ever understood as conferring a private right of action. Article I vests Congress with broad discretion over the manner of implementing its enumerated powers. Art I., §8; McCulloch v. Maryland, 4 Wheat. 316, 421. It is unlikely that the Constitution gave Congress broad discretion with regard to the enactment of laws, while simultaneously limiting Congress’s power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors. . (b) Reading the Supremacy Clause not to confer a private right of action is consistent with this Court’s preemption jurisprudence. The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. This Court has never held nor suggested that this judge-made remedy, in its application to state officers, rests upon an implied right of action contained in the Supremacy Clause. . (c) Respondents’ suit cannot proceed in equity. The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U. S. 44 . Here, the express provision of a single remedy for a State’s failure to comply with Medicaid’s requirements—the withholding of Medicaid funds by the Secretary of Health and Human Services, 42 U. S. C. §1396c—and the sheer complexity associated with enforcing §30(A) combine to establish Congress’s “intent to foreclose” equitable relief, Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635 . . Scalia, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined, and an opinion with respect to Part IV, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Kennedy, Ginsburg, and Kagan, JJ., joined.

Medicaid is a federal program that subsidizes the States' provision of medical services to families with dependent children and of aged, blind, or disabled individuals whose income and resources are insufficient to meet the costs of necessary medical services. Idaho, in order to qualify for federal funding, adopted a Medicaid plan that includes in-home care for individuals who, but for the provision of such services, would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded, the cost of which could be reimbursed under the plan. Providers of these services are reimbursed by the Department of Health and Welfare. Respondents, providers of habilitation services to persons covered by Idaho's Medicaid plan, sued petitioners in the Federal District Court, claiming that Idaho violates §30(A) of the Medicaid Act by reimbursing providers at rates lower than that permitted by 42 U.S. C. §1396a(a)(30)(A). The court entered summary judgment for petitioners, holding that Idaho had not set rates in a manner consistent with that section. The Court of Appeals affirmed. Held: Respondents have an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation. . (a) The Clause creates a rule of decision that Courts "shall" regard the Constitution, and all laws "made in Pursuance thereof," as the supreme Law of the Land. They must not give effect to state laws that conflict with federal laws, but must not create federal rights equally equally with federal rights. It is apparent that the Clause is not intended to create any federal rights, but to create only federal rights regarding what is and what is not federal law. The Clause is a judge-made remedy, and does not afford affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States. Moreover, the Clause confers upon the Legislature discretion with respect to the means by which the powers of the Constitution are to be carried into execution, which will enable that body to perform the high duties assigned to it. There is no merit to respondents' contention that, since they are beneficiaries of the federal-state Medicaid agreement, and that intended beneficiaries can sue to enforce the obli-gations of private contracting parties, they cannot circumvent Congress' exclusion of private enforcement. Section 30(A), the sole remedy Congress provided for a State's failure to comply with Medicaid's Spending Clause requirements, is the withholding of Medicaid funds. Explicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes that Congress "wanted to make the agency remedy that it provided exclusive, thereby achieving the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking, and avoiding the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action...." (b) Respondents do not claim that Wilder establishes precedent for a private cause of action in this case. Their relief must be sought initially through the Secretary, rather than through the courts. Their claim that the cut-off of funding is too massive to be a realistic source of relief is mistaken, since the Secretary does not notice to aState that its compensation scheme is inadequate. And the fact that Medicaid is much in the nature of a contract does not imply that respondents have a right to sue. Nor does the provision confer on the Secretary the sort of rights that Congress has traditionally presumed to confer upon state Medicaid beneficiaries. This Court has never held or even suggested that, in its application to state officers, it rests upon an implied rights of action contained in the Supre-macy Clause. That is because, as even the dissent implicitly acknowledges, post, at 4 (opinion of Sotomayor, J.) it does not. P.. 835 F. Supp. 2d 960, reversed. JUSTICE STEVENS, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined, and in Parts I, II, III, and IV of which BRENNAN, MARSHALL, and POWELL, JJ. joined. STEVEN, J. filed an opinion concurring in part and dissenting in part,post, at 4.

2014_13-352

https://www.oyez.org/cases/2014/13-352

. Sometimes two different tribunals are asked to decide the same issue. When that happens, the decision of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants’ resources and adjudicators’ time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclusion is designed to prevent this from occurring. This case concerns the application of issue preclusion in the context of trademark law. Petitioner, B&B Hardware, Inc. (B&B), and respondent Hargis Industries, Inc. (Hargis), both use similar trademarks; B&B owns SEALTIGHT while Hargis owns SEALTITE. Under the Lanham Act,60Stat.427, as amended,15 U. S. C. §1051 et seq., an applicant can seek to register a trademark through an administrative process within the United States Patent and Trademark Office (PTO). But if another party believes that the PTO should not register a mark because it is too similar to its own, that party can oppose registration before the Trademark Trial and Appeal Board (TTAB). Here, Hargis tried to register the mark SEALTITE, but B&B opposed SEALTITE’s registration. After a lengthy proceeding, the TTAB agreed with B&B that SEALTITE should not be registered. In addition to permitting a party to object to the registration of a mark, the Lanham Act allows a mark owner to sue for trademark infringement. Both a registration proceeding and a suit for trademark infringement, more-over, can occur at the same time. In this case, while the TTAB was deciding whether SEALTITE should be registered, B&B and Hargis were also litigating the SEALTIGHT versus SEALTITE dispute in federal court. In both registration proceedings and infringement litigation, the tribunal asks whether a likelihood of confusion exists between the mark sought to be protected (here, SEALTIGHT) and the other mark (SEALTITE). The question before this Court is whether the District Court in this case should have applied issue preclusion to the TTAB’s decision that SEALTITE is confusingly similar to SEALTIGHT. Here, the Eighth Circuit rejected issue preclusion for reasons that would make it difficult for the doctrine ever to apply in trademark disputes. We disagree with that narrow understanding of issue preclusion. Instead, consistent with principles of law that apply in innumerable contexts, we hold that a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met. We therefore reverse the judgment of the Eighth Circuit and remand for further proceedings.IA Trademark law has a long history, going back at least to Roman times. See Restatement (Third) of Unfair Competition §9, Comment b (1993). The principle underlying trademark protection is that distinctive marks—words, names, symbols, and the like—can help distinguish a particular artisan’s goods from those of others. Ibid. One who first uses a distinct mark in commerce thus acquires rights to that mark. See 2 J. McCarthy, Trademarks and Unfair Competition §16:1 (4th ed. 2014) (hereinafter McCarthy). Those rights include preventing others from using the mark. See 1 A. LaLonde, Gilson on Trademarks §3.02[8] (2014) (hereinafter Gilson). Though federal law does not create trademarks, see, e.g., Trade-Mark Cases,100 U. S. 82,92 (1879), Congress has long played a role in protecting them. In 1946, Congress enacted the Lanham Act, the current federal trademark scheme. As relevant here, the Lanham Act creates at least two adjudicative mechanisms to help protect marks. First, a trademark owner can register its mark with the PTO. Second, a mark owner can bring a suit for infringement in federal court. Registration is significant. The Lanham Act confers “important legal rights and benefits” on trademark owners who register their marks. 3 McCarthy §19:3, at 19–21 see also id., §19:9, at 19–34 (listing seven of the “procedural and substantive legal advantages” of registration). Registration, for instance, serves as “constructive notice of the registrant’s claim of ownership” of the mark.15 U. S. C. §1072. It also is “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate.” §1057(b). And once a mark has been registered for five years, it can become “incontestable.” §§1065, 1115(b) To obtain the benefits of registration, a mark owner files an application with the PTO. §1051. The application must include, among other things, “the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark.” §1051(a)(2). The usages listed in the application—i.e., those goods on which the mark appears along with, if applicable, their channels of distribution—are critical. See, e.g., 3 McCarthy §20:24, at 20–83 (“[T]he applicant’s right to register must be made on the basis of the goods described in the application”); id., §20:15, at 20–85 (explaining that if an “application does not delimit any spe-cific trade channels of distribution, no limitation will be” applied). The PTO generally cannot register a mark which “so resembles” another mark “as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive.”15 U. S. C. §1052(d). If a trademark examiner believes that registration is warranted, the mark is published in the Official Gazette of the PTO. §1062. At that point, “[a]ny person who believes that he would be damaged by the registration” may “file an opposition.” §1063(a). Opposition proceedings occur before the TTAB (or panels thereof). §1067(a). The TTAB consists of administrative trademark judges and high-ranking PTO officials, including the Director of the PTO and the Commissioner of Trademarks. §1067(b). Opposition proceedings before the TTAB are in many ways “similar to a civil action in a federal district court.” TTAB Manual of Procedure §102.03 (2014) (hereinafter TTAB Manual), online at http://www.uspto.gov (as visited Mar. 20, 2015, and available in Clerk of Court’s case file). These proceedings, for instance, are largely governed by the Federal Rules of Civil Procedure and Evidence. See 37 CFR §§2.116(a), 2.122(a) (2014). The TTAB also allows discovery and depositions. See §§2.120, 2.123(a). The party opposing registration bears the burden of proof, see §2.116(b), and if that burden cannot be met, the opposed mark must be registered, see15 U. S. C. §1063(b). The primary way in which TTAB proceedings differ from ordinary civil litigation is that “proceedings before the Board are conducted in writing, and the Board’s actions in a particular case are based upon the written record therein.” TTAB Manual §102.03. In other words, there is no live testimony. Even so, the TTAB allows parties to submit transcribed testimony, taken under oath and subject to cross-examination, and to request oral argument. See 37 CFR §§2.123, 2.129. When a party opposes registration because it believes the mark proposed to be registered is too similar to its own, the TTAB evaluates likelihood of confusion by applying some or all of the 13 factors set out in In re E. I. DuPont DeNemours & Co., 476 F. 2d 1357 (CCPA 1973). After the TTAB decides whether to register the mark, a party can seek review in the U. S. Court of Appeals for the Federal Circuit, or it can file a new action in district court. See15 U. S. C. §1071. In district court, the parties can conduct additional discovery and the judge resolves registration de novo. §1071(b); see also 3 McCarthy §21:20 (explaining differences between the forums); cf. Kappos v. Hyatt, 566 U. S. ___ (2012) (de novo review for analogous scheme in patent law). The Lanham Act, of course, also creates a federal cause of action for trademark infringement. The owner of a mark, whether registered or not, can bring suit in federal court if another is using a mark that too closely resembles the plaintiff’s. The court must decide whether the defendant’s use of a mark in commerce “is likely to cause confusion, or to cause mistake, or to deceive” with regards to the plaintiff’s mark. See15 U. S. C. §1114(1)(a) (registered marks); §1125(a)(1)(A) (unregistered marks). In infringement litigation, the district court considers the full range of a mark’s usages, not just those in the application.B Petitioner B&B and respondent Hargis both manufacture metal fasteners. B&B manufactures fasteners for the aerospace industry, while Hargis manufactures fasteners for use in the construction trade. Although there are obvious differences between space shuttles and A-frame buildings, both aerospace and construction engineers prefer fasteners that seal things tightly. Accordingly, both B&B and Hargis want their wares associated with tight seals. A feud of nearly two decades has sprung from this seemingly commonplace set of facts. In 1993 B&B registered SEALTIGHT for “threaded or unthreaded metal fasteners and other related hardwar[e]; namely, self-sealing nuts, bolts, screws, rivets and washers, all having a captive o-ring, for use in the aerospace industry.” App. 223a (capitalization omitted). In 1996, Hargis sought to register SEALTITE for “self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings.” App. 70a (capitalization omitted). B&B opposed Hargis’ registration because, although the two companies sell different products, it believes that SEALTITE is confusingly similar to SEALTIGHT. The twists and turns in the SEALTIGHT versus SEALTITE controversy are labyrinthine. The question whether either of these marks should be registered, and if so, which one, has bounced around within the PTO for about two decades; related infringement litigation has been before the Eighth Circuit three times; and two separate juries have been empaneled and returned verdicts. The full story could fill a long, unhappy book. For purposes here, we pick up the story in 2002, when the PTO published SEALTITE in the Official Gazette. This prompted opposition proceedings before the TTAB, complete with discovery, including depositions. B&B ar-gued that SEALTITE could not be registered because itis confusingly similar to SEALTIGHT. B&B explained, for instance, that both companies have an online presence, the largest distributor of fasteners sells both companies’ products, and consumers sometimes call the wrong company to place orders. Hargis rejoined that the companies sell different products, for different uses, to different types of consumers, through different channels of trade. Invoking a number of the DuPont factors, the TTAB sided with B&B. The Board considered, for instance, whether SEALTIGHT is famous (it’s not, said the Board), how the two products are used (differently), how much the marks resemble each other (very much), and whether customers are actually confused (perhaps sometimes). See App. to Pet. for Cert. 55a–71a. Concluding that “the most critical factors in [its] likelihood of confusion analysis are the similarities of the marks and the similarity of the goods,” id., at 70a, the TTAB determined that SEALTITE—when “used in connection with ‘self-piercing and self-drilling metal screws for use in the manufacture of metal and post-frame buildings’ ”—could not be registered because it “so resembles” SEALTIGHT when “used in connection with fasteners that provide leakproof protection from liquids and gases, fasteners that have a captive o-ring, and ‘threaded or unthreaded metal fastners and other related hardware . . . for use in the aerospace industry’ as to be likely to cause confusion,” id., at 71a. Despite a right to do so, Hargis did not seek judicial review in either the Federal Circuit or District Court. All the while, B&B had sued Hargis for infringement. Before the District Court ruled on likelihood of confusion, however, the TTAB announced its decision. After a series of proceedings not relevant here, B&B argued to the District Court that Hargis could not contest likelihood of confusion because of the preclusive effect of the TTAB decision. The District Court disagreed, reasoning that the TTAB is not an Article III court. The jury returned a verdict for Hargis, finding no likelihood of confusion. B&B appealed to the Eighth Circuit. Though accepting for the sake of argument that agency decisions can ground issue preclusion, the panel majority affirmed for three reasons: first, because the TTAB uses different factors than the Eighth Circuit to evaluate likelihood of confusion; second, because the TTAB placed too much emphasis on the appearance and sound of the two marks; and third, because Hargis bore the burden of persuasion before the TTAB, while B&B bore it before the District Court. 716 F. 3d 1020 (2013). Judge Colloton dissented, concluding that issue preclusion should apply. After calling for the views of the Solicitor General, we granted certiorari. 573 U. S. ___ (2014).II The first question that we must address is whether an agency decision can ever ground issue preclusion. The District Court rejected issue preclusion because agencies are not Article III courts. The Eighth Circuit did not adopt that view, and, given this Court’s cases, it was right to take that course. This Court has long recognized that “the determination of a question directly involved in one action is conclusive as to that question in a second suit.” Cromwell v. County of Sac,94 U. S. 351,354 (1877). The idea is straightforward: Once a court has decided an issue, it is “forever settled as between the parties,” Baldwin v. Iowa State Traveling Men’s Assn.283 U. S. 522,525 (1931), thereby “protect[ing]” against “the expense and vexation attending multiple lawsuits, conserv[ing] judicial resources, and foster[ing] reliance on judicial action by minimizing the possibility of inconsistent verdicts,” Montana v. United States,440 U. S. 147–154 (1979). In short, “a losing litigant deserves no rematch after a defeat fairly suffered.” Astoria Fed. Sav. & Loan Assn. v. Solimino,501 U. S. 104,107 (1991). Although the idea of issue preclusion is straightforward, it can be challenging to implement. The Court, therefore, regularly turns to the Restatement (Second) of Judgments for a statement of the ordinary elements of issue preclusion. See, e.g., Bobby v. Bies,556 U. S. 825,834 (2009); New Hampshire v. Maine,532 U. S. 742–749 (2001); Baker v. General Motors Corp.,522 U. S. 222,233, n.5 (1998). The Restatement explains that subject to certain well-known exceptions, the general rule is that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments §27, p. 250 (1980); see also id., §28, at 273 (listing exceptions such as whether appellate review was available or whether there were “differences in the quality or extensiveness of the procedures followed”). Both this Court’s cases and the Restatement make clear that issue preclusion is not limited to those situations in which the same issue is before two courts. Rather, where a single issue is before a court and an administrative agency, preclusion also often applies. Indeed, this Court has explained that because the principle of issue preclusion was so “well established” at common law, in those situations in which Congress has authorized agencies to resolve disputes, “courts may take it as given that Congress has legislated with the expectation that the principle [of issue preclusion] will apply except when a statutory purpose to the contrary is evident.” Astoria, supra, at 108. This reflects the Court’s longstanding view that “ ‘[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.’ ” University of Tenn. v. Elliott,478 U. S. 788–798 (1986) (quoting United States v. UtahConstr. & Mining Co.,384 U. S. 394,422 (1966)); see also Hayfield Northern R. Co. v. Chicago & North Western Transp. Co.,467 U. S. 622,636, n.15 (1984) (noting Utah Construction); Kremer v. Chemical Constr. Corp.,456 U. S. 461–485, n. 26 (1982) (characterizing Utah Construction’s discussion of administrative preclusion as a holding); Restatement (Second) of Judgments §83(1), at 266 (explaining that, with some limits, “a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court”). Although apparently accepting Astoria and Utah Construction,[1] Hargis argues that we should not read the Lanham Act (or, presumably, many other federal statutes) as authorizing issue preclusion. Otherwise, Hargis warns, the Court would have to confront “ ‘grave and doubtful questions’ as to the Lanham Act’s consistency with the Seventh Amendment and Article III of the Constitution.” Brief for Respondent 38 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co.,213 U. S. 366,408 (1909)). We are not persuaded. At the outset, we note that Hargis does not argue that giving issue preclusive effect to the TTAB’s decision would be unconstitutional. Instead, Hargis contends only that we should read the Lanham Act narrowly because a broad reading might be unconstitutional. See, e.g., Brief for Respondent 37, 39, 40, 41–42. The likely reason that Hargis has not directly advanced a constitutional argument is that, at least as to a jury trial right, Hargis did not even list the Seventh Amendment as an authority in its appellee brief to the Eighth Circuit. Moreover, although Hargis pressed an Article III argument below, in its opposition to certiorari in this Court, Hargis seemingly con-ceded that TTAB decisions can sometimes ground issue preclusion, though it now protests otherwise. SeeSupplemental Brief in Opposition 2. To the extent, if any, that there could be a meritorious constitutional objection, it is not before us. See Plaut v. Spendthrift Farm, Inc.,514 U. S. 211–232 (1995). We reject Hargis’ statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns. As to the Seventh Amendment, for instance, the Court has already held that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if that judgment was entered by a juryless tribunal. See Parklane Hosiery Co. v. Shore,439 U. S. 322,337 (1979). It would seem to follow naturally that although the Seventh Amendment creates a jury trial right in suits for trademark damages, see Dairy Queen, Inc. v. Wood,369 U. S. 469–480 (1962), TTAB decisions still can have preclusive effect in such suits. Hargis disputes this reasoning even though it admits that in 1791 “ ‘a party was not entitled to have a jury determine issues that had been previously adjudi-cated by a chancellor in equity.’ ” Brief for Respondent 39 (quoting Parklane Hosiery, supra, at 333). Instead, Hargis contends that issue preclusion should not apply to TTAB registration decisions because there were no agencies at common law. But our precedent holds that the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal. And at the same time, adopting Hargis’ view would dramatically undercut agency preclusion, despite what the Court has already said to the contrary. Nothing in Hargis’ avoidance argument is weighty enough to overcome these weaknesses. The claim that we should read the Lanham Act narrowly to avoid Article III concerns is equally unavailing—andfor similar reasons. Hargis argues that because it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court, we should conclude, as a statutory matter, that issue preclusion is unavailable. Such a holding would not fit with our precedent. For instance, in Elliott, the Court, relying on Utah Construction, explained that absent a contrary indication, Congress presumptively intends that an agency’s determination (there, a state agency) has preclusive effect. 478 U. S., at 796–799; see also Astoria, 501 U. S., at 110 (recognizing the “presumption”). To be sure, the Court has never addressed whether such preclusion offends Article III. But because this Court’s cases are so clear, there is no ambiguity for this Court to sidestep through constitutional avoidance.[2]III The next question is whether there is an “evident” reason why Congress would not want TTAB decisions to receive preclusive effect, even in those cases in which the ordinary elements of issue preclusion are met. Astoria, supra, at 108. We conclude that nothing in the Lanham Act bars the application of issue preclusion in such cases. The Lanham Act’s text certainly does not forbid issue preclusion. Nor does the Act’s structure. Granted, one can seek judicial review of a TTAB registration decision in a de novo district court action, and some courts have concluded from this that Congress does not want unreviewed TTAB decisions to ground issue preclusion. See, e.g., American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F. 2d 3, 9–10 (CA5 1974). But that conclusion does not follow. Ordinary preclusion law teaches that if a party to a court proceeding does not challenge an adverse decision, that decision can have preclusive effect in other cases, even if it would have been reviewed de novo. See Restatement (Second) of Judgments §28, Comment a and Illustration 1 (explaining that the failure to pursue an appeal does not undermine issue preclusion and including an example of an apparently unappealed district court’s dismissal for failure to state a claim); cf. Federated Department Stores, Inc. v. Moitie,452 U. S. 394,398 (1981) (noting “the res judicata consequences of a final, unappealed judgment on the merits”). This case is also unlike Astoria, where a plaintiff claiming discrimination first went to an agency and then sued in court about the same alleged conduct. See 501 U. S., at 111. The Court concluded, quite sensibly, that the structure of that scheme indicated that the agency decision could not ground issue preclusion. When exhausting an administrative process is a prerequisite to suit in court, giving preclusive effect to the agency’s determination in that very administrative process could render the judicial suit “strictly pro forma.” Ibid.; see also Elliott, supra, at 795–796 (similar analysis). Here, if a party urged a district court reviewing a TTAB registration decision to give preclusive effect to the very TTAB decision under review, Astoria would apply. But that is not this case. What matters here is that registration is not a prerequisite to an infringement action. Rather, it is a separate proceeding to decide separate rights. Neither is issue preclusion a one-way street. When a district court, as part of its judgment, decides an issue that overlaps with part of the TTAB’s analysis, the TTAB gives preclusive effect to the court’s judgment. See App. to Pet. for Cert. 54a–55a (giving preclusive effect to the District Court’s ear-lier decision regarding SEALTIGHT’s distinctiveness be-cause the issue “was actually litigated and necessarily determined”). Hargis also argues that allowing TTAB decisions to have issue-preclusive effect will adversely affect the registration process. Because of the TTAB’s “ ‘limited jurisdiction’ ” and “ ‘the narrowness of the issues’ ” before it, Hargis contends, the Court should infer that TTAB proceedings are supposed to be more streamlined than infringement litigation. See Brief for Respondent 30 (quoting TTAB Manual §402.01). But, the argument goes, if TTAB decisions can have issue-preclusive effect in infringement litigation, parties may spend more time and energy before the TTAB, thus bogging down the registration process. This concern does not change our conclusion. Issue preclusion is available unless it is “evident,” Astoria, supra, at 108, that Congress does not want it. Here, if a streamlined process in all registration matters was particularly dear to Congress, it would not have authorized de novo challenges for those “dissatisfied” with TTAB decisions.15 U. S. C. §1071(b). Plenary review serves many functions, but ensuring a streamlined process is not one of them. Moreover, as explained below, for a great many registration decisions issue preclusion obviously will not apply because the ordinary elements will not be met. For those registrations, nothing we say today is relevant.IV At last we turn to whether there is a categorical reason why registration decisions can never meet the ordinary elements of issue preclusion, e.g., those elements set out in §27 of the Restatement (Second) of Judgments. Although many registrations will not satisfy those ordinary elements, that does not mean that none will. We agree with Professor McCarthy that issue preclusion applies where “the issues in the two cases are indeed identical and the other rules of collateral estoppel are carefully observed.” 6 McCarthy §32:99, at 32–244; see also 3 Gilson §11.08[4][i][iii][B], p. 11–319 (“Ultimately, Board decisions on likelihood of confusion . . . should be given preclusive effect on a case-by-case basis”).A The Eighth Circuit’s primary objection to issue preclusion was that the TTAB considers different factors than it does. Whereas the TTAB employs some or all of the DuPont factors to assess likelihood of confusion, the Eighth Circuit looks to similar, but not identical, factors identified in SquirtCo v. Seven-Up Co., 628 F. 2d 1086, 1091 (CA8 1980). The court’s instinct was sound: “[I]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure §4417, p. 449 (2d ed. 2002) (hereinafter Wright & Miller). Here, however, the same likelihood-of-confusion standard applies to both registration and infringement. To begin with, it does not matter that registration and infringement are governed by different statutory provisions. Often a single standard is placed in different statutes; that does not foreclose issue preclusion. See, e.g., Smith v. Bayer Corp., 564 U. S. ___, ___ (2011) (slip op., at 7). Neither does it matter that the TTAB and the Eighth Circuit use different factors to assess likelihood of confusion. For one thing, the factors are not fundamentally different, and “[m]inor variations in the application of what is in essence the same legal standard do not defeat preclusion.” Id., at ___, n. 9 (slip op., at 12, n. 9). More important, if federal law provides a single standard, parties cannot escape preclusion simply by litigating anew in tribunals that apply that one standard differently. A contrary rule would encourage the very evils that issue preclusion helps to prevent. The real question, therefore, is whether likelihood of confusion for purposes of registration is the same standard as likelihood of confusion for purposes of infringement. We conclude it is, for at least three reasons. First, the operative language is essentially the same; the fact that the registration provision separates “likely” from “to cause confusion, or to cause mistake, or to deceive” does not change that reality.[3] See 2 Gilson §5.01[2][a], at 5–17 (explaining that “the same statutory test” applies). Second, the likelihood-of-confusion language that Congress used in these Lanham Act provisions has been central to trademark registration since at least 1881. See Act of Mar. 3, 1881, ch. 138, §3,21Stat.503 (using a “likely to cause confusion” standard for registration). That could hardly have been by accident. And third, district courts can cancel registrations during infringement litigation, just as they can adjudicate infringement in suits seeking judicial review of registration decisions. See15 U. S. C. §1119; 3 McCarthy §21:20. There is no reason to think that the same district judge in the same case should apply two separate standards of likelihood of confusion. Hargis responds that the text is not actually the same because the registration provision asks whether the marks “resemble” each other,15 U. S. C. §1052(d), while the infringement provision is directed towards the “use in commerce” of the marks, §1114(1). Indeed, according to Hargis, the distinction between “resembl[ance]” and “use” has been key to trademark law for over a century. There is some force to this argument. It is true that “a party opposing an application to register a mark before the Board often relies only on its federal registration, not on any common-law rights in usages not encompassed by its registration,” and “the Board typically analyzes the marks, goods, and channels of trade only as set forth in the application and in the opposer’s registration, regardless of whether the actual usage of the marks by either party differs.” Brief for United States as Amicus Curiae 23; see also id., at 5 (explaining that “the Board typically reviews only the usages encompassed by the registration”) (citing 3 Gilson §9.03[2][a][ii]); 3 McCarthy §20:15, at 20–45 (explaining that for registration “it is the mark as shown in the application and as used on the goods described in the application which must be considered, not the mark as actually used”). This means that unlike in infringement litigation, “[t]he Board’s determination that a likelihood of confusion does or does not exist will not resolve the confusion issue with respect to non-disclosed usages.” Brief for United States as Amicus Curiae 23. Hargis’ argument falls short, however, because it mistakes a reason not to apply issue preclusion in some or even many cases as a reason never to apply issue preclusion. Just because the TTAB does not always consider the same usages as a district court does, it does not follow that the Board applies a different standard to the usages it does consider.[4] If a mark owner uses its mark in ways that are materially the same as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confusion issue as a district court in infringement litigation. By contrast, if a mark owner uses its mark in ways that are materially unlike the usages in its application, then the TTAB is not deciding the same issue. Thus, if the TTAB does not consider the marketplace usage of the parties’ marks, the TTAB’s decision should “have no later preclusive effect in a suit where actual usage in the marketplace is the paramount issue.” 6 McCarthy §32:101, at 32–246. Materiality, of course, is essential—trivial variations between the usages set out in an application and the use of a mark in the marketplace do not create different “issues,” just as trivial variations do not create different “marks.” See generally 4 id., §23:50, at 23–265 (explaining that “adding descriptive or non-distinctive” elements to another’s mark generally will not negate confusion). Otherwise, a party could escape the preclusive effect of an adverse judgment simply by adding an immaterial feature to its mark. That is not the law. See, e.g., Restatement (Second) of Judgments §27, Comment c, at 252–253 (explaining that “issue” must be understood broadly enough “to prevent repetitious litigation of what is essentially the same dispute”); United States v. Stauffer Chemical Co.,464 U. S. 165,172 (1984) (applying issue preclusion where a party sought to “litigate twice . . . an issue arising . . . from virtually identical facts” because the “factual differences” were “of no legal significance”). A fortiori, if the TTAB considers a different mark altogether, issue preclusion would not apply. Needless to say, moreover, if the TTAB has not decided the same issue as that before the district court, there is no reason why any deference would be warranted. For a similar reason, the Eighth Circuit erred in holding that issue preclusion could not apply here because the TTAB relied too heavily on “appearance and sound.” App. to Pet. for Cert. 10a. Undoubtedly there are cases in which the TTAB places more weight on certain factors than it should. When that happens, an aggrieved party should seek judicial review. The fact that the TTAB may have erred, however, does not prevent preclusion. As Judge Colloton observed in dissent, “ ‘issue preclusion prevent[s] relitigation of wrong decisions just as much as right ones.’ ” 716 F. 3d, at 1029 (quoting Clark v. Clark, 984 F. 2d 272, 273 (CA8 1993)); see also Restatement (Second) of Judgments §28, Comment j, at 284 (explaining that “refusal to give the first judgment preclusive effect should not . . . be based simply on a conclusion that [it] was patently erroneous”).B Hargis also argues that registration is categorically incompatible with issue preclusion because the TTAB uses procedures that differ from those used by district courts. Granted, “[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.” Montana, 440 U. S., at 164, n. 11; see also Parklane Hosiery, 439 U. S., at 331, and n. 15 (similar). But again, this only suggests that sometimes issue preclusion might be inappropriate, not that it always is. No one disputes that the TTAB and district courts use different procedures. Most notably, district courts feature live witnesses. Procedural differences, by themselves, however, do not defeat issue preclusion. Equity courts used different procedures than did law courts, but that did not bar issue preclusion. See id., at 333. Nor is there reason to think that the state agency in Elliott used procedures identical to those in federal court; nonetheless, the Court held that preclusion could apply. See 478 U. S., at 796–799. Rather than focusing on whether procedural differences exist—they often will—the correct inquiry is whether the procedures used in the first proceeding were fundamentally poor, cursory, or unfair. See Montana, 440 U. S., at 164, n. 11. Here, there is no categorical “reason to doubt the quality, extensiveness, or fairness,” ibid., of the agency’s procedures. In large part they are exactly the same as in fed-eral court. See 37 CFR §§2.116(a), 2.122(a). For instance, although the “[t]he scope of discovery in Board proceedings . . . . is generally narrower than in court proceedings”—reflecting the fact that there are often fewer usages at issue—the TTAB has adopted almost the whole of Federal Rule of Civil Procedure 26. TTAB Manual §402.01; see also id., §401. It is conceivable, of course, that the TTAB’s procedures may prove ill-suited for a particular issue in a particular case, e.g., a party may have tried to introduce material evidence but was prevented by the TTAB from doing so, or the TTAB’s bar on live testimony may materially prejudice a party’s ability to present its case. The ordinary law of issue preclusion, however, already accounts for those “rare” cases where a “compelling showing of unfairness” can be made. Restatement (Second) of Judgments §28, Comments g and j, at 283–284. The Eighth Circuit likewise erred by concluding that Hargis bore the burden of persuasion before the TTAB. B&B, the party opposing registration, bore the burden, see 37 CFR §2.116(b); TTAB Manual §702.04(a), just as it did in the infringement action. Hargis does not defend the decision below on this ground.C Hargis also contends that the stakes for registration are so much lower than for infringement that issue preclusion should never apply to TTAB decisions. Issue preclusion may be inapt if “the amount in controversy in the first action [was] so small in relation to the amount in controversy in the second that preclusion would be plainly unfair.” Restatement (Second) of Judgments §28, Comment j, at 283–284. After all, “[f]ew . . . litigants would spend $50,000 to defend a $5,000 claim.” Wright & Miller §4423, at 612. Hargis is wrong, however, that this exception to issue preclusion applies to every registration. Tothe contrary: When registration is opposed, there isgood reason to think that both sides will take the matter seriously. The benefits of registration are substantial. Registration is “prima facie evidence of the validity of the registered mark,”15 U. S. C. §1057(b), and is a precondition for a mark to become “incontestable,” §1065. Incontestability is a powerful protection. See, e.g., Park ’N Fly, Inc. v. Dollar Park & Fly, Inc.,469 U. S. 189,194 (1985) (holding that an incontestable mark cannot be challenged as merely descriptive); see also id., at 193 (explaining that “Con-gress determined that . . . ‘trademarks should receive nationally the greatest protection that can be given them’ ” and that “[a]mong the new protections created by the Lanham Act were the statutory provisions that allow a federally registered mark to become incontestable” (quoting S. Rep. No. 1333, 79th Cong., 2d Sess., 6 (1946))). The importance of registration is undoubtedly why Congress provided for de novo review of TTAB decisions in district court. It is incredible to think that a district court’s adjudication of particular usages would not have preclusive effect in another district court. Why would unchallenged TTAB decisions be different? Congress’ creation of this elaborate registration scheme, with so many important rights attached and backed up by plenary review, confirms that registration decisions can be weighty enough to ground issue preclusion.V For these reasons, the Eighth Circuit erred in this case. On remand, the court should apply the following rule: So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before the district court, issue preclusion should apply. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Notes1 See Brief for Respondent 28 (acknowledging that administrative “[p]reclusion’s status as part of the common-law backdrop means that courts may presume its application” absent contrary indication from Congress) (citing Astoria 501 U. S., at 110); Brief for Respondent 34 (explaining that Utah Construction determined that “an administrative board’s factfinding . . . could . . . have preclusive effect in an Article III suit raising damages claims over which the board had no jurisdiction”).2 Our dissenting colleagues argue that Utah Construction’s conclu-sion that courts “have not hesitated” to apply administrative preclusion, 384 U. S., at 422, was mistaken and certainly should not be applied to statutes—such as the Lanham Act—enacted prior to 1966. We do not decide who reads the history better. The Court has repeat-edly endorsed Utah Construction and, importantly, neither party chal-lenges its historical accuracy. For the same reason, we do not decide whether such preclusion is unconstitutional because the issue is not before us. 3 Compare15 U. S. C. §1114(1) (“Any person who shall . . . use in commerce any . . . mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive . . . shall be liable in a civil action by the registrant for the remedies hereinafter provided” (emphasis added)) with §1052(d) (“No trademark . . . shall be refused registration . . . unless it . . . [c]onsists of or comprises a mark which so resembles a mark registered in the Patent and Trademark Office . . . as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive . . .” (emphasis added)).4 The parties dispute whether and how often the TTAB considers usages beyond those listed in the application and registration. We do not resolve that dispute here. Suffice it to say that when the TTAB adjudicates a usage within its authority, that adjudication can ground issue preclusion. See Restatement (Second) of Judgments §11 (1980).

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 . SUPREME COURT OF THE UNITED STATES Syllabus B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC., dba SEALTITE BUILDING FASTENERS et al., et al. certiorari to the united states court of appeals for the eighth circuit No. 13–352. Argued December 2, 2014—Decided March 24, 2015 Respondent Hargis Industries, Inc. (Hargis), tried to register its trademark for SEALTITE with the United States Patent and Trademark Office pursuant to the Lanham Act. Petitioner, B&B Hardware, Inc. (B&B), however, opposed registration, claiming that SEALTITE is too similar to B&B’s own SEALTIGHT trademark. The Trademark Trial and Appeal Board (TTAB) concluded that SEALTITE should not be registered because of the likelihood of confusion. Hargis did not seek judicial review of that decision. Later, in an infringement suit before the District Court, B&B argued that Hargis was precluded from contesting the likelihood of confusion because of the TTAB’s decision. The District Court disagreed. The Eighth Circuit affirmed, holding that preclusion was unwarranted because the TTAB and the court used different factors to evaluate likelihood of confusion, the TTAB placed too much emphasis on the appearance and sound of the two marks, and Hargis bore the burden of persuasion before the TTAB while B&B bore it before the District Court. Held: So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before a district court, issue preclusion should apply. . (a) An agency decision can ground issue preclusion. The Court’s cases establish that when Congress authorizes agencies to resolve disputes, “courts may take it as given that Congress has legislated with the expectation that [issue preclusion] will apply except when a statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104 . Constitutional avoidance does not compel a different conclusion. . (b) Neither the Lanham Act’s text nor its structure rebuts the “presumption” in favor of giving preclusive effect to TTAB decisions where the ordinary elements of issue preclusion are met. Astoria, 501 U. S., at 108. This case is unlike Astoria. There, where exhausting the administrative process was a prerequisite to suit in court, giving preclusive effect to the agency’s determination in that very administrative process could have rendered the judicial suit “strictly pro forma.” Id., at 111. By contrast, registration involves a separate proceeding to decide separate rights. . (c) There is no categorical reason why registration decisions can never meet the ordinary elements of issue preclusion. That many registrations will not satisfy those ordinary elements does not mean that none will. . (1) Contrary to the Eighth Circuit’s conclusion, the same likelihood-of-confusion standard applies to both registration and infringement. The factors that the TTAB and the Eighth Circuit use to assess likelihood of confusion are not fundamentally different, and, more important, the operative language of each statute is essentially the same. Hargis claims that the standards are different, noting that the registration provision asks whether the marks “resemble” each other, 15 U. S. C. §1052(d), while the infringement provision is directed towards the “use in commerce” of the marks, §1114(1). That the TTAB and a district court do not always consider the same usages, however, does not mean that the TTAB applies a different standard to the usages it does consider. If a mark owner uses its mark in materially the same ways as the usages included in its registration application, then the TTAB is deciding the same likelihood-of-confusion issue as a district court in infringement litigation. For a similar reason, the Eighth Circuit erred in holding that issue preclusion could not apply because the TTAB relied too heavily on “appearance and sound.” . (2) The fact that the TTAB and district courts use different procedures suggests only that sometimes issue preclusion might be inappropriate, not that it always is. Here, there is no categorical “reason to doubt the quality, extensiveness, or fairness,” Montana v. United States, 440 U. S. 147 , 164, n. 11, of the agency’s procedures. In large part they are exactly the same as in federal court. Also contrary to the Eighth Circuit’s conclusion, B&B, the party opposing registration, not Hargis, bore the burden of persuasion before the TTAB, just as it did in the infringement suit. . (3) Hargis is also wrong that the stakes for registration are always too low for issue preclusion in later infringement litigation. When registration is opposed, there is good reason to think that both sides will take the matter seriously. Congress’ creation of an elaborate registration scheme, with many important rights attached and backed up by plenary review, confirms that registration decisions can be weighty enough to ground issue preclusion. . 716 F. 3d 1020, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.

Petitioner B&B Hardware, Inc. (B&B), and respondent Hargis Industries, Inc., both use similar trademarks. Petitioner filed an application with the Patent and Trademark Office (PTO) under the Lanham Act (Act), which allows a mark owner to sue for trademark infringement before the Trademark Trial and Appeal Board (TTAB). The TTAB, which is composed of administrative trademark judges and high-ranking PTO officials, determines whether a likelihood of confusion exists between the mark sought to be protected (here, SEALTITE) and the other mark (SEALTITE). When a party opposes registration because it believes that the mark proposed to be registered is too similar to its own, it can seek review in the Federal Rules of Civil Procedure and Evidence, or it can file a new action in the district court or in a new district court. The District Court ruled that the TDAB could not contest the District Court's decision on the basis of three relevant factors. Held: 1. A court should give preclusive effect to TTAb decisions if the ordinary elements of issue preclusion are met. Here, where a single issue is before a court and an administrative agency, preclusion often applies. See, e.g., Astoria Fed. Sav. & Loan Assn. v. Solimino,501 U. S. 104,107. . (a) Although it does not matter that registration and infringement are governed by different statutory provisions, such as the Act, or that the right to a jury trial does not negate the issue-preclusive effect of a judgment, even if that judgment was entered by a juryless tribunal, Hargi, the party opposing registration, did not seek judicial review in either the Federal District Court or the Federal Circuit. Rather, the primary way in which preclusion is addressed is in the context of trademark law. Here, the statutory scheme is essentially the same, since the registration provision separates "likely" from "to cause confusion, or to cause mistake... or to deceive," and the likelihood-of-confusion language has been central to trademark registration since at least 1881. Moreover, district courts can cancel registrations during infringement litigation, just as they can adjudicate infringement in suits seeking judicial review of registration decisions. There is no reason to think that the same district judge in the same case should apply the same standard in the infringement action. Cf. Astoria, supra, at 108. Pp. 468 U.S. 100-101. (b) A district court adjudicating a usage within its authority does not invalidate preclusion. See Restatement (Second) of Judgments §27, p. 250. Such an adjudication is available unless it is "evident" that Congress does not want it. This concern does not change the fact that, when a district court, as part of its judgment, decides an issue that overlaps with part of the Act's analysis, the Act gives preclus effect to the court's judgment. In this case, the court erred in holding that issue preclus could not apply to every registration.. 2. On the record in this case and in other cases, administrative preclusion should apply to the registration issue. See id., §28, 716 F. 3d 1020, reversed and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p.. BRENNAN and MARSHALL JJ., took no part in the decision of the case.

2014_14-103

https://www.oyez.org/cases/2014/14-103

. Section 327(a) of the Bankruptcy Code allows bank-ruptcy trustees to hire attorneys, accountants, and other professionals to assist them in carrying out their statutory duties. 11 U. S. C. §327(a). Another provision, §330(a)(1), states that a bankruptcy court “may award . . . reasonable compensation for actual, necessary services rendered by” those professionals. The question before us is whether §330(a)(1) permits a bankruptcy court to award attorney’s fees for work performed in defending a fee application in court. We hold that it does not and therefore affirm the judgment of the Court of Appeals. I In 2005, respondent ASARCO LLC, a copper mining, smelting, and refining company, found itself in financial trouble. Faced with falling copper prices, debt, cash flow deficiencies, environmental liabilities, and a striking work force, ASARCO filed for Chapter 11 bankruptcy. As in many Chapter 11 bankruptcies, no trustee was appointed and ASARCO—the “ ‘debtor in possession’ ”—administered the bankruptcy estate as a fiduciary for the estate’s creditors. §§1101(1), 1107(a). Relying on §327(a) of the Bankruptcy Code, which permits trustees to employ attorneys and other professionals to assist them in their duties, ASARCO obtained the Bankruptcy Court’s permission to hire two law firms, petitioners Baker Botts L.L.P. and Jordan, Hyden, Womble, Culbreth & Holzer, P.C., to provide legal representation during the bankruptcy.[1] Among other services, the firms prosecuted fraudulent-transfer claims against ASARCO’s parent company and ultimately obtained a judgment against it worth between $7 and $10 billion. This judgment contributed to a successful reorganization in which all of ASARCO’s creditors were paid in full. After over four years in bankruptcy, ASARCO emerged in 2009 with $1.4 billion in cash, little debt, and resolution of its environmental liabilities. The law firms sought compensation under §330(a)(1), which provides that a bankruptcy court “may award . . . reasonable compensation for actual, necessary services rendered by” professionals hired under §327(a). As required by the bankruptcy rules, the two firms filed fee applications. Fed. Rule Bkrtcy. Proc. 2016(a). ASARCO, controlled once again by its parent company, challenged the compensation requested in the applications. After extensive discovery and a 6-day trial on fees, the Bankruptcy Court rejected ASARCO’s objections and awarded the firms approximately $120 million for their work in the bankruptcy proceeding plus a $4.1 million enhancement for exceptional performance. The court also awarded the firms over $5 million for time spent litigating in defense of their fee applications. ASARCO appealed various aspects of the award to the District Court. As relevant here, the court held that the firms could recover fees for defending their fee application. The Court of Appeals for the Fifth Circuit reversed. It reasoned that the American Rule—the rule that each side must pay its own attorney’s fees—“applies absent explicit statutory . . . authority” to the contrary and that “the Code contains no statutory provision for the recovery of attor-ney fees for defending a fee application.” In re ASARCO, L.L.C., 751 F. 3d 291, 301 (2014) (internal quotation marks omitted). It observed that §330(a)(1) provides “that professional services are compensable only if they are likely to benefit a debtor’s estate or are necessary to case administration.” Id., at 299. Because “[t]he primary beneficiary of a professional fee application, of course, is the professional,” compensation for litigation defending that application does not fall within §330(a)(1). Ibid. We granted certiorari, 573 U. S. ___ (2014), and now affirm. II A “Our basic point of reference when considering the award of attorney’s fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242 –253 (2010) (internal quotation marks omitted). The American Rule has roots in our common law reaching back to at least the 18th century, see Arcambel v. Wiseman, 3 Dall. 306 (1796), and “[s]tatutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar [legal] principles,” Fogerty v. Fantasy, Inc., 510 U. S. 517, 534 (1994) (internal quotation marks and ellipsis omitted). We consequently will not deviate from the American Rule “ ‘absent explicit statutory authority.’ ” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994) ). We have recognized departures from the American Rule only in “specific and explicit provisions for the allowance of attorneys’ fees under selected statutes.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 260 (1975) . Although these “[s]tatutory changes to [the American Rule] take various forms,” Hardt, supra, at 253, they tend to authorize the award of “a reasonable attorney’s fee,” “fees,” or “litigation costs,” and usually refer to a “prevailing party” in the context of an adversarial “action,” see, e.g., 28 U. S. C. §2412(d)(1)(A); 42 U. S. C. §§1988(b), 2000e–5(k); see generally Hardt, supra, at 253, and nn. 3–7 (collecting examples). The attorney’s fees provision of the Equal Access to Justice Act offers a good example of the clarity we have required to deviate from the American Rule. See 28 U. S. C. §2412(d)(1)(A). That section provides that “a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) . . . brought by or against the United States” under certain conditions. Ibid. As our decision in Commissioner v. Jean, 496 U. S. 154 (1990) , reveals, there could be little dispute that this provision—which mentions “fees,” a “prevailing party,” and a “civil action”—is a “fee-shifting statut[e]” that trumps the American Rule, id., at 161. B Congress did not expressly depart from the American Rule to permit compensation for fee-defense litigation by professionals hired to assist trustees in bankruptcy proceedings. Section 327(a) authorizes the employment of such professionals, providing that a “trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist [him] in carrying out [his] duties.” In other words, §327(a) professionals are hired to serve the administrator of the estate for the benefit of the estate. Section 330(a)(1) in turn authorizes compensation for these professionals as follows: “After notice to the parties in interest and the United States Trustee and a hearing, and subject to sec-tions 326, 328, and 329, the court may award to a trustee, a consumer privacy ombudsman appointed under section 332, an examiner, an ombudsman appointed under section 333, or a professional person employed under section 327 or 1103— “(A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, ombudsman, professional person, or attorney and by any paraprofessional person employed by any such person; and “(B) reimbursement for actual, necessary expenses.” (Emphasis added.) This text cannot displace the American Rule with respect to fee-defense litigation. To be sure, the phrase “reason-able compensation for actual, necessary services rendered” permits courts to award fees to attorneys for work done to assist the administrator of the estate, as the Bankruptcy Court did here when it ordered ASARCO to pay roughly $120 million for the firms’ work in the bankruptcy proceeding. No one disputes that §330(a)(1) authorizes an award of attorney’s fees for that kind of work. See Alyeska Pipeline, supra, at 260, and n. 33 (listing §330(a)(1)’s predecessor as an example of a provision authorizing attorney’s fees). But the phrase “reasonable compensation for actual, necessary services rendered” neither specifi-cally nor explicitly authorizes courts to shift the costs ofadversarial litigation from one side to the other—in this case, from the attorneys seeking fees to the administrator of the estate—as most statutes that displace the American Rule do. Instead, §330(a)(1) provides compensation for all §327(a) professionals—whether accountant, attorney, or auctioneer—for all manner of work done in service of the estate administrator. More specifically, §330(a)(1) allows “reasonable compensation” only for “actual, necessary services rendered.” (Emphasis added.) That qualification is significant. The word “services” ordinarily refers to “labor performed for another.” Webster’s New International Dictionary 2288 (def. 4) (2d ed. 1934); see also Black’s Law Dictionary 1607 (3d ed. 1933) (“duty or labor to be rendered by one person to another”); Oxford English Dictionary 517 (def. 19) (1933) (“action of serving, helping or benefiting; conduct tending to the welfare or advantage of another”).[2] Thus, in a case addressing §330(a)’s predecessor, this Court concluded that the phrase “ ‘reasonable compensation for services rendered’ necessarily implies loyal and disinterested service in the interest of” a client. Woods v. City Nat. Bank & Trust Co. of Chicago, 312 U. S. 262, 268 (1941) ; accord, American United Mut. Life Ins. Co. v. Avon Park, 311 U. S. 138, 147 (1940) . Time spent litigating a fee application against the administrator of a bankruptcy estate cannot be fairly described as “labor performed for”—let alone “disinterested service to”—that administrator. This legislative decision to limit “compensation” to “services rendered” is particularly telling given that other provisions of the Bankruptcy Code expressly transfer the costs of litigation from one adversarial party to the other. Section 110(i), for instance, provides that “[i]f a bank-ruptcy petition preparer . . . commits any act that the court finds to be fraudulent, unfair, or deceptive, on the motion of the debtor, trustee, United States trustee (or the bankruptcy administrator, if any),” the bankruptcy court must “order the bankruptcy petition preparer to pay the debtor . . . reasonable attorneys’ fees and costs in moving for damages under this subsection.” §110(i)(1)(C). Had Congress wished to shift the burdens of fee-defense litigation under §330(a)(1) in a similar manner, it easily could have done so. We accordingly refuse “to invade the legislature’s province by redistributing litigation costs” here. Alyeska Pipeline, 421 U. S., at 271. III The law firms, the United States as amicus curiae, and the dissent resist this straightforward interpretation of the statute. The law firms and the Government each offer a theory for why §330(a)(1) expressly overrides the American Rule in the context of litigation in defense of a fee application, and the dissent embraces the latter. Neither theory is persuasive. A We begin with the law firms’ approach. According to the firms, fee-defense litigation is part of the “services rendered” to the estate administrator under §330(a)(1). See Brief for Petitioners 23–30. As explained above, that reading is untenable. The term “services” in this provision cannot be read to encompass adversarial fee-defense litigation. See Part II–B, supra. Even the dissent agrees on this point. See post, at 1 (opinion of Breyer, J.). Indeed, reading “services” in this manner could end up compensating attorneys for the unsuccessful defense of a fee application. The firms insist that “estates do benefit from fee defenses”—and thus receive a “service” under §330(a)(1)—because “the estate has an interest in obtaining a just determination of the amount it should pay its professionals.” Brief for Petitioners 25–26 (internal quotation marks omitted). But that alleged interest—and hence the supposed provision of a “service”—exists whether or not a §327(a) professional prevails in his fee dispute. We decline to adopt a reading of §330(a)(1) that would allow courts to pay professionals for arguing for fees they were found never to have been entitled to in the first place. Such a result would not only require an unnatural interpretation of the term “services rendered,” but a particu-larly unusual deviation from the American Rule as well, as“[m]ost fee-shifting provisions permit a court to award attorney’s fees only to a ‘prevailing party,’ ” a “ ‘substantially prevailing’ party,” or “a ‘successful’ litigant,” Hardt, 560 U. S., at 253 (footnote omitted). There is no indication that Congress departed from the American Rule in §330(a)(1) with respect to fee-defense litigation, let alone that it did so in such an unusual manner. B The Government’s theory, embraced by the dissent, fares no better. Although the United States agrees that “the defense of a fee application does not itself qualify as an independently compensable service,” it nonetheless contends that “compensation for such work is properly viewed as part of the compensation for the underlying services in the bankruptcy proceeding.” Brief for United States as Amicus Curiae 25. According to the Government, if an attorney is not repaid for his time spent successfully litigating fees, his compensation for his actual “services rendered” to the estate administrator in the underlying proceeding will be diluted. Id., at 18. The United States thus urges us to treat fees for fee-defense work “as a component of ‘reasonable compensation.’ ” Id., at 33; accord, post, at 1 (Breyer, J., dissenting). We refuse to do so for several reasons. 1 First and foremost, the Government’s theory cannot be reconciled with the relevant text. Section 330(a)(1) does not authorize courts to award “reasonable compensation” simpliciter, but “reasonable compensation for actual, necessary services rendered by” the §327(a) professional. §330(a)(1)(A) (emphasis added). Here, the contested award was tied to the firms’ work on the fee-defense litigation and is correctly understood only as compensation for that work. The Government and the dissent properly concede that litigation in defense of a fee application is not a “service” within the meaning of §330(a)(1); it follows that the contested award was not “compensation” for a “service.” Thus, the only way to reach their reading of the statute would be to excise the phrase “for actual, necessary services rendered” from the statute.[3] Contrary to the Government’s assertion, §330(a)(6) does not presuppose that courts are free to award compensation based on work that does not qualify as a service to the estate administrator. That provision specifies that “[a]ny compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.” The Government argues that because time spent preparing a fee application is compensable, time spent defending it must be too. But the provision cuts the other way. A §327(a) professional’s preparation of a fee application is best understood as a “servic[e] rendered” to the estate administrator under §330(a)(1), whereas a professional’s defense of that application is not. By way of analogy, it would be natural to describe a car mechanic’s preparation of an itemized bill as part of his “services” to the customer because it allows a customer to understand—and, if necessary, dispute—his expenses. But it would be less natural to describe a subsequent court battle over the bill as part of the “services rendered” to the customer. The Government used to understand that time spent preparing a fee application was different from time spent defending one for the purposes of §330(a)(1). Just a few years ago, the U. S. Trustee explained that “[r]easonable charges for preparing . . . fee applications . . . are compensable . . . because the preparation of a fee application is not required for lawyers practicing in areas other than bankruptcy as a condition to getting paid.” 78 Fed. Reg. 36250 (2013) (emphasis deleted). By contrast, “time spent . . . defending . . . fee applications” is ordinarily “not compensable,” the Trustee observed, as such time can be “properly characterized as work that is for the benefit of the professional and not the estate.” Ibid. To support its broader interpretation of §330(a)(6), the Government, echoed by the dissent, relies on our remark in Jean that “[w]e find no textual or logical argument for treating so differently a party’s preparation of a fee application and its ensuing efforts to support that same application.” 496 U. S., at 162; see post, at 7. But that use of Jean begs the question. Jean addressed a statutory provision that everyone agreed authorized court-awarded fees for fee-defense litigation. 496 U. S., at 162. The “only dispute” in that context was over what “finding [was] necessary to support such an award.” Ibid. In resolving that issue, the Court declined to treat fee-application and fee-litigation work differently given that the relevant statutory text—“a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action”—could not support such a distinction. Id., at 158. Here, by contrast, the operative language—“reasonable compensation for actual, necessary services rendered”—reaches only the fee-application work. The fact that the provision at issue in Jean “did not mention fee-defense work,” post, at 5, is thus irrelevant. In any event, the Government’s textual foothold for its argument is too insubstantial to support a deviation from the American Rule. The open-ended phrase “reasonable compensation,” standing alone, is not the sort of “specific and explicit provisio[n]” that Congress must provide in order to alter this default rule. Alyeska Pipeline, 421 U. S., at 260. 2 Ultimately, the Government’s theory rests on a flawed and irrelevant policy argument. The United States contends that awarding fees for fee-defense litigation is a “judicial exception” necessary to the proper functioning of the Bankruptcy Code. Brief for United States as Amicus Curiae 15, n. 7 (internal quotation marks omitted). Absent this exception, it warns, fee-defense litigation will dilute attorney’s fees and result in bankruptcy lawyers receiving less compensation than nonbankruptcy lawyers, thereby undermining the congressional aim of ensuring that talented attorneys will take on bankruptcy work. Accord, post, at 3. As an initial matter, we find this policy argument unconvincing. In our legal system, no attorneys, regardless of whether they practice in bankruptcy, are entitled to receive fees for fee-defense litigation absent express statutory authorization. Requiring bankruptcy attorneys to pay for the defense of their fees thus will not result inany disparity between bankruptcy and nonbankruptcy lawyers.[4] The United States nonetheless contends that uncompensated fee litigation in bankruptcy will be particularly costly because multiple parties in interest may object to fee applications, whereas nonbankruptcy fee litigation typically involves just a lawyer and his client. But this argument rests on unsupported predictions of how the statutory scheme will operate in practice, and the Government’s conduct in this case reveals the perils associ-ated with relying on such prognostications to interpretstatutes: The United States took the opposite view below, asserting that “requiring a professional to bear the normal litigation costs of litigating a contested request for payment . . . dilutes a bankruptcy fee award no more than any litigation over professional fees.” Reply Brief for Appellant United States Trustee in No. 11–290 (SD Tex.), p. 15. The speed with which the Government has changed its tune offers a good argument against substituting policy-oriented predictions for statutory text. More importantly, we would lack the authority to rewrite the statute even if we believed that uncompensated fee litigation would fall particularly hard on the bank-ruptcy bar. “Our unwillingness to soften the import of Con-gress’ chosen words even if we believe the words lead to a harsh outcome is longstanding,” and that is no less true in bankruptcy than it is elsewhere. Lamie v. United States Trustee, 540 U. S. 526, 538 (2004) . Whether or not the Government’s theory is desirable as a matter of policy, Congress has not granted us “roving authority . . . to allow counsel fees . . . whenever [we] might deem them warranted.” Alyeska Pipeline, supra, at 260. Our job is to followthe text even if doing so will supposedly “undercut a basic objective of the statute,” post, at 3. Section 330(a)(1) itself does not authorize the award of fees for defending a fee application, and that is the end of the matter. * * * As we long ago observed, “The general practice of the United States is in opposition” to forcing one side to pay the other’s attorney’s fees, and “even if that practice [is] not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.” Arcambel, 3 Dall., at 306 (emphasis deleted). We follow that approach today. Because §330(a)(1) does not explic-itly override the American Rule with respect to fee-defense litigation, it does not permit bankruptcy courts to award compensation for such litigation. We therefore affirm the judgment of the Court of Appeals. It is so ordered.Notes 1 Although §327(a) directly applies only to trustees, §1107(a) gives Chapter 11 debtors in possession the same authority as trustees to retain §327(a) professionals. For the sake of simplicity, we refer to §327(a) alone throughout this opinion. 2 Congress added the phrase “reasonable compensation for the services rendered” to federal bankruptcy law in 1934. Act of June 7, 1934, §77B(c)(9), 48Stat. 917. We look to the ordinary meaning of those words at that time. 3 The dissent’s focus on reasonable compensation is therefore a red herring. See post, at 5–6. The question is not whether an award for fee-defense work would be “reasonable,” but whether such work is compensable in the first place. 4 To the extent the United States harbors any concern about the possibility of frivolous objections to fee applications, we note that “Federal Rule of Bankruptcy Procedure 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.’ ” Law v. Siegel, 571 U. S. ___, ___ (2014) (slip op., at 12).

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 . SUPREME COURT OF THE UNITED STATES Syllabus BAKER BOTTS L.L.P. et al. v. ASARCO LLC certiorari to the united states court of appeals for the fifth circuit No. 14–103. Argued February 25, 2015—Decided June 15, 2015 Respondent ASARCO LLC hired petitioner law firms pursuant to §327(a) of the Bankruptcy Code to assist it in carrying out its duties as a Chapter 11 debtor in possession. See 11 U. S. C. §327(a). When ASARCO emerged from bankruptcy, the law firms filed fee applications requesting fees under §330(a)(1), which permits bankruptcy courts to “award . . . reasonable compensation for actual, necessary services rendered by” §327(a) professionals. ASARCO challenged the applications, but the Bankruptcy Court rejected ASARCO’s objections and awarded the law firms fees for time spent defending the applications. ASARCO appealed to the District Court, which held that the law firms could be awarded fees for defending their fee applications. The Fifth Circuit reversed, holding that §330(a)(1) did not authorize fee awards for defending fee applications. Held: Section §330(a)(1) does not permit bankruptcy courts to award fees to §327(a) professionals for defending fee applications. . (a) The American Rule provides the “ ‘basic point of reference’ ” for awards of attorney’s fees: “ ‘Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.’ ” Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242 –253. Because the rule is deeply rooted in the common law, see, e.g., Arcambel v. Wiseman, 3 Dall. 306, this Court will not deviate from it “ ‘absent explicit statutory authority,’ ” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598 . Departures from the American Rule have been recognized only in “specific and explicit provisions,” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 , usually containing language that authorizes the award of “a reasonable attorney’s fee,” “fees,” or “litigation costs,” and referring to a “prevailing party” in the context of an adversarial “action,” see generally Hardt, supra, at 253, and nn. 3–7. . (b) Congress did not depart from the American Rule in §330(a)(1) for fee-defense litigation. Section 327(a) professionals are hired to serve an estate’s administrator for the benefit of the estate, and §330(a)(1) authorizes “reasonable compensation for actual, necessary services rendered.” The word “services” ordinarily refers to “labor performed for another,” Webster’s New International Dictionary 2288. Thus, the phrase “ ‘reasonable compensation for services rendered’ necessarily implies loyal and disinterested service in the interest of” a client, Woods v. City Nat. Bank & Trust Co. of Chicago, 312 U. S. 262 . Time spent litigating a fee application against the bankruptcy estate’s administrator cannot be fairly described as “labor performed for”—let alone “disinterested service to”—that administrator. Had Congress wished to shift the burdens of fee-defense litigation under §330(a)(1), it could have done so, as it has done in other Bankruptcy Code provisions, e.g., §110(i)(1)(C). . (c) Neither the law firms nor the United States, as amicus curiae, offers a persuasive theory for why §330(a)(1) should override the American Rule in this context. . (1) The law firms’ view—that fee-defense litigation is part of the “services rendered” to the estate administrator—not only suffers from an unnatural interpretation of the term “services rendered,” but would require a particularly unusual deviation from the American Rule, as it would permit attorneys to be awarded fees for unsuccessfully defending fee applications when most fee-shifting provisions permit awards only to “a ‘prevailing party,’ ” Hardt, supra, at 253. . (2) The Government’s argument is also unpersuasive. Its theory—that fees for fee-defense litigation must be understood as a component of the “reasonable compensation for [the underlying] services rendered” so that compensation for the “actual . . . services rendered” will not be diluted by unpaid time spent litigating fees—cannot be reconciled with the relevant text. Section 330(a)(1) does not authorize courts to award “reasonable compensation,” but “reasonable compensation for actual, necessary services rendered,” and the Government properly concedes that litigation in defense of a fee application is not a “service.” And §330(a)(6), which presupposes compensation “for the preparation of a fee application,” does not suggest that time spent defending a fee application must also be compensable. Commissioner v. Jean, 496 U. S. 154 , distinguished. The Government’s theory ultimately rests on the flawed policy argument that a “judicial exception” is needed to compensate fee-defense litigation and safeguard Congress’ aim of ensuring that talented attorneys take on bankruptcy work. But since no attorneys are entitled to such fees absent express statutory authorization, requiring bankruptcy attorneys to bear the costs of their fee-defense litigation under §330(a)(1) creates no disincentive to bankruptcy practice. And even if this Court believed that uncompensated fee-defense litigation would fall particularly hard on the bankruptcy bar, it has no “roving authority . . . to allow counsel fees . . . whenever [it] might deem them warranted,” Alyeska Pipeline, supra, at 260. . 751 F. 3d 291, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined, and in which Sotomayor, J., joined as to all but Part III–B–2. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined.

Respondent filed for Chapter 11 bankruptcy, relying on §327(a) of the Bankruptcy Code, which permits bank-ruptcy trustees to hire attorneys, accountants, appraisers, and other professionals to assist them in carrying out their statutory duties. The bankruptcy court granted the firms permission to hire law firms to provide legal representation during the bankruptcy. Respondent then emerged with over $1.4 billion in cash, little debt, and resolution of its environmental liabilities. The law firms sought compensation under §330(a)(1), which provides that a bankruptcy court "may award... reasonable compensation for actual, necessary services rendered by" such professionals. After extensive discovery and a trial on fees, the bankruptcy court rejected respondent's objections and awarded the law firms approximately $120 million for their work in the bankruptcy proceeding plus a $4.1 million enhancement for exceptional performance, and also awarded the firms over $5 million for time spent litigating in defense of their fee applications. However, the District Court reversed, reasoning that the American Rule (the rule that each side must pay its own attorney’s fees) reapplies absent explicit statutory authority to the contrary, and that the Code contains no statutory provision for the recovery of attor-ney fees for defending a fee application. The Court of Appeals reversed, holding that the law firm firms could recover fees for the defending fee application and that, because the primary beneficiary of a professional fee application is the professional, compensation for litigation defending that application does not fall within §330 (a))(1). Held: Section330(A)(1) does not permit the bankruptcy courts to award attorney's fees for work performed in defending a lawyer-defense fee application in court. . 751 F. 3d 291, affirmed. JUSTICE WHITE, joined by MR. JUSTICE BLACKMUN, MR. POWELL, and MR. REHNQUIST, JJ., concurred in the judgment.

2014_13-1175

https://www.oyez.org/cases/2014/13-1175

. Respondents brought a Fourth Amendment challenge to a provision of the Los Angeles Municipal Code that compels “[e]very operator of a hotel to keep a record” containing specified information concerning guests and to make this record “available to any officer of the Los Angeles Police Department for inspection” on demand. Los Angeles Municipal Code §§41.49(2), (3)(a), (4) (2015). The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review. I A Los Angeles Municipal Code (LAMC) §41.49 requires hotel operators to record information about their guests, including: the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. §41.49(2). Guests without reservations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must present photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. §41.49(4). For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card information. §41.49(2)(b). This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. §41.49(3)(a). Section 41.49(3)(a)—the only provision at issue here—states, in pertinent part, that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” A hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. §11.00(m) (general provision applicable to entire LAMC). B In 2003, respondents, a group of motel operators along with a lodging association, sued the city of Los Angeles (City or petitioner) in three consolidated cases challenging the constitutionality of §41.49(3)(a). They sought declaratory and injunctive relief. The parties “agree[d] that the sole issue in the . . . action [would be] a facial constitu-tional challenge” to §41.49(3)(a) under the Fourth Amend-ment. App. 195. They further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. Id., at 194–195. Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents’ facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. A divided panel of the Ninth Circuit affirmed on the same grounds. 686 F. 3d 1085 (2012). On rehearing en banc, however, the Court of Appeals reversed. 738 F. 3d 1058, 1065 (2013). The en banc court first determined that a police officer’s nonconsensual inspection of hotel records under §41.49 is a Fourth Amendment “search” because “[t]he business records covered by §41.49 are the hotel’s private property” and the hotel therefore “has the right to exclude others from prying into the[ir] contents.” Id., at 1061. Next, the court assessed “whether the searches authorized by §41.49 are reasonable.” Id., at 1063. Relying on Donovan v. Lone Steer, Inc., 464 U. S. 408 (1984) , and See v. Seattle, 387 U. S. 541 (1967) , the court held that §41.49 is facially unconstitutional “as it authorizes inspections” of hotel records “without affording an opportunity to ‘obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.’ ” 738 F. 3d, at 1065 (quoting See, 387 U. S., at 545). Two dissenting opinions were filed. The first dissent argued that facial relief should rarely be available for Fourth Amendment challenges, and was inappropriate here because the ordinance would be constitutional in those circumstances where police officers demand access to hotel records with a warrant in hand or exigent circumstances justify the search. 738 F. 3d, at 1065–1070 (opinion of Tallman, J.). The second dissent conceded that inspections under §41.49 constitute Fourth Amendment searches, but faulted the majority for assessing the reasonableness of these searches without accounting for the weakness of the hotel operators’ privacy interest in the content of their guest registries. Id., at 1070–1074 (opinion of Clifton, J.). We granted certiorari, 574 U. S. ___ (2014), and now affirm. II We first clarify that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. A A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are “the most difficult . . . to mount successfully,” United States v. Salerno, 481 U. S. 739, 745 (1987) , the Court has have never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution. Cf. Fallon, Fact and Fiction About Facial Chal-lenges, 99 Cal. L. Rev. 915, 918 (2011) (pointing to several Terms in which “the Court adjudicated more facial challenges on the merits than it did as-applied challenges”). Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ (2011) ( First Amendment); District of Columbia v. Heller, 554 U. S. 570 (2008) ( Second Amendment); Chicago v. Morales, 527 U. S. 41 (1999) (Due Process Clause of the Fourteenth Amendment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U. S. 71 (1992) (Foreign Commerce Clause). Fourth Amendment challenges to statutes authorizing warrantless searches are no exception. Any claim to the contrary reflects a misunderstanding of our decision in Sibron v. New York, 392 U. S. 40 (1968) . In Sibron, two criminal defendants challenged the constitutionality of a statute authorizing police to, among other things, “ ‘stop any person abroad in a public place whom [they] reason-ably suspec[t] is committing, has committed or is about to commit a felony.” Id., at 43 (quoting then N. Y. Code Crim. Proc. §180–a). The Court held that the search of one of the defendants under the statute violated the Fourth Amendment, 392 U. S., at 59, 62, but refused to opine more broadly on the statute’s validity, stating that “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Id., at 59. This statement from Sibron—which on its face might suggest an intent to foreclose all facial challenges to statutes authorizing warrantless searches—must be understood in the broader context of that case. In the same section of the opinion, the Court emphasized that the “operative categories” of the New York law at issue were “susceptible of a wide variety of interpretations,” id., at 60, and that “[the law] was passed too recently for the State’s highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees,” id., at 60, n. 20. Sibron thus stands for the simple proposition that claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes: Where a statute consists of “extraordinarily elastic categories,” it may be “impossible to tell” whether and to what extent it deviates from the requirements of the Fourth Amendment. Id., at 59, 61, n. 20. This reading of Sibron is confirmed by subsequent precedents. Since Sibron, the Court has entertained facial challenges under the Fourth Amendment to statutes authorizing warrantless searches. See, e.g., Vernonia School District 47J v. Acton, 515 U. S. 646, 648 (1995) (“We granted certiorari to decide whether” petitioner’s student athlete drug testing policy “violates the Fourth and Fourteenth Amendments to the United States Constitution”); Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 633, n. 10 (1989) (“[R]espondents have challenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can ever be conducted”); cf. Illinois v. Krull, 480 U. S. 340, 354 (1987) (“[A] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation”). Perhaps more importantly, the Court has on numerous occasions declared statutes facially invalid under the Fourth Amendment. For instance, in Chandler v. Miller, 520 U. S. 305 –309 (1997), the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this “requirement . . . [did] not fit within the closely guarded category of constitutionally permissible suspicionless searches.” Similar examples abound. See, e.g., Ferguson v. Charleston, 532 U. S. 67, 86 (2001) (holding that a hospital policy authorizing “nonconsensual, warrantless, and suspicionless searches” contravened the Fourth Amendment); Payton v. New York, 445 U. S. 573, 574, 576 (1980) (holding that a New York statute “authoriz[ing] police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest” was “not consistent with the Fourth Amendment”); Torres v. Puerto Rico, 442 U. S. 465, 466, 471 (1979) (holding that a Puerto Rico statute authorizing “police to search the luggage of any person arriving in Puerto Rico from the United States” was unconstitutional because it failed to require either probable cause or a warrant). B Petitioner principally contends that facial challenges to statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all applications. Cf. Salerno, 481 U. S., at 745 (to obtain facial relief the party seeking it “must establish that no set of circumstances exists under which the [statute] would be valid”). In particular, the City points to situations where police are responding to an emergency, where the subject of the search consents to the intrusion, and where police are acting under a court-ordered warrant. See Brief for Petitioner 19–20. While petitioner frames this argument as an objection to respondents’ challenge in this case, its logic would preclude facial relief in every Fourth Amendment challenge to a statute authorizing warrantless searches. For this reason alone, the City’s argument must fail: The Court’s precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed. See Part II–A, supra. Moreover, the City’s argument misunderstands how courts analyze facial challenges. Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a “law is unconstitutional in all of its applications.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008) . But when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct. For instance, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id., at 894. Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.[1] III Turning to the merits of the particular claim before us, we hold that §41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportu-nity for precompliance review. A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but upon probable cause.” Based on this constitutional text, the Court has repeatedly held that “ ‘searches conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” Arizona v. Gant, 556 U. S. 332, 338 (2009) (quoting Katz v. United States, 389 U. S. 347, 357 (1967) ). This rule “applies to commercial premises as well as to homes.” Marshall v. Barlow’s, Inc., 436 U. S. 307, 312 (1978) . Search regimes where no warrant is ever required may be reasonable where “ ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ ” Skinner, 489 U. S., at 619 (quoting Griffin v. Wisconsin, 483 U. S. 868, 873 (1987) (some internal quotation marks omitted)), and where the “primary purpose” of the searches is “[d]istinguishable from the general interest in crime control,” Indianapolis v. Edmond, 531 U. S. 32, 44 (2000) . Here, we assume that the searches authorized by §41.49 serve a “special need” other than conducting criminal investigations: They ensure compliance with the recordkeeping requirement, which in turn deters criminals from operating on the hotels’ premises.[2] The Court has referred to this kind of search as an “administrative searc[h].” Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967) . Thus, we consider whether §41.49 falls within the administrative search exception to the warrant requirement. The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See, 387 U. S., at 545; Lone Steer, 464 U. S., at 415 (noting that an administrative search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the opportunity to “question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court”). And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that §41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril. To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decisionmaker review an officer’s demand to search the registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry. Moreover, this opportunity can be provided without imposing onerous burdens on those charged with an administrative scheme’s enforcement. For instance, respondents accept that the searches authorized by §41.49(3)(a) would be constitutional if they were performed pursuant to an administrative subpoena. Tr. of Oral Arg. 36–37. These subpoenas, which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed. See See, 387 U. S., at 544 (“[T]he demand to inspect may be issued by the agency”). Issuing a subpoena will usually be the full extent of an officer’s burden because “the great majority of businessmen can be expected in normal course to consent to inspection without warrant.” Barlow’s, Inc., 436 U. S., at 316. Indeed, the City has cited no evidence suggesting that without an ordinance authorizing on-demand searches, hotel operators would regularly refuse to cooperate with the police. In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be sufficient if he or she could move to quash the subpoena before any search takes place. Tr. of Oral Arg. 38–39. A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. And, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the registry until the required hearing can occur, which ought not take long. Riley v. California, 573 U. S. ___ (2014) (slip op., at 12) (police may seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”); Illinois v. McArthur, 531 U. S. 326, 334 (2001) (citing cases upholding the constitutionality of “temporary restraints where [they are] needed to preserve evidence until police could obtain a warrant”). Cf. Missouri v. McNeely, 569 U. S. ___ (2013) (slip op., at 12) (noting that many States have procedures in place for considering warrant applications telephonically).[3] Procedures along these lines are ubiquitous. A 2002 report by the Department of Justice “identifiedapproximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities.” Office of Legal Policy, Report to Congresson the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities 3, onlineat http://www.justice.gov/archive/olp/rpt_to_congress.htm(All Internet materials as visited June 19, 2015, andavailable in Clerk of Court’s case file). Their prevalenceconfirms what common sense alone would otherwise lead us to conclude: In most contexts, business owners can be afforded at least an opportunity to contest an administrative search’s propriety without unduly compromising the government’s ability to achieve its regulatory aims. Of course administrative subpoenas are only one way in which an opportunity for precompliance review can be made available. But whatever the precise form, the availability of precompliance review alters the dynamic between the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners. Finally, we underscore the narrow nature of our holding. Respondents have not challenged and nothing in our opinion calls into question those parts of §41.49 that require hotel operators to maintain guest registries containing certain information. And, even absent legislative action to create a procedure along the lines discussed above, see supra, at 11, police will not be prevented from obtaining access to these documents. As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them overif they have a proper administrative warrant—including one that was issued ex parte—or if some other exceptionto the warrant requirement applies, including exigent circumstances.[4] B Rather than arguing that §41.49(3)(a) is constitutional under the general administrative search doctrine, the City and Justice Scalia contend that hotels are “closely regulated,” and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses. Brief for Petitioner 28–47; post, at 5. They are wrong on both counts. Over the past 45 years, the Court has identified only four industries that “have such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise,” Barlow’s, Inc., 436 U. S., 313. Simply listing these industries refutes petitioner’s argument that hotels should be counted among them. Unlike liquor sales, Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) , firearms dealing, United States v. Biswell, 406 U. S. 311 –312 (1972), mining, Donovan v. Dewey, 452 U. S. 594 (1981) , or running an automobile junkyard, New York v. Burger, 482 U. S. 691 (1987) , nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare. See, e.g., id., at 709 (“Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts”); Dewey, 452 U. S., at 602 (describing the mining industry as “among the most hazardous in the country”).[5] Moreover, “[t]he clear import of our cases is that the closely regulated industry . . . is the exception.” Barlow’s, Inc., 436 U. S., at 313. To classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule. The City wisely refrains from arguing that §41.49 itself renders hotels closely regulated. Nor do any of the other regulations on which petitioner and Justice Scalia rely—regulations requiring hotels to, inter alia, maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards—establish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses. See Brief for Petitioner 33–34 (citing regulations); post, at 7 (same). All businesses in Los Angeles need a license to operate. LAMC §§21.03(a), 21.09(a). While some regulations apply to a smaller set of businesses, see e.g. Cal. Code Regs., tit. 25, §40 (2015) (requiring linensto be changed between rental guests), online at http://www.oal.ca.gov/ccr.htm, these can hardly be said to have created a “ ‘comprehensive’ ” scheme that puts hotel owners on notice that their “ ‘property will be subject to periodic inspections undertaken for specific purposes,’ ” Burger, 482 U. S., at 705, n. 16 (quoting Dewey, 452 U. S., at 600). Instead, they are more akin to the widely applicable minimum wage and maximum hour rules that the Court rejected as a basis for deeming “the entirety of American interstate commerce” to be closely regulated in Barlow’s, Inc. 436 U. S., at 314. If such general regulations were sufficient to invoke the closely regulated industry exception, it would be hard to imagine a type of business that would not qualify. See Brief for Google Inc. as Amicus Curiae 16–17; Brief for the Chamber of Commerce of United States of America as Amicus Curiae 12–13. Petitioner attempts to recast this hodgepodge of reg-ulations as a comprehensive scheme by referring to a “centuries-old tradition” of warrantless searches of hotels. Brief for Petitioner 34–36. History is relevant when deter-mining whether an industry is closely regulated. See,e.g., Burger, 482 U. S., at 707. The historical record here, however, is not as clear as petitioner suggests. The City and Justice Scalia principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34–36; post, at 5–6, and n. 1. For instance, the Commonwealth of Massachusetts required innkeepers to “ ‘furnish[ ] . . . suitable provisions and lodging, for the refreshment and entertainment of strangers and travellers, pasturing and stable room, hay and provender . . . for their horses and cattle.’ ” Brief for Petitioner 35 (quoting An Act For The Due Regulation Of Licensed Houses (1786), reprinted in Acts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that “[f]or a long time, [hotel] owners left their registers open to widespread inspection.” Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel’s consent. Even if we were to find that hotels are pervasively regulated, §41.49 would need to satisfy three additional criteria to be reasonable under the Fourth Amendment: (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further [the] regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” Burger, 482 U. S., at 702–703 (internal quotation marks omitted). We assume petitioner’s interest in ensuring that hotels maintain accurate and complete registries might fulfill the first of these requirements, but conclude that §41.49 fails the second and third prongs of this test. The City claims that affording hotel operators any opportunity for precompliance review would fatally undermine the scheme’s efficacy by giving operators a chance to falsify their records. Brief for Petitioner 41–42. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement. See Barlow’s, Inc., 436 U. S., at 320 (“[It is not] apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the [Labor] Secretary to seek an ex parte warrant to reappear at the premises without further notice to the establishment being inspected”); cf. Lone Steer, 464 U. S., at 411, 415 (affirming use of administrative subpoena which provided an opportunity for precompliance review as a means for obtaining “payroll and sales records”). We see no reason to accept it here. As explained above, nothing in our decision today precludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reasonably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash. See Barlow’s, Inc., 436 U. S., at 319–321; Riley, 573 U. S., at ___ (slip op., at 12). Justice Scalia’s claim that these procedures will prove unworkable given the large number of hotels in Los Angeles is a red herring. See post, at 11. While there are approximately 2,000 hotels in Los Angeles, ibid., there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. See supra, at 11. Section 41.49 is also constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because it fails sufficiently to constrain police officers’ discretion as to which hotels to search and under what circumstances. While the Court has upheld inspection schemes of closely regulated industries that called for searches at least four times a year, Dewey, 452 U. S., at 604, or on a “regular basis,” Burger, 482 U. S., at 711, §41.49 imposes no comparable standard. * * * For the foregoing reasons, we agree with the Ninth Circuit that §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. Accordingly, the judgment of the Ninth Circuit is affirmed. It is so ordered.Notes 1 Relatedly, the United States claims that a statute authorizing warrantless searches may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency. See Brief for United States as Amicus Curiae 19. This argument gets things backwards. An otherwise facially unconstitutional statute cannot be saved from invalidation based solely on the existence of a penalty provision that applies when searches are not actually authorized by the statute. This argument is especially unconvincing where, as here, an independent obstruction of justice statute imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing] any public officer . . . in the discharge or attempt to discharge any duty of his or her office of employment.” Cal. Penal Code Ann. §148(a)(1) (West 2014). 2 Respondents contend that §41.49’s principal purpose instead is to facilitate criminal investigation. Brief for Respondents 44–47. Because we find that the searches authorized by §41.49 are unconstitutional even if they serve the City’s asserted purpose, we decline to address this argument. 3 Justice Scalia professes to be baffled at the idea that we could suggest that in certain circumstances, police officers may seize something that they cannot immediately search. Post, at 10–11 (dissenting opinion). But that is what this Court’s cases have explicitly endorsed, including Riley just last Term. 4 In suggesting that our holding today will somehow impede law enforcement from achieving its important aims, Justice Scalia relies on instances where hotels were used as “prisons for migrants smuggled across the border and held for ransom” or as “rendezvous sites where child sex workers meet their clients on threat of violence from their procurers.” See post, at 2. It is hard to imagine circumstances more exigent than these. 5 Justice Scalia’s effort to depict hotels as raising a comparable degree of risk rings hollow. See post, at 1, 14. Hotels—like practically all commercial premises or services—can be put to use for nefarious ends. But unlike the industries that the Court has found to be closely regulated, hotels are not intrinsically dangerous.

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 . SUPREME COURT OF THE UNITED STATES Syllabus CITY OF LOS ANGELES, CALIFORNIA v. PATEL et al. certiorari to the united states court of appeals for the ninth circuit No. 13–1175. Argued March 3, 2015—Decided June 22, 2015 Petitioner, the city of Los Angeles (City), requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period. Los Angeles Municipal Code §41.49. These records “shall be made available to any officer of the Los Angeles Police Department for inspection . . . at a time and in a manner that minimizes any interference with the operation of the business,” §41.49(3)(a), and a hotel operator’s failure to make the records available is a criminal misdemeanor, §11.00(m). Respondents, a group of motel operators and a lodging association, brought a facial challenge to §41.49(3)(a) on Fourth Amendment grounds. The District Court entered judgment for the City, finding that respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit subsequently reversed, determining that inspections under §41.49(3)(a) are Fourth Amendment searches and that such searches are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records without first being afforded the opportunity for precompliance review. Held: 1. Facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. . (a) Facial challenges to statutes—as opposed to challenges to particular applications of statutes—have been permitted to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ ( First Amendment); District of Columbia v. Heller, 554 U. S. 570 ( Second Amendment). The Fourth Amendment is no exception. Sibron v. New York, 392 U. S. 40 , distinguished. This Court has entertained facial challenges to statutes authorizing warrantless searches, declaring them, on several occasions, facially invalid, see, e.g., Chandler v. Miller, 520 U. S. 305 –309. . (b) Petitioner contends that facial challenges to statutes authorizing warrantless searches must fail because they will never be unconstitutional in all applications, but this Court’s precedents demonstrate that such challenges can be brought, and can succeed. Under the proper facial-challenge analysis, only applications of a statute in which the statute actually authorizes or prohibits conduct are considered. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 . When addressing a facial challenge to a statute authorizing warrantless searches, the proper focus is on searches that the law actually authorizes and not those that could proceed irrespective of whether they are authorized by the statute, e.g., where exigent circumstances, a warrant, or consent to search exists. . 2. Section 41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. . (a) “ ‘[S]earches conducted outside the judicial process . . . are per se unreasonable under the Fourth Amendment—subject only to a few . . . exceptions.’ ” Arizona v. Gant, 556 U. S. 332 . One exception is for administrative searches. See Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 . To be constitutional, the subject of an administrative search must, among other things, be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See v. Seattle, 387 U. S. 541 . Assuming the administrative search exception otherwise applies here, §41.49 is facially invalid because it fails to afford hotel operators any opportunity for precompliance review. To be clear, a hotel owner must only be afforded an opportunity for precompliance review; actual review need occur only when a hotel operator objects to turning over the records. This opportunity can be provided without imposing onerous burdens on law enforcement. For instance, officers in the field can issue administrative subpoenas without probable cause that a regulation is being infringed. This narrow holding does not call into question those parts of §41.49 requiring hotel operators to keep records nor does it prevent police from obtaining access to those records where a hotel operator consents to the search, where the officer has a proper administrative warrant, or where some other exception to the warrant requirement applies. . (b) Petitioner’s argument that the ordinance is facially valid under the more relaxed standard for closely regulated industries is rejected. See Marshall v. Barlow’s, Inc., 436 U. S. 307 . This Court has only recognized four such industries, and nothing inherent in the operation of hotels poses a comparable clear and significant risk to the public welfare. Additionally, because the majority of regulations applicable to hotels apply to many businesses, to classify hotels as closely regulated would permit what has always been a narrow exception to swallow the rule. But even if hotels were closely regulated, §41.49 would still contravene the Fourth Amendment as it fails to satisfy the additional criteria that must be met for searches of closely regulated industries to be reasonable. See New York v. Burger, 482 U. S. 691 –703. . 738 F. 3d 1058, affirmed. Sotomayor, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.

Section 41.49(3)(a) of the Los Angeles Municipal Code (LAMC) requires a hotel operator to keep a record of specified information concerning guests and to make this record available to any police officer for inspection on demand. Respondents, a group of motel operators and a lodging association, brought a Fourth Amendment challenge to the constitutionality of the statute, contending that the sole issue was a facial constitu-tional challenge under the Fourth Amend-ment, and further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. The District Court entered judgment in the City's favor, holding that respondents lacked a reasonable expectation of privacy in the records subject to inspection, and the Court of Appeals reversed. The court first determined that a police officer is a nonconsensual inspection of hotel records because the records covered by §41.49 are covered by the Fourth Amendment, and then assessed the statute as unconstitutional because it excluded others from the private contents of the hotel property. Held: 1. A facial challenge to a statute authorizing warrantless searches is not categorically barred or especially disfavored. Although such challenges are the most difficult to mount successfully, United States v. Salerno, 481 U. S. 739, 745 (1987), the Court has not held that such claims cannot be brought under any otherwise enforceable provision of the Constitution. Instead, it has allowed such challenges to proceed under a diverse array of constitutional provisions. . 2. The statute is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. This Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before the neutral decisionmaker. Sibron v. New York, 392 U.S. 40 (1968), distinguished. Here, respondents have not challenged and nothing in this Court's opinion calls into question those parts of §41 that require hotel operators to maintain guest registries containing certain information. And, even absent legislative action to create a procedure such as the one involved here, hotel operators remain free to consent to searches of their registries and police can compel them to turn them overif they have a proper administrative warrant. Moreover, the statute creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. There is no reason why the minimal precompliance requirement is inapplicable here, since there are approximately 2,000 hotels in Los Angeles, and there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. Furthermore, the narrow nature of the holding supports the contention that the statute may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency. See, e.g., id., at 60, and n. 1. Moreover, a hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot, and business owners cannot reasonably be put to this kind of choice. Even if the hotel owner chooses to refuse to comply with a demand, he or she faces the necessity of turning over the registry to an administrative decisionmaker, since the government has identified many businesses that are subject to searches under the general Fourth Amendment standard of privacy, and since the hotel operator has no reasonable expectation that he can comply with the demand without turning his own registry over to neutral decisionmakers. It is also not reasonable to accept the argument that hotels are facially regulated, since an administrative subpoena, which can be issued by an officer in the field without probable cause that a regulation is being infringed, is necessary to further the regulatory scheme. The City also refrains from arguing that the search itself renders hotels closely regulated. Nor do any of the other regulations on which petitioner and Justice Scalia relyestablish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses. Nothing in this decision today precludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reasonably suspects that a registry would be altered, from guarding the registry pending a hearing on a motion to quash. Nor is there any reason to accept Justice Scalia's claim that affording hotel operators an opportunity for review would fatally undermine the scheme's efficacy by giving operators a chance to falsify their records. In the even rarer event that an officer suspects that an attempted search is motivated by illicit purposes, he can guard the registry until the required hearing can occur, which ought not to take long. Pp. 467 U. K. 568. 3. Nor is the statute facially unconstitutional under the closely regulated industries test because it fails sufficiently to const

2014_13-1333

https://www.oyez.org/cases/2014/13-1333

. Ordinarily, a federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses. See 28 U. S. C. §1915. But a special “three strikes” provision prevents a court from affording in forma pauperis status where the litigant is a prisoner and he or she “has, on 3 or more prior occasions, while incarcerated . . . , brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” §1915(g). Prior to this litigation, a Federal District Court had dismissed on those grounds three actions brought by a state prisoner. While the third dismissal was pending on appeal, the prisoner sought to bring several additional actions in the federal courts. The question before us is whether the prisoner may litigate his new actions in forma pauperis. Where an appeals court has not yet decided whether a prior dismissal is legally proper, should courts count, or should they ignore, that dismissal when calcu-lating how many qualifying dismissals the litigant has suffered? We conclude that the courts must count the dismissal even though it remains pending on appeal. The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions. I A Congress first enacted an in forma pauperis statute in 1892. See Act of July 20, ch. 209, 27Stat. 252. Congress recognized that “no citizen sh[ould] be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342 (1948) (internal quotation marks omitted). It therefore permitted a citizen to “commence and prosecute to conclusion any such . . . action without being required to prepay fees or costs, or give security therefor before or after bringing suit.” §1, 27Stat. 252. The current statute permits an individual to litigate a federal action in forma pauperis if the individual files an affidavit stating, among other things, that he or she is unable to prepay fees “or give security therefor.” 28 U. S. C. §1915(a)(1). Even in 1892, “Congress recognized . . . that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Neitzke v. Williams, 490 U. S. 319, 324 (1989) . And as the years passed, Congress came to see that prisoner suits in particular represented a disproportionate share of federal filings. Jones v. Bock, 549 U. S. 199 –203 (2007). It responded by “enact[ing] a variety of reforms designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good.” Id., at 204. Among those reforms was the “three strikes” rule here at issue. The rule, which applies to in forma pauperis status, reads in its entirety as follows: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facil-ity, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” §1915(g). B The petitioner, André Lee Coleman, is incarcerated at the Baraga Correctional Facility in Michigan. By 2010, three federal lawsuits filed by Coleman during his incarceration had been dismissed as frivolous (or on other grounds enumerated in §1915(g)). Nonetheless, when Coleman filed four new federal lawsuits between April 2010 and January 2011, he moved to proceed in forma pauperis in each. He denied that his third dismissed lawsuit counted as a strike under §1915(g). That is because he had appealed the dismissal, and the appeals court had not yet ruled. Thus, in Coleman’s view, he had fewer than three qualifying dismissals, and was eligible for in forma pauperis status under the statute. The District Court rejected Coleman’s argument. It held that “a dismissal counts as a strike even if it is pending on appeal at the time that the plaintiff files his new action.” No. 10–cv–337 (WD Mich., Apr. 12, 2011), App. to Pet. for Cert. 21a, 24a. It thus refused to permit Coleman to proceed in forma pauperis in any of his four suits. On appeal, a divided panel of the Sixth Circuit agreed with the District Court. 733 F. 3d 175 (2013). It resolved the four cases using slightly different procedures. In one of the four cases, the Sixth Circuit affirmed the District Court’s judgment. In the remaining three cases, it denied Coleman’s request to proceed in forma pauperis on appeal. It subsequently dismissed the three cases for want of prosecution after Coleman failed to pay the appellate filing fees. In contrast to the Sixth Circuit, the vast majority of the other Courts of Appeals have held that a prior dismissal on a statutorily enumerated ground does not count as a strike while an appeal of that dismissal remains pending. See Henslee v. Keller, 681 F. 3d 538, 541 (CA4 2012) (listing, and joining, courts that have adopted the majority view). In light of the division of opinion among the Circuits, we granted Coleman’s petition for certiorari. II A In our view, the Sixth Circuit majority correctly applied §1915(g). A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. That, after all, is what the statute literally says. The “three strikes” provision applies where a prisoner “has, on 3 or more prior occasions . . . brought an action or appeal . . . that was dismissed on” certain grounds. §1915(g) (emphasis added). Coleman believes that we should read the statute as if it referred to an “affirmed dismissal,” as if it considered a trial court dismissal to be provisional, or as if it meant that a dismissal falls within the statute’s scope only when the litigant has no further chance to secure a reversal. But the statute itself says none of these things. Instead, the statute refers to whether an action or appeal “was dismissed.” §1915(g). The linguistic term “dismiss,” taken alone, does not normally include subsequent appellate activity. See, e.g., Heintz v. Jenkins, 514 U. S. 291, 294 (1995) (“[T]he District Court dismissed [the] lawsuit for failure to state a claim. . . . However, the Court of Appeals for the Seventh Circuit reversed the District Court’s judgment”); Gray v. Netherland, 518 U. S. 152, 158 (1996) (“The Suffolk Circuit Court dismissed petitioner’s state petition for a writ of habeas corpus. The Virginia Supreme Court affirmed the dismissal”). Indeed, §1915 itself describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts. See §1915(e)(2) (“[T]he court shall dismiss the case at any time if the court determines that—(A) the allegation of poverty is untrue; or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted” (emphasis added)). Coleman insists that §1915(g) is not so clear. Even if the term “dismissed” is unambiguous, contends Coleman, the phrase “prior occasions” creates ambiguity. Coleman observes that the phrase “ ‘may refer to a single moment or to a continuing event: to an appeal, independent of the underlying action, or to the continuing claim, inclusive of both the action and its appeal.’ ” Brief for Petitioner 17 (quoting Henslee, supra, at 542). Coleman believes that a “prior occasion” in the context of §1915(g) may therefore include both a dismissal on an enumerated ground and any subsequent appeal. We find it difficult to agree. Linguistically speaking, we see nothing about the phrase “prior occasions” that would transform a dismissal into a dismissal-plus-appellate-review. An “occasion” is “a particular occurrence,” a “happening,” or an “incident.” Webster’s Third New International Dictionary 1560 (3d ed. 1993). And the statute provides the content of that occurrence, happening, or incident: It is an instance in which a “prisoner has . . . brought an action or appeal in a court of the United States that was dismissed on” statutorily enumerated grounds. §1915(g). Under the plain language of the statute, when Coleman filed the suits at issue here, he had already experienced three such “prior occasions.” Our literal reading of the phrases “prior occasions” and “was dismissed” is consistent with the statute’s discussion of actions and appeals. The in forma pauperis statute repeatedly treats the trial and appellate stages of litigation as distinct. See §§1915(a)(2), (a)(3), (b)(1), (e)(2), (g). Related provisions reflect a congressional focus upon trial court dismissal as an important separate element of the statutory scheme. See §1915A (requiring a district court to screen certain prisoner complaints “as soon as practicable” and to dismiss any portion of the complaint that “is frivolous, malicious, or fails to state a claim upon which relief may be granted”); 42 U. S. C. §1997e(c)(1) (similar). We have found nothing in these provisions indicating that Congress considered a trial court dismissal and an appellate court decision as if they were a single entity—or that Congress intended the former to take effect only when affirmed by the latter. Our literal reading of the “three strikes” provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court’s judgment (say, dismissing a case) normally takes effect despite a pending appeal. See Fed. Rule Civ. Proc. 62; Fed. Rule App. Proc. 8(a). And a judgment’s preclusive effect is generally immediate, notwithstanding any appeal. See Clay v. United States, 537 U. S. 522, 527 (2003) (“Typically, a federal judgment becomes final for . . . claim preclusion purposes when the district court disassociates itself from the case, leaving nothing to be done at the court of first instance save execution of the judgment”). The ordinary rules of civil procedure thus provide additional support for our interpretation of the statute. See Jones, 549 U. S., at 211–216 (applying the ordinary rules of civil procedure where the procedural requirements for prison litigation do not call for an alternative). Finally, the statute’s purpose favors our interpretation. The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good.” Id., at 204. To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter. Appeals take time. During that time, a prisoner could file many lawsuits, including additional lawsuits that are frivolous, malicious, or fail to state a claim upon which relief may be granted. Indeed, Coleman filed these four cases after he suffered his third qualifying dismissal, in October 2009, and before the affirmance of that order, in March 2011. We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. Brief for United States as Amicus Curiae 22, n. 5. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative. B Coleman makes an additional argument. He poses a hypothetical: What if this case had involved an attempt to appeal from the trial court’s dismissal of his third complaint instead of an attempt to file several additional complaints? If the dismissal were counted as his third strike, Coleman asserts, he would lose the ability to appeal in forma pauperis from that strike itself. He believes that this result, which potentially could deprive him of appellate review, would be unfair. He further believes that it would be such a departure from the federal courts’ normal appellate practice that Congress could not possibly have intended it. The Solicitor General, while subscribing to our interpretation of the statute, supports Coleman on this point. The Solicitor General says that we can and should read the statute to afford a prisoner in forma pauperis status with respect to an appeal from a third qualifying dismissal—even if it does not allow a prisoner to file a fourth case during that time. He believes that the statute, in referring to dismissals “on 3 or more prior occasions,” 28 U. S. C. §1915(g) (emphasis added), means that a trial court dismissal qualifies as a strike only if it occurred in a prior, different, lawsuit. We need not, and do not, now decide whether the Solicitor General’s interpretation (or some other interpretation with the same result) is correct. That is because Coleman is not here appealing from a third-strike trial-court dismissal. He is appealing from the denial of in forma pauperis status with respect to several separate suits filed after the trial court dismissed his earlier third-strike suit. With respect to those suits, the earlier dismissals certainly took place on “prior occasions.” If and when the situation that Coleman hypothesizes does arise, the courts can consider the problem in context. * * * For the reasons stated, we hold that a prisoner who has accumulated three prior qualifying dismissals under §1915(g) may not file an additional suit in forma pauperis while his appeal of one such dismissal is pending. The judgments of the Court of Appeals are Affirmed.

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 . SUPREME COURT OF THE UNITED STATES Syllabus COLEMAN, aka COLEMAN-BEY v. TOLLEFSON et al. certiorari to the united states court of appeals for the sixth circuit No. 13–1333. Argued February 23, 2015—Decided May 18, 2015[1] Ordinarily, a federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses. See 28 U. S. C. §1915(a). But a special “three strikes” provision prevents a court from affording in forma pauperis status to a prisoner who “has, on 3 or more prior occasions, while incarcerated . . . , brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” §1915(g). Petitioner Coleman, a state prisoner, filed three federal lawsuits that were dismissed on grounds enumerated in §1915(g). While the third dismissal was pending on appeal, he filed four additional federal lawsuits, moving to proceed in forma pauperis in each. The District Court refused to permit him to proceed in forma pauperis in any of those lawsuits, holding that a prior dismissal is a strike under §1915(g) even if it is pending on appeal. The Sixth Circuit agreed with the District Court. Held: A prior dismissal on one of §1915(g)’s statutorily enumerated grounds counts as a strike, even if the dismissal is the subject of an ongoing appeal. . (a) Coleman suggests that that a dismissal should count as a strike only once appellate review is complete. But the word “dismissed” does not normally include subsequent appellate activity. See, e.g., Heintz v. Jenkins, 514 U. S. 291 . And §1915 itself describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts. See §1915(e). Coleman further contends that the phrase “prior occasions” creates ambiguity. But nothing about that phrase transforms a dismissal into a dismissal-plus-appellate-review. In the context of §1915(g), a “prior occasion” merely means a previous instance in which a “prisoner has . . . brought an action or appeal . . . that was dismissed on” statutorily enumerated grounds. A literal reading of the “three strikes” provision is consistent with the statute’s treatment of the trial and appellate states of litigation as distinct. See §§1915(a)(2), (a)(3), (b)(1), (e)(2), (g). It is also supported by the way in which the law ordinarily treats trial court judgments, i.e., a judgment normally takes effect despite a pending appeal, see Fed. Rule Civ. Proc. 62; Fed. Rule App. Proc. 8(a), and its preclusive effect is generally immediate, notwithstanding any appeal, see Clay v. United States, 537 U. S. 522 . Finally, the statute’s purpose favors this Court’s interpretation. The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good,” Jones v. Bock, 549 U. S. 199 . To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter, because a prisoner could file many new lawsuits before reaching the end of the often lengthy appellate process. By contrast, the Court perceives no great risk that an erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status in a subsequent lawsuit. . (b) Coleman also argues that if the dismissal of a third complaint counts as a third strike, a litigant will lose the ability to appeal in forma pauperis from that strike itself. He believes this is a result that Congress could not possibly have intended. Because Coleman is not appealing from a third-strike trial-court dismissal here, the Court declines to address that question. . 733 F. 3d 175, affirmed. Breyer, J., delivered the opinion for a unanimous Court. Notes 1 * Together with Coleman, aka Coleman-Bey v. Bowerman et al.; Coleman, aka Coleman-Bey v. Dykehouse et al., and Coleman, aka Coleman-Bey v. Vroman et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

Under 28 U.S. C. §1915(g), a prisoner who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses. But a special, three strikes provision prevents a court from affording such status where the prisoner has, on 3 or more prior occasions, while incarcerated, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. Prior to this litigation, a Federal District Court had dismissed on those grounds three actions brought by a state prisoner. While the third dismissal was pending on appeal, the prisoner sought to bring several additional actions in the federal courts. The Sixth Circuit agreed with the District Court, holding that a prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. However, in one of the four cases, the court denied the prisoner a new action on three enumerated grounds. In the remaining three cases, it rejected the prisoner on the ground that he had not yet qualified as eligible for the new action because he had filed fewer than three frivolous lawsuits in federal court than he had as of the date he filed his third qualifying dismissal. Held: A prisoner who has accumulated three prior qualifying dismissals under §1914(g) under that statute may not file an additional suit in formas paupperis while his appeal of one such dismissal is pending. . (a) The language term "dismiss, taken alone, does not normally include subsequent appellate activity. Even if the term is unambiguous, the phrase "prior occasions," which creates ambiguity, may refer to a single moment or to a continuing event: to an appeal, independent of the underlying action or the claim, or to the continuing claim, both of which may be inclusive of both the action and its claim. Petitioner believes that the phrase may include both a subsequent appeal and a subsequent lawsuit. Pp. 17-18. (b) An erroneous trial court dismissal might wrongly deprive a prisoner of informa puperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great, since the Solicitor General has been able to identify only two instances in which a Court of Appeals has reversed a District Court issuance of a third strike. Moreover, if the statute of limitations governing a lawsuit has run out before the court of appeals reverses the third strike, prisoners will find relief in Federal Rule of Civil Procedure 60. Coleman may then reopen his or her cases as interim cases, and then reopen them as more closely-instruated cases. If, as he believes, he does not lose an additional third-strike appeal from a third-grant trial-court dismissal, he would lose his ability to review his third strike complaint as a result of that dismissal, which would further the unfairness that would result from further judicial review of such a dismissal. Thus, it need not be determined whether, and when, the situation that Coleman hypothesizes does arise, the courts can consider the problem in context. 733 F. 3d 175, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed a dissenting opinion, post, p..

2014_13-485

https://www.oyez.org/cases/2014/13-485

. This case involves the constitutionality of an unusual feature of Maryland’s personal income tax scheme. Like many other States, Maryland taxes the income its residents earn both within and outside the State, as well as the income that nonresidents earn from sources within Maryland. But unlike most other States, Maryland does not offer its residents a full credit against the income taxes that they pay to other States. The effect of this scheme is that some of the income earned by Maryland residents outside the State is taxed twice. Maryland’s scheme creates an incentive for taxpayers to opt for intrastate rather than interstate economic activity. We have long held that States cannot subject corporate income to tax schemes similar to Maryland’s, and we see no reason why income earned by individuals should be treated less favorably. Maryland admits that its law has the same economic effect as a state tariff, the quintessential evil targeted by the dormant Commerce Clause. We therefore affirm the decision of Maryland’s highest court and hold that this feature of the State’s tax scheme vio-lates the Federal Constitution. I Maryland, like most States, raises revenue in part by levying a personal income tax. The income tax that Maryland imposes upon its own residents has two parts: a “state” income tax, which is set at a graduated rate, Md. Tax-Gen. Code Ann. §10–105(a) (Supp. 2014), and a so-called “county” income tax, which is set at a rate that varies by county but is capped at 3.2%, §§10–103, 10–106 (2010). Despite the names that Maryland has assigned to these taxes, both are State taxes, and both are collected by the State’s Comptroller of the Treasury. Frey v. Comptroller of Treasury, 422 Md. 111, 125, 141–142, 29 A. 3d 475, 483, 492 (2011). Of course, some Maryland residents earn income in other States, and some of those States also tax this income. If Maryland residents pay income tax to another jurisdiction for income earned there, Maryland allows them a credit against the “state” tax but not the “county” tax. §10–703; 431 Md. 147, 156–157, 64 A. 3d 453, 458 (2013) (case below). As a result, part of the income that a Maryland resident earns outside the State may be taxed twice. Maryland also taxes the income of nonresidents. This tax has two parts. First, nonresidents must pay the “state” income tax on all the income that they earn from sources within Maryland. §§10–105(d) (Supp. 2014), 10–210 (2010). Second, nonresidents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax. §10–106.1; Frey, supra, at 125–126, 29 A. 3d, at 483. The “special nonresident tax” is levied on income earned from sources within Maryland, and its rate is “equal to the lowest county income tax rate set by any Maryland county.” §10–106.1. Maryland does not tax the income that nonresidents earn from sources outside Maryland. See §10–210. Respondents Brian and Karen Wynne are Maryland residents. In 2006, the relevant tax year, Brian Wynne owned stock in Maxim Healthcare Services, Inc., a Subchapter S corporation.[1] That year, Maxim earned income in States other than Maryland, and it filed state income tax returns in 39 States. The Wynnes earned income passed through to them from Maxim. On their 2006 Mary-land tax return, the Wynnes claimed an income tax credit for income taxes paid to other States. Petitioner, the Maryland State Comptroller of the Treasury, denied this claim and assessed a tax deficiency. In accordance with Maryland law, the Comptroller allowed the Wynnes a credit against their Maryland “state” income tax but not against their “county” income tax. The Hearings and Appeals Section of the Comptroller’s Office slightly modified the assessment but otherwise affirmed. The Maryland Tax Court also affirmed, but the Circuit Court for Howard County reversed on the ground that Maryland’s tax system violated the Commerce Clause. The Court of Appeals of Maryland affirmed. 431 Md. 147, 64 A. 3d 453. That court evaluated the tax under the four-part test of Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), which asks whether a “tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.” Id., at 279. The Court of Appeals held that the tax failed both the fair apportionment and nondiscrimination parts of the Complete Auto test. With respect to fair apportionment, the court first held that the tax failed the “internal consistency” test because if every State adopted Maryland’s tax scheme, interstate commerce would be taxed at a higher rate than intrastate commerce. It then held that the tax failed the “external consistency” test because it created a risk of multiple taxation. With respect to nondiscrimination, the court held that the tax discriminated against interstate commerce because it denied residents a credit on income taxes paid to other States and so taxed income earned interstate at a rate higher than income earned intrastate. The court thus concluded that Maryland’s tax scheme was unconstitutional insofar as it denied the Wynnes a credit against the “county” tax for income taxes they paid to other States. Two judges dissented and argued that the tax did not violate the Commerce Clause. The Court of Appeals later issued a brief clarification that “[a] state may avoid discrimination against interstate commerce by providing a tax credit, or some other method of apportionment, to avoid discriminating against interstate commerce in violation of the dormant Commerce Clause.” 431 Md., at 189, 64 A. 3d at 478. We granted certiorari. 572 U. S. ___ (2014). II A The Commerce Clause grants Congress power to “regulate Commerce . . . among the several States.” Art. I, § 8, cl. 3. These “few simple words . . . reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U. S. 322 –326 (1979). Although the Clause is framed as a positive grant of power to Congress, “we have consistently held this language to contain a further, negative command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed to legislate on the subject.” Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 179 (1995) . This interpretation of the Commerce Clause has been disputed. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564 –620 (1997) (Thomas, J., dissenting); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232 –265 (1987) (Scalia, J., concurring in part and dissenting in part); License Cases, 5 How. 504, 578–579 (1847) (Taney, C. J.). But it also has deep roots. See, e.g., Case of the State Freight Tax, 15 Wall. 232, 279–280 (1873); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 (1852); Gibbons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.). By prohibiting States from discriminating against or imposing excessive burdens on interstate commerce without congressional approval, it strikes at one of the chief evils that led to the adoption of the Constitution, namely, state tariffs and other laws that burdened interstate commerce. Fulton Corp. v. Faulkner, 516 U. S. 325 –331 (1996); Hughes, supra, at 325; Welton v. Missouri, 91 U. S. 275, 280 (1876) ; see also The Federalist Nos. 7, 11 (A. Hamilton), and 42 (J. Madison). Under our precedents, the dormant Commerce Clause precludes States from “discriminat[ing] between transactions on the basis of some interstate element.” Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 , n. 12 (1977). This means, among other things, that a State “may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.” Armco Inc. v. Hardesty, 467 U. S. 638, 642 (1984) . “Nor may a State impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, or by subjecting interstate commerce to the burden of ‘multiple taxation.’ ” Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 458 (1959) (citations omitted). B Our existing dormant Commerce Clause cases all but dictate the result reached in this case by Maryland’s highest court. Three cases involving the taxation of the income of domestic corporations are particularly instructive. In J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307 (1938) , Indiana taxed the income of every Indiana resident (including individuals) and the income that every nonresident derived from sources within Indiana. Id., at 308. The State levied the tax on income earned by the plaintiff Indiana corporation on sales made out of the State. Id., at 309. Holding that this scheme violated the dormant Commerce Clause, we explained that the “vice of the statute” was that it taxed, “without apportionment, receipts derived from activities in interstate commerce.” Id., at 311. If these receipts were also taxed by the States in which the sales occurred, we warned, interstate commerce would be subjected “to the risk of a double tax burden to which intrastate commerce is not exposed, and which the commerce clause forbids.” Ibid. The next year, in Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434 (1939) , we reached a similar result. In that case, the State of Washington taxed all the income of persons doing business in the State. Id., at 435. Washington levied that tax on income that the plaintiff Washington corporation earned in shipping fruit from Washington to other States and foreign countries. Id., at 436–437. This tax, we wrote, “discriminates against interstate commerce, since it imposes upon it, merely because interstate commerce is being done, the risk of a multiple burden to which local commerce is not exposed.” Id., at 439. In the third of these cases involving the taxation of a domestic corporation, Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948) , New York sought to tax the portion of a domiciliary bus company’s gross receipts that were derived from services provided in neighboring States. Id., at 660; see also id., at 665 (Murphy, J., dissenting) (stating that the plaintiff was a New York corporation). Noting that these other States might also attempt to tax this portion of the company’s gross receipts, the Court held that the New York scheme violated the dormant Commerce Clause because it imposed an “unfair burden” on interstate commerce. Id., at 662 (majority opinion). In all three of these cases, the Court struck down a state tax scheme that might have resulted in the double taxation of income earned out of the State and that discriminated in favor of intrastate over interstate economic activity. As we will explain, see Part II–F, infra, Maryland’s tax scheme is unconstitutional for similar reasons. C The principal dissent distinguishes these cases on the sole ground that they involved a tax on gross receipts rather than net income. We see no reason why the distinction between gross receipts and net income should matter, particularly in light of the admonition that we must consider “not the formal language of the tax statute but rather its practical effect.” Complete Auto, 430 U. S., at 279. The principal dissent claims, post, at 13 (opinion of Ginsburg, J.), that “[t]he Court, historically, has taken the position that the difference between taxes on net income and taxes on gross receipts from interstate commerce warrants different results.” 2 C. Trost & P. Hartman, Federal Limitations on State and Local Taxation 2d §10:1, p. 251 (2003) (emphasis added) (hereinafter Trost). But this historical point is irrelevant. As the principal dissent seems to acknowledge, our cases rejected this formal distinction some time ago. And the distinction between gross receipts and net income taxes was not the basis for our decisions in J. D. Adams, Gwin, White, and Central Greyhound, which turned instead on the threat of multiple taxation. The discarded distinction between taxes on gross receipts and net income was based on the notion, endorsed in some early cases, that a tax on gross receipts is an impermissible “direct and immediate burden” on interstate commerce, whereas a tax on net income is merely an “indirect and incidental” burden. United States Glue Co. v. Town of Oak Creek, 247 U. S. 321 –329 (1918); see also Shaffer v. Carter, 252 U. S. 37, 57 (1920) . This arid distinction between direct and indirect burdens allowed “very little coherent, trustworthy guidance as to tax valid-ity.” 2 Trost §9:1, at 212. And so, beginning with Justice Stone’s seminal opinion in Western Live Stock v. Bureau of Revenue, 303 U. S. 250 (1938) , and continuing through cases like J. D. Adams and Gwin, White, the direct-indirect burdens test was replaced with a more practical approach that looked to the economic impact of the tax. These cases worked “a substantial judicial reinterpretation of the power of the States to levy taxes on gross income from interstate commerce.” 1 Trost §2:20, at 175. After a temporary reversion to our earlier formalism, see Spector Motor Service, Inc. v. O’Connor, 340 U. S. 602 (1951), “the gross receipts judicial pendulum has swung in a wide arc, recently reaching the place where taxation of gross receipts from interstate commerce is placed on an equal footing with receipts from local business, in Complete Auto Transit Inc. v. Brady,” 2 Trost §9:1, at 212. And we have now squarely rejected the argument that the Commerce Clause distinguishes between taxes on net and gross income. See Jefferson Lines, 514 U. S., at 190 (explaining that the Court in Central Greyhound “understood the gross receipts tax to be simply a variety of tax on income”); Moorman Mfg. Co. v. Bair, 437 U. S. 267, 280 (1978) (rejecting a suggestion that the Commerce Clause distinguishes between gross receipts taxes and net income taxes); id., at 281 (Brennan, J., dissenting) (“I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax”); Complete Auto, supra, at 280 (upholding a gross receipts tax and rejecting the notion that the Commerce Clause places “a blanket prohibition against any state taxation imposed directly on an interstate transaction”).[2] For its part, petitioner distinguishes J. D. Adams, Gwin, White, and Central Greyhound on the ground that they concerned the taxation of corporations, not individuals. But it is hard to see why the dormant Commerce Clause should treat individuals less favorably than corporations. See Camps Newfound, 520 U. S., at 574 (“A tax on real estate, like any other tax, may impermissibly burden interstate commerce” (emphasis added)). In addition, the distinction between individuals and corporations cannot stand because the taxes invalidated in J. D. Adams and Gwin, White applied to the income of both individuals and corporations. See Ind. Stat. Ann., ch. 26, §64–2602 (Burns 1933) (tax in J. D. Adams); 1935 Wash. Sess. Laws ch. 180, Tit. II, §4(e), pp. 710–711 (tax in Gwin, White). Attempting to explain why the dormant Commerce Clause should provide less protection for natural persons than for corporations, petitioner and the Solicitor General argue that States should have a free hand to tax their residents’ out-of-state income because States provide their residents with many services. As the Solicitor General puts it, individuals “reap the benefits of local roads, local police and fire protection, local public schools, [and] local health and welfare benefits.” Brief for United States as Amicus Curiae 30. This argument fails because corporations also benefit heavily from state and local services. Trucks hauling a corporation’s supplies and goods, and vehicles transporting its employees, use local roads. Corporations call upon local police and fire departments to protect their facilities. Corporations rely on local schools to educate prospective employees, and the availability of good schools and other government services are features that may aid a corporation in attracting and retaining employees. Thus, disparate treatment of corporate and personal income cannot be justified based on the state services enjoyed by these two groups of taxpayers. The sole remaining attribute that, in the view of petitioner, distinguishes a corporation from an individual for present purposes is the right of the individual to vote. The principal dissent also emphasizes that residents can vote to change Maryland’s discriminatory tax law. Post, at 3–4. The argument is that this Court need not be concerned about state laws that burden the interstate activities of individuals because those individuals can lobby and vote against legislators who support such measures. But if a State’s tax unconstitutionally discriminates against interstate commerce, it is invalid regardless of whether the plaintiff is a resident voter or nonresident of the State. This Court has thus entertained and even sustained dormant Commerce Clause challenges by individual residents of the State that imposed the alleged burden on interstate commerce, Department of Revenue of Ky. v. Davis, 553 U. S. 328, 336 (2008) ; Granholm v. Heald, 544 U. S. 460, 469 (2005) , and we have also sustained such a challenge to a tax whose burden was borne by in-state consumers, Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 272 (1984) .[3] The principal dissent and Justice Scalia respond to these holdings by relying on dictum in Goldberg v. Sweet, 488 U. S. 252, 266 (1989) , that it is not the purpose of the dormant Commerce Clause “ ‘to protect state residents from their own state taxes.’ ” Post, at 3 (Ginsburg, J., dissenting); post, at 5 (Scalia, J., dissenting). But we repudiated that dictum in West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994) , where we stated that “[s]tate taxes are ordinarily paid by in-state businesses and consumers, yet if they discriminate against out-of-state products, they are unconstitutional.” Id., at 203. And, of course, the dictum must bow to the holdings of our many cases entertaining Commerce Clause challenges brought by residents. We find the dissents’ reliance on Goldberg’s dictum particularly inappropriate since they do not find themselves similarly bound by the rule of that case, which applied the internal consistency test to determine whether the tax at issue violated the dormant Commerce Clause. 488 U. S., at 261. In addition, the notion that the victims of such discrimination have a complete remedy at the polls is fanciful. It is likely that only a distinct minority of a State’s residents earns income out of State. Schemes that discriminate against income earned in other States may be attractiveto legislators and a majority of their constituents for precisely this reason. It is even more farfetched to suggest that natural persons with out-of-state income are better able to influence state lawmakers than large corporations headquartered in the State. In short, petitioner’s argument would leave no security where the majority of voters prefer protectionism at the expense of the few who earn income interstate. It would be particularly incongruous in the present case to disregard our prior decisions regarding the taxation of corporate income because the income at issue here is a type of corporate income, namely, the income of a Subchapter S corporation. Only small businesses may incorporate under Subchapter S, and thus acceptance of petitioner’s submission would provide greater protection for income earned by large Subchapter C corporations than small businesses incorporated under Subchapter S. D In attempting to justify Maryland’s unusual tax scheme, the principal dissent argues that the Commerce Clause imposes no limit on Maryland’s ability to tax the income of its residents, no matter where that income is earned. It argues that Maryland has the sovereign power to tax all of the income of its residents, wherever earned, and it there-fore reasons that the dormant Commerce Clause cannot constrain Maryland’s ability to expose its residents (and nonresidents) to the threat of double taxation. This argument confuses what a State may do without violating the Due Process Clause of the Fourteenth Amendment with what it may do without violating the Commerce Clause. The Due Process Clause allows a State to tax “all the income of its residents, even income earned outside the taxing jurisdiction.” Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U. S. 450 –463 (1995). But “while a State may, consistent with the Due Process Clause, have the authority to tax a particular taxpayer, imposition of the tax may nonetheless violate the Commerce Clause.” Quill Corp. v. North Dakota, 504 U. S. 298, 305 (1992) (rejecting a due process challenge to a tax before sustaining a Commerce Clause challenge to that tax). Our decision in Camps Newfound illustrates the point. There, we held that the Commerce Clause prohibited Maine from granting more favorable tax treatment to charities that operated principally for the benefit of Maine residents. 520 U. S., at 580–583. Because the plaintiff charity in that case was a Maine nonprofit corporation, there is no question that Maine had the raw jurisdictional power to tax the charity. See Chickasaw Nation, supra, at 462–463. Nonetheless, the tax failed scrutiny under the Commerce Clause. Camps Newfound, supra, at 580–581. Similarly, Maryland’s raw power to tax its residents’ out-of-state income does not insulate its tax scheme from scrutiny under the dormant Commerce Clause. Although the principal dissent claims the mantle of precedent, it is unable to identify a single case that endorses its essential premise, namely, that the Commerce Clause places no constraint on a State’s power to tax the income of its residents wherever earned. This is unsurprising. As cases like Quill Corp. and Camps Newfound recognize, the fact that a State has the jurisdictional power to impose a tax says nothing about whether that tax violates the Commerce Clause. See also, e.g., Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298 (1994) (separately addressing due process and Commerce Clause challenges to a tax); Moorman, 437 U. S. 267 (same); Standard Pressed Steel Co. v. Department of Revenue of Wash., 419 U. S. 560 (1975) (same); Lawrence v. State Tax Comm’n of Miss., 286 U. S. 276 (1932) (separately addressing due process and equal protection challengesto a tax); Travis v. Yale & Towne Mfg. Co., 252 U. S. 60 (1920) (separately addressing due process and privileges-and-immunities challenges to a tax). One good reason why we have never accepted the principal dissent’s logic is that it would lead to plainly untenable results. Imagine that Maryland taxed the income that its residents earned in other States but exempted income earned out of State from any business that primarily served Maryland residents. Such a tax would violate the dormant Commerce Clause, see Camps Newfound, supra, and it cannot be saved by the principal dissent’s admonition that Maryland has the power to tax all the income of its residents. There is no principled difference between that hypothetical Commerce Clause challenge and this one. The principal dissent, if accepted, would work a sea change in our Commerce Clause jurisprudence. Legion are the cases in which we have considered and even upheld dormant Commerce Clause challenges brought by residents to taxes that the State had the jurisdictional power to impose. See, e.g., Davis, 553 U. S. 328 ; Camps Newfound, 520 U. S. 564 ; Fulton Corp., 516 U. S. 325 ; Bacchus Imports, 468 U. S. 263 ; Central Greyhound, 334 U. S. 653 ; Gwin, White, 305 U. S. 434 ; J. D. Adams, 304 U. S. 307 . If the principal dissent were to prevail, all of these cases would be thrown into doubt. After all, in those cases, as here, the State’s decision to tax in a way that allegedly discriminates against interstate commerce could be justified by the argument that a State may tax its residents without any Commerce Clause constraints. E While the principal dissent claims that we are departing from principles that have been accepted for “a century” and have been “repeatedly acknowledged by this Court,” see post, at 1, 2, 19, when it comes to providing supporting authority for this assertion, it cites exactly two Commerce Clause decisions that are supposedly inconsistent with our decision today. One is a summary affirmance, West Publishing Co. v. McColgan, 328 U. S. 823 (1946) , and neither actually supports the principal dissent’s argument. In the first of these cases, Shaffer v. Carter, 252 U. S. 37 , a resident of Illinois who earned income from oil in Oklahoma unsuccessfully argued that his Oklahoma income tax assessment violated several provisions of the Federal Constitution. His main argument was based on due process, but he also raised a dormant Commerce Clause challenge. Although the principal dissent relies on Shaffer for the proposition that a State may tax the income of its residents wherever earned, Shaffer did not reject the Commerce Clause challenge on that basis. The dormant Commerce Clause challenge in Shaffer was nothing like the Wynnes’ challenge here. The tax-payer in Shaffer argued that “[i]f the tax is considered an excise tax on business, rather than an income tax proper,” it unconstitutionally burdened interstate commerce. Brief for Appellant, O. T. 1919, No. 531, p. 166. The taxpayer did not argue that this burden occurred because he was subject to double taxation; instead, he argued that the tax was an impermissible direct “tax on interstate business.” Ibid. That argument was based on the notion that States may not impose a tax “directly” on interstate commerce. See supra, at 8–9. After assuming that the taxpayer’s business was engaged in interstate commerce, we held that “it is sufficient to say that the tax is imposed not upon the gross receipts, but only upon the net proceeds, and is plainly sustainable, even if it includes net gains from interstate commerce. [United States Glue Co. v. Town of Oak Creek], 247 U. S. 321 .” Shaffer, supra, at 57 (citation omitted). Shaffer thus did not adjudicate anything like the double taxation argument that was accepted in later cases and is before us today. And the principal dissent’s suggestion that Shaffer allows States to levy discriminatory net income taxes is refuted by a case decided that same day. In Travis, a Connecticut corporation challenged New York’s net income tax, which allowed residents, but not nonresidents, certain tax exemptions. The Court first rejected the taxpayer’s due process argument as “settled by our decision in Shaffer.” 252 U. S., at 75. But that due process inquiry was not the end of the matter: the Court then separately considered—and sustained—the argument that the net income tax’s disparate treatment of residents and nonresidents violated the Privileges and Immunities Clause. Id., at 79–80. The second case on which the principal dissent relies, West Publishing, is a summary affirmance and thus has “considerably less precedential value than an opinion on the merits.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 –181 (1979). A summary affirmance “ ‘is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.’ ” Mandel v. Bradley, 432 U. S. 173, 176 (1977) (per curiam) (quoting Fusari v. Steinberg, 419 U. S. 379, 392 (1975) (Burger, C. J., concurring)). The principal dissent’s reliance on the state-court decision below in that case is particularly inappropriate because “a summary affirmance is an affirmance of the judgment only,” and “the rationale of the affirmance may not be gleaned solely from the opinion below.” 432 U. S., at 176. Moreover, we do not disagree with the result of West Publishing. The tax in that case was levied only on “ ‘the net income of every corporation derived from sources within this State,’ ” and thus was an internally consistent and nondiscriminatory tax scheme. See West Publishing Co. v. McColgan, 27 Cal. 2d 705, 707, n., 166 P. 2d 861, 862, n. (1946) (emphasis added). Moreover, even if we did disagree with the result, the citation in our summary affirmance to United States Glue Co. suggests that our decision was based on the since-discarded distinction between net income and gross receipts taxes. West Publishing did not—indeed, it could not—repudiate the double taxation cases upon which we rely. The principal dissent also finds it significant that, when States first enacted modern income taxes in the early 1900’s, some States had tax schemes similar to Maryland’s. This practice, however, was by no means universal. A great many States—such as Alabama, Colorado, Georgia, Kentucky, and Maryland—had early income tax schemes that allowed their residents a credit against taxes paid to other States. See Ala. Code, Tit. 51, ch. 17, §390 (1940); Colo. Stat. Ann., ch. 84A, §38 (Cum. Supp. 1951); Ga. Code Ann. §92–3111 (1974); Carroll’s Ky. Stat. Ann., ch. 108, Art. XX, §4281b–15 (Baldwin rev. 1936); Md. Ann. Code, Art. 81, ch. 277, §231 (1939). Other States also adopted internally consistent tax schemes. For example, Massachusetts and Utah taxed only the income of residents, not nonresidents. See Mass. Gen. Laws, ch. 62 (1932); Utah Rev. Stat. §80–14–1 et seq. (1933). In any event, it is hardly surprising that these early state ventures into the taxation of income included some protectionist regimes that favored the local economy over interstate commerce. What is much more significant is that over the next century, as our Commerce Clause juris-prudence developed, the States have almost entirely abandoned that approach, perhaps in recognition of their doubtful constitutionality. Today, the near-universal state practice is to provide credits against personal income taxes for such taxes paid to other States. See 2 J. Hellerstein & W. Hellerstein, State Taxation, ¶20.10, pp. 20–163 to 20–164 (3d ed. 2003).[4] F 1 As previously noted, the tax schemes held to be unconstitutional in J. D. Adams, Gwin, White, and Central Greyhound, had the potential to result in the discriminatory double taxation of income earned out of state and created a powerful incentive to engage in intrastate rather than interstate economic activity. Although we did not use the term in those cases, we held that those schemes could be cured by taxes that satisfy what we have subsequently labeled the “internal consistency” test. See Jefferson Lines, 514 U. S., at 185 (citing Gwin, White as a case requiring internal consistency); see also 1 Trost §2:19, at 122–123, and n. 160 (explaining that the internal consistency test has its origins in Western Live Stock, J. D. Adams, and Gwin, White). This test, which helps courts identify tax schemes that discriminate against interstate commerce, “looks to the structure of the tax at issue to see whether its identical application by every State in the Union would place interstate commerce at a disadvantage as compared with commerce intrastate.” 514 U. S., at 185. See also, e.g., Tyler Pipe, 483 U. S., at 246–248; Armco, 467 U. S., at 644–645; Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 169 (1983) . By hypothetically assuming that every State has the same tax structure, the internal consistency test allows courts to isolate the effect of a defendant State’s tax scheme. This is a virtue of the test because it allows courts to distinguish between (1) tax schemes that inherently discriminate against interstate commerce without regard to the tax policies of other States, and (2) tax schemes that create disparate incentives to engage in interstate commerce (and sometimes result in double taxation) only as a result of the interaction of two different but nondiscriminatory and internally consistent schemes. See Armco, supra, at 645–646; Moorman, 437 U. S., at 277, n. 12; Brief for Tax Economists as Amici Curiae 23–24 (hereinafter Brief for Tax Economists); Brief for Michael S. Knoll & Ruth Mason as Amici Curiae 18–23 (hereinafter Brief for Knoll & Mason). The first category of taxes is typically unconstitutional; the second is not.[5] See Armco, supra, at 644–646; Moorman, supra, at 277, and n. 12. Tax schemes that fail the internal consistency test will fall into the first category, not the second: “[A]ny cross-border tax disadvantage that remains after application of the [test] cannot be due to tax disparities”[6] but is instead attributable to the taxing State’s discriminatory policies alone. Neither petitioner nor the principal dissent questions the economic bona fides of the internal consistency test. And despite its professed adherence to precedent, the principal dissent ignores the numerous cases in which we have applied the internal consistency test in the past. The internal consistency test was formally introduced more than three decades ago, see Container Corp., supra, and it has been invoked in no fewer than seven cases, invalidating the tax in three of those cases. See American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, 545 U. S. 429 (2005) ;[7] Jefferson Lines, Inc., 514 U. S. 175 ; Goldberg, 488 U. S. 252; American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987) ; Tyler Pipe, 483 U. S. 232 ; Armco, 467 U. S. 638 ; Container Corp., supra. 2 Maryland’s income tax scheme fails the internal consistency test.[8] A simple example illustrates the point. Assume that every State imposed the following taxes, which are similar to Maryland’s “county” and “special nonresident” taxes: (1) a 1.25% tax on income that residents earn in State, (2) a 1.25% tax on income that residents earn in other jurisdictions, and (3) a 1.25% tax on income that nonresidents earn in State. Assume further that two taxpayers, April and Bob, both live in State A, but that April earns her income in State A whereas Bob earns his income in State B. In this circumstance, Bob will pay more income tax than April solely because he earns income interstate. Specifically, April will have to pay a 1.25% tax only once, to State A. But Bob will have to pay a 1.25% tax twice: once to State A, where he resides, and once to State B, where he earns the income. Critically—and this dispels a central argument made by petitioner and the principal dissent—the Maryland scheme’s discriminatory treatment of interstate commerce is not simply the result of its interaction with the taxing schemes of other States. Instead, the internal consistency test reveals what the undisputed economic analysis shows: Maryland’s tax scheme is inherently discriminatory and operates as a tariff. See Brief for Tax Economists 4, 9; Brief for Knoll & Mason 2. This identity between Maryland’s tax and a tariff is fatal because tariffs are “[t]he paradigmatic example of a law discriminating against interstate commerce.” West Lynn, 512 U. S., at 193. Indeed, when asked about the foregoing analysis made by amici Tax Economists and Knoll & Mason, counsel for Maryland responded, “I don’t dispute the mathematics. They lose me when they switch from tariffs to income taxes.” Tr. of Oral Arg. 9. But Maryland has offered no reason why our analysis should change because we deal with an income tax rather than a formal tariff, and we see none. After all, “tariffs against the products of other States are so patently unconstitutional that our cases reveal not a single attempt by any State to enact one. Instead, the cases are filled with state laws that aspire to reap some of the benefits of tariffs by other means.” West Lynn, supra, at 193. None of our dissenting colleagues dispute this economic analysis. The principal dissent focuses instead on a supposed “oddity” with our analysis: The principal dissent can envision other tax schemes that result in double taxation but do not violate the internal consistency test. This would happen, the principal dissent points out, if State A taxed only based on residence and State B taxed only based on source. Post, at 17 (Ginsburg, J., dissenting); see also post, at 7 (Scalia, J., dissenting). Our prior decisions have already considered and rejected this precise argument—and for good reason. For example, in Armco, we struck down an internally inconsistent tax that posed a risk of double taxation even though we recognized that there might be other permissible arrangements that would result in double taxation. Such schemes would be constitutional, we explained, because “such a result would not arise from impermissible discrimination against interstate commerce.” 467 U. S., at 645. The principal dissent’s protest that our distinction is “entirely circular,” post, at 17–18, n. 10, misunderstands the critical distinction, recognized in cases like Armco, between discriminatory tax schemes and double taxation that results only from the interaction of two different but nondiscriminatory tax schemes. See also Moorman, 437 U. S., at 277, n. 12 (distinguishing “the potential consequences of the use of different formulas by the two States,” which is not prohibited by the Commerce Clause, from discrimination that “inhere[s] in either State’s formula,” which is prohibited). Petitioner and the Solicitor General argue that Maryland’s tax is neutral, not discriminatory, because the same tax applies to all three categories of income. Specifically, they point out that the same tax is levied on (1) residents who earn income in State, (2) residents who earn income out of State, and (3) nonresidents who earn income in State. But the fact that the tax might have “ ‘the advantage of appearing nondiscriminatory’ does not save it from invalidation.” Tyler Pipe, 483 U. S., at 248 (quoting General Motors Corp. v. Washington, 377 U. S. 436, 460 (1964) (Goldberg, J., dissenting)). See also American Trucking Assns., Inc. v. Scheiner, 483 U. S. at, 281 (dormant Commerce Clause applies to state taxes even when they “do not allocate tax burdens between insiders and outsiders in a manner that is facially discriminatory”); Maine v. Taylor, 477 U. S. 131, 138 (1986) (a state law may discriminate against interstate commerce “ ‘either on its face or in practical effect’ ” (quoting Hughes, 441 U. S., at 336)). In this case, the internal consistency test and economic analysis—indeed, petitioner’s own concession—confirm that the tax scheme operates as a tariff and discriminates against interstate commerce, and so the scheme is invalid. Petitioner and the principal dissent, post, at 6, also note that by offering residents who earn income in interstate commerce a credit against the “state” portion of the income tax, Maryland actually receives less tax revenue from residents who earn income from interstate commerce rather than intrastate commerce. This argument is a red herring. The critical point is that the total tax burden on interstate commerce is higher, not that Maryland may receive more or less tax revenue from a particular tax-payer. See Armco, supra, at 642–645. Maryland’s tax un-constitutionally discriminates against interstate commerce, and it is thus invalid regardless of how much a particular taxpayer must pay to the taxing State. Once again, a simple hypothetical illustrates the point. Assume that State A imposes a 5% tax on the income that its residents earn in-state but a 10% tax on income they earn in other jurisdictions. Assume also that State A happens to grant a credit against income taxes paid to other States. Such a scheme discriminates against interstate commerce because it taxes income earned interstate at a higher rate than income earned intrastate. This is so despite the fact that, in certain circumstances, a resident of State A who earns income interstate may pay less tax to State A than a neighbor who earns income intrastate. For example, if Bob lives in State A but earns his income in State B, which has a 6% income tax rate, Bob would pay a total tax of 10% on his income, though 6% would go to State B and (because of the credit) only 4% would go to State A. Bob would thus pay less to State A than his neighbor, April, who lives in State A and earns all of her income there, because April would pay a 5% tax to State A. But Bob’s tax burden to State A is irrelevant; his total tax burden is what matters. The principal dissent is left with two arguments against the internal consistency test. These arguments are inconsistent with each other and with our precedents. First, the principal dissent claims that the analysis outlined above requires a State taxing based on residence to “recede” to a State taxing based on source. Post, at 1–2. We establish no such rule of priority. To be sure, Maryland could remedy the infirmity in its tax scheme by offering, as most States do, a credit against income taxes paid to other States. See Tyler Pipe, supra, at 245–246, and n. 13. If it did, Maryland’s tax scheme would survive the internal consistency test and would not be inherently discriminatory. Tweak our first hypothetical, supra, at 21–22, and assume that all States impose a 1.25% tax on all three categories of income but also allow a credit against income taxes that residents pay to other jurisdictions. In that circumstance, April (who lives and works in State A) and Bob (who lives in State A but works in State B) would pay the same tax. Specifically, April would pay a 1.25% tax only once (to State A), and Bob would pay a 1.25% tax only once (to State B, because State A would give him a credit against the tax he paid to State B). But while Maryland could cure the problem with its current system by granting a credit for taxes paid to other States, we do not foreclose the possibility that it could comply with the Commerce Clause in some other way. See Brief for Tax Economists 32; Brief for Knoll & Mason 28–30. Of course, we do not decide the constitutionality of a hypothetical tax scheme that Maryland might adopt because such a scheme is not before us. That Maryland’s existing tax unconstitutionally discriminates against interstate commerce is enough to decide this case. Second, the principal dissent finds a “deep flaw” with the possibility that “Maryland could eliminate the inconsistency [with its tax scheme] by terminating the special nonresident tax—a measure that would not help the Wynnes at all.” Post, at 16. This second objection refutes the first. By positing that Maryland could remedy the unconstitutionality of its tax scheme by eliminating the special nonresident tax, the principal dissent accepts that Maryland’s desire to tax based on residence need not “recede” to another State’s desire to tax based on source. Moreover, the principal dissent’s supposed flaw is simply a truism about every case under the dormant Commerce Clause (not to mention the Equal Protection Clause): Whenever government impermissibly treats like cases differently, it can cure the violation by either “leveling up” or “leveling down.” Whenever a State impermissibly taxes interstate commerce at a higher rate than intrastate commerce, that infirmity could be cured by lowering the higher rate, raising the lower rate, or a combination of the two. For this reason, we have concluded that “a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination.” McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 –40 (1990). See also Associated Industries of Mo. v. Lohman, 511 U. S. 641, 656 (1994) ; Fulton Corp., 516 U. S., at 346–347. If every claim that suffers from this “flaw” cannot succeed, no dormant Commerce Clause or equal protection claim could ever succeed. G Justice Scalia would uphold the constitutionality of the Maryland tax scheme because the dormant Commerce Clause, in his words, is “a judicial fraud.” Post, at 2. That was not the view of the Court in Gibbons v. Ogden, 9 Wheat, at 209, where Chief Justice Marshall wrote that there was “great force” in the argument that the Commerce Clause by itself limits the power of the States to enact laws regulating interstate commerce. Since that time, this supposedly fraudulent doctrine has been applied in dozens of our opinions, joined by dozens of Justices. Perhaps for this reason, petitioner in this case, while challenging the interpretation and application of that doctrine by the court below, did not ask us to reconsider the doctrine’s validity. Justice Scalia does not dispute the fact that State tariffs were among the principal problems that led to the adoption of the Constitution. See post, at 3. Nor does he dispute the fact that the Maryland tax scheme is tantamount to a tariff on work done out of State. He argues, however, that the Constitution addresses the problem of state tariffs by prohibiting States from imposing “ ‘Imposts or Duties on Imports or Exports.’ ” Ibid. (quoting Art. I, §10, cl. 2). But he does not explain why, under his interpretation of the Constitution, the Import-Export Clause would not lead to the same result that we reach under the dormant Commerce Clause. Our cases have noted the close relationship between the two provisions. See, e.g., State Tonnage Tax Cases, 12 Wall. 204, 214 (1871). Justice Thomas also refuses to accept the dormant Commerce Clause doctrine, and he suggests that the Constitution was ratified on the understanding that it would not prevent a State from doing what Maryland has done here. He notes that some States imposed income taxes at the time of the adoption of the Constitution, and he observes that “[t]here is no indication that those early state income tax schemes provided credits for income taxes paid elsewhere.” Post, at 2 (dissenting opinion). “It seems highly implausible,” he writes, “that those who ratified the Commerce Clause understood it to conflict with the income tax laws of their States and nonetheless adopted it without a word of concern.” Ibid. This argument is plainly unsound. First, because of the difficulty of interstate travel, the number of individuals who earned income out of State in 1787 was surely very small. (We are unaware of records showing, for example, that it was common in 1787 for workers to commute to Manhattan from New Jersey by rowboat or from Connecticut by stagecoach.) Second, Justice Thomas has not shown that the small number of individuals who earned income out of State were taxed twice on that income. A number of Founding-era income tax schemes appear to have taxed only the income of residents, not nonresidents. For example, in his report to Congress on direct taxes, Oliver Wolcott, Jr., Secretary of Treasury, describes Delaware’s income tax as being imposed only on “the inhabitants of this State,” and he makes no mention of the taxation of nonresidents’ income. Report to 4th Cong., 2d Sess. (1796), concerning Direct Taxes, in 1 American State Papers, Finance 429 (1832). Justice Thomas likewise understands that the Massachusetts and Delaware income taxes were imposed only on residents. Post, at 2, n. These tax schemes, of course, pass the internal consistency test. Moreover, the difficulty of administering an income tax on nonresidents would have diminished the likelihood of double taxation. See R. Blakey, State Income Taxation 1 (1930). Third, even if some persons were taxed twice, it is unlikely that this was a matter of such common knowledge that it must have been known by the delegates to the State ratifying conventions who voted to adopt theConstitution. * * * For these reasons, the judgment of the Court of Appeals of Maryland is affirmed. It is so ordered.Notes 1 Under federal law, S corporations permit shareholders “to elect a ‘pass-through’ taxation system under which income is subjected to only one level of taxation. The corporation’s profits pass through directly to its shareholders on a pro rata basis and are reported on the shareholders’ individual tax returns.” Gitlitz v. Commissioner, 531 U. S. 206, 209 (2001) (citation omitted). Maryland affords similar pass-through treatment to the income of an S corporation. 431 Md. 147, 158, 64 A. 3d 453, 459 (2013). By contrast, C corporations—organized under Subchapter C rather than S of Chapter 1 of the Internal Revenue Code—must pay their own taxes because they are considered to be separate tax entities from their shareholders. 14A W. Fletcher, Cyclopedia of the Law of Corporations §§6971, 6973 (rev. ed. 2008 and Cum. Supp. 2014–2015). Because of limitations on the number and type of shareholders they may have, S corporations tend to be smaller, more closely held corporations. Id., §§7025.50, 7026. 2 The principal dissent mischaracterizes the import of the Court’s statement in Moorman that a gross receipts tax is “ ‘more burdensome’ ” than a net income tax. Post, at 13. This was a statement about the relative economic impact of the taxes (a gross receipts tax applies regardless of whether the corporation makes a profit). It was not, as Justice Brennan confirmed in dissent, a suggestion that net income taxes are subject to lesser constitutional scrutiny than gross receipts taxes. Indeed, we noted in Moorman that “the actual burden on interstate commerce would have been the same had Iowa imposed a plainly valid gross-receipts tax instead of the challenged [net] income tax.” Moorman Mfg. Co. v. Bair, 437 U. S. 267 –281 (1978). 3 Similarly, we have sustained dormant Commerce Clause challenges by corporate residents of the State that imposed the burden on interstate commerce. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 567 (1997) ; Fulton Corp. v. Faulkner, 516 U. S. 325, 328 (1996) ; Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653, 654 (1948) ; Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434, 435 (1939) ; J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307, 308 (1938) . 4 There is no merit to petitioner’s argument that Maryland is free to adopt any tax scheme that is not actually intended to discriminate against interstate commerce. Reply Brief 7. The Commerce Clause regulates effects, not motives, and it does not require courts to inquire into voters’ or legislators’ reasons for enacting a law that has a discriminatory effect. See, e.g., Associated Industries of Mo. v. Lohman, 511 U. S. 641, 653 (1994) ; Philadelphia v. New Jersey, 437 U. S. 617 –627 (1978); Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333 –353 (1977). 5 Our cases have held that tax schemes may be invalid under the dormant Commerce Clause even absent a showing of actual double taxation. Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 444 (1980) ; Gwin, White, 305 U. S., at 439. We note, however, that petitioner does not dispute that respondents have been subject to actual multiple taxation in this case. 6 Mason, Made in America for European Tax: The Internal Consistency Test, 49 Boston College L. Rev. 1277, 1310 (2008). 7 The principal dissent and Justice Scalia inaccurately state that the Court in American Trucking “conceded that a trucking tax ‘fail[ed] the “internal consistency” test,’ but upheld the tax anyway.” Post, at 5 (Scalia, J., dissenting); see also post, at 14–15 (Ginsburg, J., dissenting). The Court did not say that the tax in question “failed the ‘internal consistency test.’ ” The Court wrote that this is what petitioner argued. See American Trucking, 545 U. S., at 437. And the Court did not concede that this was true. The tax in that case was a flat tax on any truck that made point-to-point deliveries in Michigan. The tax therefore fell on all trucks that made solely intrastate deliveries and some that made interstate deliveries, namely, those that also made some intrastate deliveries. What the Court “concede[d]” was that “if all States [adopted a similar tax], an interstate truck would have to pay fees totaling several hundred dollars, or even several thousand dollars, were it to ‘top off’ its business by carrying local loads in many (or even all) other States.” Id., at 438 (emphasis added). But that was not the same as a concession that the tax violated the internal consistency test. 8 In order to apply the internal consistency test in this case, we must evaluate the Maryland income tax scheme as a whole. That scheme taxes three separate categories of income: (1) the “county tax” on income that Maryland residents earn in Maryland; (2) the “county tax” on income that Maryland residents earn in other States; and (3) the “special nonresident tax” on income that nonresidents earn in Maryland. For Commerce Clause purposes, it is immaterial that Maryland assigns different labels (i.e., “county tax” and “special nonresident tax”) to these taxes. In applying the dormant Commerce Clause, they must be considered as one. Cf. Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93 –103 (1994) (independent taxes on intrastate and interstate commerce are “compensatory” if they are rough equivalents imposed upon substantially similar events). If state labels controlled, a State would always be free to tax domestic, inbound, and outbound income at discriminatory rates simply by attaching different labels.

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 . SUPREME COURT OF THE UNITED STATES Syllabus comptroller of the treasury of maryland v. wynne et ux. certiorari to the court of appeals of maryland No. 13–485. Argued November 12, 2014—Decided May 18, 2015 Maryland’s personal income tax on state residents consists of a “state” income tax, Md. Tax-Gen. Code Ann. §10–105(a), and a “county” income tax, §§10–103, 10–106. Residents who pay income tax to another jurisdiction for income earned in that other jurisdiction are allowed a credit against the “state” tax but not the “county” tax. §10–703. Nonresidents who earn income from sources within Maryland must pay the “state” income tax, §§10–105(d), 10–210, and nonresidents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax, §10–106.1. Respondents, Maryland residents, earned pass-through income from a Subchapter S corporation that earned income in several States. Respondents claimed an income tax credit on their 2006 Maryland income tax return for taxes paid to other States. The Mary-land State Comptroller of the Treasury, petitioner here, allowed respondents a credit against their “state” income tax but not against their “county” income tax and assessed a tax deficiency. That decision was affirmed by the Hearings and Appeals Section of the Comptroller’s Office and by the Maryland Tax Court, but the Circuit Court for Howard County reversed on the ground that Maryland’s tax system violated the Commerce Clause of the Federal Constitution. The Court of Appeals of Maryland affirmed and held that the tax unconstitutionally discriminated against interstate commerce. Held: Maryland’s personal income tax scheme violates the dormant Commerce Clause. . (a) The Commerce Clause, which grants Congress power to “regulate Commerce . . . among the several States,” Art I, §8, cl. 3, also has “a further, negative command, known as the dormant Commerce Clause,” Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 179, which precludes States from “discriminat[ing] between transactions on the basis of some interstate element,” Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 , n. 12. Thus, inter alia, a State “may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State,” Armco Inc. v. Hardesty, 467 U. S. 638 , or “impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, or by subjecting interstate commerce to the burden of ‘multiple taxation,’ ” Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 . . (b) The result in this case is all but dictated by this Court’s dormant Commerce Clause cases, particularly J. D. Adams Mfg. Co. v. Storen, 304 U. S. 307 , Gwin, White & Prince, Inc. v. Henneford, 305 U. S. 434 , and Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 , which all invalidated state tax schemes that might lead to double taxation of out-of-state income and that discriminated in favor of intrastate over interstate economic activity. . (c) This conclusion is not affected by the fact that these three cases involved a tax on gross receipts rather than net income, and a tax on corporations rather than individuals. This Court’s decisions have previously rejected the formal distinction between gross receipts and net income taxes. And there is no reason the dormant Commerce Clause should treat individuals less favorably than corporations; in addition, the taxes invalidated in J. D. Adams and Gwin, White applied to the income of both individuals and corporations. Nor does the right of the individual to vote in political elections justify disparate treatment of corporate and personal income. Thus the Court has previously entertained and even sustained dormant Commerce Clause challenges by individual residents of the State that imposed the alleged burden on interstate commerce. See Department of Revenue of Ky. v. Davis, 553 U. S. 328 ; Granholm v. Heald, 544 U. S. 460, 469 (2005) . . (d) Maryland’s tax scheme is not immune from dormant Commerce Clause scrutiny simply because Maryland has the jurisdictional power under the Due Process Clause to impose the tax. “[W]hile a state may, consistent with the Due Process Clause, have the authority to tax a particular taxpayer, imposition of the tax may nonetheless violate the Commerce Clause.” Quill Corp. v. North Dakota, 504 U. S. 298 . . (e) Maryland’s income tax scheme discriminates against interstate commerce. The “internal consistency” test, which helps courts identify tax schemes that discriminate against interstate commerce, as-sumes that every State has the same tax structure. Maryland’s income tax scheme fails the internal consistency test because if every State adopted Maryland’s tax structure, interstate commerce would be taxed at a higher rate than intrastate commerce. Maryland’s tax scheme is inherently discriminatory and operates as a tariff, which is fatal because tariffs are “[t]he paradigmatic example of a law discriminating against interstate commerce.” West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 . Petitioner emphasizes that by offering residents who earn income in interstate commerce a credit against the “state” portion of the income tax, Maryland actually receives less tax revenue from residents who earn income from interstate commerce rather than intrastate commerce, but this argument is a red herring. The critical point is that the total tax burden on interstate commerce is higher. . 431 Md. 147, 64 A. 3d 453, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Sotomayor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined as to Parts I and II. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined except as to the first paragraph. Ginsburg, J., filed a dissenting opinion, in which Scalia and Kagan, JJ., joined.

Unlike most other States, Maryland taxes the income its residents earn both within and outside the State, as well as the income that nonresidents earn from sources within the State. The effect of this scheme is that some of the income earned by Maryland residents outside of the State is taxed twice. Respondent Maryland residents owned stock in a corporation that earned income in States other than Maryland, and it filed state income tax returns in 39 States. On their 2006 Mary-land tax return, respondents claimed an income tax credit for income taxes paid to other States. Petitioner, the Comptroller of the Treasury, denied this claim and assessed a tax deficiency, but allowed the respondents a credit against the Maryland tax rate. The Maryland Tax Office denied the claim, and assessed the tax deficiency against respondents. The Maryland Court of Appeals affirmed. Held: Maryland is free to adopt any tax scheme that is not actually intended to discriminate against interstate commerce. . (a) By prohibiting States from discriminating against or imposing excessive burdens on interstate commerce without congressional approval, it strikes at one of the chief evils that led to the adoption of the Constitution, namely, state tariffs and other laws that burdened interstate commerce, and this Court has long held that States cannot subject corporate income to tax schemes similar to Maryland's. Pp. 456 U.S. 166-167. (b) The dormant Commerce Clause precludes States fromdiscriminat[ing] between transactions on the basis of some element of interstate commerce or some other impermissible indirect burden. This Court has consistently held that dormant Commerce dormant Commerce vio-lates, prohibiting certain state taxation even when Congress has failed to legislate on the subject. P.. (c) The sole attribute that distinguishes a corporation from an individual for present purposes is the right of the individual to vote. See, e.g., J. D. Adams, Gwin, White, and Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948). . (d) The Commerce Clause regulates effects, not motives, and does not require courts to inquire into voters' or legislators' reasons for enacting a law that has a discriminatory effect. Moreover, petitioner does not dispute that respondents have been subject to actual multiple taxation in this case. Shaffer v. Carter,, distinguished. By positing that Maryland could remedy the unconstitutionality of its tax scheme by eliminating the special nonresident tax, the principal dissent accepts that Maryland's desire to tax based on residence need not "recede" to another State, but it is unlikely that this was a matter of such common knowledge that it must have been known by the delegates to the State ratifying conventions who voted to adopt theConstitution. In this case, the internal consistency test and economic analysis (indeed, petitioner's own concession)confirm that the tax scheme operates as a tariff and discriminates against interstate commerce and so the scheme is invalid. Thus, disparate treatment of corporate and personal income cannot be justified based on the state services enjoyed by these two groups of taxpayers. Although Maryland has the raw jurisdictional power to impose a tax on residents who earn income from interstate commerce rather than intrastate commerce, it is unable to identify the tax as a discriminatory tax scheme because it has no power to do so. Nor can it be justified on the theory that a State may tax its residents without any Commerce Clause constraints. If state labels controlled, a State would always be free to tax domestic, inbound, and outbound income at discriminatory rates simply by attaching different labels. Similarly, this Court will not accept a suggestion that the Constitution was ratified on the understanding that it would not prevent a State from doing what Maryland has done here. There is no principled difference between the hypothetical Commerce Clause challenge and this one. Petitioner does not deny the fact that the Commerce Clause distinguishes between taxes on net and gross income, and even between discriminatory tax schemes and double taxation that results only from the interaction of two different but nondiscriminatory and internally consistent schemes. However, it appears that, when States first enacted modern income taxes in the early 1900's, some States had tax schemes that allowed their residents to tax the income of their residents, no matter where that income was earned, and that Maryland has offered no reason why it should not do so, see id., at 7. Furthermore, the notion that the victims of double taxation have a complete remedy at the polls is fanciful, since it is likely that only a distinct minority of a State's residents earns income out of State, and since the small number of individuals who earned income from other States were taxed twice on that income, it cannot be said that this case was simply because corporations also benefit heavily from state and local services. Even assuming, arguendo, that every State imposes a 1.25% tax on all three categories of

2014_13-719

https://www.oyez.org/cases/2014/13-719

. To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal “containing a short and plain statement of the grounds for removal.”28 U. S. C. §1446(a). When re-moval is based on diversity of citizenship, an amount-in-controversy requirement must be met. Ordinarily, “the matter in controversy [must] excee[d] the sum or value of $75,000.” §1332(a). In class actions for which the requirement of diversity of citizenship is relaxed, §1332(d)(2)(A)–(C), “the matter in controversy [must] excee[d]the sum or value of $5,000,000,” §1332(d)(2). If theplaintiff’s complaint, filed in state court, demands mon-etary relief of a stated sum, that sum, if asserted ingood faith, is “deemed to be the amount in controversy.” §1446(c)(2). When the plaintiff’s complaint does not state the amount in controversy, the defendant’s notice of removal may do so. §1446(c)(2)(A). To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.I Brandon W. Owens, plaintiff below and respondent here, filed a putative class action in Kansas state court alleging that defendants Dart Cherokee Basin Operating Company, LLC, and Cherokee Basin Pipeline, LLC (collectively, Dart), underpaid royalties owed to putative class members under certain oil and gas leases. The complaint sought “a fair and reasonable amount” to compensate putative class members for “damages” they sustained due to the alleged underpayments. App. to Pet. for Cert. 34a, 35a. Invoking federal jurisdiction under the Class Action Fairness Act of 2005 (CAFA), Dart removed the case to the U. S. District Court for the District of Kansas. CAFA gives federal courts jurisdiction over certain class actions, defined in §1332(d)(1), if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million. §1332(d)(2), (5)(B); see Standard Fire Ins. Co. v. Knowles, 568 U. S. ___, ___ (2013) (slip op., at 3). Dart’s notice of removal alleged that all three requirements were satisfied. With respect to the amount in controversy, Dart stated that the purported underpayments to putative class members totaled more than $8.2 million. Owens moved to remand the case to state court. The notice of removal was “deficient as a matter of law,”Owens asserted, because it included “no evidence” proving that the amount in controversy exceeded $5 million. App. to Pet. for Cert. 46a, 53a. In response, Dart submitted a declaration by one of its executive officers. The declaration included a detailed damages calculation indicating that the amount in controversy, sans interest, exceeded $11 million. Without challenging Dart’s calculation,Owens urged that Dart’s amount-in-controversy submissioncame too late. “[The] legally deficient [notice of removal],” Owens maintained, could not be cured by “post-removal evidence about the amount in controversy.” Id., at 100a. Reading Tenth Circuit precedent to require proof ofthe amount in controversy in the notice of removal itself, the District Court granted Owens’ remand motion. Dart’sdeclaration, the District Court held, could not serve to keep the case in federal court. The Tenth Circuit, as the District Court read Circuit precedent, “has consistently held that reference to factual allegations or evidence out-side of the petition and notice of removal is not permitted to determine the amount in controversy.” App. to Pet.for Cert. 26a, and n. 37 (citing Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995); Martin v. Franklin Capital Corp., 251 F. 3d 1284, 1291, n. 4 (2001); Oklahoma Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed. Appx. 775 (2005)). Ordinarily, remand orders “[are] not reviewable on appeal or otherwise.” §1447(d). There is an exception, however, for cases invoking CAFA. §1453(c)(1). In such cases, “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand.” Ibid. Citing this exception, Dart petitioned the Tenth Circuit for permission to appeal. “Upon careful consideration of the parties’ submissions, as well as the applicable law,” the Tenth Circuit panel, dividing two-to-one, denied review. App. to Pet. for Cert. 13a–14a. An evenly divided court denied Dart’s petition for en banc review. Dissenting from the denial of rehearing en banc, Judge Hartz observed that the Tenth Circuit “[had] let stand a district-court decision that will in effect impose in this circuit requirements for notices of removal that are even more onerous than the code pleading requirements that . . . federal courts abandoned long ago.” 730 F. 3d 1234 (2013). The Tenth Circuit was duty-bound to grant Dart’s petition for rehearing en banc, Judge Hartz urged, because the opportunity “to correct the law in our circuit” likely would not arise again. Id., at 1235. Henceforth, Judge Hartz explained, “any diligent attorney . . . would submit to the evidentiary burden rather than take a chance on remand to state court.” Ibid. Dart filed a petition for certiorari in this Court requesting resolution of the following question: “Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required ‘short and plain statement of the grounds for removal’ enough?” Pet. for Cert. i. Owens’ brief in opposition raised no impediment to this Court’s review. (Nor, later, did Owens’ merits brief suggest any barrier to our consideration of Dart’s petition.) We granted certiorari to resolve a division among the Circuits on the question presented. 572 U. S. ___ (2014). Compare Ellenburg v. Spartan Motors Chassis, Inc., 519 F. 3d 192, 200 (CA4 2008) (a removing party’s notice of removal need not “meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint”), and Spivey v. Vertrue, Inc., 528 F. 3d 982, 986 (CA7 2008) (similar), with Laughlin, 50 F. 3d, at 873 (“the requisite amount in controversy . . . must be affirmatively established on the face of either the petition or the removal notice”).II As noted above, a defendant seeking to remove a case to a federal court must file in the federal forum a notice of removal “containing a short and plain statement of the grounds for removal.” §1446(a). By design, §1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure. See 14C C. Wright, A. Miller, E. Cooper, & J. Steinman, Federal Practice and Procedure §3733, pp. 639–641 (4th ed. 2009) (“Section 1446(a) requires only that the grounds for removal be stated in ‘a short and plain statement’—terms borrowed from the pleading requirement set forth in Federal Rule of Civil Procedure 8(a).”). The legislative history of §1446(a) is corroborative. Congress, by borrowing the familiar “short and plain statement” standard from Rule 8(a), intended to “simplify the ‘pleading’ requirements for removal” and to clarify that courts should “apply the same liberal rules [to removal allegations] that are applied to other matters of pleading.” H. R. Rep. No. 100–889, p. 71 (1988). See also ibid. (disapproving decisions requiring “detailed pleading”). When a plaintiff invokes federal-court jurisdiction, the plaintiff’s amount-in-controversy allegation is accepted if made in good faith. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle,429 U. S. 274,276 (1977) (“ ‘[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.’ ”) (quoting St. Paul Mercury Indemnity Co. v. Red Cab Co.,303 U. S. 283,288 (1938); alteration in original). Similarly, when a defendant seeks federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court. Indeed, the Tenth Circuit, although not disturbing prior decisions demanding proof together with the removal notice, recognized that it was anomalous to treat commencing plaintiffs and removing defendants differently with regard to the amount in controversy. See McPhail v. Deere & Co., 529 F. 3d 947, 953 (2008) (requiring proof by defendant but not by plaintiff “bears no evident logical relationship either to the purpose of diversity jurisdiction, or to the principle that those who seek to invoke federal jurisdiction must establish its prerequisites”). If the plaintiff contests the defendant’s allegation, §1446(c)(2)(B) instructs: “[R]emoval . . . is proper on the basis of an amount in controversy asserted” by the defendant “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds” the jurisdictional threshold.[1] This provision, added to §1446 as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA), clarifies the procedure in order when a defendant’s assertion of the amount in controversy is challenged. In such a case, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied. As the House Judiciary Committee Report on the JVCA observed:“[D]efendants do not need to prove to a legal certainty that the amount in controversy requirement has been met. Rather, defendants may simply allege or assert that the jurisdictional threshold has been met. Discovery may be taken with regard to that question. In case of a dispute, the district court must make findings of jurisdictional fact to which the preponderance standard applies.” H. R. Rep. No. 112–10, p. 16 (2011).Of course, a dispute about a defendant’s jurisdictional allegations cannot arise until after the defendant files a notice of removal containing those allegations. Brief for Dart 14. In remanding the case to state court, the District Court relied, in part, on a purported “presumption” against removal. App. to Pet. for Cert. 28a. See, e.g., Laughlin, 50 F. 3d, at 873 (“[T]here is a presumption against removal jurisdiction.”). We need not here decide whether such a presumption is proper in mine-run diversity cases. It suffices to point out that no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court. See Standard Fire Ins. Co., 568 U. S., at ___ (slip op., at 6) (“CAFA’s primary objective” is to “ensur[e] ‘Federal court consideration of interstate cases of national importance.’ ” (quoting §2(b)(2),119Stat.5)); S. Rep. No. 109–14, p. 43 (2005) (CAFA’s “provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant.”). In sum, as specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.III As in Standard Fire Ins. Co., 568 U. S., at ___–___ (slip op., at 2–3), we granted review in this case after the Court of Appeals declined to hear an appeal from a remand order. Neither party in that case or in this one questioned our review authority under28 U. S. C. §1254(1) (“Cases in the courts of appeals may be reviewed . . . [b]y writ of certiorari upon the petition of any party . . . before or after rendition of judgment.”).[2] An amicus brief filed in support of Owens by Public Citizen, Inc., however, raised a jurisdictional impediment. Section 1453(c)(1), Public Citizen noted, provides that “a court of appeals may accept an appeal from an order ofa district court granting or denying a motion to remand a class action to the State court from which it was removed[.]” (Emphasis added.) Because court of appeals review of a remand order is discretionary, see supra, at 3, and the Tenth Circuit exercised its discretion to deny review, Public Citizen urged, “[b]oth parties ask this Court to decide an issue that is not properly before it.” Brief for Public Citizen 6. “Absent grounds for reversing the court of appeals’ decision to deny permission to appeal,” Public Citizen asserted, “the merits of the district court’s decision are not before any appellate court, including this one.” Ibid. Satisfied that there are indeed “grounds for reversing the [Tenth Circuit’s] decision to deny permission to appeal,” we find no jurisdictional barrier to our settlement of the question presented. The case was “in” the Court of Appeals because of Dart’s leave-to-appeal application, and we have jurisdiction to review what the Court of Appeals did with that application. See28 U. S. C. §1254; Hohn v. United States,524 U. S. 236,248 (1998). Owens, we reiterate, did not contest the scope of our review. Discretion to review a remand order is not rudderless. See Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___ (2014) (slip op., at 4) (“matters of discretion are reviewable for abuse of discretion” (internal quotation marks omitted)). A court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.” Cooter & Gell v. Hartmarx Corp.,496 U. S. 384,405 (1990). This case fits that bill.[3] There are many signals that the Tenth Circuit relied on the legally erroneous premise that the District Court’s decision was correct. In an earlier case, the Tenth Circuit, following the First Circuit’s lead, stated considerations that it regards as relevant to the intelligent exercise of discretion under §1453(c)(1). BP America, Inc. v. Okla-homa ex rel. Edmondson, 613 F. 3d 1029, 1034–1035 (2010)(adopting factors set out in College of Dental Surgeons of Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F. 3d 33, 38–39 (CA1 2009)).[4] When the CAFA-related question presented in an appeal from a remand order is “important, unsettled, and recurrent,” the First Circuit instructed, a court of appeals should inquire: “Absent an interlocutory appeal, [will the question] in all probability escape meaningful appellate review.” Id., at 39. Or, as phrased by the Tenth Circuit, if a district court’s remand order remains undisturbed, will the case “leave the ambit of the federal courts for good, precluding any other opportunity for [the defendant] to vindicate its claimed legal entitlement [under CAFA] . . . to have a federal tribunal adjudicate the merits.” BP America, 613 F. 3d, at 1035. See also Coffey v. Freeport McMoran Copper & Gold, 581 F. 3d 1240, 1247 (CA10 2009) (noting that “the purpose of §1453(c)(1) isto develop a body of appellate law interpreting CAFA”(brackets and internal quotation marks omitted)). Thus, the Tenth Circuit’s own guide weighed heavily in favor of accepting Dart’s appeal. That the Court of Appeals, instead, rejected Dart’s appeal strongly suggests that the panel thought the District Court got it right in requiring proof of the amount in controversy in the removal notice. In practical effect, the Court of Appeals’ denial of review established the law not simply for this case, but for future CAFA removals sought by defendants in the Tenth Circuit. The likelihood is slim that a later case will arise in which the Tenth Circuit will face a plea to retract the rule that both Owens and the District Court ascribed to decisions of the Court of Appeals: Defendants seeking to remove under CAFA must be sent back to state court unless they submit with the notice of removal evidence proving the alleged amount in controversy. See supra, at 3. On this point, Judge Hartz’s observation, dissenting from the Tenth Circuit’s denial of rehearing en banc, see supra, at 4, bears recounting in full:“After today’s decision any diligent attorney (and one can assume that an attorney representing a defendant in a case involving at least $5 million—the threshold for removal under CAFA—would have substantial incentive to be diligent) would submit to the evidentiary burden rather than take a chance on remand to state court.” 730 F. 3d, at 1235.With no responsible attorney likely to renew the fray, Judge Hartz anticipated, “the issue will not arise again.” Ibid. Consequently, the law applied by the District Court—demanding that the notice of removal contain evidence documenting the amount in controversy—will be frozen in place for all venues within the Tenth Circuit.[5] Recall that the Court of Appeals denied Dart’s petition for review “[u]pon careful consideration of the parties’ submissions, as well as the applicable law.” App. to Pet. for Cert. 13a. What did the parties submit to the Tenth Circuit? Their presentations urged conflicting views on whether a removing defendant must tender prima facie proof of the amount in controversy as part of the removal notice. And what was “the applicable law” other than the rule recited by the Tenth Circuit in Laughlin and follow-on decisions, i.e., to remove successfully, a defendant must present with the notice of removal evidence proving the amount in controversy.[6] From all signals one can discern then, the Tenth Circuit’s denial of Dart’s request for review of the remand order was infected by legal error. The District Court erred in ruling that Dart’s amount-in-controversy allegation failed for want of proof, but that error was driven by the District Court’s conscientious endeavor to follow Circuit precedent. The parties trained their arguments in the Tenth Circuit, as they did here, on the question whether Dart could successfully remove without detailing in the removal notice evidence of the amount in controversy. See Tr. of Oral Arg. 47 (acknowledgment by Owens’ counsel that “the issues . . . provided to . . . the Tenth Circuit were very similar to what you see in this Court, with the exception of [the question raised by Public Citizen] whether this Court has jurisdiction”). Dissenting from the denial of rehearing en banc, Judge Hartz explained at length why the Tenth Circuit “owe[d] a duty to the bench and bar” to correct the District Court’s misperception and to state as the Circuit’s law: “[A] defendant seeking removal under CAFA need only allege the jurisdictional amount in its notice of removal and must prove that amount only if the plaintiff challenges the allegation.” 730 F. 3d, at 1234, 1238. In this regard, we note, the Tenth Circuit has cautioned against casual rulings on applications like Dart’s. “The decision whether to grant leave to appeal” under §1453(c), the Tenth Circuit stressed, calls for the exercise of the reviewing court’s correctly “informed discretion.” BP America, 613 F. 3d, at 1035 (emphasis added); see supra, at 8–9. Recall, moreover, that Owens never suggested in his written submissions to this Court that anything other than the question presented accounts for the Court of Appeals’ disposition. If Owens believed that the Tenth Circuit’s denial of leave to appeal rested on some other ground, he might have said so in his brief in opposition or, at least, in his merits brief. See this Court’s Rule 15.2; Granite Rock Co. v. Teamsters,561 U. S. 287,306 (2010). He said nothing of that order, for he, like Dart, antici-pated that the question presented was ripe for this Court’s resolution. In the above-described circumstances, we find it an abuse of discretion for the Tenth Circuit to deny Dart’s request for review. Doing so froze the governing rule in the Circuit for this case and future CAFA removal notices, with no opportunity for defendants in Dart’s position responsibly to resist making the evidentiary submission. That situation would be bizarre for a decisionmaker who did not think that the amount in controversy in diversity cases is a matter a removal notice must demonstrate by evidence, not merely credibly allege.[7] And if the Circuit precedent on which the District Court relied misstated the law, as we hold it did, then the District Court’s order remanding this case to the state court is fatally infected by legal error. Careful inspection thus reveals that the two issues Public Citizen invites us to separate—whether the Tenth Circuit abused its discretion in denying review, and whether the District Court’s remand order was erroneous—do not pose genuinely discrete questions. Instead, resolution of both issues depends on the answer to the very same question: What must the removal notice contain? If the notice need not contain evidence, the Tenth Circuit abused its discretion in effectively making the opposing view the law of the Circuit. By the same token, the District Court erred in remanding the case for want of an evidentiary submission in the removal notice. We no doubt have authority to review for abuse of discretion the Tenth Circuit’s denial of Dart’s appeal from the District Court’s remand order, see supra, at 8, and in doing so, to correct the erroneous view of the law the Tenth Circuit’s decision fastened on district courts within the Circuit’s domain.[8]* * * For the reasons stated, the judgment of the U. S. Court of Appeals for the Tenth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Notes1 Section 1446(c)(2) applies to removals “sought on the basis of the jurisdiction conferred by section 1332(a),” and §1446(c)(2)(B) provides that “removal of the action is proper . . . [if] the amount in controversy exceeds the [in excess of $75,000] amount specified in section 1332(a)” (emphasis added). We assume, without deciding, a point the parties do not dispute: Sections 1446(c)(2) and 1446(c)(2)(B) apply to cases removed under §1332(d)(2), and removal is proper if the amount in controversy exceeds $5 million, the amount specified in §1332(d)(2). See Frederick v. Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (CA10 2012) (“[T]here is no logical reason why we should demand more from a CAFA defendant than other parties invoking federal jurisdiction.” (internal quotation marks omitted)).2 Today’s dissenters joined the opinion in Standard Fire Ins. Co. v. Knowles, 568 U. S. ___ (2013), without suggesting any lack of jurisdiction to reach the merits.3 Justice Scalia’s dissent (hereafter dissent) faults Dart for asserting, late in the day, that the Tenth Circuit abused its discretion, observing that Dart did so only in its reply brief. Post, at 6. But Public Citizen teed up that issue after the parties filed their merits briefs. In view of this Court’s decision in Standard Fire Ins. Co., 568 U. S. ___, see supra, at 7–8, the parties had no cause to address the matter earlier.4 Neither court stated the listed considerations as an inflexible test. We have no occasion in this case to review each of the factors identified by the First and Tenth Circuits.5 The dissent suggests that the Tenth Circuit may have another opportunity to set Circuit precedent straight: A lawyer may be irresponsible or fail to learn from Dart’s experience; or perhaps a lawyer will put in evidence the district court deems insufficient, and then have a go at arguing that the evidence was sufficient and, in any event, “no evidence is required at all.” Post, at 5–6. That such a case will occur, and that the Tenth Circuit would then seize the very opportunity it passed up in Dart’s case, is hardly probable.6 The dissent posits that “the applicable law” might have been something other than the law governing the parties’ submissions. Post, at 3, 4. That is a strained reading of the Tenth Circuit’s expression. Perhaps the Tenth Circuit found this case a “poor vehicle,” the dissent suggests, post, at 2, but no potential vehicle concerns were urged by Owens, and the dissent identifies none. Or the Tenth Circuit might have doubted its “ability to quickly resolve the issue” within the 60-day time limit provided in §1453(c)(2)–(3). Ibid.; see also post, at 4. Section 1453(c)’s timing provision, however, was designed to promote expedition, not to discourage Courts of Appeals from acting on petitions for appeal. As a third “maybe,” the dissent observes that proof of the amount in controversy in removal notices is not “a question unique to [CAFA].” Post, at 3. True, the Tenth Circuit demands such proof in ordinary diversity cases. See Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995). But that does not make the imposition one whit less in CAFA cases.7 Caution is in order when attributing a basis to an unreasoned decision. But we have not insisted upon absolute certainty when that basis is fairly inferred from the record. See Taylor v. McKeithen,407 U. S. 191, n. 2 (1972) (per curiam) (rejecting “possible, but unlikely” basis for unreasoned decision); Nixon v. Fitzgerald,457 U. S. 731–743 (1982) (facing an unreasoned Court of Appeals decision, we projected what the Court of Appeals “appears to have” reasoned); Tr. of OralArg. 18–19 (observing that an appellate court often assumes that a first instance court based its unexplained discretionary decision on the ground the prevailing party presented).8 Our disposition does not preclude the Tenth Circuit from asserting and explaining on remand that a permissible ground underlies its decision to decline Dart’s appeal.

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 dart cherokee basin operating co., llc, et al. v. owens certiorari to the united states court of appeals for the tenth circuit No. 13–719. Argued October 7, 2014—Decided December 15, 2014 A defendant seeking to remove a case from state to federal court must file in the federal forum a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U. S. C. §1446(a). Respondent Owens filed a putative class action in Kansas state court, seeking compensation for damages class members allegedly sustained when petitioners (collectively, Dart) underpaid royalties due under certain oil and gas leases. Dart removed the case to the Federal District Court, invoking the Class Action Fairness Act of 2005 (CAFA), which gives federal courts jurisdiction over class actions if the amount in controversy exceeds $5 million, 28 U. S. C. §1332(d)(2). Dart’s notice of removal alleged that the purported underpayments totaled over $8.2 million. Owens moved to remand the case to state court, asserting that the removal notice was “deficient as a matter of law” because it included “no evidence” proving that the amount in controversy exceeded $5 million. In response, Dart submitted an executive’s detailed declaration supporting an amount in controversy in excess of $11 million. The District Court granted Owens’ remand motion, reading Tenth Circuit precedent to require proof of the amount in controversy in the notice of removal itself. Dart petitioned the Tenth Circuit for permission to appeal, see §1453(c)(1), but that court denied review and rehearing en banc. Held: 1. As specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; the notice need not contain evidentiary submissions. Section 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure. By borrowing Rule 8(a)’s “short and plain statement” standard, corroborative history indicates, Congress intended to clarify that courts should “apply the same liberal rules [to removal allegations as] to other matters of pleading.” H. R. Rep. No. 100–889, p. 71. The amount-in-controversy allegation of a plaintiff invoking federal-court jurisdiction is accepted if made in good faith. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 276. Similarly, the amount-in-controversy allegation of a defendant seeking federal-court adjudication should be accepted when not contested by the plaintiff or questioned by the court. In the event that the plaintiff does contest the defendant’s allegations, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied, see §1446(c)(2)(B). In remanding the case to state court, the District Court relied, in part, on a purported “presumption” against removal, but no antiremoval presumption attends cases invoking CAFA, a statute Congress enacted to facilitate adjudication of certain class actions in federal court. See Standard Fire Ins. Co. v. Knowles, 568 U. S. ___, ___. . 2. The District Court erred in remanding this case for want of an evidentiary submission in the notice of removal, and the Tenth Circuit abused its discretion in denying review of that decision. . (a) This Court concludes that no jurisdictional barrier impedes settlement of the question presented: whether evidence supporting the amount in controversy must be included in a notice of removal. The case was “in” the Tenth Circuit because of Dart’s application for leave to appeal, and the Court has jurisdiction to review what the Court of Appeals did with that application. See 28 U. S. C. §1254; Hohn v. United States, 524 U.S. 236, 248. . (b) While appellate review of a remand order is discretionary, exercise of that discretion is not rudderless, see Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___, and a court “would necessarily abuse its discretion if it based its ruling on an erroneous view of the law,” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405. The Tenth Circuit had previously stated considerations bearing on the intelligent exercise of discretion under §1453(c)(1). One of those considerations is particularly relevant here: a court of appeals should inquire whether, if a district court’s remand order remains undisturbed, the case will “leave the ambit of the federal courts for good, precluding any other opportunity for [the defendant] to vindicate its claimed legal entitlement [under CAFA] . . . to have a federal tribunal adjudicate the merits.” BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F.3d 1029, 1035. Thus the Tenth Circuit’s own guide weighed heavily in favor of accepting Dart’s appeal. In practical effect, the Court of Appeals’ denial of review established the law—the requirement of proof of the amount in controversy in the removal notice—not simply for this case, but for future CAFA removals sought by defendants in the Tenth Circuit, leaving those defendants with no realistic opportunity to resist making the evidentiary submission. The District Court, driven by its conscientious endeavor to follow Circuit precedent, erred in ruling that Dart’s amount-in-controversy allegation failed for want of proof. It was an abuse of discretion for the Tenth Circuit to deny Dart’s request for review, for that disposition fastened on district courts within the Circuit an erroneous view of the law. Contrary to the law the District Court derived from Tenth Circuit precedent, a removal notice need only plausibly allege, not detail proof of, the amount in controversy.. Vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, and Sotomayor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Kennedy and Kagan, JJ., joined, and in which Thomas, J., joined as to all but the final sentence. Thomas, J., filed a dissenting opinion.

To remove a case from a state court to a federal court, a defendant must file in the federal forum a notice of removal with a short and plain statement of the grounds for removal, 28 U.S. C. §1446(a). When re-moval is based on diversity of citizenship, an amount-in-controversy requirement must be met. In class actions for which the diversity requirement is relaxed, §1332(d)(2)(A) requires that the matter in controversy (the sum or value of $75,000) be excee[d. If the plaintiff complaint, filed in state court, demands mon-etary relief of a stated sum, that sum, if asserted ingood faith, isemed to exceed the $5 million jurisdictional threshold. When the plaintiff plaintiff filed a putative class action in a Kansas state court alleging that defendants (collectively, Dart) underpaid royalties owed to putative plaintiffs under certain oil and gas leases, the complaint sought a fair and reasonable amount to compensate the class members for damages sustained due to the alleged underpayments. Invoking federal jurisdiction under the Class Action Fairness Act of 2005 (CAFA), Dart removed the case to the Federal District Court for the District of Kansas, which jurisdiction over certain class actions. The notice alleged that all three requirements were satisfied, but that, with respect to the amount in controversy, the notice was deficient as a matter of law because it included no evidence proving that the amount was $5.2 million. Without challenging Dart's calculation, Owens urged that the notice-in controversy submissioncame too late. Reading Tenth Circuit precedent to require proof ofthe amount of controversy in the notice itself, the District Court granted Dart a motion to remand the case, and granted the motion. The Court of Appeals denied review, holding that the case could not be remanded, and that, since the Tenth Circuit had let stand a district-court decision imposing on this Court requirements for notices of removal that are even more onerous than the code pleading requirements that federal courts abandoned long ago, it was duty-bound to grant Dart a rehearing en banc review. Held: The Tenth Circuit did not abuse its discretion in denying Dart a request for review of the remand order. . (a) As specified in §1444(a), a defendant notice of Removal need include only a plausible allegation that the money in controversy exceeds the jurisdictional limit. Evidence establishing the amount is required by the statute only when the plaintiff contests, or the court questions, the defendant's allegation. This legislative history is corroborative, and Congress, by borrowing the familiar pleading requirement set forth in Federal Rule of Civil Procedure 8(a)(1), intended tosimplify the removal requirements for removal and to clarify that courts should apply the same liberal rules to removal allegations that are applied to other matters of pleading. Moreover, the history of the statute is also corroborative. Congress also intended to simplify the removal process by clarifying the procedure in order to facilitate adjudication of certain class action actions in federal court. See, e.g., Standard Fire Ins. Co. v. Knowles, 568 U. S. ___, ___ (CA7), and by providing that removal is proper if, by the preponderance of the evidence, that amount exceeds the amount specified in the removal notice. From all signals one can discern, the Tenth Circuit relied on the legally erroneous premise that it was correct. Moreover, there are many signals that the court may have another opportunity to set Circuit precedent straight: a lawyer may be irresponsible or fail to learn from Dart's experience, or perhaps a lawyer will put in evidence the district court deems insufficient, and then have a go at arguing that the evidence was sufficient and, in any event, no evidence is required at all. That such a case will occur is hardly probable. And that Tenth Circuit would then seize the very opportunity it passed up in Dart's case is not probable. Pp. 730 F. 3d 1234, vacated and remanded. QUIST CIRCUIT, J., announced his intention to file a petition for review in this Court, and filed an opinion concurring in the judgment, in which he and others joined, post, at 5. On remand, the parties submitted their presentations urging conflicting views on whether a removing defendant must tender prima facie proof of the amount in controversy as part of removal notice, and what was the applicable law other than the rule recited in Laughlin and follow-on decisions, i.e., to remove successfully without detailing in removal notice evidence of the controversy. After the parties filed their merits briefs, neither court stated the listed considerations as an inflexible test, and the parties had no cause to address the matter earlier. Neither court stated either of the factors identified by the First and Tenth Circuits, and, respectively,

2014_13-1428

https://www.oyez.org/cases/2014/13-1428

. A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala’s application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit’s decision was based on the procedure used by the trial judge in ruling on Ayala’s objections under Batson v. Kentucky, 476 U. S. 79 (1986) , to some of the prosecution’s peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful. The Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U. S. 619 (1993) , and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). I A Ayala’s conviction resulted from the attempted robbery of an automobile body shop in San Diego, California, in April 1985. The prosecution charged Ayala with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. The prosecution also announced that it would seek the death penalty on the murder counts. Jury selection lasted more than three months, and during this time the court and the parties interviewed the prospective jurors and then called back a subset for general voir dire. As part of the jury selection process, more than 200 potential jurors completed a 77-question, 17-page questionnaire. Potential jurors were then questioned in court regarding their ability to follow the law. Jurors who were not dismissed for cause were called back in groups for voir dire, and the parties exercised their peremptory challenges. Each side was allowed 20 peremptories, and the prosecution used 18 of its allotment. It used seven peremptories to strike all of the African-Americans and Hispanics who were available for service. Ayala, who is Hispanic, raised Batson objections to those challenges. Ayala first objected after the prosecution peremptorily challenged two African-Americans, Olanders D. and Galileo S. The trial judge stated that these two strikes failed to establish a prima facie case of racial discrimination, but he nevertheless required the prosecution to reveal the reasons for the strikes. The prosecutor asked to do this outside the presence of the defense so as not to disclose trial strategy, and over Ayala’s objection, the judgegranted the request. The prosecution then offered several reasons for striking Olanders D., including uncertainty about his willingness to impose the death penalty. The prosecution stated that it dismissed Galileo S. primarily because he had been arrested numerous times and had not informed the court about all his prior arrests. After hearing and evaluating these explanations, the judge concluded that the prosecution had valid, race-neutral reasons for these strikes. Ayala again raised Batson objections when the prosecution used peremptory challenges to dismiss two Hispanics, Gerardo O. and Luis M. As before, the judge found that the defense had not made out a prima facie case, but ordered the prosecution to reveal the reasons for the strikes. This was again done ex parte, but this time the defense did not expressly object. The prosecution explained that it had challenged Gerardo O. and Luis M. in part because it was unsure that they could impose the death penalty. The prosecution also emphasized that Gerardo O.’s English proficiency was limited and that Luis M. had independently investigated the case. The trial court concluded a second time that the prosecution had legitimate race-neutral reasons for the strikes. Ayala raised Batson objections for a third and final time when the prosecution challenged Robert M., who was Hispanic; George S., whose ethnicity was disputed; and Barbara S., who was African-American. At this point, the trial court agreed that Ayala had made a prima facie Batson showing. Ayala’s counsel argued that the strikes were in fact based on race. Ayala’s counsel contended that the challenged jurors were “not significantly different from the white jurors that the prosecution ha[d] chosen to leave on the jury both in terms of their attitudes on the death penalty, their attitudes on the criminal justice system, and their attitudes on the presumption of innocence.” App. 306. Ayala’s counsel then reviewed the questionnaire answers and voir dire testimony of Barbara S. and Robert M., as well as the statements made by three of the prospective jurors who had been the subject of the prior Batson objections, Galileo S., Gerardo O., and Luis M. Counsel argued that their answers showed that they could impose the death penalty. The trial court stated that it would hear the prosecution’s response outside the presence of the jury, and Ayala once more did not object to that ruling. The prosecution then explained that it had dismissed the prospective jurors in question for several race-neutral reasons, including uncertainty that Robert M., George S., or Barbara S. would be open to imposing the death penalty. The prosecution also emphasized (among other points) that Robert M. had followed a controversial trial, that George S. had been a holdout on a prior jury, and that Barbara S. had given the impression during voir dire that she was under the influence of drugs. The trial court concluded, for a third time, that the prosecution’s peremptory challenges were based on race-neutral criteria. In August 1989, the jury convicted Ayala of all the charges except one of the three attempted robberies. With respect to the three murder convictions, the jury found two special circumstances: Ayala committed multiple murders, and he killed during the course of an attempted robbery. The jury returned a verdict of death on all three murder counts, and the trial court entered judgment consistent with that verdict. B Ayala appealed his conviction and sentence, and counsel was appointed to represent him in January 1993. Between 1993 and 1999, Ayala filed 20 applications for an extension of time, 11 of which requested additional time to file his opening brief. After the California Supreme Court eventually ruled that no further extensions would be granted, Ayala filed his opening brief in April 1998, nine years after he was convicted. The State filed its brief in September 1998, and Ayala then asked for four extensions of time to file his reply brief. After the court declared that it would grant him no further extensions, he filed his reply brief in May 1999. In August 2000, the California Supreme Court affirmed Ayala’s conviction and death sentence. People v. Ayala, 24 Cal. 4th 243, 6 P. 3d 193. In an opinion joined by five justices, the State Supreme Court rejected Ayala’s contention that the trial court committed reversible error by excluding the defense from part of the Batson hearing. The court understood Ayala to challenge the peremptory strikes under both Batson and its state-law analogue, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978). The court first concluded that the prosecution had not offered matters of trial strategy at the ex parte hearing and that, “as a matter of state law, it was [error]” to bar Ayala’s attorney from the hearing. 24 Cal. 4th, at 262, 6 P. 3d, at 203. Turning to the question of prejudice, the court stated: “We have concluded that error occurred under state law, and we have noted [the suggestion in United States v. Thompson, 827 F. 2d 1254 (CA9 1987),] that excluding the defense from a Wheeler-type hearing may amount to a denial of due process. We nonetheless conclude that the error was harmless under state law (People v. Watson (1956) 46 Cal.2d 818, 836), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U. S. 18 ) as a matter of federal law. On the record before us, we are confident that the challenged jurors were excluded for proper, race-neutral reasons.” Id., at 264, 6 P. 3d, at 204. The court then reviewed the prosecution’s reasons for striking the seven prospective jurors and found that “[o]n this well-developed record, . . . we are confident that defense counsel could not have argued anything substantial that would have changed the court’s rulings. Accordingly, the error was harmless.” Id., at 268, 6 P. 3d, at 207. The court concluded that the record supported the trial judge’s implicit determination that the prosecution’s justifications were not fabricated and were instead “grounded in fact.” Id., at 267, 6 P. 3d, at 206. And the court emphasized that the “trial court’s rulings in the ex parte hearing indisputably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical assessment of the prosecutor’s proffered justifications.” Id., at 266–267, 6 P. 3d, at 206. The California Supreme Court also rejected Ayala’s argument that his conviction should be vacated because most of the questionnaires filled out by prospective jurors who did not serve had been lost at some point during the decade that had passed since the end of the trial. The court wrote that “the record is sufficiently complete for us to be able to conclude that [the prospective jurors who were the subject of the contested peremptories] were not challenged and excused on the basis of forbidden group bias.” Id., at 270, 6 P. 3d, at 208. And even if the loss of the questionnaires was error under federal or state law, the court held, the error was harmless under Chapman and its state-law analogue. Two justices of the State Supreme Court dissented. We then denied certiorari. 532 U. S. 1029 (2001) . C After the California Supreme Court summarily denied a habeas petition, Ayala turned to federal court. He filed his initial federal habeas petition in 2002, but then went back to state court to exhaust several claims. In December 2004, he filed the operative federal petition and argued, among other things, that the ex parte hearings and loss of the questionnaires violated his rights under the Sixth, Eighth, and Fourteenth Amendments. In 2006, the District Court denied Ayala relief on those claims. The District Court read the decision of the California Supreme Court to mean that the state court had not decided whether the ex parte proceedings violated federal law, and the District Court expressed doubt “whether the trial court’s procedure was constitutionally defective as a matter of clearly established Federal law.” App. to Pet. for Cert. 145a. But even if such a violation occurred, the District Court held, the state court’s finding of harmlessness was not contrary to or an unreasonable application of clearly established law and thus could not be overturned under AEDPA. The District Court also rejected Ayala’s argument about the lost questionnaires, concluding that, even without them, the record was sufficient to resolve Ayala’s other claims. In 2013, a divided panel of the Ninth Circuit granted Ayala federal habeas corpus relief and required California either to release or retry him. Ayala v. Wong, 756 F. 3d 656 (2014). Because Ayala’s federal petition is subject to the requirements of AEDPA, the panel majority began its analysis by inquiring whether the state court had adjudicated Ayala’s claims on the merits. Applying de novo review,[1] the panel held that the ex parte proceedings violated the Federal Constitution, and that the loss of the questionnaires violated Ayala’s federal due process rights if that loss deprived him of “the ability to meaningfully appeal the denial of his Batson claim.” Id., at 671. The panel folded this inquiry into its analysis of the question whether the error regarding the ex parte proceedings was harmless. Turning to the question of harmlessness, the panel identified the applicable standard of review as that set out in Brecht and added: “We apply the Brecht test without regard for the state court’s harmlessness determination.” 756 F. 3d, at 674 (internal quotation marks omitted).[2] The panel used the following complicated formulation to express its understanding of Brecht’s application to Ayala’s claims: “If we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ.” 756 F. 3d, at 676. Applying this test, the panel majority found that the error was not harmless, at least with respect to three of the seven prospective jurors. The panel asserted that the absence of Ayala and his counsel had interfered with the trial court’s ability to evaluate the prosecution’s proffered justifications for those strikes and had impeded appellate review, and that the loss of the questionnaires had compounded this impairment. Judge Callahan dissented. She explained that the California Supreme Court’s decision that any federal error was harmless constituted a merits adjudication of Ayala’s federal claims. She then reviewed the prosecution’s explanations for its contested peremptory challenges and concluded that federal habeas relief was barred because “fairminded jurists can concur in the California Supreme Court’s determination of harmless error.” Id., at 706. The Ninth Circuit denied rehearing en banc, but Judge Ikuta wrote a dissent from denial that was joined by seven other judges. Like Judge Callahan, Judge Ikuta concluded that the California Supreme Court adjudicated the merits of Ayala’s federal claims. Instead of the panel’s “de novo review of the record that piles speculation upon speculation,” she would have found that the state court’s harmlessness determination was not an unreasonable application of Chapman. 756 F. 3d, at 723. We granted certiorari. 574 U. S. ___ (2014). II Ayala contends that his federal constitutional rights were violated when the trial court heard the prosecution’s justifications for its strikes outside the presence of the defense, but we find it unnecessary to decide that question. We assume for the sake of argument that Ayala’s federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief. In the absence of “the rare type of error” that requires automatic reversal, relief is appropriate only if the prosecution cannot demonstrate harmlessness. Glebe v. Frost, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 3). The Ninth Circuit did not hold—and Ayala does not now contend—that the error here falls into that narrow category, and therefore Ayala is entitled to relief only if the error was not harmless. The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. On direct appeal, the harmlessness standard is the one prescribed in Chapman, 386 U. S. 18 : “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id., at 24. In a collateral proceeding, the test is different. For reasons of finality, comity, and federalism, habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986) ). Under this test, relief is proper only if the federal court has “grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” O’Neal v. McAninch, 513 U. S. 432, 436 (1995) . There must be more than a “reasonable possibility” that the error was harmful. Brecht, supra, at 637 (internal quotation marks omitted). The Brecht standard reflects the view that a “State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.” Calderon v. Coleman, 525 U. S. 141, 146 (1998) (per curiam). Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit thought, that a state court’s harmlessness determination has no significance under Brecht. In Fry v. Pliler, 551 U. S. 112, 120 (2007) , we held that the Brecht standard “subsumes” the requirements that §2254(d) imposes when a federal habeas petitioner contests a state court’s determination that a constitutional error was harmless under Chapman. The Fry Court did not hold—and would have had no possible basis for holding—that Brecht somehow abrogates the limitation on federal habeas relief that §2254(d) plainly sets out. While a federal habeas court need not “formal[ly]” apply both Brecht and “AEDPA/Chapman,” AEDPA nevertheless “sets forth a precondition to the grant of habeas relief.” Fry, supra, at 119–120. Under AEDPA, 28 U. S. C. §2254(d): “An 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— “(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.” Section 2254(d) thus demands an inquiry into whether a prisoner’s “claim” has been “adjudicated on the merits” in state court; if it has, AEDPA’s highly deferential standards kick in. Harrington v. Richter, 562 U. S. 86, 103 (2011) . At issue here is Ayala’s claim that the ex parte portion of the Batson hearings violated the Federal Constitution. There is no dispute that the California Supreme Court held that any federal error was harmless beyond a reasonable doubt under Chapman, and this decision undoubtedly constitutes an adjudication of Ayala’s constitutional claim “on the merits.” See, e.g., Mitchell v. Esparza, 540 U. S. 12 –18 (2003) (per curiam). Accordingly, a federal habeas court cannot grant Ayala relief unless the state court’s rejection of his claim (1) was contrary to or involved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts. Because the highly deferential AEDPA standard applies, we may not overturn the California Supreme Court’s decision unless that court applied Chapman “in an ‘objectively unreasonable’ manner.” Id., at 18 (quoting Lockyer v. Andrade, 538 U. S. 63, 75 (2003) ). When a Chapman decision is reviewed under AEDPA, “a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable.” Fry, supra, at 119 (emphasis in original). And a state-court decision is not unreasonable if “ ‘fairminded jurists could disagree’ on [its] correctness.” Richter, supra, at 101 (quoting Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) ). Ayala therefore must show that the state court’s decision to reject his claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” 562 U. S., at 103. In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudi-cated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA. Fry, supra, at 119–120. III With this background in mind, we turn to the question whether Ayala was harmed by the trial court’s decision to receive the prosecution’s explanation for its challenged strikes without the defense present. In order for this argument to succeed, Ayala must show that he was actually prejudiced by this procedure, a standard that he neces-sarily cannot satisfy if a fairminded jurist could agree with the California Supreme Court’s decision that this procedure met the Chapman standard of harmlessness. Evaluation of these questions requires consideration of the trial court’s grounds for rejecting Ayala’s Batson challenges. A Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. 476 U. S., at 89. When adjudicating a Batson claim, trial courts follow a three-step process: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U. S. 472 –477 (2008) (internal quotation marks and alterations omitted). The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem, 514 U. S. 765, 768 (1995) (per curiam), and a trial court finding regarding the credibility of an attorney’s explanation of the ground for a peremptory challenge is “entitled to ‘great deference,’ ” Felkner v. Jackson, 562 U. S. 594, 598 (2011) (per curiam) (quoting Batson, 476 U. S., at 98, n. 21). On direct appeal, those findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins, 546 U. S. 333, 338 (2006) . Under AEDPA, even more must be shown. A federal habeas court must accept a state-court finding unless it was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2). “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ” Collins, supra, at 338–339 (quoting §2254(e)(1)). In this case, Ayala challenged seven of the prosecution’s peremptory challenges. As explained above, the Ninth Circuit granted relief based on the dismissal of three potential jurors. The dissent discusses only one, Olanders D. We will devote most of our analysis to the three individuals discussed by the Ninth Circuit, but we hold that any error was harmless with respect to all seven strikes. B 1 Ayala first contests the prosecution’s decision to challenge Olanders D., an African-American man. The prosecution stated that its “primary” reason for striking Olanders D. was uncertainty about whether he could impose the death penalty, and the prosecutor noted that Olanders D. had written on his questionnaire that he did not “believe in the death penalty.” 50 Reporter’s Tr. on Appeal 6185 (hereinafter Tr.). Providing additional reasons for this strike, the prosecutor first stated that Olanders D.’s responses “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of ability to express himself well.” App. 283. The prosecutor also voiced doubt that Olanders D. “could actively participate in a meaningful way in deliberations with other jurors” and might have lacked the “ability to fit in with a cohesive group of 12 people.” Ibid. The trial court concluded that the strike was race-neutral. The judge stated: “Certainly with reference to whether or not he would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations of counsel are accurate and borne out by the record.” 50 Tr. 6186. The California Supreme Court found that the evidence of Olanders D.’s views on the death penalty provided adequate support for the trial judge’s finding that the strike exercised against him was not based on race, and the court further found that defense counsel’s presence would not have affected the outcome of the Batson hearing. The Ninth Circuit reversed, but its decision rested on a misapplication of the applicable harmless-error standards. 2 As the trial court and the State Supreme Court found, Olanders D.’s voir dire responses amply support the prosecution’s concern that he might not have been willing to impose the death penalty. During voir dire, Olanders D. acknowledged that he wrote on his questionnaire, “ ‘I don’t believe in the death penalty,’ ” App. 179, and he agreed that he had at one time “thought that [the death penalty] was completely wrong,” id., at 177. Although he stated during the voir dire that he had reconsidered his views, it was reasonable for the prosecution and the trial court to find that he did not clearly or adequately explain the reason or reasons for this change. When asked about this, Olanders D. gave a vague and rambling reply: “Well, I think it’s—one thing would be the—the—I mean, examining it more closely, I think, and becoming more familiar with the laws and the—and the behavior, I mean, the change in the people, I think. All of those things contributed to the changes.” Id., at 178. The Ninth Circuit reversed because it speculated that defense counsel, if present when the prosecution explained the basis for this strike, “could have pointed to seated white jurors who had expressed similar or greater hesitancy” in imposing the death penalty. 756 F. 3d, at 678. The Ninth Circuit wrote that a seated white juror named Ana L. was “indistinguishable from Olanders D. in this regard” and that she had “made almost precisely the same statement in her questionnaire.” Ibid. The responses of Olanders D. and Ana L., however, were by no means “indistinguishable.” Olanders D. initially voiced unequivocal opposition to the death penalty, stating flatly: “I don’t believe in the death penalty.” He also revealed that he had once thought it was “completely wrong.” Ana L., by contrast, wrote on the questionnaire that she “probably would not be able to vote for the death penalty,” App. 109 (emphasis added), and she then later said at voir dire that she could vote for a verdict of death. In a capital case, it is not surprising for prospective jurors to express varying degrees of hesitancy about voting for a death verdict. Few are likely to have experienced a need to make a comparable decision at any prior time in their lives. As a result, both the prosecution and the defense may be required to make fine judgment calls about which jurors are more or less willing to vote for the ultimate punishment. These judgment calls may involve a comparison of responses that differ in only nuanced respects, as well as a sensitive assessment of jurors’ demeanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller-El v. Dretke, 545 U. S. 231, 252 (2005) (citing Batson, 476 U. S., at 106 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” Snyder, 552 U. S., at 477. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, “these determinations of credibility and demeanor lie peculiarly within a trial judge’s province,” and “in the absence of exceptional circumstances, we [will] defer to the trial court.” Ibid. (alterations and internal quotation marks omitted). “Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U. S., at 343 (Breyer, J., concurring). The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibility, . . . on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id., at 341–342 (majority opinion). Here, any similarity between the responses of Olanders D. and Ana L. is insufficient to compel an inference of racial discrimination under Brecht or AEDPA. Ayala contends that the presence of defense counsel might have made a difference because defense counsel might have been able to identify white jurors who were not stricken by the prosecution even though they had “expressed similar or greater hesitancy” about the death penalty. We see no basis for this argument. The questionnaires of all the jurors who sat and all the alternates are in the record, and Ana L., whom we just discussed, is apparently the white juror whose answers come the closest to those of Olanders D. Since neither Ayala nor the Ninth Circuit identified a white juror whose statements better support their argument, there is no reason to think that defense counsel could have pointed to a superior comparator at the ex parte proceeding. 3 In rejecting the argument that the prosecutor peremptorily challenged Olanders D. because of his race, the California Supreme Court appears to have interpreted the prosecutor’s explanation of this strike to mean that Olanders D.’s views on the death penalty were alone sufficient to convince him to exercise a strike, see 24 Cal. 4th, at 266, 6 P. 3d, at 206, and this was certainly an interpretation of the record that must be sustained under 28 U. S. C. §2254(d)(2). As a result, it is not necessary for us to consider the prosecutor’s supplementary reason for this strike—the poor quality of Olanders D.’s responses—but in any event, the Ninth Circuit’s evaluation of this reason is also flawed. The Ninth Circuit wrote that its independent “review of the voir dire transcript reveal[ed] nothing that supports the prosecution’s claim: Olanders D.’s answers were responsive and complete.” 756 F. 3d, at 679. The record, however, provides sufficient support for the trial court’s determination. Olanders D.’s incoherent explanation during voir dire of the reasons for his change of opinion about the death penalty was quoted above. He also provided a chronology of the evolution of his views on the subject that did not hold together. He stated that he had been “completely against the death sentence” 10 years earlier but seemed to suggest that his views had changed over the course of the intervening decade. See App. 176–177. However, on the questionnaire, which he had completed just a month before the voir dire, he wrote unequivocally: “I don’t believe in the death penalty.” Id., at 179. And then, at the time of the voir dire, he said that he would be willing to impose the death penalty in some cases. Id., at 180. He explained his answer on the questionnaire as follows: “I answered that kind of fast[.] [N]ormally, I wouldn’t answer that question that way, but I mean, I really went through that kind of fast. I should have done better than that.” Id., at 179–180. These answers during voir dire provide more than sufficient support for the prosecutor’s observation, which the trial court implicitly credited, that Olanders D.’s statements “did not make a lot of sense,” “were not thought out,” and “demonstrate[d] a lack of ability to express himself well.” In ordering federal habeas relief based on their assessment of the responsiveness and completeness of Olanders D.’s answers, the members of the panel majority misunderstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Richter, 562 U. S., at 102–103 (quoting Jackson v. Virginia, 443 U. S. 307 , n. 5 (1979) (Stevens, J., concurring in judgment)), not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge. C Ayala next challenges the prosecution’s use of a peremptory challenge to strike Gerardo O., a Hispanic man. The prosecution offered three reasons for this strike: Gerardo O. had a poor grasp of English; his answers during voir dire and on his questionnaire suggested that he might not be willing to impose the death penalty; and he did not appear to get along with the other prospective jurors. The trial judge accepted this explanation, as did the State Supreme Court. The Ninth Circuit, however, rejected the state courts’ determinations based on speculation that defense counsel, if present at the in camera hearing, “likely could have called into question all of the prosecution’s stated reasons for striking Gerardo O.” 756 F. 3d, at 680. The Ninth Circuit thought that it could grant Ayala relief simply because it “[could not] say that Ayala would not have shown that the trial court would or should have determined that the prosecution’s strike of Gerardo O. violated Batson.” Id., at 682. But that is not the test. The inquiry under Brecht is not whether the federal habeas court could definitively say that there were no winning arguments that the defense could have made. Instead, the evidence in the record must raise “grave doubt[s]” about whether the trial judge would have ruled differently. O’Neal, 513 U. S., at 436. This requires much more than a “reasonable possibility” that the result of the hearing would have been different. Brecht, 507 U. S., at 637 (internal quotation marks omitted). And on the record in this case, Ayala cannot establish actual prejudice or that no fairminded jurist could agree with the state court’s application of Chapman. We begin with the prosecution’s explanation that it challenged Gerardo O. because of his limited English proficiency. During voir dire, Gerardo O. acknowledged that someone else had written the answers for him onhis questionnaire “[b]ecause I couldn’t—I cannot read—I cannot spell that well.” App. 163. He added that he “didn’t get” some of the words on the questionnaire. Ibid. Gerardo O.’s testimony also revealed that he might well have been unable to follow what was said at trial. When asked whether he could understand spoken English, he responded: “It depends if you make long words. If you make—if you go—if you say it straight out, then I might understand. If you beat around the bush, I won’t.” Id., at 166. At that point, defense counsel and Gerardo O. engaged in a colloquy that suggests that defense counsel recognized that he lacked the ability to understand words not used in basic everyday speech, “legal words,” and rapid speech in English: “Q: I’ll try not to talk—use any legal words or lawyer talk— “A: Okay. “Q: —and talk regular with you. If you don’t understand anything I say, stop me and tell me, okay? “A: Okay. “Q: If you’re selected as a juror during the trial, and you know you’re serving as a juror and listening to witnesses, can we have your promise that if a witness uses a word you don’t understand, you’ll put your hand up and let us know? “A: Yeah. . . . . . “Q: There’s one more problem that you’re going to have with me, and that is that sometimes . . . I talk real fast . . . .” Id., at 166–167. It is understandable for a prosecutor to strike a potential juror who might have difficulty understanding English.[3] The jurors who were ultimately selected heard many days of testimony, and the instructions at both the guilt and the penalty phases included “legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained Gerardo O.’s linguistic capability. The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that Gerardo O.’s English-language deficiencies were limited to reading and writing, 756 F. 3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited. The Ninth Circuit then suggested that “[t]he prosecution’s purported reason for striking Gerardo O. . . . was directly related to his status as someone who spoke Spanish as his first language,” ibid., but the prosecutor voiced no concern about Gerardo O.’s ability to speak Spanish or about the fact that Spanish was his first language. The prosecution’s objection concerned Gerardo O.’s limited proficiency in English. The Ninth Circuit quoted the following statement from Hernandez v. New York, 500 U. S. 352, 363 (1991) (plurality opinion): “ ‘[T]he prosecutor’s frank admission that his ground for excusing th[is] juror[ ] related to [his] ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[ ].’ ” 756 F. 3d, at 680 (alterations in original). This statement, however, did not concern a peremptory exercised due to a prospective juror’s lack of English proficiency. Instead, it concerned the dismissal of Spanish-speaking members of the venire for fear that, if seated, they might not follow the English translation of testimony given in Spanish. See 500 U. S., at 360. The Ninth Circuit’s decision regarding Gerardo O. was thus based on a misreading of the record and a distortion of our case law. And neither Ayala nor the Ninth Circuit has identified anything that defense counsel might have done at the ex parte hearing to show that the prosecutor’s concern about Gerardo O.’s limited English proficiency was pretextual. The prosecution’s second proffered reason for striking Gerardo O. was concern about his willingness to impose the death penalty, and as the trial court found, this observation was also supported by the record. Indeed, when asked in voir dire how he felt about imposing the death penalty, Gerardo O. responded that he was “[k]ind of shaky about it. . . . I’m not too sure if I can take someone else’s life in my hands and say that; say, you know, ‘death,’ or something.” App. 168. In response to another question about his thoughts on the death penalty, he replied: “I don’t know yet. It’s kind of hard, you know, to pick it up like that and say how I feel about the death penalty.” 15 Tr. 1052. Answering a question about whether his thoughts on the death penalty would affect how he viewed the evidence presented at trial, he responded, “I don’t know, sir, to tell you the truth.” App. 165. And when asked if he had “any feeling that [he] would be unable to vote for the death penalty if [he] thought it was a case that called for it,” Gerardo O. responded once again, “I don’t know.” 15 Tr. 1043. While Gerardo O. did say at one point that he might be willing to impose the death pen-alty, he qualified that statement by adding that he would be comforted by the fact that “there’s eleven more other persons on the jury.” App. 170. What we said above regarding jurors who express doubts about their openness to a death verdict applies as well here. The prosecution’s reluctance to take a chance that Gerardo O. would ultimately be willing to consider the death penalty in accordance with state law did not compel the trial judge to find that the strike of Gerardo O. was based on race. Nor is there a basis for finding that the absence of defense counsel affected the trial judge’s evaluation of the sincerity of this proffered ground for the strike. Defense counsel had a full opportunity during voir dire to create a record regarding Gerardo O.’s openness to the death penalty. And defense counsel had the opportunity prior to the ex parte proceeding on the Gerardo O. strike to compare the minority jurors dismissed by the prosecution with white jurors who were seated. Counsel argued that the answers on the death penalty given by the minority jurors were “not significantly different from [those of] the white jurors that the prosecution ha[d] chosen to leave on the jury.” Id., at 306. The trial judge asked counsel for “particulars,” and counsel discussed Gerardo O., albeit briefly. Id., at 307–308. Thus, there is no reason to believe that counsel could have made a more persuasive argumentat the ex parte proceeding than he made during thisexchange. The prosecution’s final reason for striking Gerardo O. was that he appeared to be “a standoffish type of individ-ual” whose “dress and . . . mannerisms . . . were not in keeping with the other jurors” and who “did not appear to be socializing or mixing with any of the other jurors.” Id., at 298. The trial judge did not dispute that the prosecution’s reflections were borne out by the record. The California Supreme Court affirmed and also emphasized that “the trial court’s rulings in the ex parte hearing indisput-ably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical assessment of the prosecutor’s proffered justifications.” 24 Cal. 4th, at 266–267, 6 P. 3d, at 206. In light of the strength of the prosecution’s first two reasons for striking Gerardo O., it is not at all clear that the prosecution proffered this final reason as an essential factor in its decision to strike, but in any event, there is no support for the suggestion that Ayala’s attorney, if allowed to attend the ex parte hearing, would have been able to convince the judge that this reason was pretextual. The Ninth Circuit, however, was content to speculate about what might have been. Mixing guesswork with armchair sociology, the Ninth Circuit mused that “[i]t is likely that Gerardo O.’s dress and mannerisms were distinctly Hispanic. Perhaps in the late 1980’s Hispanic males in San Diego County were more likely than members of other racial or ethnic groups in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt.” 756 F. 3d, at 680–681. As for the prosecution’s observation that Gerardo O. did not socialize with other jurors, the Ninth Circuit posited that, “perhaps, unbeknownst to the trial judge, Gerardo O. did ‘socializ[e] or mix[ ]’ with a number of other jurors, and had even organized a dinner for some of them at his favorite Mexican restaurant.” Id., at 681. This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit’s flight of fancy. Brecht requires more than speculation about what extrarecord information defense counsel might have mentioned. And speculation of that type is not enough to show that a State Supreme Court’s rejection of the argument regarding Gerardo O. was unreasonable. D The final prospective juror specifically discussed in the Ninth Circuit’s decision was Robert M., who is Hispanic. The prosecution’s primary proffered reason for striking Robert M. was concern that he would not impose the death penalty, though the prosecution added that it was troubled that he had followed the Sagon Penn case, a high-profile prosecution in San Diego in which an alleged murderer was acquitted amid allegations of misconduct by police and prosecutors. In addition, the prosecution also explained to the trial court that Robert M. scored poorly on its 10-point scale for evaluating prospective jurors. The trial court accepted the prosecutor’s explanation of the strike. With respect to the prosecution’s concern that Robert M. might not be willing to impose the death penalty, the Ninth Circuit found that defense counsel, if permitted to attend the in camera proceeding, could have compared Robert M.’s statements about the death penalty to those of other jurors and could have reminded the judge that Robert M. had “repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it.” 756 F. 3d, at 682. But as with Olanders D. and Gerardo O., we cannot say that the prosecution had no basis for doubting Robert M.’s willingness to impose the death penalty. For example, when asked at one point whether he could vote for death, Robert M. responded: “Well, I’ve though[t] about that, but it’s a difficult question, and yeah, it is difficult for me to say, you know, one way or the other. I believe in it, but for me to be involved in it is—is hard. It’s hard to accept that aspect of it, do you know what I mean?” App. 149–150. In response to another question, he said: “It would be hard, but I think I could, yes. It’s—it’s hard to say, you know—and I don’t care who the person is—to say that they have to put somebody away, you know. It’s very hard.” Id., at 154. These are hardly answers that would inspire confidence in the minds of prosecutors in a capital case. While the Ninth Circuit argued that defense counsel’s absence at the in camera hearing prejudiced the trial judge’s ability to assess this reason for the strike of Robert M., the Ninth Circuit failed to mention that defense counsel specifically addressed this issue during voir dire. At that time, he pointedly reminded the judge that Robert M. had made several statements during voir dire that were favorable to the death penalty. Id., at 307. The trial judge thus heard defense counsel’s arguments but nevertheless concluded that the record supplied a basis for a legitimate concern about whether Robert M. could impose the death penalty. That Ayala’s attorney did not have the opportunity to repeat this same argument once more at the in camera proceeding does not create grave doubt about whether the trial court would have decided the issue differently. As for the prosecution’s second proffered reason for striking Robert M.—that he had followed the Sagon Penn case[4]—the Ninth Circuit placed great emphasis on the fact that a seated white juror had followed a different murder trial, that of Robert Alton Harris.[5] But the Penn and Harris cases were quite different. Harris was convicted while Penn was acquitted; and since the Harris case was much older, the experience of following it was less likely to have an effect at the time of the trial in this case. E Ayala raised a Batson objection about the prosecution’s use of peremptory challenges on four additional jurors, George S., Barbara S., Galileo S., and Luis M. The Ninth Circuit did not address these prospective jurors at length, and we need not dwell long on them. With respect to all four of these prospective jurors, we conclude that any constitutional error was harmless. Of these four additional jurors, Ayala’s brief in this Court develops an argument with respect to only two, George S. and Barbara S. And while Ayala’s attorney claimed that George S. was Hispanic, the prosecutor said that he thought that George S. was Greek. In any event, the prosecution offered several reasons for striking George S. The prosecutor noted that one of his responses “was essentially, ‘you probably don’t want me to be a juror on this case.’ ” Id., at 312. The prosecutor was also concerned about whether he would vote for death or even a life sentence and whether he would follow the law as opposed to his personal religious beliefs. In addition, the prosecutor noted that George S. had previously been the sole holdout on a jury and that his prior application to be a police officer had been rejected, for reasons that were not clear. The trial court accepted these explanations. Ayala contests only two of these justifications. He quibbles that George S. had not been a “ ‘holdout,’ ” but instead had been the dissenting juror in a civil case on which unanimity was not required. This observation does not render the prosecution’s proffered justification “false or pretextual.” Brief for Respondent 46. The fact that George S. had been willing to dissent from a jury verdict could reasonably give a prosecutor pause in a capital case since a single holdout juror could prevent a guilty verdict or death sentence. The most that Ayala can establish is that reasonable minds can disagree about whether the prosecution’s fears were well founded, but this does not come close to establishing “actual prejudice” under Brecht. Nor does it meet the AEDPA standard. Ayala also points out that a seated white juror, Charles C., had been re-jected by a police force, but George S. admitted that he had applied to law enforcement because he was “trying to get out of the Army,” App. 222, and the reasons for his rejection were not clear. Charles C., by contrast, had received a qualifying score on a law enforcement exam but was not hired because a position was not available. As for Barbara S., the prosecution struck her because, during voir dire, she appeared to be “under the influence of drugs” and disconnected from the proceedings. Id., at 314. The prosecution emphasized that she had “an empty look in her eyes, slow responses, a lack of really being totally in tune with what was going on.” Ibid. It added that she appeared “somewhat angry,” “manifest[ed] a great deal of nervousness,” and seemed like someone who would be unlikely to closely follow the trial. Ibid. The trial judge thought that Barbara S. appeared nervous rather than hostile, but he agreed that she gave incomplete answers that were sometimes “non sequiturs.” Id., at 315. He concluded, “I certainly cannot quarrel . . . with your subjective impression, and the use of your peremp-tory challenge based upon her individual manifestation, as opposed to her ethnicity.” Ibid. Ayala points to the trial court’s disagreement with the prosecutor’s impression that Barbara S. was hostile, but this ruling illustrates the trial judge’s recollection of the demeanor of the prospective jurors and his careful evaluation of each of the prosecutor’s proffered reasons for strikes. And the fact that the trial judge’s impression of Barbara S.’s demeanor was somewhat different from the prosecutor’s hardly shows that the prosecutor’s reasons were pretextual. It is not at all unusual for individuals to come to different conclusions in attempting to read another person’s attitude or mood. IV The pattern of peremptory challenges in this case was sufficient to raise suspicions about the prosecution’s motives and to call for the prosecution to explain its strikes. As we have held, the Fourteenth Amendment prohibits a prosecutor from striking potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons public confidence in the evenhanded administration of justice. In Batson, this Court adopted a procedure for ferreting out discrimination in the exercise of peremptory challenges, and this procedure places great responsibility in thehands of the trial judge, who is in the best position to determine whether a peremptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors. In this case, the conscientious trial judge determined that the strikes at issue were not based on race, and his judgment was entitled to great weight. On appeal, five justices of the California Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had rendered a decision with which no fairminded jurist could agree. For the reasons explained above, it was the Ninth Circuit that erred. The exclusion of Ayala’s attorney from part of the Batson hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court represented an entirely reasonable application of controlling precedent. * * * 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 The panel decided this question de novo because it concluded that the California Supreme Court either did not decide whether the ex parte proceedings violated the Federal Constitution or silently decided that question in Ayala’s favor. 756 F. 3d, at 666–670. 2 In a footnote, however, the panel stated: “In holding that Ayala has demonstrated his entitlement to relief under Brecht, we therefore also hold to be an unreasonable application of Chapman the California Supreme Court’s conclusion that Ayala was not prejudiced by the exclusion of the defense.” Id., at 674, n. 13. 3 The California Supreme Court has held that “[i]nsufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly . . . render[s] a juror ‘unable to perform his duty’ ” within the meaning of the California Penal Code. People v. Lomax, 49 Cal. 4th 530, 566, 234 P. 3d 377, 407 (2010) (citation omitted). See also Cal. Code Ann. 4 See Man Acquitted of Killing Officer, N. Y. Times, July 17, 1987, p. B8. 5 See People v. Harris, 28 Cal. 3d 935, 623 P. 2d 240 (1981).

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 . SUPREME COURT OF THE UNITED STATES Syllabus DAVIS, ACTING WARDEN v. AYALA certiorari to the united states court of appeals for the ninth circuit No. 13–1428. Argued March 3, 2015—Decided June 18, 2015 During jury selection in respondent Ayala’s murder trial, Ayala, who is Hispanic, objected that seven of the prosecution’s peremptory challenges were impermissibly race-based under Batson v. Kentucky, 476 U. S. 79 . The judge permitted the prosecution to disclose its reasons for the strikes outside the presence of the defense and concluded that the prosecution had valid, race-neutral reasons for the strikes. Ayala was eventually convicted and sentenced to death. On appeal, the California Supreme Court analyzed Ayala’s challenge under both Batson and its state-law analogue, concluding that it was error, as a matter of state law, to exclude Ayala from the hearings. The court held, however, that the error was harmless under state law and that, if a federal error occurred, it too was harmless beyond a reasonable doubt under Chapman v. California, 386 U. S. 18 . Ayala subsequently pressed his claims in federal court. There, the District Court held that even if the ex parte proceedings violated federal law, the state court’s harmlessness finding could not be overturned because it was not contrary to or an unreasonable application of clearly established federal law under 28 U. S. C. §2254(d). A divided panel of the Ninth Circuit disagreed and granted Ayala habeas relief. The panel majority held that the ex parte proceedings violated Ayala’s federal constitutional rights and that the error was not harmless under Brecht v. Abrahamson, 507 U. S. 619 , as to at least three of the seven prospective jurors. Held: Any federal constitutional error that may have occurred by excluding Ayala’s attorney from part of the Batson hearing was harmless. . (a) Even assuming that Ayala’s federal rights were violated, he is entitled to habeas relief only if the prosecution cannot demonstrate harmlessness. Glebe v. Frost, 574 U. S. ___, ___. Under Brecht, federal habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” 507 U. S., at 637. Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit thought, that a state court’s harmlessness determination has no significance under Brecht. The Brecht standard subsumes the requirements that §2254(d) imposes when a federal habeas petitioner contests a state court’s determination that a constitutional error was harmless under Chapman. Fry v. Pliler, 551 U. S. 112 . But Brecht did not abrogate the limitation on federal habeas relief that the Antiterrorism and Effective Death Penalty Act of 1996 plainly sets out. There is no dispute that the California Supreme Court held that any federal error was harmless under Chapman, and this decision was an “adjudication on the merits” of Ayala’s claim. Accordingly, a federal court cannot grant Ayala relief unless the state court’s rejection of his claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. . (b) Any federal constitutional error was harmless with respect to all seven prospective jurors. . (1) The prosecution stated that it struck Olanders D., an African-American man, because it was concerned that he could not impose the death penalty and because of the poor quality of his responses. As the trial court and State Supreme Court found, the record amply supports the prosecution’s concerns, and Ayala cannot establish that the ex parte hearing prejudiced him. The Ninth Circuit misunderstood the role of a federal court in a habeas case. That role is not to conduct de novo review of factual findings and substitute the federal court’s own opinions for the determination made on the scene by the trial judge. . (2) The prosecution stated that it struck Gerardo O., a Hispanic man, because he had a poor grasp of English, his answers suggested an unwillingness to impose the death penalty, and he did not appear to get along with other jurors. Each of these reasons was amply supported by the record, and there is no basis for finding that the absence of defense counsel affected the trial judge’s evaluation of the strike. Ayala cannot establish that the ex parte hearing actually prejudiced him or that no fairminded jurist could agree with the state court’s application of Chapman. Once again, the Ninth Circuit’s decision was based on a misapplication of basic rules regarding harmless error. The inquiry is not whether the federal habeas court could definitively say that the defense could make no winning arguments, but whether the evidence in the record raised “grave doubt[s]” about whether the trial judge would have ruled differently. O’Neal v. McAninch, 513 U. S. 432 . That standard was not met in this case. . (3) The prosecution stated that it struck Robert M., a Hispanic man, because it was concerned that he could not impose the death penalty and because he had followed a controversial murder trial. Not only was the Ninth Circuit incorrect to suppose that the presence of Ayala’s counsel at the hearing would have made a difference in the trial court’s evaluation of the strike, but the Ninth Circuit failed to mention that defense counsel specifically addressed the issue during voir dire and reminded the judge that Robert M. also made several statements favorable to the death penalty. Thus, the trial judge heard counsel’s arguments and concluded that the record supplied a legitimate basis for the prosecution’s concern. That defense counsel did not have the opportunity to repeat that argument does not create grave doubt about whether the trial court would have decided the issue differently. . (4) With regard to Ayala’s Batson objection about the four remaining prospective jurors who were struck, he does not come close to establishing “actual prejudice” under Brecht or that no fairminded jurist could agree with the California Supreme Court’s decision that excluding counsel was harmless. . 756 F. 3d 656, 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., and Thomas, J., filed concurring opinions. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.

A quarter-century after a jury convicted respondent Ayala of triple murder and sentenced him to death, the Court of Appeals granted his application for a writ of habeas corpus and ordered the State to retry or release him. The court held that the error was harmless beyond a reasonable doubt under Brecht v. Abrahamson, 507 U. S. 619, and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. §2254(d), and that, assuming without deciding that a federal constitutional error occurred, the error is harmless under Chapman and its state analogue, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748. The court also held that, under California law, the prosecution had valid, race-neutral reasons for striking Ayala, and that it was error to bar his attorney from the hearing. The California Supreme Court affirmed the conviction and death sentence, rejecting Ayala's contention that the trial court committed reversible error by excluding the defense from part of the Batson hearing. Held: The judgment is reversed. ;;. 752 F.3d 656, reversed and remanded. THE CHIEF JUSTICE, in an opinion joined by JUSTICE BRENNAN, JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE O'CONNOR, concluded that: 1. A federal prisoner who seeks federal habea corpus relief must satisfy Brecht, and if the state court adjudi-cated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA. . (a) In order for Ayala to succeed, he must show that he was actually prejudiced by this procedure, a standard that he neces-sarily cannot satisfy if a fairminded jurist could agree with the court's decision that this procedure met the Chapman standard of harmlessness. Because Ayala seeks habeAS relief, he also must meet Brecht. Brecht requires more than a reasonable possibility that there were no winning arguments that the defense could have made. Here, the record provides no basis for finding that Ayala suffered actual prejudice. He cannot establish actual prejudice or that no fairminded jurist could agree with the state courts' application of Chapman. P.. (b) The record does not support Ayala on the ground that a state court harmlessness determination is based on Brecht or on an unreasonable determination of the facts. The record discloses that the judge, in the best position to determine whether a peremptory challenge was based on an impermissible factor, determined that the strikes at issue were not based on race, and his judgment was entitled to great weight. Moreover, Ayala cannot establish that defense counsel might have been able to identify white jurors who were not stricken by the prosecution even though they had "expressed similar or greater hesitancy" about the death penalty. In any event, his voir dire responses amply support the prosecution's concern that he might not have been willing to impose the penalty, and there is no merit to the defense counsel argument that the presence of defense counsel, if present at the ex parte hearing, might have made a difference. Nor can the fact that a white juror had followed a different murder trial, that of Robert Alton Harris, suffice it to show that a State Supreme Court rejection of the argument regarding Gerardo O. was unreasonable. See, e.g., Fry v. Pliler, 551 U. s. 112, 120.. 2. The state court erred in its decision to exclude Ayala from the batson hearing, since any constitutional error that may have been harmless was harmless with respect to all seven strikes. On direct appeal, the harmlessness standard is the one prescribed in Chapman, which prescribes that a court must be able to declare a belief that a constitutional error can be held harmless unless the court hasgrave doubt about whether a trial error of federal law had a substantial and injurious effect or influence in determining the jury's verdict. However, in a collateral proceeding, the test is whether the federal court has reason to believe that a trial court has reasonable doubt about the effects of a trial decision on the jury selection process. Cf. Fry, supra, at 637. Although Ayala may have established that reasonable minds can disagree about whether the prosecution is wrong in a capital case, he can establish that he did not suffer actual prejudice by the exclusion of the defense. With respect to the other four potential jurors, any similarity between the responses of Ayala and the white jurors is insufficient to compel an inference of racial discrimination. Furthermore, the evidence in the record establishes that the prosecution offered several reasons why the strike was struck:1. (i) that he had a poor grasp of English; (ii) that his answers were not in keeping with the other jurors

2014_13-894

https://www.oyez.org/cases/2014/13-894

. Federal law generally provides whistleblower protections to an employee who discloses information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.”5 U. S. C. §2302(b)(8)(A). An exception exists, however, for disclosures that are “specifically prohibited by law.” Ibid. Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had de-cided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was “specifically prohibited by law.”IA In 2002, Congress enacted the Homeland Security Act,116Stat.2135. As relevant here, that Act provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation.”49 U. S. C. §114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called “sensitive security information.” See 67 Fed. Reg. 8351 (2002). The regulations described 18 categories of sensitive security information, including “[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 CFR §1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees. Compare Exec. Order 13526, §4.1, 3 CFR 298, 314–315 (2009 Comp.), with 49 CFR §1520.11(c) (2013).B Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings. See49 U. S. C. §44917(a). On July 26, 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. The advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they “considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets.” App. 16. The advisory identified a number of potential targets, including the United Kingdom, Italy, Australia, and the east coast of the United States. Finally, the advisory warned that at least one of the attacks “could be executed by the end of the summer 2003.” Ibid. The TSA soon summoned all air marshals (including MacLean) for face-to-face briefings about the hijacking plot. During MacLean’s briefing, a TSA official told him that the hijackers were planning to “smuggle weapons in camera equipment or children’s toys through foreign security,” and then “fly into the United States . . . into an airport that didn’t require them to be screened.” Id., at 92. The hijackers would then board U. S. flights, “overpower the crew or the Air Marshals and . . . fly the planes into East Coast targets.” Id., at 93. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous. He also believed that the cancellations were illegal, given that federal law required the TSA to put an air marshal on every flight that “present[s] high security risks,”49 U. S. C. §44917(a)(2), and provided that “nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority,” §44917(b). See App. 95, 99, 101. MacLean therefore asked a supervisor why the TSA had canceled the missions. The supervisor responded that the TSA wanted “to save money on hotel costs because there was no more money in the budget.” Id., at 95. MacLean also called the DHS Inspector General’s Office to report the cancellations. But a special agent in that office told him there was “nothing that could be done.” Id., at 97. Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. In turn, the reporter published a story about the TSA’s decision, titled “Air Marshals pulled from key flights.” Id., at 36. The story reported that air marshals would “no longer be covering cross-country or international flights” because the agency did not want them “to incur the expense of staying overnight in hotels.” Ibid. The story also reported that the cancellations were “particularly disturbing to some” because they “coincide[d] with anew high-level hijacking threat issued by the Department of Homeland Security.” Id., at 37. After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights. Id., at 50. At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA’s dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under5 U. S. C. §2302(b)(8)(A). The Board held that MacLean did not qualify for protection under that statute, however, because his disclosure was “specifically prohibited by law.” 116 MSPR 562, 569–572 (2011). The Court of Appeals for the Federal Circuit vacated the Board’s decision. 714 F. 3d 1301 (2013). The parties had agreed that, in order for MacLean’s disclosure to be “specifically prohibited by law,” it must have been “prohibited by a statute rather than by a regulation.” Id., at 1308 (emphasis added). Thus, the issue before the court was whether the statute authorizing the TSA’s regulations—now codified at49 U. S. C. §114(r)(1)—“specifically prohibited” MacLean’s disclosure. 714 F. 3d, at 1308.[1]* The court first held that Section 114(r)(1) was not a prohibition. The statute did “not expressly prohibit employee disclosures,” the court explained, but instead empowered the TSA to “prescribe regulations prohibiting disclosure[s]” if the TSA decided that disclosing the information would harm public safety. Id., at 1309. The court therefore concluded that MacLean’s disclosure was prohibited by a regulation, which the parties had agreed could not be a “law” under Section 2302(b)(8)(A). Ibid. The court then held that, even if Section 114(r)(1) were a prohibition, it was not “sufficiently specific.” Ibid. The court explained that a law is sufficiently specific only if it “requires that matters be withheld from the public as to leave no discretion on the issue, or . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Ibid. (quoting S. Rep. No. 95–969 (1978)). And Section 114(r)(1) did not meet that test because it “provide[d] only general criteria for withholding information and [gave] some discretion to the [TSA] to fashion regulations for prohibiting disclosure.” 714 F. 3d, at 1309. The court accordingly vacated the Board’s decision and remanded for a determination of whether MacLean’s disclosure met the other requirements under Section 2302(b)(8)(A). Id., at 1310–1311. We granted certiorari. 572 U. S. ___ (2014).II Section 2302(b)(8) provides, in relevant part, that a federal agency may not take“a personnel action with respect to any employee or applicant for employment because of“(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences“(i) any violation of any law, rule, or regulation, or“(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,“if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” The Government argues that this whistleblower statute does not protect MacLean because his disclosure regarding the canceled missions was “specifically prohibited by law” in two ways. First, the Government argues that the disclosure was specifically prohibited by the TSA’s regulations on sensitive security information: 49 CFR §§1520.5(a)–(b), 1520.7(j) (2003). Second, the Government argues that the disclosure was specifically prohibited by49 U. S. C. §114(r)(1), which authorized the TSA to pro-mulgate those regulations. We address each argument in turn.A1 In 2003, the TSA’s regulations prohibited the disclosure of “[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 CFR §1520.7(j). MacLean does not dispute before this Court that the TSA’s regulations prohibited his disclosure regarding the canceled missions. Thus, the question here is whether a disclosure that is specifically prohibited by regulation is also “specifically prohibited by law” under Section 2302(b)(8)(A). (Emphasis added.) The answer is no. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” For example, Section 2302(b)(1)(E) prohibits a federal agency from discriminating against an employee “on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.” For another example, Section 2302(b)(6) prohibits an agency from “grant[ing] any preference or advantage not authorized by law, rule, or regulation.” And for a third example, Section 2302(b)(9)(A) prohibits an agency from retaliating against an employee for “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.” In contrast, Congress did not use the phrase “law, rule, or regulation” in the statutory language at issue here; it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States,464 U. S. 16,23 (1983). Thus, Congress’s choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations. The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force here for two reasons. First, Congress used “law” and “law, rule, or regulation” in close proximity—indeed, in the same sentence. §2302(b)(8)(A) (protecting the disclosure of “any violation of any law, rule, or regulation . . . if such disclosure is not specifically prohibited by law”). Second, Congress used the broader phrase “law, rule, or regulation” repeatedly—nine times in Section 2302 alone. See §§2302(a)(2)(D)(i), (b)(1)(E), (b)(6), (b)(8)(A)(i), (b)(8)(B)(i), (b)(9)(A), (b)(12), (b)(13), (d)(5). Those two aspects of the whistleblower statute make Con-gress’s choice to use the narrower word “law” seem quite deliberate. We drew the same inference in Department of Treasury, IRS v. FLRA,494 U. S. 922 (1990). There, the Government argued that the word “laws” in one section of the Civil Service Reform Act of 1978 meant the same thing as the phrase “law, rule, or regulation” in another section of the Act. Id., at 931. We rejected that argument as “sim-ply contrary to any reasonable interpretation of the text.” Id., at 932. Indeed, we held that a statute that referred to “laws” in one section and “law, rule, or regulation” in another “cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places.” Ibid. That inference is even more compelling here, because the statute refers to “law” and “law, rule, or regulation” in the same sentence, rather than several sections apart. Another part of the statutory text points the same way. After creating an exception for disclosures “specifically prohibited by law,” Section 2302(b)(8)(A) goes on to create a second exception for information “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” This exception is limited to action taken directly by the President. That suggests that the word “law” in the only other exception is limited to actions by Congress—after all, it would be unusual for the first exception to include action taken by executive agencies, when the second exception requires action by the President himself. In addition, a broad interpretation of the word “law” could defeat the purpose of the whistleblower statute. If “law” included agency rules and regulations, then an agency could insulate itself from the scope of Section 2302(b)(8)(A) merely by promulgating a regulation that “specifically prohibited” whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word “law.”2 The Government admits that some regulations fall outside the word “law” as used in Section 2302(b)(8)(A). But, the Government says, that does not mean that all regulations are excluded. The Government suggests two interpretations that would distinguish “law” from “law, rule, or regulation,” but would still allow the word “law”to subsume the TSA’s regulations on sensitive security information. First, the Government argues that the word “law” includes all regulations that have the “force and effect of law” (i.e., legislative regulations), while excluding those that do not (e.g., interpretive rules). Brief for Petitioner 19–22. The Government bases this argument on our decision in Chrysler Corp. v. Brown,441 U. S. 281 (1979). There, we held that legislative regulations generally fall within the meaning of the word “law,” and that it would take a “clear showing of contrary legislative intent” before we concluded otherwise. Id., at 295–296. Thus, because the TSA’s regulations have the force and effect of law, the Government says that they should qualify as “law” under the statute. The Government’s description of Chrysler is accurate enough. But Congress’s use of the word “law,” in close connection with the phrase “law, rule, or regulation,” provides the necessary “clear showing” that “law” does not include regulations. Indeed, using “law” and “law, rule, or regulation” in the same sentence would be a very obscure way of drawing the Government’s nuanced distinction between different types of regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed Section 2302(b)(8)(A), another federal statute defined the words “regulatory order” to include a “rule or regulation, if it has the force and effect of law.”7 U. S. C. §450c(a) (1976 ed.). Likewise, another federal statute defined the words “State law” to include “all laws, decisions, rules, regulations, or other State action having the effect of law.”29 U. S. C. §1144(c)(1) (1976 ed.). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302(b)(8)(A). Second, the Government argues that the word “law” includes at least those regulations that were “promulgated pursuant to an express congressional directive.” Brief for Petitioner 21. Outside of this case, however, the Government was unable to find a single example of the word “law” being used in that way. Not a single dictionary definition, not a single statute, not a single case. The Government’s interpretation happens to fit this case precisely, but it needs more than that to recommend it. Although the Government argues here that the word “law” includes rules and regulations, it definitively re-jected that argument in the Court of Appeals. For example, the Government’s brief accepted that the word “law”meant “legislative enactment,” and said that the “only dispute” was whether49 U. S. C. §114(r)(1) “serve[d] as that legislative enactment.” Brief for Respondent in No. 11–3231 (CA Fed.), pp. 46–47. Then, at oral argument, a judge asked the Government’s attorney the following question: “I thought I understood your brief to concede that [the word “law”] can’t be a rule or regulation, it means statute. Am I wrong?” The Government’s attorney responded: “You’re not wrong your honor. I’ll be as clear as I can. ‘Specifically prohibited by law’ here means statute.” Oral Arg. Audio in No. 11–3231, at 22:42–23:03; see also id., at 29:57–30:03 (“Now, as we’ve been discussing here, we’re not saying here that [the word “law”] needs to encompass regulations. We’re saying statute.”). Those concessions reinforce our conclusion that the Government’s proposed interpretations are unpersuasive. In sum, when Congress used the phrase “specifically prohibited by law” instead of “specifically prohibited by law, rule, or regulation,” it meant to exclude rules and regulations. We therefore hold that the TSA’s regulations do not qualify as “law” for purposes of Section 2302(b)(8)(A).B We next consider whether MacLean’s disclosure regarding the canceled missions was “specifically prohibited” by49 U. S. C. §114(r)(1) itself. As relevant here, that statute provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation.” §114(r)(1)(C). This statute does not prohibit anything. On the con-trary, it authorizes something—it authorizes the Under Secretary to “prescribe regulations.” Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here. The Government responds that Section 114(r)(1) did prohibit MacLean’s disclosure by imposing a “legislative mandate” on the TSA to promulgate regulations to that effect. See Brief for Petitioner 28, 33; see also post, at 2–3 (Sotomayor, J., dissenting). But the Government pushes the statute too far. Section 114(r)(1) says that the TSA shall prohibit disclosures only “if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation.” §114(r)(1)(C) (emphasis added). That language affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure. The dissent tries to downplay the scope of that discretion, viewing it as the almost ministerial task of “identifying whether a particular piece of information falls within the scope of Congress’ command.” Post, at 3. But determining which documents meet the statutory standard of “detrimental to the security of transportation” requires the exercise of considerable judgment. For example, the Government says that Section 114(r)(1) requires the Under Secretary to prohibit disclosures like MacLean’s. The Government also says, however, that the statute does not require the Under Secretary to prohibit an employee from disclosing that “federal air marshals will be absent from important flights, but declining to specify which flights.” Reply Brief 23. That fine-grained distinction comes not from Section 114(r)(1) itself, but from the Under Secretary’s exercise of discretion. It is the TSA’s regulations—not the statute—that prohibited MacLean’s disclosure. And as the dissent agrees, a regulation does not count as “law” under the whistleblower statute. See post, at 1. The Government insists, however, that this grant of discretion does not make Section 114(r)(1) any less of a prohibition. In support, the Government relies on Administrator, FAA v. Robertson,422 U. S. 255 (1975). That case involved the Freedom of Information Act (FOIA), which requires federal agencies to disclose information upon request unless, among other things, the information is “specifically exempted from disclosure by statute.”5 U. S. C. §552(b)(3). In Robertson, we held that the Federal Aviation Act of 1958 was one such statute, because it gave the Federal Aviation Administration (FAA) “a broad degree of discretion” in deciding whether to disclose or withhold information. 422 U. S., at 266. The Government tries to analogize that case to this one. In Robertson, the Government says, the FAA’s discretion whether to disclose information did not preclude a finding that the information was “specifically exempted” from disclosure by statute. So too here, the Government says, the TSA’s discretion whether to prohibit disclosure of information does not preclude a finding that the information is “specifically prohibited” from disclosure by Section 114(r)(1). See Brief for Petitioner 30. This analogy fails. FOIA and Section 2302(b)(8)(A) differ in an important way: The provision of FOIA at issue involves information that is “exempted” from disclosure, while Section 2302(b)(8)(A) involves information that is “prohibited” from disclosure. A statute that exempts information from mandatory disclosure may nonetheless give the agency discretion to release that exempt information to the public. In such a case, the agency’s exercise of discretion has no effect on whether the information is “exempted from disclosure by statute”—it remains exempt whatever the agency chooses to do. The situation is different when it comes to a statute giving an agency discretion to prohibit the disclosure of information. The information is not prohibited from disclosure by statute regardless of what the agency does. Itis the agency’s exercise of discretion that determines whether there is a prohibition at all. Thus, when Section 114(r)(1) gave the TSA the discretion to prohibit the disclosure of information, the statute did not create a prohibition—it gave the TSA the power to create one. And because Section 114(r)(1) did not create a prohibition, MacLean’s disclosure was not “prohibited by law” under Section 2302(b)(8)(A), but only by a regulation issued in the TSA’s discretion. In any event, Robertson was a case about FOIA, not Section 2302, and our analysis there depended on two FOIA-specific factors that are not present here. First, we examined the legislative history of FOIA and determined that Congress did not intend that statute to affect laws like the Federal Aviation Act. 422 U. S., at 263–265. In particular, we noted that the Civil Aeronautics Board had expressed its view during congressional hearings that the Federal Aviation Act qualified as an exempting statute under FOIA, and that “no question was raised or challenge made” to the agency’s view. Id., at 264–265. But that legislative history can have no effect on our analysis of Section 2302(b)(8)(A). Second, we said that the Federal Aviation Act could fail to qualify as an exempting statute only if we read FOIA “as repealing by implication all existing statutes which restrict public access to specific Government records.” Id., at 265 (internal quotation marks omitted). Then, relying on the presumption that “repeals by implication are disfavored,” we rejected that interpretation of FOIA. But the presumption against implied repeals has no relevance here. Saying that Section 114(r)(1) is not a prohibition under the whistleblower statute is not the same as saying that the whistleblower statute implicitly repealed Section 114(r)(1). On the contrary, Section 114(r)(1) remains in force by allowing the TSA to deny FOIA requests and prohibit employee disclosures that do not qualify for whistleblower protection under Section 2302(b)(8)(A). Ultimately, FOIA and Section 2302(b)(8)(A) are different statutes—they have different language, different histories, and were enacted in different contexts. Our interpretation of one, therefore, has no impact whatsoever on our interpretation of the other.III Finally, the Government warns that providing whistleblower protection to individuals like MacLean would “gravely endanger public safety.” Brief for Petitioner 38. That protection, the Government argues, would make the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees. Id., at 37. And those employees will “most likely lack access to all of the information that led the TSA to make particular security decisions.” Id., at 38. Thus, the Government says, we should conclude that Congress did not intend for Section 2302(b)(8)(A) to cover disclosures like MacLean’s. Those concerns are legitimate. But they are concerns that must be addressed by Congress or the President, rather than by this Court. Congress could, for example, amend Section 114(r)(1) so that the TSA’s prohibitions on disclosure override the whistleblower protections in Section 2302(b)(8)(A)—just as those prohibitions currently override FOIA. See §114(r)(1) (authorizing the TSA to prohibit disclosures “[n]otwithstanding section 552 of title 5”); see also10 U. S. C. §2640(h) (“the Secretary of Defense may (notwithstanding any other provision of law) withhold from public disclosure safety-related information that is provided to the Secretary voluntarily by an air carrier for the purposes of this section”). Congress could also exempt the TSA from the requirements of Section 2302(b)(8)(A) entirely, as Congress has already done for the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. See5 U. S. C. §2302(a)(2)(C)(ii)(I). Likewise, the President could prohibit the disclosure of sensitive security information by Executive order. Indeed, the Government suggested at oral argument that the President could “entirely duplicate” the regulations that the TSA has issued under Section 114(r)(1). Tr. of Oral Arg. 16–20. Such an action would undoubtedly create an exception to the whistleblower protections found in Section 2302(b)(8)(A). Although Congress and the President each has the power to address the Government’s concerns, neither has done so. It is not our role to do so for them. The judgment of the United States Court of Appeals for the Federal Circuit isAffirmed.Notes1* This statute has a complicated history. It was codified at 49 U. S. C.§40119(b)(1) when the TSA initially promulgated its regulations on sensitive security information. It was codified at §114(s)(1) when MacLean disclosed the text message to MSNBC. And it is now codified at §114(r)(1). The Federal Circuit referred to §40119(b)(1) in its opinion. Because the statute has remained identical in all relevant respects, however, we and the parties refer to the current version.

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 department of homeland security v. maclean certiorari to the united states court of appeals for the federal circuit No. 13–894. Argued November 4, 2014—Decided January 21, 2015 In 2002, Congress enacted the Homeland Security Act, 116Stat. 2135. That Act provides that the Transportation Security Administration (TSA) “shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation.” 49 U. S. C. §114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of “sensitive security information,” 67 Fed. Reg. 8351, which included “[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations,” 49 CFR §1520.7(j). In July 2003, the TSA briefed all federal air marshals—including Robert J. MacLean—about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA’s decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board. He argued that his disclosure was whistleblowing activity under 5 U. S. C. §2302(b)(8)(A), which protects employees who disclose information that reveals “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” The Board held that MacLean did not qualify for protection under that statute because his disclosure was “specifically prohibited by law,” §2302(b)(8)(A)—namely, by 49 U. S. C. §114(r)(1). The Court of Appeals for the Federal Circuit vacated the Board’s decision, holding that Section 114(r)(1) was not a prohibition. Held: MacLean’s disclosure was not “specifically prohibited by law.” . (a) The Government argues that MacLean’s disclosure was “specifically prohibited by law” in two ways: first, by the TSA’s regulations on sensitive security information, and second, by Section 114(r)(1) itself, which authorized the TSA to promulgate those regulations. . (i) MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” But Congress did not use that phrase in the statutory language at issue here; it used the word “law” standing alone. Congress’s choice to say “specifically prohibited by law,” instead of “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations. In addition, Section 2302(b)(8)(A) creates a second exception for disclosures “required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” That the second exception is limited to actions by the President himself suggests that the first exception does not include action taken by executive agencies. Finally, interpreting the word “law” to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself from Section 2302(b)(8)(A) simply by promulgating a regulation that “specifically prohibited” all whistleblowing. The Government proposes two alternative interpretations, but neither is persuasive. First, the Government argues that the word “law” includes all regulations that have the “force and effect of law.” The Government bases this argument on the decision in Chrysler Corp. v. Brown, 441 U.S. 281, where this Court held that legislative regulations generally fall within the meaning of the word “law” unless there is a “clear showing of contrary legislative intent.” Id., at 295–296. But Congress’s use of the word “law,” in close connection with the phrase “law, rule, or regulation,” provides the necessary “clear showing” that “law” does not include regulations in this case. Second, the Government argues that the word “law” includes at least those regulations that were “promulgated pursuant to an express congressional directive.” The Government, however, was unable to find a single example of the word “law” being used in that way. . (ii) Likewise, MacLean’s disclosure was not prohibited by Section 114(r)(1). That statute does not prohibit anything; instead, it authorizes the TSA to “prescribe regulations.” Thus, by its terms, Section 114(r)(1) did not prohibit the disclosure here. The Government responds that Section 114(r)(1) did prohibit MacLean’s disclosure by imposing a “legislative mandate” on the TSA to promulgate regulations to that effect. But the statute affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure. Thus, it is the TSA’s regulations—not the statute—that prohibited MacLean’s disclosure, and those regulations do not qualify as “law” under Section 2302(b)(8)(A). . (b) The Government argues that providing whistleblower protection to individuals like MacLean would “gravely endanger public safety” by making the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees. Those concerns are legitimate, but they must be addressed by Congress or the President, rather than by this Court. . 714 F. 3d. 1301, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Kennedy, J., joined.

Section 2302(b)(8)(A) of the Internal Revenue Code of 1954 provides that the Transportation Security Administration (TSA) shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security if the Under Secretary of Health and Safety decides that disclosing the information would be detrimental to the security of transportation. However, an exception exists for disclosures that are so prohibited by law. In 2003, the Department of Homeland Security issued a confidential advisory about a potential hijacking plot, and the advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets. After a few days after the briefing, respondent federal air marshal received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. He also believed that the cancellations were illegal, given that federal law required the TSA to put a marshal on every flight thatpresented high security risks, and provided that such flights should be targeted as long as a certain distance from a designated hotel. The Secret Service of the United States fired respondent for disclosing sensitive security information without authorization. Respondent challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under5 U.S. C. §2302 (b)(6)(A). The Board held that respondent did not qualify for protection under that statute, however, because the disclosure was made by a regulation, which the parties had agreed could not be a "law" under § 2302. The Court of Appeals vacated the Board's decision and remanded for a determination of whether respondent met the other requirements under the statute. Held: The disclosure was prohibited by the regulation. . (a) When Congress used the phrase, instead of, "specifically prohibited by... law, rule, or regulation," it meant to exclude rules and regulations. See, e.g., Russello v. United States,464 U. S. 16,23 (1983). In this case, the Government did not dispute that the regulations prohibited respondent from disclosing his disclosure regarding the canceled missions. Rather, it attacked the regulation on the ground that it was specifically prohibited by §114(r)(1), which authorizes the Secretary of Transportation (Secretary) to prescribe regulations that prohibit disclosure if the Secretary determines that disclosing information would harm public safety. But the court held that, even if the regulation were a prohibition, it was not sufficiently specific, since a law is sufficiently specific only if itrequires that matters be withheld from the public as to leave no discretion on the issue, or as to establish particular criteria for withholding or refers to particular types of matters to be withheld. And it also held that the regulation did not meet that test because it provided only general criteria, and gave some discretion to the Secretary to fashion regulations for prohibiting disclosure. Thus, the court therefore concluded that respondent had prohibited his disclosure. (b) The Government urges two interpretations that would distinguish the wordlaw from the word regulation, but would still allow the word to subsume the TSA's regulations on sensitive security information. First, it argues that the word includes all regulations that have the requisite clear showing of contrary legislative intent (i.e., legislative regulations), while excluding those that do not. Cf. Chrysler Corp. v. Brown, supra; FAA v. Robertson,422 U. s. 255 (1975), distinguished. Although the Government concedes that some regulations fall outside the word it uses in close proximity (indeed, in the same sentence) to the word, it relies on the two aspects of the whistleblower statute that make it unlikely that Congress meant to include rules or regulations within the word "law." That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Moreover, the interpretive canon that Congress acts in when it omits language included elsewhere applies with particular force here for two reasons. (1) Congress used both the language and the legislative history of § 230 2(b), and the interpretation of which is relevant here. First, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302, and second, the word does not include at least those regulations that werepromulgated pursuant to an express congressional directive. Those concerns are legitimate, but they are concerns that must be addressed by Congress or the President, rather than this Court. Congress could, for example, amend § 114(r))(1) so that the TSA’s prohibitions on disclosure override the whistleblower protections in 2302(g)(8))(A), just as it did the Federal Aviation Act, which requires federal agencies to disclose information upon request unless, inter alia

2014_13-1032

https://www.oyez.org/cases/2014/13-1032

. In an effort to improve the collection of sales and use taxes for items purchased online, the State of Colorado passed a law requiring retailers that do not collect Colo-rado sales or use tax to notify Colorado customers of their use-tax liability and to report tax-related information to customers and the Colorado Department of Revenue. We must decide whether the Tax Injunction Act, which provides that federal district courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law,”28 U. S. C. §1341, bars a suit to enjoin the enforcement of this law. We hold that it does not.IA Like many States, Colorado has a complementary sales-and-use tax regime. Colorado imposes both a 2.9 percent tax on the sale of tangible personal property within the State, Colo. Rev. Stat. §§39–26–104(1)(a), 39–26–106(1)(a)(II) (2014), and an equivalent use tax for any prop-erty stored, used, or consumed in Colorado on which a sales tax was not paid to a retailer, §§39–26–202(1)(b), 39–26–204(1). Retailers with a physical presence in Colorado must collect the sales or use tax from consumers at the point of sale and remit the proceeds to the Colorado Department of Revenue (Department). §§39–26–105(1), 39–26–106(2)(a). But under our negative Commerce Clause precedents, Colorado may not require retailers who lack a physical presence in the State to collect these taxes on behalf of the Department. See Quill Corp. v. North Da-kota,504 U. S. 298–318 (1992). Thus, Colorado requires its consumers who purchase tangible personal property from a retailer that does not collect these taxes (a “noncollecting retailer”) to fill out a return and remit the taxes to the Department directly. §39–26–204(1). Voluntary compliance with the latter requirement is relatively low, leading to a significant loss of tax revenue, especially as Internet retailers have increasingly displaced their brick-and-mortar kin. In the decade before this suit was filed in 2010, e-commerce more than tripled. App. 28. With approximately 25 percent of taxes unpaid on Internet sales, Colorado estimated in 2010 that its revenue loss attributable to noncompliance would grow by more than $20 million each year. App. 30–31. In hopes of stopping this trend, Colorado enacted legislation in 2010 imposing notice and reporting obligations on noncollecting retailers whose gross sales in Colorado exceed $100,000. Three provisions of that Act, along with their implementing regulations, are at issue here. First, noncollecting retailers must “notify Colorado purchasers that sales or use tax is due on certain purchases . . . and that the state of Colorado requires the purchaser to file a sales or use tax return.” §39–21–112(3.5)(c)(I); see also 1 Colo. Code Regs. §201–1:39–21–112.3.5(2) (2014), online at http://www.sos.co.us/CRR (as visited Feb. 27, 2015, and available in the Clerk of Court’s case file). The retailer must provide this notice during each transaction with a Colorado purchaser, ibid., and is subject to a penalty of $5 for each transaction in which it fails to do so, Colo. Rev. Stat. §39–21–112(3.5)(c)(II). Second, by January 31 of each year, each noncollecting retailer must send a report to all Colorado purchasers who bought more than $500 worth of goods from the retailer in the previous year. §39–21–112(3.5)(d)(I); 1 Colo. Code Regs. §§201–1:39–21–112.3.5(3)(a), (c). That report must list the dates, categories, and amounts of those purchases. Colo. Rev. Stat. §39–21–112(3.5)(d)(I); see also 1 Colo. Code Regs. §§201–1:39–21–112.3.5(3)(a), (c). It must also contain a notice stating that Colorado “requires a sales or use tax return to be filed and sales or use tax paid on certain Colorado purchases made by the purchaser from the retailer.” Colo. Rev. Stat. §39–21–112(3.5)(d)(I)(A). The retailer is subject to a penalty of $10 for each report it fails to send. §39–21–112(3.5)(d)(III)(A); see also 1 Colo. Code Regs. §201–1:39–21–112.3.5(3)(d). Finally, by March 1 of each year, noncollecting retailers must send a statement to the Department listing the names of their Colorado customers, their known addresses, and the total amount each Colorado customer paid for Colorado purchases in the prior calendar year. Colo. Rev. Stat. §39–21–112(3.5)(d)(II)(A); 1 Colo. Code Regs. §201–1:39–21–112.3.5(4). A noncollecting retailer that fails to make this report is subject to a penalty of $10 for each customer that it should have listed in the report. Colo. Rev. Stat. §39–21–112(3.5)(d)(III)(B); see also 1 Colo. Code Regs. §201–1:39–21–112.3.5(4)(f).B Petitioner Direct Marketing Association is a trade association of businesses and organizations that market products directly to consumers, including those in Colorado, via catalogs, print advertisements, broadcast media, and the Internet. Many of its members have no physical presence in Colorado and choose not to collect Colorado sales and use taxes on Colorado purchases. As a result, they are subject to Colorado’s notice and reporting requirements. In 2010, Direct Marketing Association brought suit in the United States District Court for the District of Colo-rado against the Executive Director of the Department, alleging that the notice and reporting requirements violate provisions of the United States and Colorado Constitutions. As relevant here, Direct Marketing Association alleged that the provisions (1) discriminate against interstate commerce and (2) impose undue burdens on interstate commerce, all in violation of this Court’s negative Commerce Clause precedents. At the request of both parties, the District Court stayed all challenges except these two, in order to facilitate expedited consideration. It then granted partial summary judgment to Direct Marketing Association and permanently enjoined enforcement of the notice and reporting requirements. App. to Pet. for Cert. B–1 to B–25. Exercising appellate jurisdiction under28 U. S. C. §1292(a)(1), the United States Court of Appeals for the Tenth Circuit reversed. Without reaching the merits, the Court of Appeals held that the District Court lacked jurisdiction over the suit because of the Tax Injunction Act (TIA),28 U. S. C. §1341. Acknowledging that the suit “differs from the prototypical TIA case,” the Court of Appeals nevertheless found it barred by the TIA because, if successful, it “would limit, restrict, or hold back the state’s chosen method of enforcing its tax laws and generating revenue.” 735 F. 3d 904, 913 (2013). We granted certiorari, 573 U. S. ___ (2014), and now reverse.II Enacted in 1937, the TIA provides that federal district courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” §1341. The question before us is whether the relief sought here would “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law.” Because we conclude that it would not, we need not consider whether “a plain, speedy and efficient remedy may be had in the courts of” Colorado.A The District Court enjoined state officials from enforcing the notice and reporting requirements. Because an injunction is clearly a form of equitable relief barred by the TIA, the question becomes whether the enforcement of the notice and reporting requirements is an act of “assessment, levy or collection.” We need not comprehensively define these terms to conclude that they do not encompass enforcement of the notice and reporting requirements at issue. In defining the terms of the TIA, we have looked to federal tax law as a guide. See, e.g., Hibbs v. Winn,542 U. S. 88,100 (2004). Although the TIA does not concern federal taxes, it was modeled on the Anti-Injunction Act (AIA), which does. See Jefferson County v. Acker,527 U. S. 423–435 (1999). The AIA provides in relevant part that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”26 U. S. C. §7421(a). We assume that words used in both Acts are generally used in the same way, and we discern the meaning of the terms in the AIA by reference to the broader Tax Code. Hibbs, supra, at 102–105; id., at 115 (Kennedy, J., dissenting). Read in light of the Federal Tax Code at the time the TIA was enacted (as well as today), these three terms refer to discrete phases of the taxation process that do not include informational notices or private reports of information relevant to tax liability. To begin, the Federal Tax Code has long treated information gathering as a phase of tax administration procedure that occurs before assessment, levy, or collection. See §§6001–6117; §§1500–1524 (1934 ed.); see also §1533 (“All provisions of law for the ascertainment of liability to any tax, or the assessment or collection thereof, shall be held to apply . . . ”). This step includes private reporting of information used to determine tax liability, see, e.g., §1511(a), including reports by third parties who do not owe the tax, see, e.g., §6041 et seq. (2012 ed.); see also §§1512(a)–(b) (1934 ed.) (authorizing a collector or the Commissioner of Internal Revenue, when a taxpayer fails to file a return, to make a return “from his own knowledge and from such information as he can obtain through testimony or otherwise”). “Assessment” is the next step in the process, and it refers to the official recording of a taxpayer’s liability, which occurs after information relevant to the calculation of that liability is reported to the taxing authority. See §1530. In Hibbs, the Court noted that “assessment,” as used in the Internal Revenue Code, “involves a ‘recording’ of the amount the taxpayer owes the Government.” 542 U. S., at 100 (quoting §6203 (2000 ed.)). It might also be understood more broadly to encompass the process by which that amount is calculated. See United States v. Galletti,541 U. S. 114,122 (2004); see also Hibbs, supra, at 100, n. 3. But even understood more broadly, “assessment” has long been treated in the Tax Code as an official action taken based on information already reported to the taxing authority. For example, not many years before it passed the TIA, Congress passed a law providing that the filing of a return would start the running of the clock for a timely assessment. See, e.g., Revenue Act of 1924, Pub. L. 68–176, §277(a),43Stat.299. Thus, assessment was understood as a step in the taxation process that occurred after, and was distinct from, the step of reporting information pertaining to tax liability. “Levy,” at least as it is defined in the Federal Tax Code, refers to a specific mode of collection under which the Secretary of the Treasury distrains and seizes a recalcitrant taxpayer’s property. See26 U. S. C. §6331 (2012 ed.); §1582 (1934 ed.). Because the word “levy” does not appear in the AIA, however, one could argue that its meaning in the TIA is not tied to the meaning of the term as used in federal tax law. If that were the case, one might look to contemporaneous dictionaries, which defined “levy” as the legislative function of laying or imposing a tax and the executive functions of assessing, recording, and collecting the amount a taxpayer owes. See Black’s Law Dictionary 1093 (3d ed. 1933) (Black’s); see also Webster’s New International Dictionary 1423 (2d ed. 1939) (“To raise or collect, as by assessment, execution, or other legal process, etc.; to exact or impose by authority . . . ”); §§1540, 1544 (using “levying” and “levied” in the more general sense of an executive imposition of a tax liability). But under any of these definitions, “levy” would be limited to an official governmental action imposing, determining the amount of, or securing payment on a tax. Finally, “collection” is the act of obtaining payment of taxes due. See Black’s 349 (defining “collect” as “to obtain payment or liquidation” of a debt or claim). It might be understood narrowly as a step in the taxation process that occurs after a formal assessment. Consistent with this understanding, we have previously described it as part of the “enforcement process . . . that ‘assessment’ sets in motion.” Hibbs, supra, at 102, n. 4. The Federal Tax Code at the time the TIA was enacted provided for the Commissioner of Internal Revenue to certify a list of assessments “to the proper collectors . . . who [would] proceed to collect and account for the taxes and penalties so certified.” §1531. That collection process began with the collector “giv[ing] notice to each person liable to pay any taxes stated [in the list] . . . stating the amount of such taxes and demanding payment thereof.” §1545(a). When a person failed to pay, the Government had various means to collect the amount due, including liens, §1560, distraint, §1580, forfeiture, and other legal proceedings, §1640. Today’s Tax Code continues to authorize collection of taxes by these methods. §6302 (2012 ed.). “Collection” might also be understood more broadly to encompass the receipt of a tax payment before a formal assessment occurs. For example, at the time the TIA was enacted, the Tax Code provided for the assessment of money already received by a person “required to collect or withhold any internal-revenue tax from any other person,” suggesting that at least some act of collection might occur before a formal assessment. §1551 (1934 ed.) (emphasis added). Either way, “collection” is a separate step in the taxation process from assessment and the reporting on which assessment is based. So defined, these terms do not encompass Colorado’s enforcement of its notice and reporting requirements. The Executive Director does not seriously contend that the provisions at issue here involve a “levy”; instead she portrays them as part of the process of assessment and collection. But the notice and reporting requirements precede the steps of “assessment” and “collection.” The notice given to Colorado consumers, for example, informs them of their use-tax liability and prompts them to keep a record of taxable purchases that they will report to the State at some future point. The annual summary that the retailers send to consumers provides them with a reminder of that use-tax liability and the information they need to fill out their annual returns. And the report the retailers file with the Department facilitates audits to determine tax deficiencies. After each of these notices or reports is filed, the State still needs to take further action to assess the taxpayer’s use-tax liability and to collect payment from him. See Colo. Rev. Stat. §39–26–204(3) (describing the procedure for “assessing and collecting [use] taxes” on the basis of returns filed by consumers and collecting retailers). Colorado law provides for specific assessment and collection procedures that are triggered after the State has received the returns and made the deficiency determinations that the notice and reporting requirements are meant to facilitate. See §39–26–210; 1 Colo. Code Regs. §201–1:39–21–107(1) (“The statute of limitations on assessments of . . . sales [and] use . . . tax . . . shall be three years from the date the return was filed . . . ”). Enforcement of the notice and reporting requirements may improve Colorado’s ability to assess and ultimately collect its sales and use taxes from consumers, but the TIA is not keyed to all activities that may improve a State’s ability to assess and collect taxes. Such a rule would be inconsistent not only with the text of the statute, but also with our rule favoring clear boundaries in the interpretation of jurisdictional statutes. See Hertz Corp. v. Friend,559 U. S. 77,94 (2010). The TIA is keyed to the acts of assessment, levy, and collection themselves, and enforcement of the notice and reporting requirements is none of these.[1]B Apparently concluding that enforcement of the notice and reporting requirements was not itself an act of “assessment, levy or collection,” the Court of Appeals did not rely on those terms to hold that the TIA barred the suit. Instead, it adopted a broad definition of the word “restrain” in the TIA, which bars not only suits to “enjoin . . . assessment, levy or collection” of a state tax but also suits to “suspend or restrain” those activities. Specifically, the Court of Appeals concluded that the TIA bars any suit that would “limit, restrict, or hold back” the assessment, levy, or collection of state taxes. 735 F. 3d, at 913. Because the notice and reporting requirements are intended to facilitate collection of taxes, the Court of Appeals reasoned that the relief Direct Marketing Association sought and received would “limit, restrict, or hold back” the Department’s collection efforts. That was error. “Restrain,” standing alone, can have several meanings. One is the broad meaning given by the Court of Appeals, which captures orders that merely inhibit acts of “assessment, levy and collection.” See Black’s 1548. Another, narrower meaning, however, is “[t]o prohibit from action; to put compulsion upon . . . to enjoin,” ibid., which captures only those orders that stop (or perhaps compel) acts of “assessment, levy and collection.” To resolve this ambiguity, we look to the context in which the word is used. Robinson v. Shell Oil Co.,519 U. S. 337,341 (1997). The statutory context provides several clues that lead us to conclude that the TIA uses the word “restrain” in its narrower sense. Looking to the company “restrain” keeps, Jarecki v. G. D. Searle & Co.,367 U. S. 303,307 (1961), we first note that the words “enjoin” and “suspend” are terms of art in equity, see Fair Assessment in Real Estate Assn., Inc. v. McNary,454 U. S. 100, and n. 13 (1981) (Brennan, J., concurring). They refer to different equitable remedies that restrict or stop official action to varying degrees, strongly suggesting that “restrain” does the same. See Hibbs, 524 U. S., at 118 (Kennedy, J., dissenting); see also Jefferson County, 572 U. S., at 433. Additionally, as used in the TIA, “restrain” acts on a carefully selected list of technical terms—“assessment, levy, collection”—not on an all-encompassing term, like “taxation.” To give “restrain” the broad meaning selected by the Court of Appeals would be to defeat the precision of that list, as virtually any court action related to any phase of taxation might be said to “hold back” “collection.” Such a broad construction would thus render “assessment [and] levy”—not to mention “enjoin [and] suspend”—mere surplusage, a result we try to avoid. See Hibbs, supra, at 101 (interpreting the terms of the TIA to avoid superfluity). Assigning the word “restrain” its meaning in equity is also consistent with our recognition that the TIA “has its roots in equity practice.” Tully v. Griffin, Inc.,429 U. S. 68,73 (1976). Under the comity doctrine that the TIA partially codifies, Levin v. Commerce Energy, Inc.,560 U. S. 413–432 (2010), courts of equity exercised their “sound discretion” to withhold certain forms of extraordinary relief, Great Lakes Dredge & Dock Co. v. Huffman,319 U. S. 293,297 (1943); see also Dows v. Chicago, 11 Wall. 108, 110 (1871). Even while refusing to grant certain forms of equitable relief, those courts did not refuse to hear every suit that would have a negative impact on States’ revenues. See, e.g., Henrietta Mills v. Rutherford County,281 U. S. 121,127 (1930); see also 5 R. Paul & J. Mertens, Law of Federal Income Taxation §42.139 (1934) (discussing the word “restraining” in the AIA in its equitable sense). The Court of Appeals’ definition of “restrain,” however, leads the TIA to bar every suit with such a negative impact. This history thus further supports the conclusion that Congress used “restrain” in its narrower, equitable sense, rather than in the broad sense chosen by the Court of Appeals. Finally, adopting a narrower definition is consistent with the rule that “[j]urisdictional rules should be clear.” Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.,545 U. S. 308,321 (2005) (Thomas, J., concurring); see also Hertz Corp., supra, at 94. The question—at least for negative injunctions—is whether the relief to some degree stops “assessment, levy or collection,” not whether it merely inhibits them. The Court of Appeals’ definition of “restrain,” by contrast, produces a “ ‘vague and obscure’ ” boundary that would result in both needless litigation and uncalled-for dismissal, Sisson v. Ruby,497 U. S. 358,375 (1990) (Scalia, J., concurring in judgment), all in the name of a jurisdictional statute meant to protect state resources. Applying the correct definition, a suit cannot be understood to “restrain” the “assessment, levy or collection” of a state tax if it merely inhibits those activities.[2]III We take no position on whether a suit such as this one might nevertheless be barred under the “comity doctrine,” which “counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction.” Levin, supra, at 421. Under this doctrine, federal courts refrain from “interfer[ing] . . . with the fiscal operations of the state governments . . . in all cases where the Federal rights of the persons could otherwise be preserved unimpaired. ” Id., at 422 (internal quotation marks omitted). Unlike the TIA, the comity doctrine is nonjurisdictional. And here, Colorado did not seek comity from either of the courts below. Moreover, we do not understand the Court of Appeals’ footnote concerning comity to be a holding that comity compels dismissal. See 735 F. 3d, at 920, n. 11 (“Although we remand to dismiss [petitioner’s] claims pursuant to the TIA, we note that the doctrine of comity also militates in favor of dismissal”). Accordingly, we leave it to the Tenth Circuit to decide on remand whether the comity argument remains available to Colorado.* * * Because the TIA does not bar petitioner’s suit, we reverse the judgment of the Court of Appeals. Like the Court of Appeals, we express no view on the merits of those claims and remand the case for further proceedings consistent with this opinion.It is so ordered.Notes1 Our decision in California v. Grace Brethren Church,457 U. S. 393 (1982), is not to the contrary. In that case, California churches and religious schools sought “to enjoin the State from collecting both tax information and the state [unemployment] tax,” based, in part, on the argument that “recordkeeping, registration, and reporting requirements” violate the Establishment Clause by creating the potential for excessive entanglement with religion. Id., at 398, 415. We held that the TIA barred that suit. Id., at 396. But nowhere in their brief to this Court did the plaintiffs in Grace Brethren Church separate out their request to enjoin the tax from their request for relief from the recordkeeping and reporting requirements. See Brief for Grace Brethren Church et al., in California v. Grace Brethren Church, O. T. 1981, No. 81–31 etc., pp. 34–38. Grace Brethren Church thus cannot fairly be read as resolving, or even considering, the question presented in this case.2 Because the text of the TIA resolves this case, we decline the parties’ invitation to derive various per se rules from our decision in Hibbs v. Winn,542 U. S. 88 (2004). In Hibbs, the Court held that the TIA did not bar an Establishment Clause challenge to a state tax credit for charitable donations to organizations that provided scholarships for children to attend parochial schools. Id., at 94–96. Direct Marketing Association argues that Hibbs stands for the proposition that the TIA has no application to third-party suits by nontaxpayers who do not challenge their own liability. Brief for Petitioner 18–21. The Executive Director acknowledges that Hibbs created an exception to the TIA, but argues that the exception does not apply to suits that restrain activities that have a collection-propelling function. Brief for Respondent 25–33.

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 . SUPREME COURT OF THE UNITED STATES Syllabus Direct Marketing Association v. Brohl, Executive Director, Colorado Department of Revenue certiorari to the united states court of appeals for the tenth circuit No. 13 1032. Argued December 8, 2014 Decided March 3, 2015 Colorado requires residents who purchase tangible personal property from a retailer that does not collect sales or use taxes to file a return and remit those taxes directly to the State Department of Revenue. To improve compliance, Colorado enacted legislation requiring noncollecting retailers to notify any Colorado customer of the State s sales and use tax requirement and to report tax-related information to those customers and the Colorado Department of Revenue. Petitioner, a trade association of retailers, many of which sell to Colorado residents but do not collect taxes, sued respondent, the Director of the Colorado Department of Revenue, in Federal District Court, alleging that Colorado s law violates the United States and Colorado Constitutions. The District Court granted petitioner partial summary judgment and permanently enjoined enforcement of the notice and reporting requirements, but the Tenth Circuit reversed. That court held that the Tax Injunction Act (TIA), which provides that federal district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State, 28 U. S. C. 1341, deprived the District Court of jurisdiction over the suit. Held: Petitioner s suit is not barred by the TIA. Pp. 4-13. (a) The relief sought by petitioner would not enjoin, suspend or restrain the assessment, levy or collection of Colorado s sales and use taxes. Pp. 4-12. (1) The terms assessment, levy, and collection do not encompass Colorado s enforcement of its notice and reporting requirements. These terms, read in light of the Federal Tax Code, refer to discrete phases of the taxation process that do not include informational notices or private reports of information relevant to tax liability. Information gathering has long been treated as a phase of tax administration that occurs before assessment, levy, or collection. See, e.g., 26 U. S. C. 6041 et seq. Respondent portrays the notice and reporting requirements as part of the State s assessment and collection process, but the State s assessment and collection procedures are triggered after the State has received the returns and made the deficiency determinations that the notice and reporting requirements are meant to facilitate. Enforcement of the requirements may improve the State s ability to assess and ultimately collect its sales and use taxes, but the TIA is not keyed to all such activities. Such a rule would be inconsistent with the statute s text and this Court s rule favoring clear boundaries in the interpretation of jurisdictional statutes. See Hertz Corp. v. Friend, 559 U. S. 77. Pp. 5-9. (2) Petitioner s suit cannot be understood to restrain the assessment, levy or collection of Colorado s sales and use taxes merely because it may inhibit those activities. While the word restrain can be defined as broadly as the Tenth Circuit defined it, it also has a narrower meaning used in equity, which captures only those orders that stop acts of assessment, levy, or collection. The context in which the TIA uses the word restrain resolves this ambiguity in favor of this narrower meaning. First, the verbs accompanying restrain enjoin and suspend are terms of art in equity and refer to different equitable remedies that restrict or stop official action, strongly suggesting that restrain does the same. Additionally, restrain acts on assessment, levy, and collection, a carefully selected list of technical terms. The Tenth Circuit s broad meaning would defeat the precision of that list and render many of those terms surplusage. Assigning restrain its meaning in equity is also consistent with this Court s recognition that the TIA has its roots in equity practice, Tully v. Griffin, Inc., 429 U. S. 68, and with the principle that [j]urisdictional rules should be clear, Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308 (Thomas, J., concurring). Pp. 10-12. (b) The Court takes no position on whether a suit such as this might be barred under the comity doctrine, which counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction, Levin v. Commerce Energy, Inc., 560 U. S. 413. The Court leaves it to the Tenth Circuit to decide on remand whether the comity argument remains available to Colorado. P. 13. 735 F. 3d 904, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined, and in which Sotomayor, J., joined in part.

Colorado imposes a 2.9 percent tax on the sale of tangible personal property within the State and an equivalent use tax for any prop-erty stored, used, or consumed in Colorado on which a sales tax was not paid to a retailer. But under the negative Commerce Clause precedents, Colorado may not require retailers who lack a physical presence in the State to collect these taxes on behalf of the Department. Accordingly, Colorado imposes notice and reporting requirements on noncollecting retailers whose gross sales in Colorado exceed $100,000. These requirements are at issue here, as the Department of Revenue (Department) requires retailers to notify Colorado purchasers that sales or use tax is due on certain purchases and that the state requires the purchaser to file a tax return. The Department also requires retailers that fail to send a notice or report to the Department stating that the tax has been filed or paid or that the return is subject to a penalty of $10 for each customer that fails to do so. Also, by March 1 of each year, noncollective retailers must send a statement listing the names of their Colorado customers, their known addresses, and the total amount each Colorado customer paid for Colorado purchases in the prior calendar year. Respondent Direct Marketing Association, a trade association of businesses and organizations that market products directly to consumers, including those in Colorado, filed suit in Federal District Court against the Department, alleging that the requirements (1) discriminate against interstate commerce and (2) impose undue burdens on interstate commerce, all in violation of this Court's negative Commerce Clause. Holding that the suit lacked jurisdiction because of the Tax Injunction Act (TIA), the Court of Appeals nevertheless found it barred by the TIA because, if successful, it would limit, restrict, or hold back the Department's chosen method of enforcing its tax laws and generating revenue. Held: The TIA does not bar the suit. . (a) Although the word "levy" does not appear in the Federal Tax Code, it does appear in federal tax law as a guide to the terms of that Code. Cf. Hibbs v. Winn, 542 U. S. 88; ibid., which defines the term as the legislative function of laying or imposing a tax and the executive functions of assessing, recording, and collecting the amount a taxpayer owes; cf. Black's Law Dictionary 1093 (3d ed. 1933) (Black), ibid. id. id. at 102. In light of the broader meaning of the term used in both the Tax Code and the Colorado Constitutions, these three terms refer to discrete phases of the taxation process that do not include informational notices or private reports of information relevant to tax liability. To begin, the Federal Code has long treated information gathering as a phase of tax administration procedure that occurs before assessment, levy, or collection. Similarly, the Internal Revenue Code continues to authorize collection of taxes by various methods, including private reporting of information used to determine tax liability, including reports by third parties who do not owe the tax. Moreover, the word is understood more broadly to encompass the process by which that amount is calculated, since it refers to a specific mode of collection under which the Secretary of the Treasury distrains and seizes a recalcitrant taxpayer's property. Enforcement of such requirements may improve Colorado's ability to assess and ultimately collect its sales and use taxes from consumers, but the Department is not keyed to all activities that may improve a State's ability assess and collect taxes. This history further supports the conclusion that Congress used the word in its narrower, equitable sense, rather than in the broad sense chosen by the Court that the word should be limited to suits to withhold certain forms of extraordinary relief. Furthermore, adopting a narrower definition is consistent with the rule that jurisdictional rules should be clear. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg.,545 U.S. 308,321 (Garcia, J., concurring); see also Hertz Corp. Friend,. . 735 F. 3d 904, reversed and remanded. QUIST C. J., wrote the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I, II, III, and IV of which REHNQUIST, C.J., joined. O'CONNOR J., filed a dissenting opinion, post, p..

2014_13-983

https://www.oyez.org/cases/2014/13-983

. Federal law makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” 18 U. S. C. §875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing. I A Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook “friends” who are notified when new content is posted. In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis began “listening to more violent music” and posting self-styled “rap” lyrics inspired by the music. App. 204, 226. Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, “Tone Dougie,” to distinguish himself from his “on-line persona.” Id., at 249, 265. The lyrics Elonis posted as “Tone Dougie” included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were “fictitious,” with no intentional “resemblance to real persons.” Id., at 331, 329. Elonis posted an explanation to another Facebook user that “I’m doing this for me. My writing is therapeutic.” Id., at 329; see also id., at 205 (testifying that it “helps me to deal with the pain”). Elonis’s co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a “Halloween Haunt” event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker’s neck, and in the caption Elonis wrote, “I wish.” Id., at 340. Elonis was not Facebook friends with the co-worker and did not “tag” her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook “friend” of Elonis, saw the photograph, and fired him. App. 114–116; Brief for Petitioner 9. In response, Elonis posted a new entry on his Facebook page: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark andfoggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?” App. 332. This post became the basis for Count One of Elonis’ssubsequent indictment, threatening park patrons and employees. Elonis’s posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164–165, 207. In the actual sketch, called “It’s Illegal to Say . . . ,” a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife: “Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want to kill my wife? . . . It’s one of the only sentences that I’m not allowed to say. . . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . . But not illegal to say with a mortar launcher. Because that’s its own sentence. . . . I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . . Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . .” Id., at 333. The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?” Id., at 333. After viewing some of Elonis’s posts, his wife felt “extremely afraid for [her] life.” Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148–150. Elonis referred to the order in another post on his “Tone Dougie” page, also included in Count Two of the indictment: “Fold up your [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet? Try to enforce an Order that was improperly granted in the first place Me thinks the Judge needs an education on true threat jurisprudence And prison time’ll add zeros to my settlement . . . And if worse comes to worse I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.” Id., at 334. At the bottom of this post was a link to the Wikipedia article on “Freedom of speech.” Ibid. Elonis’s reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers. That same month, interspersed with posts about a movie Elonis liked and observations on a comedian’s social commentary, id., at 356–358, Elonis posted an entry that gave rise to Count Four of his indictment: “That’s it, I’ve had about enough I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class The only question is . . . which one?” Id., at 335. Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis’s posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49–51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65–66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called “Little Agent Lady,” which led to Count Five: “You know your s***’s ridiculous when you have the FBI knockin’ at yo’ door Little Agent lady stood so close Took all the strength I had not to turn the b**** ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner [laughter] So the next time you knock, you best be serving a warrant And bring yo’ SWAT and an explosives expert while you’re at it Cause little did y’all know, I was strapped wit’ a bomb Why do you think it took me so long to get dressed with no shoes on? I was jus’ waitin’ for y’all to handcuff me and pat me down Touch the detonator in my pocket and we’re all goin’ [BOOM!] Are all the pieces comin’ together? S***, I’m just a crazy sociopath that gets off playin’ you stupid f***s like a fiddle And if y’all didn’t hear, I’m gonna be famous Cause I’m just an aspiring rapper who likes theattention who happens to be under investigation for terrorism cause y’all think I’m ready to turn the Valley into Fallujah But I ain’t gonna tell you which bridge is gonna fall into which river or road And if you really believe this s*** I’ll have some bridge rubble to sell you tomorrow [BOOM!][BOOM!][BOOM!]” Id., at 336. B A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c). App. 14–17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis “intentionally made the communication, not that he intended to make a threat.” App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis’s view, he had posted “nothing . . . that hasn’t been said already.” Id., at 205. The Government presented as witnesses Elonis’s wife and co-workers, all of whom said they felt afraid and viewed Elonis’s posts as serious threats. See, e.g., id., at 153, 158. Elonis requested a jury instruction that “the government must prove that he intended to communicate a true threat.” Id., at 21. See also id., at 267–269, 303. The District Court denied that request. The jury instructions instead informed the jury that “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Id.,at 301. The Government’s closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats—“it doesn’t matter what he thinks.” Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months’ imprisonment and three years’ supervised release. Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. 730 F. 3d 321, 332 (CA3 2013). We granted certiorari. 573 U. S. ___ (2014). II A An individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony and faces up to five years’ imprisonment. 18 U. S. C. §875(c). This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat. Elonis argues that the word “threat” itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of “threat” or “threaten” conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J., dubitante). E.g., 11 Oxford English Dictionary 353 (1933) (“to declare (usually conditionally) one’s intention of inflicting injury upon”); Webster’s New International Dictionary 2633 (2d ed. 1954) (“Law, specif., an expression of an intention to inflict loss or harm on another by illegal means”); Black’s Law Dictionary 1519 (8th ed. 2004) (“A communicated intent to inflict harm or loss on another”). These definitions, however, speak to what the statement conveys—not to the mental state of the author. For example, an anonymous letter that says “I’m going to kill you” is “an expression of an intention to inflict loss or harm” regardless of the author’s intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke. For its part, the Government argues that Section 875(c) should be read in light of its neighboring provisions, Sections 875(b) and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an “intent to extort.” See 18 U. S. C. §875(b) (proscribing threats to injure or kidnap made “with intent to extort”); §875(d) (proscribing threats to property or reputation made “with intent to extort”). According to the Government, the express “intent to extort” requirements in Sections 875(b) and (d) should preclude courts from implying an unexpressed “intent to threaten” requirement in Section 875(c). See Russello v. United States, 464 U. S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an “intent to extort” from Section 875(c) is strong evidence that Congress did not mean to confine Section 875(c) to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not iden-tify what mental state, if any, a defendant must have to be convicted. In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c). B The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Morissette v. United States, 342 U. S. 246, 250 (1952) . This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” Id., at 252. As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Id., at 250. The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332–333 (2d ed. 2003). Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U. S. 250, 251 (1922) . We therefore generally “interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994) . This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typi-cally holds true. Instead, our cases have explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” Staples v. United States, 511 U. S. 600 , n. 3 (1994), even if he does not know that those facts give rise to a crime. Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. Dur-ing his trial for “knowingly convert[ing]” property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248–249. This Court reversed the defendant’s conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable “if he truly believed [the casings] to be abandoned.” Id., at 271; see id., at 276. By the same token, in Liparota v. United States, we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner. 471 U. S. 419, 420 (1985) . The Government’s argument, similar to its position in this case, was that a defendant’s conviction could be upheld if he knowingly possessed or used the food stamps, and in fact his possession or use was unauthorized. Id., at 423. But this Court rejected that interpretation of the statute, because it would have criminalized “a broad range of apparently innocent conduct” and swept in individuals who had no knowledge of the facts that made their conduct blameworthy. Id., at 426. For example, the statute made it illegal to use food stamps at a store that charged higher prices to food stamp customers. Without a mental state requirement in the statute, an individual who unwittingly paid higher prices would be guilty under the Government’s interpretation. Ibid. The Court noted that Congress could have intended to cover such a “broad range of conduct,” but declined “to adopt such a sweeping interpretation” in the absence of a clear indication that Congress intended that result. Id., at 427. The Court instead construed the statute to require knowledge of the facts that made the use of the food stamps unauthorized. Id., at 425. To take another example, in Posters ‘N’ Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994) . Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant’s state of mind. Id., at 517–522. But, we held, an individual could not be convicted of selling such paraphernalia unless he “knew that the items at issue [were] likely to be used with illegal drugs.” Id., at 524. Such a showing was necessary to establish the defendant’s culpable state of mind. And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct. 513 U. S., at 68. We rejected a reading of the statute which would have required only that a defendant knowingly send the prohibited materials, regardless of whether he knew the age of the performers. Id., at 68–69. We held instead that a defendant must also know that those depicted were minors, because that was “the crucial element separating legal innocence from wrongful conduct.” Id., at 73. See also Staples, 511 U. S., at 619 (defendant must know that his weapon had automatic firing capability to be convicted of possession of such a weapon). When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ ” Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U. S. C. §2113(a), for taking “by force and violence” items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U. S., at 261. We held that once the Government proves the defendant forcibly took the money, “the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of . . . ‘otherwise innocent’ ” conduct. Id., at 269–270. In other instances, however, requiring only that the defendant act knowingly “would fail to protect the innocent actor.” Id., at 269. A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal “would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his.” Ibid. In such a case, the Court explained, the statute “would need to be read to require . . . that the defendant take the money with ‘intent to steal or purloin.’ ” Ibid. C Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U. S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct “wrongful.” Here “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of the communication. Id., at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat. Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct—awareness of some wrongdoing.” Staples, 511 U. S., at 606–607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943) ; emphasis added). Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246 ). See 1 C. Torcia, Wharton’s Criminal Law §27, pp. 171–172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face “liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind”). Under these principles, “what [Elonis] thinks” does matter. App. 286. The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant “comprehended [the] contents and context” of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a “foreigner, ignorant of the English language,” who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to actu-ally know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate “the circumstances known” to a defendant. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372–373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government’s position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reason-able person would have recognized that the posts would be read as genuine threats. That is a negligence standard. In support of its position the Government relies most heavily on Hamling v. United States, 418 U. S. 87 (1974) . In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material only if they knew the “legal status of the materials” distributed. Id., at 121. Absolving a defendant of liability because he lacked the knowledge that the materials were legally obscene “would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.” Id., at 123. It was instead enough for liability that “a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials.” Ibid. This holding does not help the Government. In fact, the Court in Hamling approved a state court’s conclusion that requiring a defendant to know the character of the material incorporated a “vital element of scienter” so that “not innocent but calculated purveyance of filth . . . is exorcised.” Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966) ; internal quotation marks omitted). In this case, “calculated purveyance” of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context. Contrary to the dissent’s suggestion, see post, at 4–5, 9–10 (opinion of Thomas, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896) , undermines this reading. The defendant’s contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31–33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material “could be properly or justly characterized as obscene.” Id., at 41. The Court correctly rejected this “ignorance of the law” defense; no such contention is at issue here. See supra, at 10. * * * In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.” Morissette, 342 U. S., at 252. There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id., at 8–9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990) (this Court is “poorly situated” to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in “only the most cursory fashion at oral argument”). Given our disposition, it is not necessary to consider any First Amendment issues. Both Justice Alito and Justice Thomas complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post, at 1–2 (Alito, J., concurring in part and dissenting in part); post, at 1–2 (opinion of Thomas, J.). Justice Alito contends that each party “argued” this issue, post, at 2, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38–39. Justice Alito also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question Justice Alito and Justice Thomas would have us decide—whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient “justification,” post, at 2 (opinion of Alito, J.), for us to decline to be the first appellate tribunal to do so. Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under 18 U. S. C. §751, even though a “court may someday confront a case” presenting issue); Ginsberg v. New York, 390 U. S. 629 –645 (1968) (rejecting defendant’s challenge to obscenity law “makes it unnecessary for us to define further today ‘what sort of mental element is requisite to a constitutionally permissible prosecution’ ”); Smith v. California, 361 U. S. 147, 154 (1959) (overturning conviction because lower court did not require any mental element under statute, but noting that “[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution”); cf. Gulf Oil Co. v. Bernard, 452 U. S. 89 –104 (1981) (finding a lower court’s order impermissible under the First Amendment but not deciding “what standards are mandated by the First Amendment in this kind of case”). We may be “capable of deciding the recklessness issue,” post, at 2 (opinion of Alito, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly. The judgment of the United States Court of Appeals for the Third 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 . SUPREME COURT OF THE UNITED STATES Syllabus elonis v. united states certiorari to the united states court of appeals for the third circuit No. 13–983. Argued December 1, 2014—Decided June 1, 2015 After his wife left him, petitioner Anthony Douglas Elonis, under the pseudonym “Tone Dougie,” used the social networking Web siteFacebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights. Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him. When Elonis’s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring Elonis’s Face-book activity and eventually arrested him. He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis was convicted on four of the five counts and renewed his jury instruction challenge on appeal. The Third Circuit affirmed, holding that Section 875(c) requires only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. Held: The Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). . (a) Section 875(c) does not indicate whether the defendant must intend that the communication contain a threat, and the parties can show no indication of a particular mental state requirement in the statute’s text. Elonis claims that the word “threat,” by definition, conveys the intent to inflict harm. But common definitions of “threat” speak to what the statement conveys—not to the author’s mental state. The Government argues that the express “intent to extort” requirements in neighboring Sections 875(b) and (d) should preclude courts from implying an unexpressed “intent to threaten” requirement in Section 875(c). The most that can be concluded from such a comparison, however, is that Congress did not mean to confine Section 875(c) to crimes of extortion, not that it meant to exclude a mental state requirement. . (b) The Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such a requirement. Morissette v. United States, 342 U. S. 246 . This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id., at 252. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U. S. 250 . Thus, criminal statutes are generally interpreted “to include broadly applicable scienter requirements, even where the statute . . . does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64 . This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” Staples v. United States, 511 U. S. 600 , n. 3. Federal criminal statutes that are silent on the required mental state should be read to include “only that mens rea which is necessary to separate” wrongful from innocent conduct. Carter v. United States, 530 U. S. 255 . In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require . . . specific intent.” Ibid. . (c) The “presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513 U. S., at 72. In the context of Section 875(c), that requires proof that a communication was transmitted and that it contained a threat. And because “the crucial element separating legal innocence from wrongful conduct,” id., at 73, is the threatening nature of the communication, the mental state requirement must apply to the fact that the communication contains a threat. Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing,” Staples, 511 U. S., at 606–607. This Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U. S. 35 (Marshall, J., concurring). And the Government fails to show that the instructions in this case required more than a mental state of negligence. Hamling v. United States, 418 U. S. 87 , distinguished. Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court declines to address whether a mental state of recklessness would also suffice. Given the disposition here, it is unnecessary to consider any First Amendment issues. . 730 F. 3d. 321, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed a dissenting opinion.

Petitioner was convicted of violating 18 U.S. C. §875(c), which makes it a crime to transmit in interstate or foreign commerce "any communication containing any threat... to injure the person of another." An individual who uses the social networking site Facebook may post items on his page that are accessible to other users, including friends who are notified when new content is posted. The statute requires that a communication be transmitted and that the communication contain a threat, but does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether he must intend that his communication contain such a threat. Petitioner argues that the word threat itself in § 875(c) imposes such a requirement, since every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. He also contends that every definition that conveys such a state of mind conveys a mental state that a reasonable person would regard as a threat and should preclude courts from implying an unexpressed state of intent to threaten. The District Court denied his motion to dismiss the indictment for failing to allege that he had intended to threaten anyone, holding that the statute required only that he intentionally communicate a true threat. He was convicted and sentenced to three years, eight months' imprisonment, and three years' supervised release.Held: The judgment is reversed and the case is remanded for further proceedings consistent with the opinion of the Court of Appeals. ;. 730 F. 3d 321, reversed and remanded. THE CHIEF JUSTICE, concurring in the judgment, concluded that negligence is not sufficient to support a conviction under § 876(c). . (a) The fact that §875 (c) does not require that a defendant be aware of the threatening nature of the communication does not mean that none exists. Neither Elonis nor the Government has identified any indication of a particular mental state requirement in the statute. . (b) The most that can be concluded from the language of §875 (c)'s language and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875 but did not iden-tify what mental state, if any, a defendant must have to be convicted. This rule of construction reflects the basic principle that wrongdoing must be conscious to be criminal. That a defendant must be BLameworthy in mind before he can be found guilty is a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and proof of every crime. See, e.g., United States v. X-Citement Video, Inc., 513 U. S. 64, 70. In some cases, a general scienter requirement is also an adequate safeguard, since a defendant generally must know the facts that make his conduct fit the definition of the offense, and even if he does not know that the facts give rise to a crime, such knowledge is enough for liability. Here, however, the Government did not clarify confusion in the lower courts. There was and is no circuit conflict over the question whether recklessness suffices for liability under § 8 75(c); but, in declining to be the first appellate tribunal to do so, the prudence of this Court is insufficient to permit this Court to decline to consider any First Amendment issues. Moreover, the fact that negligence does not suffice to support the conviction is more than sufficient justification for declining to address the question Justice Alito and Justice Thomas would have us decide, post, at 2 (opinion of Alito, J.), for this Court. It is a sufficient summation of the question that, in the absence of a circuit conflict, the parties did not brief, and counsel addressed in only the most cursory fashion at oral argument. Pp. for Cert. 17. 730 F.3d 321 (CA3 2013) (CERTIORARI, J., dubitante) (CA 3 2013), reversed, remanded, and cause remanded). ALI J., concurring, in part and dissenting in part, and in opinion of Justice Thomas, in which he and his partner, both of whom, after oral argument, stated that a finding of recklessness would not be sufficient, did not address the issue until they had been briefed or argued by the Government. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990), and in the Court's disposition, it is not necessary to consider First Amendment questions. Petitioner 23, who challenges his conviction on the charge of threatening park patrons and employees, claims that the jury instructions should have been required to find that he

2014_14-86

https://www.oyez.org/cases/2014/14-86

. Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. I We summarize the facts in the light most favorable to the Equal Employment Opportunity Commission (EEOC), against whom the Tenth Circuit granted summary judgment. Respondent Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image. Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf’s headscarf would conflict with the store’s Look Policy. Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf. The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII. The District Court granted the EEOC summary judgment on the issue of liability, 798 F. Supp. 2d 1272 (ND Okla. 2011), held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie summary judgment. 731 F. 3d 1106 (2013). It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation. Id., at 1131. We granted certiorari. 573 U. S. ___ (2014). II Title VII of the Civil Rights Act of 1964 78Stat. 253, as amended, prohibits two categories of employment prac-tices. It is unlawful for an employer: “(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a). These two proscriptions, often referred to as the “disparate treatment” (or “intentional discrimination”) provision and the “disparate impact” provision, are the only causes of action under Title VII. The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j).[1] Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.[2] The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a headscarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice. The term “because of” appears frequently in antidiscrimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___ (2013). Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U. S. C. §2000e–2(m). “Because of” in §2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. It is significant that §2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reason-able accommodations to the known physical or mental limitations” of an applicant. §12112(b)(5)(A) (emphasis added). Title VII contains no such limitation. Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate-treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.[3] Abercrombie argues in the alternative that a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim. We think not. That might have been true if Congress had limited the meaning of “religion” in Title VII to religious belief—so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact. In fact, however, Congress defined “religion,” for Title VII’s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.” 42 U. S. C. §2000e(j). Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated. Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub-sequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutralpolicies to give way to the need for an accommodation. * * * The Tenth Circuit misinterpreted Title VII’s requirements in granting summary judgment. We reverse its judgment and remand the case for further consideration consistent with this opinion. It is so ordered.Notes 1 For brevity’s sake, we will in the balance of this opinion usuallyomit reference to the §2000e( j) “undue hardship” defense to the accom-modation requirement, discussing the requirement as though it is absolute. 2 The concurrence mysteriously concludes that it is not the plaintiff ’s burden to prove failure to accommodate. Post, at 5. But of course that is the plaintiff’s burden, if failure to hire “because of” the plaintiff’s “religious practice” is the gravamen of the complaint. Failing to hire for that reason is synonymous with refusing to accommodate the religious practice. To accuse the employer of the one is to accuse him of the other. If he is willing to “accommodate”—which means nothing more than allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary—adverse action “because of” the religious practice is not shown. “The clause that begins with the word ‘unless,’” as the concurrence describes it, ibid., has no function except to place upon the employer the burden of establishing an “undue hardship” defense. The concurrence provides no example, not even an unrealistic hypothetical one, of a claim of failure to hire because of religious practice that does not say the employer refused to permit (“failed to accommodate”) the religious practice. In the nature of things, there cannot be one. 3 While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.

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 . SUPREME COURT OF THE UNITED STATES Syllabus EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE & FITCH STORES, INC. certiorari to the united states court of appeals for the tenth circuit No. 14–86. Argued February 25, 2015—Decided June 1, 2015 Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf’s behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant’s religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation. Held: To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. . 731 F. 3d 1106, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in part and dissenting in part.

Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The only causes of action under Title VII are the two proscriptions: (1) to fail or refuse to hire any individual, or otherwise 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee. Title VII prohibits even making a protected characteristic a "motivating factor" in an employment decision. Respondent operates several clothing stores, each with its own style, and imposes a Look Policy that governs its employees' dress. The Look Policy prohibits a term that the Policy does not define as too informal for respondent's desired image. When an applicant for a position in one of respondent's stores was questioned by the store manager, the assistant manager informed the district manager that she believed the applicant wore her headscarf because of her faith. The district manager told the manager that her belief would violate the Look Policy, as would all other headwear, religious or otherwise, and directed the manager not to hire the applicant. The Equal Employment Opportunity Commission (EEOC) then sued respondent on the issue of liability, and the District Court granted summary judgment for the EEOC. The Court of Appeals reversed and awarded summary judgment to respondent, concluding that ordinarily an employer cannot be liable for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation. Held: The Tenth Circuit misinterpreted Title VII's requirements in granting summary judgment. . (a) Title VII contains no such limitation. Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor's knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for accommodation does not violate Title VII by refusing to hire applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate §12112(b)(5)(A) even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate religious practices is straightforward. An employer may not make an applicant's religious practice confirmed or otherwise a factor in employment decisions. If the applicant actually requires an accommodation of that religious practice and the employer desires to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. However, Title VII does not limit the treatment accorded disparate treatment to religious belief. Rather, it does not obligatively obligate employers to treat other practices that may not be favored in neutral contexts as well as those favored by neutral policies. Although neutral policies may make disparate treatment of religious practices less likely to be accommodated, they cannot limit them to less than neutral practices. Title VII requires otherwise-neutralpolicies to give way to accommodation. See, e.g., University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___. Here, the concurrence provides no example, not even an unrealistic hypothetical one, of a claim of failure to hire because of religious that does not say the employer refused to permit (failed to accommodate) the religious practice. While a knowledge requirement cannot be added to the motive requirement, it is arguable that that requirement itself is not met unless the employer at least suspects that the practice in question is religious. That issue is not presented in this case, since respondent knew (or at least suspected) that the scarf was worn for religious reasons. It seems to be inappropriate to resolve the unargued point by way of dictum. P.. 731 F. 3d 1106 (CA 10), reversed and remanded.

2014_13-1174

https://www.oyez.org/cases/2014/13-1174

. An unsuccessful litigant in a federal district court may take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].”28 U. S. C. §1291. The question here presented: Is the right to appeal secured by §1291 affected when a case is consolidated for pretrial proceedings in multidistrict litigation (or MDL) authorized by28 U. S. C. §1407? Petitioners Ellen Gelboim and Linda Zacher filed in the United States District Court for the Southern District of New York a class-action complaint raising a single claim. They alleged that a number of banks, acting in concert, had violated federal antitrust law. Their case was consolidated for pretrial proceedings together with some 60 other cases, commenced in different districts, raising “one or more common questions of fact,” §1407(a). The defendant banks, respondents here, moved to dismiss the Gelboim-Zacher complaint on the ground that the plaintiffs had suffered no antitrust injury. The District Court granted the motion, denied leave to amend the complaint, and dismissed the case in its entirety. Other cases made part of the multidistrict pretrial proceedings, however, presented discrete claims and remained before the District Court. The Court of Appeals for the Second Circuit, acting on its own motion, dismissed the appeal filed by Gelboim and Zacher for want of appellate jurisdiction. We reverse the Second Circuit’s judgment and hold that the Gelboim-Zacher complaint retained its independent status for purposes of appellate jurisdiction under §1291. Petitioners’ right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multidistrict proceedings in all of the consolidated cases.I Three legal prescriptions figure in this case: Title 28 U. S. C. §§1291 and 1407, and Federal Rule of Civil Procedure 54(b). Section 1291 gives the courts of appeals jurisdiction over appeals from “all final decisions of the district courts of the United States.” A “final decision” is one “by which a district court disassociates itself from a case.” Swint v. Chambers County Comm’n,514 U. S. 35,42 (1995). While decisions of this Court have accorded §1291 a “practical rather than a technical construction,” Mohawk Industries, Inc. v. Carpenter,558 U. S. 100,106 (2009) (quoting Cohen v. Beneficial Industrial Loan Corp.,337 U. S. 541,546 (1949)), the statute’s core application is to rulings that terminate an action, see Catlin v. United States,324 U. S. 229,233 (1945) (final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”). Rule 54(b) permits district courts to authorize immediate appeal of dispositive rulings on separate claims in a civil action raising multiple claims:“When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.”[1]Rule 54(b) relaxes “the former general practice that, in multiple claims actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them.” Sears, Roebuck & Co. v. Mackey,351 U. S. 427,434 (1956). The Federal Rules allow a plaintiff to “state [in one complaint] as many separate claims . . . as it has.” Rule 8(d)(3). Rule 54(b) was adopted in view of the breadth of the “civil action” the Rules allow, specifically “to avoid the possible injustice” of “delay[ing] judgment o[n] a distinctly separate claim [pending] adjudication of the entire case.” Report of Advisory Committee on Proposed Amendments to Rules of Civil Procedure 70 (1946) (explaining that Rule 54(b) was recast in 1946 to avoid confusion and misapplication); see Dickinson v. Petroleum Conversion Corp.,338 U. S. 507,511 (1950) (Rule 54(b) responded to liberalized joinder of claims and parties under the Federal Rules, which “increased the danger of hardship and denial of justice through delay if each issue must await the determination of all issues as to all parties before a final judgment can be had”). The Rule thus aimed to augment, not diminish, appeal opportunity. Section 1407 is of more recent vintage. Enacted in 1968 in response to a growing number of complex but related cases filed in multiple districts, §1407 authorizes the Judicial Panel on Multidistrict Litigation (JPML) to transfer civil actions “involving one or more common questions of fact . . . to any district for coordinated or consolidated pretrial proceedings” in order to “promote the just and efficient conduct of such actions.” §1407(a); see H. R. Rep. No. 1130, 90th Cong., 2d Sess., 2 (1968) (§1407 codified procedures used in the early 1960’s to resolve more than 1,800 separate actions filed against electrical equipment manufacturers in 33 District Courts, all of the actions seeking damages for antitrust law violations). Transfer under §1407 aims to “eliminate duplication in discovery, avoid conflicting rulings and schedules, reduce litigation cost, and save the time and effort of the parties, the attorneys, the witnesses, and the courts.” Manual for Complex Litigation §20.131, p. 220 (4th ed. 2004). “Each action” transferred pursuant to §1407, the provision instructs, “shall be remanded by the panel at or before the conclusion of . . . pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.” §1407(a).II The London InterBank Offered Rate (LIBOR) is a benchmark interest rate disseminated by the British Bankers’ Association based on the rate at which certain banks predict they can borrow funds. LIBOR is a reference point in determining interest rates for financial instruments in the United States and globally. In August 2011, the JPML established MDL No. 2262 (LIBOR MDL) for cases involving allegations that the banks named as defendants understated their borrowing costs, thereby depressing LIBOR and enabling the banks to pay lower interest rates on financial instruments sold to investors. In re Libor-Based Financial Instruments Antitrust Litigation, 802 F. Supp. 2d 1380 (JPML 2011). Composing the LIBOR MDL, over 60 actions, commenced in California, Illinois, Iowa, Kansas, Massachusetts, Minnesota, New Jersey, New York, Ohio, Pennsylvania, Texas, Virginia, and Wisconsin, were coordinated or consolidated for pretrial proceedings in the United States District Court for the Southern District of New York. In June 2012, the District Court entertained a motion to dismiss four categories of cases included in the MDL. The first three categories involved putative class actions, each with a single lead case: (1) the Gelboim-Zacher action, filed on behalf of purchasers of bonds with LIBOR-linked interest rates; (2) an action filed on behalf of purchasers of over-the-counter LIBOR-based instruments (OTC plaintiffs); (3) an action filed on behalf of purchasers of LIBOR-based instruments on exchanges (Exchange plaintiffs). The fourth category, not relevant here, comprised a set of individual actions filed by Charles Schwab Corporation and related entities. The Gelboim-Zacher complaint asserted a federal antitrust claim under §1 of the Sherman Act, 15 U. S. C. §1, and that claim only, while the complaints in the other actions asserted a federal antitrust claim in addition to other differently based federal and state claims. Determining that no plaintiff could assert a cognizable antitrust injury, the District Court granted the banks’ motion to dismiss plaintiffs’ antitrust claims—the sole claim raised in the Gelboim-Zacher complaint. Assuming that the Gelboim-Zacher plaintiffs were entitled to an immediate appeal of right under §1291 because their suit had been “dismissed in [its] entirety,” App. to Pet. for Cert. 219a, the District Court granted Rule 54(b) certifications to the OTC and Exchange plaintiffs authorizing them to appeal the dismissal of their antitrust claims while their other claims remained pending in the District Court. On its own initiative, the Second Circuit dismissed the Gelboim-Zacher appeal because the “orde[r] appealed from did not dispose of all claims in the consolidated action.” Id., at 2a.[2] The District Court thereafter withdrew its Rule 54(b) certifications in the OTC and Exchange plaintiffs’ actions and, “given the reaction of the Second Circuit,” App. 294, denied petitioners’ request for a Rule 54(b) certification. We granted review of the Second Circuit’s judgment dismissing the Gelboim-Zacher appeal. 573 U. S. ___ (2014). Before this Court, petitioners Gelboim and Zacher contend that the order dismissing their case in its entirety removed them from the consolidated proceeding, thereby triggering their right to appeal under §1291. Respondent banks urge that consolidated cases proceed as one unit for the duration of the consolidation. Consequently, they maintain, there is no appeal of right from an order dismissing fewer than all consolidated claims, thus the sole avenue for appeal while the consolidation continues is Rule 54(b). Agreeing with Gelboim and Zacher, we reverse the Court of Appeals’ judgment.III Cases consolidated for MDL pretrial proceedings ordinarily retain their separate identities,[3] so an order disposing of one of the discrete cases in its entirety should qual-ify under §1291 as an appealable final decision. Section 1407 refers to individual “actions” which may be transferred to a single district court, not to any monolithic multidistrict “action” created by transfer. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,523 U. S. 26,37 (1998) (§1407 does not “imbu[e] transferred actions with some new and distinctive . . . character”).[4] And Congress anticipated that, during the pendency of pretrial proceedings, final decisions might be rendered in one or more of the actions consolidated pursuant to §1407. It specified that “at or before the conclusion of . . . pretrial proceedings,” each of the transferred actions must be remanded to the originating district “unless [the action] shall have been previously terminated.” §1407(a) (emphasis added). The District Court’s order dismissing the Gelboim-Zacher complaint for lack of antitrust injury, without leave to amend, had the hallmarks of a final decision. Ruling on the merits of the case, the District Court completed its adjudication of petitioners’ complaint and terminated their action. As a result of the District Court’s disposition, petitioners are no longer participants in the consolidated proceedings. Nothing about the initial consolidation of their civil action with other cases in the LIBOR MDL renders the dismissal of their complaint in any way tentative or incomplete. As is ordinarily the case, the §1407 consolidation offered convenience for the parties and promoted efficient judicial administration, but did not meld the Gelboim-Zacher action and others in the MDL into a single unit. Cf. supra, at 6, n. 3.[5] The banks’ view that, in a §1407 consolidation, no appeal of right accrues until the consolidation ends would leave plaintiffs like Gelboim and Zacher in a quandary about the proper timing of their appeals. Under Federal Rule of Appellate Procedure 4, which this Court has called “jurisdictional,” Bowles v. Russell,551 U. S. 205,209 (2007), a notice of appeal in a civil case must be filed “within 30 days after entry of the judgment or order appealed from,” Rule 4(a)(1)(A). If plaintiffs whose actions have been dismissed with prejudice by a district court must await the termination of pretrial proceedings in all consolidated cases, what event or order would start the 30-day clock? When pretrial consolidation concludes, there may be no occasion for the entry of any judgment. Orders may issue returning cases to their originating courts,[6] but an order of that genre would not qualify as the dispositive ruling Gelboim and Zacher seek to overturn on appeal. And surely would-be appellants need not await final disposition of all cases in their originating districts, long after pretrial consolidation under §1407 could even arguably justify treating the cases as a judicial unit. The sensible solution to the appeal-clock trigger is evident: When the transferee court overseeing pretrial proceedings in multidistrict litigation grants a defendant’s dispositive motion “on all issues in some transferred cases, [those cases] become immediately appealable . . . while cases where other issues remain would not be appealable at that time.” D. Herr, Multidistrict Litigation Manual §9:21, p. 312 (2014). The banks express concern that plaintiffs with the weakest cases may be positioned to appeal because their complaint states only one claim, while plaintiffs with stronger cases will be unable to appeal simultaneously because they have other claims still pending. Brief for Respondents 46–47. Rule 54(b) attends to this concern. District courts may grant certifications under that Rule, thereby enabling plaintiffs in actions that have not been dismissed in their entirety to pursue immediate appellate review. That is just what happened in this very case. The District Court granted Rule 54(b) certifications to the OTC and Exchange plaintiffs so they could appeal at the same time Gelboim and Zacher could. See supra, at 5. And if the MDL court believes that further proceedings might be relevant to a claim a defendant moves to dismiss, the court ordinarily can defer ruling on the motion, thus allowing all plaintiffs to participate in the ongoing MDL proceedings. While Rule 54(b) can aid parties with multiple-claim complaints—here, the OTC and Exchange plaintiffs, supra, at 5—the Rule, properly read, is of no avail to Gelboim and Zacher. Rule 54(b) addresses orders finally adjudicating fewer than all claims presented in a civil action complaint. It “does not apply to a single claim action nor to a multiple claims action in which all of the claims have been finally decided.” Mackey, 351 U. S., at 435; see Liberty Mut. Ins. Co. v. Wetzel,424 U. S. 737–743 (1976) (Rule 54(b) inapplicable where “complaint advanced a single legal theory which was applied to only one set of facts”). In short, Rule 54(b) is designed to permit acceleration of appeals in multiple-claim cases, not to retard appeals in single-claim cases.[7] Section 1292(b), the banks conceded at argument, see Tr. of Oral Arg. 40–41, is inapposite here. It allows district courts to designate for review interlocutory orders “not otherwise appealable,” where immediate appeal “may materially advance the ultimate termination of the litigation.” §1292(b). The designation may be accepted or rejected in the discretion of the court of appeals. Ibid. See generally Solimine, Revitalizing Interlocutory Appeals in the Federal Courts, 58 Geo. Wash. L. Rev. 1165 (1990); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. §1292(b), 88 Harv. L. Rev. 607 (1975). It suffices to note that there is nothing “interlocutory” about the dismissal order in the Gelboim-Zacher action.* * * For the reasons stated, we reverse the judgment of the U. S. Court of Appeals for the Second Circuit deeming the District Court’s dismissal of the Gelboim-Zacher complaint unripe for appellate review, and we remand the case for further proceedings consistent with this opinion.It is so ordered.Notes1 Compare Rule 54(b), which lodges discretion to authorize appeals in district courts, with Federal Rule of Civil Procedure 23(f), which authorizes courts of appeals to permit an immediate appeal from a district court order granting or denying class-action certification.2 The Second Circuit “strong[ly] presum[es]” that a “judgment in a consolidated [proceeding] that does not dispose of all [consolidated] claims . . . is not appealable absent Rule 54(b) certification.” Hageman v. City Investing Co., 851 F. 2d 69, 71 (1988). In this regard, the Circuit does not differentiate between all-purpose consolidations, see ibid. (actions “could originally have been brought as one action” and there was “no indication that the cases were consolidated only for limited purposes”); Houbigant, Inc. v. IMG Fragrance Brands, LLC, 627 F. 3d 497, 498 (2010) (actions consolidated “for all purposes”), and, as this case illustrates, §1407 consolidations for pretrial proceedings only. The presumption may be overcome in “highly unusual circumstances,” Hageman, 851 F. 2d, at 71, but the Second Circuit has not elaborated on what those circumstances might be.3 Parties may elect to file a “master complaint” and a corresponding “consolidated answer,” which supersede prior individual pleadings. In such a case, the transferee court may treat the master pleadings as merging the discrete actions for the duration of the MDL pretrial proceedings. In re Refrigerant Compressors Antitrust Litigation, 731 F. 3d 586, 590–592 (CA6 2013). No merger occurs, however, when “the master complaint is not meant to be a pleading with legal effect but only an administrative summary of the claims brought by all the plaintiffs.” Id., at 590.4 We express no opinion on whether an order deciding one of multiple cases combined in an all-purpose consolidation qualifies under §1291 as a final decision appealable of right. See Brown v. United States, 976 F. 2d 1104, 1107 (CA7 1992) (cases consolidated for all purposes “become a single judicial unit,” but where the consolidation is for limited purposes only, “a decision disposing of all the claims in only one of the cases is a final decision subject to immediate appeal”).5 In delineating the narrow scope of the “collateral-order” doctrine, we have cautioned against permitting piecemeal, prejudgment appeals. Those admonitions, cited by the banks, Brief for Respondents 18–19, are not pertinent here. Under the collateral order doctrine, an order may be deemed “final” if it disposes of a matter “separable from, and collateral to” the merits of the main proceeding, “too important to be denied review,” and “too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp.,337 U. S. 541,546 (1949). The order dismissing the Gelboim-Zacher complaint in its entirety was in no sense “collateral,” i.e., “independent of the cause itself.” Scarcely a prejudgment ruling, the dismissal order left nothing still pending decision in the District Court.6 In fact, “[f]ew cases [consolidated pursuant to §1407] are remanded for trial; most multidistrict litigation is settled in the transferee court.” Manual for Complex Litigation §20.132, p. 223 (4th ed. 2004).7 We need not decide whether or how Rule 54(b) applies to cases consolidated for all purposes involving closely related issues, actions that could have been brought under the umbrella of one complaint. Cf. supra, at 7, n. 4. The Rule surely was not designed to apply to numerous actions that the MDL panel combines for efficient pretrial proceedings because they have in common “one or more questions of fact,” but otherwise vary in character.

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 gelboim et al. v. bank of america corp. et al. certiorari to the united states court of appeals for the second circuit No. 13–1174. Argued December 9, 2014—Decided January 21, 2015 Three legal prescriptions figure in this case. Title 28 U. S. C. §1291 gives the courts of appeals jurisdiction over appeals from “all final decisions of the district courts of the United States,” and its core application is to rulings that terminate an action. Federal Rule of Civil Procedure 54(b) permits district courts to authorize immediate appeal of dispositive rulings on separate claims in a civil action raising multiple claims. And 28 U. S. C. §1407 authorizes the Judicial Panel on Multidistrict Litigation (JPML) to transfer civil actions “involving one or more common questions of fact . . . to any district for coordinated or consolidated pretrial proceedings” in order to “promote the just and efficient conduct of such actions,” §1407(a). The London InterBank Offered Rate (LIBOR) is a reference point in determining interest rates for financial instruments in the United States and globally. The JPML established a multidistrict litigation (LIBOR MDL) for cases involving allegations that defendant-banks understated their borrowing costs, thereby depressing LIBOR and enabling the banks to pay lower interest rates on financial instruments sold to investors. Over 60 actions were consolidated for pretrial proceedings in the U. S. District Court for the Southern District of New York, including a class action filed by petitioners Ellen Gelboim and Linda Zacher, who raised the single claim that several banks, acting in concert, had violated federal antitrust law. Determining that no plaintiff could assert a cognizable antitrust injury, the District Court granted the banks’ motion to dismiss all antitrust claims, including the Gelboim-Zacher complaint’s sole claim. The District Court thus dismissed the Gelboim-Zacher complaint, denied leave to amend, and dismissed the case in its entirety. Other cases made part of the LIBOR MDL, however, presented discrete claims which remained before the District Court. Assuming that the Gelboim-Zacher plaintiffs were entitled to an immediate appeal of right under §1291, the District Court granted Rule 54(b) certifications authorizing the plaintiffs in some of the multiple-claim actions to appeal the dismissal of their antitrust claims while their other claims remained pending in the District Court. On its own initiative, the Second Circuit dismissed the Gelboim-Zacher appeal because the order appealed from did not dispose of all of the claims in the consolidated action. The District Court thereafter withdrew its Rule 54(b) certifications. Held: The order dismissing their case in its entirety removed Gelboim and Zacher from the consolidated proceeding, thereby triggering their right to appeal under §1291. Because cases consolidated for MDL pretrial proceedings ordinarily retain their separate identities, an order disposing of one of the discrete cases in its entirety should qualify under §1291 as an appealable final decision. Section 1407 refers to individual “actions” transferrable to a single district court, not to a monolithic multidistrict “action” created by transfer. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37. And §1407(a)’s language—“at or before the conclusion of . . . pretrial proceedings,” each transferred action must be remanded to the originating district “unless [the action] shall have been previously terminated”—indicates Congress’ anticipation that, during the pendency of pretrial proceedings, final decisions might be rendered in one or more of the actions consolidated pursuant to §1407. The District Court’s order dismissing the Gelboim-Zacher complaint was a final decision. The District Court completed its adjudication of petitioners’ complaint and terminated their action. Petitioners thus are no longer participants in the consolidated proceedings. Nothing about the initial consolidation of their civil action with other LIBOR MDL cases renders the dismissal of their complaint tentative or incomplete. To hold, as the banks contend, that no appeal of right accrues until a §1407 consolidation ends would leave plaintiffs like Gelboim and Zacher in a quandary about the event that triggers the 30-day period for taking an appeal. The sensible solution to the appeal-clock trigger is to allow an immediate appeal in a case such as this, where the transferee court in an MDL grants a defendant’s dispositive motion on every claim (or the sole claim) in a transferred case. The banks are also concerned about allowing plaintiffs with the weakest cases to appeal because their complaint states only one claim, while leaving those with stronger cases unable to appeal simultaneously because they have other pending claims. But that concern is attended to by Rule 54(b), which authorizes district courts to grant certifications to parties with multiple-claim complaints, thereby enabling plaintiffs in actions that have not been dismissed in their entirety to pursue immediate appellate review of discrete claims. The District Court did that in this very case. Rule 54(b), however, is of no avail to Gelboim and Zacher, who asserted only one claim. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435. Section 1292(b)—which allows district courts to designate for review certain interlocutory orders—is also inapposite here, for there is nothing “interlocutory” about the dismissal order in the Gelboim-Zacher action. . Reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.

Title 28 U.S. C. §§1291 and 1407 authorize district courts to authorize immediate appeal of dispositive rulings on separate claims in a civil action raising multiple claims. Rule 54(b) of the Federal Rules of Civil Procedure permits such an appeal when an action presents more than one claim for relief, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Respondent banks moved to dismiss the Gelboim-Zacher complaint on the ground that the plaintiffs had suffered no antitrust injury. The District Court granted the motion, denied leave to amend the complaint, and dismissed the case in its entirety. Other cases made part of the multidistrict pretrial proceedings, however, presented discrete claims and remained before the District Court, and the Court of Appeals dismissed the appeal for want of appellate jurisdiction. Held: The complaint retained its independent status for purposes of the appellate jurisdiction under §1291. . (a) The three legal prescriptions that figure in this case are: (1) Title 27 U. S.C. §§ 1291 and1407, which authorize courts of appeals jurisdiction over appeals from "all final decisions of the district courts of the United States"; (2) Federal Rule of Civ. Crim. 54 (b), which relaxes the former general practice that, in multiple claims actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them; and (3) Rule 54, which permits district courts, in a consolidated proceeding, to direct entry of a final judgment as to one or more, but not more, claims only, if the Court expressly determines there is a just cause for delay, and (4) the collateral order doctrine, which, under which an order may be deemed "final" if it disposes of a matterseparable from, and collateral to, the merits of the main proceeding, is not applicable to a single claim action nor to a multiple claims action in which all of the claims have been finally decided. Thus, an order disposing of one of the discrete cases in question should qual-ify under § 1291 as an appealable final decision. Pp. (b] In a §1407 consolidation, no appeal of right accrues until the consolidation ends, and thus the sole avenue for appeal while the consolidation continues is not affected when the case is consolidated for the pretrial pretrial proceeding. There is nothing "interlocutory" about the dismissal order in the case. Accordingly, the judgment is reversed and the case remanded for further proceedings consistent with this opinion. 851 F.2d 69, reversed and remanded. REHNQUISTICA, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I, II, III, and IV of which STEWART and O'CONNOR, joined in Part II.

2014_14-7955

https://www.oyez.org/cases/2014/14-7955

. Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U. S. C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy. For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees, 553 U. S. 35, 61 (2008) (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain. I A The death penalty was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights. In that era, death sentences were usually carried out by hanging. The Death Penalty in America: Current Controversies 4 (H. Bedau ed. 1997). Hanging remained the standard method of execution through much of the 19th century, but that began to change in the century’s later years. See Baze, supra, at 41–42. In the 1880’s, the Legislature of the State of New York appointed a commission to find “ ‘the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.’ ” In re Kemmler, 136 U. S. 436, 444 (1890) . The commission recommended electrocution, and in 1888, the Legislature enacted a law providing for this method of execution. Id., at 444–445. In subsequent years, other States followed New York’s lead in the “ ‘belief that electrocution is less painful and more humane than hanging.’ ” Baze, 553 U. S., at 42 (quoting Malloy v. South Carolina, 237 U. S. 180, 185 (1915) ). In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concluding that this was “the most humane manner known to modern science.” State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The Nevada Supreme Court rejected the argument that the use of lethal gas was unconstitutional, id., at 435–437, 211 P., at 681–682, and other States followed Nevada’s lead, see, e.g., Ariz. Const., Art. XXII, §22 (1933); 1937 Cal. Stats. ch. 172, §1; 1933 Colo. Sess. Laws ch. 61, §1; 1955 Md. Laws ch. 625, §1, p. 1017; 1937 Mo. Laws p. 222, §1. Nevertheless, hanging and the firing squad were retained in some States, see, e.g., 1961 Del. Laws ch. 309, §2 (hanging); 1935 Kan. Sess. Laws ch. 155, §1 (hanging); Utah Code Crim. Proc. §105–37–16 (1933) (hanging or firing squad), and electrocution remained the predominant method of execution until the 9-year hiatus in executions that ended with our judgment in Gregg v. Georgia, 428 U. S. 153 (1976) . See Baze, supra, at 42. After Gregg reaffirmed that the death penalty does not violate the Constitution, some States once again sought a more humane way to carry out death sentences. They eventually adopted lethal injection, which today is “by far the most prevalent method of execution in the United States.” Baze, supra, at 42. Oklahoma adopted lethal injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it eventually settled on a protocol that called for the use of three drugs: (1) sodium thiopental, “a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection,” (2) a paralytic agent, which “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration,” and (3) potassium chloride, which “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze, supra, at 44; see also Brief for Respondents 9. By 2008, at least 30 of the 36 States that used lethal injection employed that particular three-drug protocol. 553 U. S., at 44. While methods of execution have changed over the years, “[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Id., at 48. In Wilkerson v. Utah, 99 U. S. 130 –135 (1879), the Court upheld a sentence of death by firing squad. In In re Kemmler, supra, at 447–449, the Court rejected a challenge to the use of the electric chair. And the Court did not retreat from that holding even when presented with a case in which a State’s initial attempt to execute a pris-oner by electrocution was unsuccessful. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 –464 (1947) (plurality opinion). Most recently, in Baze, supra, seven Justices agreed that the three-drug protocol just discussed does not violate the Eighth Amendment. Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. Ibid. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether. B Baze cleared any legal obstacle to use of the most common three-drug protocol that had enabled States to carry out the death penalty in a quick and painless fashion. But a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences. The sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. After suspending domestic production in 2009, the company planned to resume production in Italy. Koppel, Execution Drug Halt Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011, p. A6. Activists then pressured both the company and the Italian Government to stop the sale of sodium thiopental for use in lethal injections in this country. Bonner, Letter from Europe: Drug Company in Cross Hairs of Death Penalty Opponents, N. Y. Times, Mar. 30, 2011; Koppel, Drug Halt Hinders Executions in the U. S., Wall Street Journal, Jan. 22, 2011, p. A1. That effort proved successful, and in January 2011, the company announced that it would exit the sodium thiopental market entirely. See Hospira, Press Release, Hospira Statement Regarding PentothalTM (sodium thiopental) Market Exit (Jan. 21, 2011). After other efforts to procure sodium thiopental proved unsuccessful, States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital, another barbiturate. In December 2010, Oklahoma became the first State to execute an inmate using pentobarbital. See Reuters, Chicago Tribune, New Drug Mix Used in Oklahoma Execution, Dec. 17 2010, p. 41. That execution occurred without incident, and States gradually shifted to pentobarbital as their supplies of sodium thiopentalran out. It is reported that pentobarbital was used in all of the 43 executions carried out in 2012. The Death Penalty Institute, Execution List 2012, online at www.deathpenaltyinfo.org/execution-list-2012 (all Internet materials as visited June 26, 2015, and available in Clerk of Court’s case file). Petitioners concede that pentobarbital, like sodium thiopental, can “reliably induce and maintain a comalike state that renders a person insensate to pain” caused by administration of the second and third drugs in the protocol. Brief for Petitioners 2. And courts across the country have held that the use of pentobarbital in executions does not violate the Eighth Amendment. See, e.g., Jackson v. Danberg, 656 F. 3d 157 (CA3 2011); Beaty v. Brewer, 649 F. 3d 1071 (CA9 2011); DeYoung v. Owens, 646 F. 3d 1319 (CA11 2011); Pavatt v. Jones, 627 F. 3d 1336 (CA10 2010). Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug to stop selling it for use in executions. See Bonner, supra. That manufacturer opposed the death penalty and took steps to block the shipment of pentobarbital for use in executions in the United States. Stein, New Obstacle to Death Penalty in U. S., Washington Post, July 3, 2011, p. A4. Oklahoma eventually became unable to acquire the drug through any means. The District Court below found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma. App. 67–68. C Unable to acquire either sodium thiopental or pentobarbital, some States have turned to midazolam, a sedative in the benzodiazepine family of drugs. In October 2013, Florida became the first State to substitute midazolam for pentobarbital as part of a three-drug lethal injection protocol. Fernandez, Executions Stall As States Seek Different Drugs, N. Y. Times, Nov. 9, 2013, p. A1. To date, Florida has conducted 11 executions using that protocol, which calls for midazolam followed by a paralytic agent and potassium chloride. See Brief for State of Florida as Amicus Curiae 2–3; Chavez v. Florida SP Warden, 742 F. 3d 1267, 1269 (CA11 2014). In 2014, Oklahoma also substituted midazolam for pentobarbital as part of its three-drug protocol. Oklahoma has already used this three-drug protocol twice: to execute Clayton Lockett in April 2014 and Charles Warner in January 2015. (Warner was one of the four inmates who moved for a preliminary injunction in this case.) The Lockett execution caused Oklahoma to implement new safety precautions as part of its lethal injection protocol. When Oklahoma executed Lockett, its protocol called for the administration of 100 milligrams of midazolam, as compared to the 500 milligrams that are currently required. On the morning of his execution, Lockett cut himself twice at “ ‘the bend of the elbow.’ ” App. 50. That evening, the execution team spent nearly an hour making at least one dozen attempts to establish intravenous (IV) access to Lockett’s cardiovascular system, including at his arms and elsewhere on his body. The team eventually believed that it had established intravenous access through Lockett’s right femoral vein, and it covered the injection access point with a sheet, in part to preserve Lockett’s dignity during the execution. After the team administered the midazolam and a physician determined that Lockett was unconscious, the team next administered the paralytic agent (vecuronium bromide) and most of the potassium chloride. Lockett began to move and speak, at which point the physician lifted the sheet and determined that the IV had “infiltrated,” which means that “the IV fluid, rather than entering Lockett’s blood stream, had leaked into the tissue surrounding the IV access point.” Warner v. Gross, 776 F. 3d 721, 725 (CA10 2015) (case below). The execution team stopped administering the remaining potassium chloride and terminated the execution about 33 minutes after the midazolam was first injected. About 10 minutes later, Lockett was pronounced dead. An investigation into the Lockett execution concluded that “the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs.” App. 398. The investigation, which took five months to complete, recommended several changes to Oklahoma’s execution protocol, and Oklahoma adopted a new protocol with an effective date of September 30, 2014. That protocol allows the Oklahoma Department of Corrections to choose among four different drug combinations. The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralytic agent and potassium chloride.[1] The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case. The protocol also includes procedural safeguards to help ensure that an inmate remains insensate to any pain caused by the administration of the paralytic agent and potassium chloride. Those safeguards include: (1) the insertion of both a primary and backup IV catheter, (2) procedures to confirm the viability of the IV site, (3) the option to postpone an execution if viable IV sites cannot be established within an hour, (4) a mandatory pause between administration of the first and second drugs, (5) numerous procedures for monitoring the offender’s consciousness, including the use of an electrocardiograph and direct observation, and (6) detailed provisions with respect to the training and preparation of the execution team. In January of this year, Oklahoma executed Warner using these revised procedures and the combination of midazolam, a paralytic agent, and potassium chloride. II A In June 2014, after Oklahoma switched from pentobarbital to midazolam and executed Lockett, 21 Oklahoma death row inmates filed an action under 42 U. S. C. §1983 challenging the State’s new lethal injection protocol. The complaint alleged that Oklahoma’s use of midazolam violates the Eighth Amendment’s prohibition of cruel and unusual punishment. In November 2014, four of those plaintiffs—Richard Glossip, Benjamin Cole, John Grant, and Warner—filed a motion for a preliminary injunction. All four men had been convicted of murder and sentenced to death by Oklahoma juries. Glossip hired Justin Sneed to kill his employer, Barry Van Treese. Sneed entered a room where Van Treese was sleeping and beat him to death with a baseball bat. See Glossip v. State, 2007 OK CR 12, 157 P. 3d 143, 147–149. Cole murdered his 9-month-old daughter after she would not stop crying. Cole bent her body backwards until he snapped her spine in half. After the child died, Cole played video games. See Cole v. State, 2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant, while serving terms of imprisonment totaling 130 years, killed Gay Carter, a prison food service supervisor, by pulling her into a mop closet and stabbing her numerous times with a shank. See Grant v. State, 2002 OK CR 36, 58 P. 3d 783, 789. Warner anally raped and murdered an 11-month-old girl. The child’s injuries included two skull fractures, internal brain injuries, two fractures to her jaw, a lacerated liver, and a bruised spleen and lungs. See Warner v. State, 2006 OK CR 40, 144 P. 3d 838, 856–857. The Oklahoma Court of Criminal Appeals affirmed the murder conviction and death sentence of each offender. Each of the men then unsuccessfully sought both state postconviction and federal habeas corpus relief. Having exhausted the avenues for challenging their convictions and sentences, they moved for a preliminary injunction against Oklahoma’s lethal injection protocol. B In December 2014, after discovery, the District Court held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court heard testimony from 17 witnesses and reviewed numerous exhibits. Dr. David Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy, provided expert testimony about midazolam for petitioners, and Dr. Roswell Evans, adoctor of pharmacy, provided expert testimony forrespondents. After reviewing the evidence, the District Court issued an oral ruling denying the motion for a preliminary injunction. The District Court first rejected petitioners’ challenge under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) , to the testimony of Dr. Evans. It concluded that Dr. Evans, the Dean of Auburn University’s School of Pharmacy, was well qualified to testify about midazolam’s properties and that he offered reliable testimony. The District Court then held that petitioners failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. The court provided two independent reasons for this conclusion. First, the court held that petitioners failed to identify a known and available method of execution that presented a substantially less severe risk of pain than the method that the State proposed to use. Second, the court found that petitioners failed to prove that Oklahoma’s protocol “presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’ amounting to ‘an objectively intolerable risk of harm.’ ” App. 96 (quoting Baze, 553 U. S., at 50). The court emphasized that the Oklahoma protocol featured numerous safeguards, including the establishment of two IV access sites, confirmation of the viability of those sites, and monitoring of the offender’s level of consciousness throughout the procedure. The District Court supported its decision with findings of fact about midazolam. It found that a 500-milligram dose of midazolam “would make it a virtual certainty that any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” App. 77. Indeed, it found that a 500-milligram dose alone would likely cause death by respiratory arrest within 30 minutes or an hour. The Court of Appeals for the Tenth Circuit affirmed. 776 F. 3d 721. The Court of Appeals explained that our decision in Baze requires a plaintiff challenging a lethal injection protocol to demonstrate that the risk of severe pain presented by an execution protocol is substantial “ ‘when compared to the known and available alternatives.’ ” Id., at 732 (quoting Baze, supra, at 61). And it agreed with the District Court that petitioners had not identified any such alternative. The Court of Appeals added, however, that this holding was “not outcome-determinative in this case” because petitioners additionally failed to establish that the use of midazolam creates a demonstrated risk of severe pain. 776 F. 3d, at 732. The Court of Appeals found that the District Court did not abuse its discretion by relying on Dr. Evans’ testimony, and it concluded that the District Court’s factual findings about midazolam were not clearly erroneous. It also held that alleged errors in Dr. Evans’ testimony did not render his testimony unreliable or the District Court’s findings clearly erroneous. Oklahoma executed Warner on January 15, 2015, but we subsequently voted to grant review and then stayed the executions of Glossip, Cole, and Grant pending the resolution of this case. 574 U. S. ___ (2015). III “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008) . The parties agree that this case turns on whether petitioners are able to establish a likelihood of success on the merits. The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. Baze involved a challenge by Kentucky death row inmates to that State’s three-drug lethal injection protocol of sodium thiopental, pancuronium bromide, and potassium chloride. The inmates conceded that the protocol, if properly administered, would result in a humane and constitutional execution because sodium thiopental would render an inmate oblivious to any pain caused by the second and third drugs. 553 U. S., at 49. But they argued that there was an unacceptable risk that sodium thiopental would not be properly administered. Ibid. The inmates also maintained that a significant risk of harm could be eliminated if Kentucky adopted a one-drug protocol and additional monitoring by trained personnel. Id., at 51. The controlling opinion in Baze first concluded that prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is “ ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id., at 50 (quoting Helling v. McKinney, 509 U. S. 25 –35 (1993)). To prevail on such a claim, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ ” 553 U. S., at 50 (quoting Farmer v. Brennan, 511 U. S. 825 , and n. 9 (1994)). The controlling opinion also stated that prisoners “cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.” 553 U. S., at 51. Instead, prisoners must identify an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id., at 52. The controlling opinion summarized the requirements of an Eighth Amendment method-of-execution claim as follows: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. [And] [h]e must show that the risk is substantial when compared to the known and available alternatives.” Id., at 61. The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives. The challenge in Baze failed both because the Kentucky inmates did not show that the risks they identified were substantial and imminent, id., at 56, and because they did not establish the existence of a known and available alternative method of execution that would entail a significantly less severe risk, id., at 57–60. Petitioners’ argumentshere fail for similar reasons. First, petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution. Second, they have failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering. We address each reason in turn. IV Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so. Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.[2] Petitioners contend that the requirement to identify an alternative method of execution contravenes our pre-Baze decision in Hill v. McDonough, 547 U. S. 573 (2006) , but they misread that decision. The portion of the opinion in Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In Hill, the issue was whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under §1983. Id., at 576. We held that a method-of-execution claim must be brought under §1983 because such a claim does not attack the validity of the prisoner’s conviction or death sentence. Id., at 579–580. The United States as amicus curiae argued that we should adopt a special pleading requirement to stop inmates from using §1983 actions to attack, not just a particular means of execution, but the death penalty itself. To achieve this end, the United States proposed that an inmate asserting a method-of-execution claim should be required to plead an acceptable alternative method of execution. Id., at 582. We rejected that argument because “[s]pecific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts.” Ibid. Hill thus held that §1983 alone does not impose a heightened pleading requirement. Baze, on the other hand, addressed the substantive elements of an Eighth Amendment method-of-execution claim, and it made clear that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative. Because petitioners failed to do this, the District Court properly held that they did not establish a likelihood of success on their Eighth Amendment claim. Readers can judge for themselves how much distance there is between the principal dissent’s argument against requiring prisoners to identify an alternative and the view, now announced by Justices Breyer and Ginsburg, that the death penalty is categorically unconstitutional. Post, p. ___ (Breyer, J., dissenting). The principal dissent goes out of its way to suggest that a State would violate the Eighth Amendment if it used one of the methods of execution employed before the advent of lethal injection. Post, at 30–31. And the principal dissent makes this suggestion even though the Court held in Wilkerson that this method (the firing squad) is constitutional and even though, in the words of the principal dissent, “there is some reason to think that it is relatively quick and painless.” Post, at 30. Tellingly silent about the methods of execution most commonly used before States switched to lethal injection (the electric chair and gas chamber), the principal dissent implies that it would be unconstitutional to use a method that “could be seen as a devolution to a more primitive era.” Ibid. If States cannot return to any of the “more primitive” methods used in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear. But we have time and again reaffirmed that capital punishment is not per se unconstitutional. See, e.g., Baze, 553 U. S., at 47; id., at 87–88 (Scalia, J., concurring in judgment); Gregg, 428 U. S., at 187 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 226 (White, J., concurring in judgment); Resweber, 329 U. S., at 464; In re Kemmler, 136 U. S., at 447; Wilkerson, 99 U. S., at 134–135. We decline to effectively overrule these decisions. V We also affirm for a second reason: The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution. We emphasize four points at the outset of our analysis. First, we review the District Court’s factual findings under the deferential “clear error” standard. This standard does not entitle us to overturn a finding “simply because [we are] convinced that [we] would have decided the case differently.” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) . Second, petitioners bear the burden of persuasion on this issue. Baze, supra, at 41. Although petitionersexpend great effort attacking peripheral aspects of Dr. Evans’ testimony, they make little attempt to prove what is critical, i.e., that the evidence they presented to the District Court establishes that the use of midazolam is sure or very likely to result in needless suffering. Third, numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride. See, e.g., 776 F. 3d 721 (case below affirming the District Court); Chavez v. Florida SP Warden, 742 F. 3d 1267 (affirming the District Court); Banks v. State, 150 So. 3d 797 (Fla. 2014) (affirming the lower court); Howell v. State, 133 So. 3d 511 (Fla. 2014) (same); Muhammad v. State, 132 So. 3d 176 (Fla. 2013) (same). (It is noteworthy that one or both of the two key witnesses in this case—Dr. Lubarsky for petitioners and Dr. Evans for respondents—were witnesses in the Chavez, Howell, and Muhammad cases.) “Where an intermediate court reviews, and affirms, a trial court’s factual findings, this Court will not ‘lightly overturn’ the concurrent findings of the two lower courts.” Easley v. Cromartie, 532 U. S. 234, 242 (2001) . Our review is even more deferential where, as here, multiple trial courts have reached the same finding, and multiple appellate courts have affirmed those findings. Cf. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 841 (1996) (explaining that this Court “ ‘cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error’ ” (quoting Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949) )). Fourth, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts. Although we must invalidate a lethal injection protocol if it violates the Eighth Amendment, federal courts should not “embroil [themselves] in ongoing scientific controversies beyond their expertise.” Baze, supra, at 51. Accordingly, an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain. A Petitioners attack the District Court’s findings of fact on two main grounds.[3] First, they argue that even if midazolam is powerful enough to induce unconsciousness, it is too weak to maintain unconsciousness and insensitivity to pain once the second and third drugs are administered. Second, while conceding that the 500-milligram dose of midazolam is much higher than the normal therapeutic dose, they contend that this fact is irrelevant because midazolam has a “ceiling effect”—that is, at a certain point, an increase in the dose administered will not have any greater effect on the inmate. Neither argumentsucceeds. The District Court found that midazolam is capable of placing a person “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” App. 77. This conclusion was not clearly erroneous. Respondents’ expert, Dr. Evans, testified that the proper administration of a 500-milligram dose of midazolam would make it “a virtual certainty” that any individual would be “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from application of the 2nd and 3rd drugs” used in the Oklahoma protocol. Id., at 302; see also id., at 322. And petitioners’ experts acknowledged that they had no contrary scientific proof. See id., at 243–244 (Dr. Sasich stating that the ability of midazolam to render a person insensate to the second and third drugs “has not been subjected to scientific testing”); id., at 176 (Dr. Lubarksy stating that “there is no scientific literature addressing the use of midazolam as a manner to administer lethal injections in humans”). In an effort to explain this dearth of evidence, Dr. Sasich testified that “[i]t’s not my responsibility or the [Food and Drug Administration’s] responsibility to prove that the drug doesn’t work or is not safe.” Tr. of Preliminary Injunction Hearing 357 (Tr.). Instead, he stated, “it’s the responsibility of the proponent to show that the drug is safe and effective.” Ibid. Dr. Sasich confused the standard imposed on a drug manufacturer seeking approval of a therapeutic drug with the standard that must be borne by a party challenging a State’s lethal injection protocol. When a method of execution is authorized under state law, a party contending that this method violates the Eighth Amendment bears the burden of showing that the method creates an unacceptable risk of pain. Here, petitioners’ own experts effectively conceded that they lacked evidence to prove their case beyond dispute. Petitioners attempt to avoid this deficiency by criticizing respondents’ expert. They argue that the District Court should not have credited Dr. Evans’ testimony because he admitted that his findings were based on “ ‘extrapolat[ions]’ ” from studies done about much lower therapeutic doses of midazolam. See Brief for Petitioners 34 (citing Tr. 667–668; emphasis deleted). But because a 500-milligram dose is never administered for a therapeutic purpose, extrapolation was reasonable. And the conclusions of petitioners’ experts were also based on extrapolations and assumptions. For example, Dr. Lubarsky relied on “extrapolation of the ceiling effect data.” App. 177. Based on the evidence that the parties presented to the District Court, we must affirm. Testimony from both sides supports the District Court’s conclusion that midazolam can render a person insensate to pain. Dr. Evans testified that although midazolam is not an analgesic, it can nonetheless “render the person unconscious and ‘insensate’ during the remainder of the procedure.” Id., at 294. In his discussion about the ceiling effect, Dr. Sasich agreed that as the dose of midazolam increases, it is “expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” Id., at 243. Petitioners argue that midazolam is not powerful enough to keep a person insensate to pain after the administration of the second and third drugs, but Dr. Evans presented creditable testimony to the contrary. See, e.g., Tr. 661 (testifying that a 500-milligram dose of midazolam will induce a coma).[4] Indeed, low doses of midazolam are sufficient to induce unconsciousness and are even some- times used as the sole relevant drug in certain medical procedures. Dr. Sasich conceded, for example, that midazolam might be used for medical procedures like colonoscopies and gastroscopies. App. 267–268; see also Brief for Respondents 6–8.[5] Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery, but there are two reasons why this is not dispositive. First, as the District Court found, the 500-milligram dose at issue here “is many times higher than a normal therapeutic dose of midazolam.” App. 76. The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution. We recognized this point in Baze, where we concluded that although the medical standard of care might require the use of a blood pressure cuff and an electrocardiogram during surgeries, this does not mean those procedures are required for an execution to pass Eighth Amendment scrutiny. 553 U. S., at 60. Oklahoma has also adopted important safeguards to ensure that midazolam is properly administered. The District Court emphasized three requirements in particular: The execution team must secure both a primary and backup IV access site, it must confirm the viability of the IV sites, and it must continuously monitor the offender’s level of consciousness. The District Court did not commit clear error in concluding that these safeguards help to minimize any risk that might occur in the event that midazolam does not operate as intended. Indeed, we concluded in Baze that many of the safeguards that Oklahoma employs—including the establishment of a primary and backup IV and the presence of personnel to monitor an inmate—help in significantly reducing the risk that an execution protocol will violate the Eighth Amendment. Id., at 55–56. And many other safeguards that Oklahoma has adopted mirror those that the dissent in Baze complained were absent from Kentucky’s protocol in that case. For example, the dissent argued that because a consciousness check before injection of the second drug “can reduce a risk of dreadful pain,” Kentucky’s failure to include that step in its procedure was unconstitutional. Id., at 119 (opinion of Ginsburg, J.). The dissent also complained that Kentucky did not monitor the effectiveness of the first drug or pause between injection of the first and second drugs. Id., at 120–121. Oklahoma has accommodated each of those concerns. B Petitioners assert that midazolam’s “ceiling effect” undermines the District Court’s finding about the effectiveness of the huge dose administered in the Oklahoma protocol. Petitioners argue that midazolam has a “ceiling” above which any increase in dosage produces no effect. As a result, they maintain, it is wrong to assume that a 500-milligram dose has a much greater effect than a therapeutic dose of about 5 milligrams. But the mere fact that midazolam has such a ceiling cannot be dispositive. Dr. Sasich testified that “all drugs essentially have a ceiling effect.” Tr. 343. The relevant question here is whether midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners provided little probative evidence on this point, and the speculative evidence that they did present to the District Court does not come close to establishing that its factual findings were clearly erroneous. Dr. Sasich stated in his expert report that the literature “indicates” that midazolam has a ceiling effect, but he conceded that he “was unable to determine the midazolam dose for a ceiling effect on unconsciousness because there is no literature in which such testing has been done.” App. 243–244. Dr. Lubarsky’s report was similar, id., at 171–172, and the testimony of petitioners’ experts at the hearing was no more compelling. Dr. Sasich frankly admitted that he did a “search to try and determine at what dose of midazolam you would get a ceiling effect,” but concluded: “I could not find one.” Tr. 344. The closest petitioners came was Dr. Lubarsky’s suggestion that the ceiling effect occurs “[p]robably after about . . . 40 to 50 milligrams,” but he added that he had not actually done the relevant calculations, and he admitted: “I can’t tell you right now” at what dose the ceiling effect occurs. App. 225. We cannot conclude that the District Court committed clear error in declining to find, based on such speculative evidence, that the ceiling effect negates midazolam’s ability to render an inmate insensate to pain caused by the second and third drugs in the protocol. The principal dissent discusses the ceiling effect at length, but it studiously avoids suggesting that petitioners presented probative evidence about the dose at which the ceiling effect occurs or about whether the effect occurs before a person becomes insensate to pain. The principal dissent avoids these critical issues by suggesting that such evidence is “irrelevant if there is no dose at which the drug can . . . render a person ‘insensate to pain.’ ” Post, at 17. But the District Court heard evidence that the drug can render a person insensate to pain, and not just from Dr. Evans: Dr. Sasich (one of petitioners’ own experts) testified that higher doses of midazolam are “expected to produce . . . lack of response to stimuli such as pain.” App. 243.[6] In their brief, petitioners attempt to deflect attention from their failure of proof regarding midazolam’s ceiling effect by criticizing Dr. Evans’ testimony. But it was petitioners’ burden to establish that midazolam’s ceiling occurred at a dosage below the massive 500-milligram dose employed in the Oklahoma protocol and at a point at which the drug failed to render the recipient insensate to pain. They did not meet that burden, and their criticisms do not undermine Dr. Evans’ central point, which the District Court credited, that a properly administered 500-milligram dose of midazolam will render the recipient unable to feel pain. One of petitioners’ criticisms of Dr. Evans’ testimony is little more than a quibble about the wording chosen by Dr. Evans at one point in his oral testimony. Petitioners’ expert, Dr. Lubarsky, stated in his report that midazolam “increases effective binding of [gamma-aminobutyric acid (GABA)] to its receptor to induce unconsciousness.”[7] App. 172. Dr. Evans’ report provided a similar explanation of the way in which midazolam works, see id., at 293–294, and Dr. Lubarsky did not dispute the accuracy of that explanation when he testified at the hearing. Petitioners contend, however, that Dr. Evans erred when he said at the hearing that “[m]idazolam attaches to GABA receptors, inhibiting GABA.” Id., at 312 (emphasis added). Petitioners contend that this statement was incorrect because “far from inhibiting GABA, midazolam facilitates its binding to GABA receptors.” Brief for Petitioners 38. In making this argument, petitioners are simply quarrelling with the words that Dr. Evans used during oral testimony in an effort to explain how midazolam works in terms understandable to a layman. Petitioners do not suggest that the discussion of midazolam in Dr. Evans’ expert report was inaccurate, and as for Dr. Evans’ passing use of the term “inhibiting,” Dr. Lubarksy’s own expert report states that GABA’s “inhibition of brain activity is accentuated by midazolam.” App. 232 (emphasis added). Dr. Evans’ oral use of the word “inhibiting”—particularly in light of his written testimony—does not invalidate the District Court’s decision to rely on his testimony. Petitioners also point to an apparent conflict between Dr. Evans’ testimony and a declaration by Dr. Lubarsky (submitted after the District Court ruled) regarding the biological process that produces midazolam’s ceiling effect. But even if Dr. Lubarsky’s declaration is correct, it is largely beside the point. What matters for present purposes is the dosage at which the ceiling effect kicks in, not the biological process that produces the effect. And Dr. Lubarsky’s declaration does not render the District Court’s findings clearly erroneous with respect to that critical issue. C Petitioners’ remaining arguments about midazolam all lack merit. First, we are not persuaded by petitioners’ argument that Dr. Evans’ testimony should have been rejected because of some of the sources listed in his report. Petitioners criticize two of the “selected references” that Dr. Evans cited in his expert report: the Web site drugs.com and a material safety data sheet (MSDS) about midazolam. Petitioners’ argument is more of a Daubert challenge to Dr. Evans’ testimony than an argument that the District Court’s findings were clearly erroneous. The District Court concluded that Dr. Evans was “well-qualified to give the expert testimony that he gave” and that “his testimony was the product of reliable principles and methods reliably applied to the facts of this case.” App. 75–76. To the extent that the reliability of Dr.Evans’ testimony is even before us, the District Court’s con-clusion that his testimony was based on reliable sources is reviewed under the deferential “abuse-of-discretion” standard. General Elec. Co. v. Joiner, 522 U. S. 136 –143 (1997). Dr. Evans relied on multiple sources and his own expertise, and his testimony may not be disqualified simply because one source (drugs.com) warns that it “ ‘is not intended for medical advice’ ” and another (the MSDS) states that its information is provided “ ‘without any warranty, express or implied, regarding its correctness.’ ” Brief for Petitioners 36. Medical journals that both parties rely upon typically contain similar disclaimers. See, e.g., Anesthesiology, Terms and Conditions of Use, online at http://anesthesiology.pubs.asahq.org/ss/terms.aspx (“None of the information on this Site shall be used to diagnose or treat any health problem or disease”). Dr. Lubarsky—petitioners’ own expert—relied on an MSDS to argue that midazolam has a ceiling effect. And petitioners do not identify any incorrect statements from drugs.com on which Dr. Evans relied. In fact, although Dr. Sasich submitted a declaration to the Court of Appeals criticizing Dr. Evans’ reference to drugs.com, that declaration does not identify a single fact from that site’s discussion of midazolam that was materially inaccurate. Second, petitioners argue that Dr. Evans’ expert report contained a mathematical error, but we find this argument insignificant. Dr. Evans stated in his expert report that the lowest dose of midazolam resulting in human deaths, according to an MSDS, is 0.071 mg/kg delivered intravenously. App. 294. Dr. Lubarsky agreed with this statement. Specifically, he testified that fatalities have occurred in doses ranging from 0.04 to 0.07 mg/kg, and he stated that Dr. Evans’ testimony to that effect was “a true statement” (though he added those fatalities occurred among the elderly). Id., at 217. We do not understand petitioners to dispute the testimony of Dr. Evans and their own expert that 0.071 mg/kg is a potentially fatal dose of midazolam. Instead, they make much of the fact that the MSDS attached to Dr. Evans’ report apparently contained a typographical error and reported the lowest toxic dose as 71 mg/kg. That Dr. Evans did not repeat that incorrect figure but instead reported the correct dose supports rather than undermines his testimony. In any event, the alleged error in the MSDS is irrelevant because the District Court expressly stated that it did not rely on the figure in the MSDS. See id., at 75. Third, petitioners argue that there is no consensus among the States regarding midazolam’s efficacy because only four States (Oklahoma, Arizona, Florida, and Ohio) have used midazolam as part of an execution. Petitioners rely on the plurality’s statement in Baze that “it is difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely tolerated,” and the plurality’s emphasis on the fact that 36 States had adopted lethal injection and 30 States used the particular three-drug protocol at issue in that case. 553 U. S., at 53. But while the near-universal use of the particular protocol at issue in Baze supported our conclusion that this protocol did not violate the Eighth Amendment, we did not say that the converse was true, i.e., that other protocols or methods of execution are of doubtful constitutionality. That argument, if accepted, would hamper the adoption of new and potentially more humane methods of execution and would prevent States from adapting to changes in the availability of suitable drugs. Fourth, petitioners argue that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood establish that midazolam is sure or very likely to cause serious pain. We are not persuaded. Aside from the Lockett execution, 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems. See Brief for Respondents 32; Brief for State of Florida as Amicus Curiae 1. Moreover, Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution concluded that the difficulties were due primarily to the execution team’s inability to obtain an IV access site. And the Wood execution did not involve the protocol at issue here. Wood did not receive a single dose of 500 milligrams of midazolam; instead, he received fifteen 50-milligram doses over the span of two hours.[8] Brief for Respondents 12, n. 9. And Arizona used a different two-drug protocol that paired midazolam with hydromorphone, a drug that is not at issue in this case. Ibid. When all of the circumstances are considered, the Lockett and Wood executions have little probative value for present purposes. Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments. VI For these reasons, the judgment of the Court of Appeals for the Tenth Circuit is affirmed. It is so ordered.Notes 1 The three other drug combinations that Oklahoma may admin-ister are: (1) a single dose of pentobarbital, (2) a single dose ofsodium thiopental, and (3) a dose of midazolam followed by a dose of hydromorphone. 2 Justice Sotomayor’s dissent (hereinafter principal dissent), post, at 24–25, inexplicably refuses to recognize that The Chief Justice’s opinion in Baze sets out the holding of the case. In Baze, the opinion of The Chief Justice was joined by two other Justices. Justices Scalia and Thomas took the broader position that a method of execution is consistent with the Eighth Amendment unless it is deliberately designed to inflict pain. 553 U. S., at 94 (Thomas, J. concurring in judgment). Thus, as explained in Marks v. United States, 430 U. S. 188, 193 (1977) , The Chief Justice’s opinion sets out the holding of the case. It is for this reason that petitioners base their argument on the rule set out in that opinion. See Brief for Petitioners 25, 28. 3 Drs. Lubarsky and Sasich, petitioners’ key witnesses, both testified that midazolam is inappropriate for a third reason, namely, that it creates a risk of “paradoxical reactions” such as agitation, hyperactiv-ity, and combativeness. App. 175 (expert report of Dr. Lubarsky); id., at 242, 244 (expert report of Dr. Sasich). The District Court found, however, that the frequency with which a paradoxical reaction occurs “is speculative” and that the risk “occurs with the highest frequency in low therapeutic doses.” Id., at 78. Indeed, Dr. Sasich conceded that the incidence or risk of paradoxical reactions with midazolam “is unknown” and that reports estimate the risk to vary only “from 1% to above 10%.” Id., at 244. Moreover, the mere fact that a method of execution might result in some unintended side effects does not amount to an Eighth Amendment violation. “[T]he Constitution does not demand the avoidance of all risk of pain.” Baze, 553 U. S., at 47 (plurality opinion). 4 The principal dissent misunderstands the record when it bizarrely suggests that midazolam is about as dangerous as a peanut. Post, at 15. Dr. Evans and Dr. Lubarsky agreed that midazolam has caused fatalities in doses as low as 0.04 to 0.07 milligrams per kilogram. App. 217, 294. Even if death from such low doses is a “rare, unfortunate side effec[t],” post, at 15, the District Court found that a massive 500-milligram dose—many times higher than the lowest dose reported to have produced death—will likely cause death in under an hour. App. 76–77. 5 Petitioners’ experts also declined to testify that a 500-milligram dose of midazolam is always insufficient to place a person in a coma and render him insensate to pain. Dr. Lubarsky argued only that the 500-milligram dose cannot “reliably” produce a coma. Id., 228. And when Dr. Sasich was asked whether he could say to a reasonable degree of certainty that a 500-milligram dose of midazolam would not render someone unconscious, he replied that he could not. Id., at 271–272. A product label for midazolam that Dr. Sasich attached to his expert report also acknowledged that an overdose of midazolam can cause a coma. See Expert Report of Larry D. Sasich, in No. 14–6244 (CA10), p. 34. 6 The principal dissent emphasizes Dr. Lubarsky’s supposedly contrary testimony, but the District Court was entitled to credit Dr. Evans (and Dr. Sasich) instead of Dr. Lubarsky on this point. And the District Court had strong reasons not to credit Dr. Lubarsky, who even argued that a protocol that includes sodium thiopental is “constructed to produce egregious harm and suffering.” App. 227. 7 GABA is “an amino acid that functions as an inhibitory neurotransmitter in the brain and spinal cord.” Mosby’s Medical Dictionary 8 The principal dissent emphasizes Dr. Lubarsky’s testimony that it is irrelevant that Wood was administered the drug over a 2-hour period. Post, at 20. But Dr. Evans disagreed and testified that if a 750-milligram dose “was spread out over a long period of time,” such as one hour (i.e., half the time at issue in the Wood execution), the drug might not be as effective as if it were administered all at once. Tr. 667. The principal dissent states that this “pronouncement was entirely unsupported,” post, at 20, n. 6, but it was supported by Dr. Evans’ expertise and decades of experience. And it would be unusual for an expert testifying on the stand to punctuate each sentence with citation to 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 . SUPREME COURT OF THE UNITED STATES Syllabus GLOSSIP et al. v. GROSS et al. certiorari to the united states court of appeals for the tenth circuit No. 14–7955. Argued April 29, 2015—Decided June 29, 2015 Because capital punishment is constitutional, there must be a constitutional means of carrying it out. After Oklahoma adopted lethal injection as its method of execution, it settled on a three-drug protocol of (1) sodium thiopental (a barbiturate) to induce a state of unconsciousness, (2) a paralytic agent to inhibit all muscular-skeletal movements, and (3) potassium chloride to induce cardiac arrest. In Baze v. Rees, 553 U. S. 35 , the Court held that this protocol does not violate the Eighth Amendment’s prohibition against cruel and unusual punishments. Anti-death-penalty advocates then pressured pharmaceutical companies to prevent sodium thiopental (and, later, another barbiturate called pentobarbital) from being used in executions. Unable to obtain either sodium thiopental or pentobarbital, Oklahoma decided to use a 500-milligram dose of midazolam, a sedative, as the first drug in its three-drug protocol. Oklahoma death-row inmates filed a 42 U. S. C. §1983 action claiming that the use of midazolam violates the Eighth Amendment. Four of those inmates filed a motion for a preliminary injunction and argued that a 500-milligram dose of midazolam will not render them unable to feel pain associated with administration of the second and third drugs. After a three-day evidentiary hearing, the District Court denied the motion. It held that the prisoners failed to identify a known and available alternative method of execution that presented a substantially less severe risk of pain. It also held that the prisoners failed to establish a likelihood of showing that the use of midazolam created a demonstrated risk of severe pain. The Tenth Circuit affirmed. Held: Petitioners have failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. . (a) To obtain a preliminary injunction, petitioners must establish, among other things, a likelihood of success on the merits of their claim. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 . To succeed on an Eighth Amendment method-of-execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives. Baze, supra, at 61 (plurality opinion). . (b) Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District Court did not commit a clear error when it found that those drugs are unavailable to the State. Petitioners argue that the Eighth Amendment does not require them to identify such an alternative, but their argument is inconsistent with the controlling opinion in Baze, which imposed a requirement that the Court now follows. Petitioners also argue that the requirement to identify an alternative is inconsistent with the Court’s pre-Baze decision in Hill v. McDonough, 547 U. S. 573 , but they misread that decision. Hill concerned a question of civil procedure, not a substantive Eighth Amendment question. That case held that §1983 alone does not require an inmate asserting a method-of-execution claim to plead an acceptable alternative. Baze, on the other hand, made clear that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative. . (c) The District Court did not commit clear error when it found that midazolam is likely to render a person unable to feel pain associated with administration of the paralytic agent and potassium chloride. . (1) Several initial considerations bear emphasis. First, the District Court’s factual findings are reviewed under the deferential “clear error” standard. Second, petitioners have the burden of persuasion on the question whether midazolam is effective. Third, the fact that numerous courts have concluded that midazolam is likely to render an inmate insensate to pain during execution heightens the deference owed to the District Court’s findings. Finally, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts, which should not embroil themselves in ongoing scientific controversies beyond their expertise. Baze, supra, at 51. . (2) The State’s expert presented persuasive testimony that a 500-milligram dose of midazolam would make it a virtual certainty that an inmate will not feel pain associated with the second and third drugs, and petitioners’ experts acknowledged that they had no contrary scientific proof. Expert testimony presented by both sides lends support to the District Court’s conclusion. Evidence suggested that a 500-milligram dose of midazolam will induce a coma, and even one of petitioners’ experts agreed that as the dose of midazolam increases, it is expected to produce a lack of response to pain. It is not dispositive that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery. First, the 500-milligram dose at issue here is many times higher than a normal therapeutic dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness says little about whether a 500-milligram dose is constitutionally adequate to conduct an execution. Finally, the District Court did not err in concluding that the safeguards adopted by Oklahoma to ensure proper administration of midazolam serve to minimize any risk that the drug will not operate as intended. . (3) Petitioners’ speculative evidence regarding midazolam’s “ceiling effect” does not establish that the District Court’s findings were clearly erroneous. The mere fact that midazolam has a ceiling above which an increase in dosage produces no effect cannot be dispositive, and petitioners provided little probative evidence on the relevant question, i.e., whether midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners attempt to deflect attention from their failure of proof on this point by criticizing the testimony of the State’s expert. They emphasize an apparent conflict between the State’s expert and their own expert regarding the biological process that produces midazolam’s ceiling effect. But even if petitioners’ expert is correct regarding that biological process, it is largely beside the point. What matters for present purposes is the dosage at which the ceiling effect kicks in, not the biological process that produces the effect. . (4) Petitioners’ remaining arguments—that an expert report presented in the District Court should have been rejected because it referenced unreliable sources and contained an alleged mathematical error, that only four States have used midazolam in an execution, and that difficulties during two recent executions suggest that midazolam is ineffective—all lack merit. . 776 F. 3d 721, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.

After Oklahoma switched from pentobarbital to midazolam and executed Lockett, Oklahoma death row inmates filed an action in Federal District Court under 42 U.S. C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. The District Court denied the prisoners' application for a preliminary injunction, finding that they had failed to prove that midazlam is ineffective. The Court of Appeals affirmed and accepted the District Court's finding of fact. Held: 1. The prisoners failed to establish a likelihood of success on the merits of their Eighth Amendment claim. Baze v. Rees, 553 U. S. 35, 61.. (a) The Eighth Amendment demands the elimination of essentially all risk of pain, a requirement of all Eighth Amendment method-of-execution claims. Baze cleared any legal obstacle to use of the most common three-drug lethal injection protocol that had enabled States to carry out the death penalty in a quick and painless fashion. However, a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to execute death sentences. After a number of States adopted a new protocol with an effective date of September 30, 2014, that protocol allowed the Department of Corrections to choose among four different drug combinations. The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams (1,100 milligram) of midazlonam followed by a 500-milligram dose of sodium thiopental, a barbiturate, and a combination of the two drugs. In addition, the option calls for intravenous access through a vein covered by a sheet, in part to preserve dignity during the execution. Petitioners failed to identify a known and available method of executing that presented a substantially less severe risk than the method that the State proposed to use. Thus, they failed to show a substantial risk of a severe pain response. Moreover, petitioners made little effort attacking the fact that the evidence they presented to the court establishes that the use of Midazolamer is sure or very likely to result in needless suffering. They failed to point to an apparent conflict between their testimony and a declaration by an expert that the drug creates a risk that is likely to cause serious illness and needless suffering, and that other protocols or methods of execution are of doubtful constitutionality. Furthermore, the expert testimony of petitioners conceded that they lacked evidence to prove their case beyond dispute. Although the expert report was based on studies done about much lower therapeutic doses of the drug, it did not invalidate the decision to rely on his testimony, and petitioners provided little probative evidence on this point, and the speculative evidence that they did present does not come close to establishing that its factual findings were clearly erroneous. . 2. Nor do petitioners lack merit on the ground that the District of Court did not commit clear error when it found, based on evidence presented to it, that the midazolanam ceiling effect was substantial when compared to the known and available alternative methods of executing. See, e.g., Baze, supra, at 61; ibid., at 24. The record shows that Oklahoma has been unable to procure the drug despite a good-faith effort to do so, and numerous courts have concluded that the efficacy of the huge dose administered in the Oklahoma protocol is uncertain. There is no consensus among the States regarding the efficacy, since only four States have used the three drug protocol at issue here, and thus petitioners are not entitled to a special pleading requirement to stop inmates from using §1983 actions to attack, not just a particular means of execution, but the execution penalty itself. This Court will not hesitate to overturn a finding where, as here, multiple trial courts have reached the same finding, and multiple appellate courts have affirmed those findings. Cf. Hill v. McDonough, 547 U. s. 573 (2006). P.. 3. Petitioners have not proved that any risk of harm was substantial in comparison to known and readily available alternatives to execution. See Baze. See id., at 72. Although petitioners bear the burden of persuasion on this issue, they have not identified any available drug or drugs that could be used in place of those that Oklahoma is unable to obtain, nor have they shown a risk so great that other acceptable, available methods must be used. Their expert report apparently contained a typographical error and reported the lowest toxic dose as 71 mg/kg, and their expert report did not rely on the figure in the MSDS. And petitioners have made little attempt to prove what is critical, i.e., that their evidence establishes the use and efficacy of a drug that presents a risk of such a risk. Even if the expert reports a technical error, it is largely beside the

2014_13-1211

https://www.oyez.org/cases/2014/13-1211

. Rights in a trademark are determined by the date of the mark’s first use in commerce. The party who first uses a mark in commerce is said to have priority over other users. Recognizing that trademark users ought to be permitted to make certain modifications to their marks over time without losing priority, lower courts have provided that, in limited circumstances, a party may clothe a new mark with the priority position of an older mark. This doctrine is called “tacking,” and lower courts have found tacking to be available when the original and revised marks are “legal equivalents” in that they create the same, continuing commercial impression. The question presented here is whether a judge or a jury should determine whether tacking is available in a given case. Because the tacking inquiry operates from the perspective of an ordinary purchaser or consumer, we hold that a jury should make this determination.I Petitioner, Hana Financial, and respondent Hana Bank, a subsidiary of respondent Hana Financial Group, both provide financial services to individuals in the United States. Hana Bank (hereinafter respondent) was established in 1971 as a Korean entity called Korea Investment Finance Corporation. In 1991, that entity changed its name to “Hana Bank” and began using this name in Korea. In 1994, it established a service called Hana Overseas Korean Club to provide financial services to Korean expatriates, and specifically advertised that service in the United States. Those advertisements used the name “Hana Overseas Korean Club” in both English and Korean, and included the name “Hana Bank” in Korean and respondent’s “dancing man” logo. See App. 206. In 2000, respondent changed the name of the Hana Overseas Ko-rean Club to “Hana World Center.” In 2002, respondent began operating a bank in the United States under the name “Hana Bank.” This enterprise amounted to respondent’s first physical presence in the United States. Petitioner was established in 1994 as a California corporation called Hana Financial. It began using that name and an associated trademark in commerce in 1995. In 1996, it obtained a federal trademark registration for a pyramid logo with the name “Hana Financial” for use in connection with financial services. In 2007, petitioner sued respondent, alleging infringement of its “Hana Financial” mark. As relevant here, respondent denied infringement by invoking the tacking doctrine and claiming that it had priority. The District Court initially granted summary judgment to respondent on the infringement claim, but the Court of Appeals for the Ninth Circuit reversed, holding that there were genuine issues of material fact as to priority. On remand, the infringement claim was tried before a jury. The District Court adopted in substantial part the jury instruction proposed by petitioner, and, without objection from petitioner, instructed the jury as follows:“A party may claim priority in a mark based on the first use date of a similar but technically distinct mark where the previously used mark is the legal equivalent of the mark in question or indistinguish-able therefrom such that consumers consider both as the same mark. This is called ‘tacking.’ The marks must create the same, continuing commercial impression, and the later mark should not materially differ from or alter the character of the mark attemptedto be tacked.” App. 173; see id., at 140 (proposedinstruction).The jury returned a verdict in favor of respondent, and the District Court denied petitioner’s motion for judgment as a matter of law. The Court of Appeals for the Ninth Circuit affirmed. The court explained that, although tacking applies only in “exceptionally narrow circumstances,” 735 F. 3d 1158, 1160 (2013) (internal quotation marks omitted), it “ ‘requires a highly fact-sensitive inquiry’ ” that is “reserved for the jury,” ibid. (quoting One Industries, LLC v. Jim O’Neal Distributing, Inc., 578 F. 3d 1154, 1160 (CA9 2009)). The court acknowledged, however, that whether tacking should be decided by juries or judges “is the subject of a circuit split.” 735 F. 3d, at 1164, n. 5 (noting that the Federal and Sixth Circuits “evaluate tacking as a question of law”); see Van Dyne-Crotty, Inc. v. Wear-Guard Corp., 926 F. 2d 1156, 1159 (CA Fed. 1991); Data Concepts, Inc. v. Digital Consulting, Inc., 150 F. 3d 620, 623 (CA6 1998). We granted certiorari, 573 U. S. ___ (2014), and now affirm.II As discussed above, the general rule adopted by lower courts has been that two marks may be tacked when the original and revised marks are “legal equivalents.” This term refers to two marks that “create the same, continuing commercial impression” so that consumers “consider both as the same mark.”[1] Van Dyne-Crotty, Inc., 926 F. 2d, at 1159 (internal quotation marks omitted); see, e.g., George & Co., LLC v. Imagination Entertainment Ltd., 575 F. 3d 383, 402 (CA4 2009); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F. 3d 1036, 1047–1048 (CA9 1999); Data Concepts, Inc., 150 F. 3d, at 623. “The commercial impression that a mark conveys must be viewed through the eyes of a consumer.” DuoProSS Medi-tech Corp. v. Inviro Medical Devices, Ltd., 695 F. 3d 1247, 1253 (CA Fed. 2012); see 3 J. McCarthy, Trademarks and Unfair Competition §17:26, p. 17–71 (4th ed. 2014) (“ ‘Commercial impression,’ like most issues in trademark law, should be determined from the perspective of the ordinary purchaser of these kinds of goods or services”). Application of a test that relies upon an ordinary consumer’s understanding of the impression that a mark conveys falls comfortably within the ken of a jury. Indeed, we have long recognized across a variety of doctrinal contexts that, when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer. See, e.g., United States v. Gaudin,515 U. S. 506,512 (1995) (recognizing that “ ‘delicate assessments of the inferences a ‘reasonable [decisionmaker]’ would draw . . . [are] peculiarly one[s] for the trier of fact’ ” (quoting TSC Industries, Inc. v. Northway, Inc.,426 U. S. 438,450 (1976); first alteration in original); id., at 450, n. 12 (observing that the jury has a “unique competence in applying the ‘reasonable man’ standard”); Hamling v. United States,418 U. S. 87–105 (1974) (emphasizing “the ability of the juror to ascertain the sense of the ‘average person’ ” by drawing upon “his own knowledge of the views of the average person in thecommunity or vicinage from which he comes” and his “knowledge of the propensities of a ‘reasonable’ person”); Railroad Co. v. Stout, 17 Wall. 657, 664 (1874) (“It is assumed that twelve men know more of the common affairs of life than does one man, [and] that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge”). This is certainly not to say that a judge may never determine whether two marks may be tacked. If the facts warrant it, a judge may decide a tacking question on a motion for summary judgment or for judgment as a matter of law. See Fed. Rules Civ. Proc. 50, 56(a). And if the parties have opted to try their case before a judge, the judge may of course decide a tacking question in his or her factfinding capacity. We hold only that, when a jury trial has been requested and when the facts do not warrant entry of summary judgment or judgment as a matter of law, the question whether tacking is warranted must be decided by a jury.III Attempting to overcome our conclusion, petitioner offers four reasons why, in its view, tacking is a question of law that should be resolved by a judge. None persuades us. Petitioner first observes that the “legal equivalents” test involves the application of a legal standard. See Brief for Petitioner 20. True enough, but “the application-of-legal-standard-to-fact sort of question . . . , commonly called a ‘mixed question of law and fact,’ has typically been resolved by juries.” Gaudin, 515 U. S., at 512; see id., at 514 (“[T]he jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion . . .”); Miller v. Fenton,474 U. S. 104,113 (1985) (“[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate . . . question”). The “mixed” analysis that takes place during the tacking inquiry is no different. And insofar as petitioner is concerned that a jury may improperly apply the relevant legal standard, the solution is to craft careful jury instructions that make that standard clear. Here, however, petitioner can hardly criticize the instruction the District Court gave the jury, as it was essentially the instruction petitioner proposed. Second, petitioner argues that tacking determinations will “create new law that will guide future tacking disputes”—a task reserved for judges. Brief for Petitioner 21. It is not at all clear, however, why a tacking determination in a particular case will “create new law” any more than will a jury verdict in a tort case, a contract dispute, or a criminal proceeding. Petitioner insists that tacking questions “have to be” resolved by comparing two marks in a given case “against those addressed in other tacking cases,” id., at 22, but we do not agree. Of course, in deciding summary judgment motions, or in making rulings in bench trials, judges may look to past cases holding that trademark owners either were or were not entitled to tacking as a matter of law. But petitioner offers no support for the claim that tacking cases “have to be” resolved by reliance on precedent. Indeed, in many of the cases petitioner cites in support of this argument, the courts in question relied on precedent only to define the relevant legal standard. See, e.g., Specht v. Google Inc., 758 F. Supp. 2d 570, 583–585 (ND Ill. 2010), aff’d, 747 F. 3d 929 (CA7 2014); Children’s Legal Servs. PLLC v. Kresch, 2008 WL 1901245, *1–*2 (ED Mich., Apr. 25, 2008), aff ’d sub nom. Children’s Legal Servs., P. L. L. C. v. Saiontz, Kirk & Miles, P. A., 2009 WL 1868809 (CA6, June 18, 2009).[2] Third, and related, petitioner worries that the predict-ability required for a functioning trademark system will be absent if tacking questions are assigned to juries. See Brief for Petitioner 25–27. But, again, the same could be said about the tort, contract, and criminal justice systems: In all of these areas, juries answer often-dispositive fac-tual questions or make dispositive applications of legal standards to facts. The fact that another jury, hearing the same case, might reach a different conclusion may make the system “unpredictable,” but it has never stopped us from employing juries in these analogous contexts. Petitioner has offered no reason why trademark tacking ought to be treated differently. Moreover, decisionmaking in fact-intensive disputes necessarily requires judgment calls. Regardless of whether those judgment calls are made by juries or judges, they necessarily involve some degree of uncertainty, particularly when they have to do with how reasonable persons would behave. Finally, petitioner argues that, as a historical matter, judges have resolved tacking disputes. See Brief for Petitioner 30–35. But petitioner relies on cases in which judges have resolved tacking disputes in bench trials, at summary judgment, or the like. See, e.g., Drexel Enterprises, Inc. v. Richardson, 312 F. 2d 525, 526 (CA10 1962) (“[This action] was tried without a jury”); Perfectform Corp. v. Perfect Brassiere Co., 256 F. 2d 736, 738 (CA3 1958) (“The district court dismissed the complaint”); John Morrell & Co. v. Hauser Packing Co., 20 F. 2d 713 (CA9 1927) (“In the court below, there was a dismissal of both the bill and of defendant’s counterclaim”); Beech-Nut Packing Co. v. P. Lorillard Co., 299 F. 834, 835 (NJ 1924) (equitable claims tried solely before a judge). As we have noted, it is undisputed that judges may resolve tacking disputes in those contexts. But recognizing as much does not gainsay our conclusion that, when a jury is to be empaneled and when the facts warrant neither summary judgment nor judgment as a matter of law, tacking is a question for the jury.* * * The Ninth Circuit correctly held that whether two marks may be tacked for purposes of determining priority is a question for the jury. Accordingly, the judgment of the Ninth Circuit is affirmed.It is so ordered.Notes1 The parties do not question the existence of the tacking doctrine or this substantive standard.2 Our decision in Markman v. Westview Instruments, Inc.,517 U. S. 370 (1996), is not to the contrary. In Markman, we held that the task of construing patent terms falls to judges and not to juries. We held as much because “[t]he construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis.” Id., at 388; see Teva Pharmaceuticals USA, Inc., v. Sandoz, Inc., ante, at 5. The tacking inquiry, by contrast, involves a factual judgment about whether two marks give the same impression to consumers. Making that kind of judgment is, as discussed above, not “one of those things that judges often do” better than jurors.

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 hana financial, inc. v. hana bank et al. certiorari to the united states court of appeals for the ninth circuit No. 13–1211. Argued December 3, 2014—Decided January 21, 2015 Petitioner, Hana Financial, Inc., and respondent Hana Bank both provide financial services to individuals in the United States. When Hana Financial sued Hana Bank for trademark infringement, Hana Bank invoked in defense the tacking doctrine, under which lower courts have provided that a trademark user may make certain modifications to its mark over time while, in limited circumstances, retaining its priority position. Petitioner’s claim was tried before a jury, and the District Court adopted in substantial part the jury instruction on tacking proposed by petitioner. The jury returned a verdict in respondent’s favor. Affirming, the Ninth Circuit explained that the tacking inquiry was an exceptionally limited and highly fact-sensitive matter reserved for juries, not judges. Held: Whether two trademarks may be tacked for purposes of determining priority is a question for the jury. . (a) Lower courts have held that two marks may be tacked when they are considered to be “legal equivalents,” i.e., they “create the same, continuing commercial impression.” Van Dyne-Crotty, Inc. v. Wear-Guard Corp. 926 F.2d 1156, 1159. And “commercial impression” “must be viewed through the eyes of a consumer.” DuoProSS Meditech Corp. v. Inviro Medical Devices, Ltd., 695 F.3d 1247, 1253. When the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer. See, e.g., United States v. Gaudin, 515 U.S. 506, 512. . (b) Each of petitioner’s four arguments in support of its view that tacking is a question of law to be resolved by a judge is unpersuasive. First, it may be true that the “legal equivalents” test involves a legal standard, but such “ ‘mixed question[s] of law and fact,’ [have] typi-cally been resolved by juries.” Gaudin, 515 U. S., at 512. And any concern that a jury may improperly apply the relevant legal standard can be remedied by crafting careful jury instructions. Second, petitioner offers no support for its claim that tacking determinations create new law in a unique way that requires those determinations to be reserved for judges. Third, petitioner worries that the predictability required for a functioning trademark system will be absent if tacking questions are assigned to juries, but offers no reason why trademark tacking should be treated differently from the tort, contract, and criminal justice systems, where juries answer often-dispositive factual questions or make dispositive applications of legal standards to facts. Finally, in arguing that judges have historically resolved tacking disputes, petitioner points to cases arising in the contexts of bench trials, summary judgment, and the like, in which it is undisputed that judges may resolve tacking disputes. . 735 F. 3d. 1158, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court.

Petitioner Hana Financial and respondent Hana Bank both provide financial services to individuals in the United States. Petitioner began using its name and associated trademark in 1995. In 1996, it obtained a federal trademark registration for a pyramid logo with the name "Hana Financial" for use in connection with financial services. In 2007, petitioner sued respondent, alleging infringement of its mark by invoking the tacking doctrine and claiming that it had priority. The District Court adopted in substantial part the jury instruction proposed by petitioner, and, without objection from petitioner, instructed the jury that a party may claim priority in a mark based on the first use date of a similar but technically distinct mark where the previously used mark is the legal equivalent of the mark in question or indistinguishable therefrom such that consumers consider both as the same mark. The jury returned a verdict in favor of respondent, and the District Court denied petitioner's motion for judgment as a matter of law. The Court of Appeals affirmed, holding that, although tacking applies only inceptionally narrow circumstances, it requires a highly fact-sensitive inquiry that is reserved for the jury. Held: A jury should determine whether tacking is available in a given case. Application of a test that relies upon an ordinary consumer's understanding of the impression that a mark conveys falls comfortably within the ken of a jury. In deciding summary judgment motions, or in making rulings in bench trials, judges may look to past cases holding that trademark owners were or were not entitled to tacking as law. Petitioner offers no support for the claim that tacking cases have to be resolved by reliance on precedent. Indeed, in many of the cases petitioner cites in support of this argument, the courts in question relied on precedent only to define the relevant legal standard. Moreover, petitioner worries that the predict-ability required for a functioning trademark system will be absent if tacking questions are assigned to juries. The fact that another jury, hearing the same case, might reach a different conclusion may make the system unpredictable, but it has never stopped us from employing juries in these analogous contexts. Furthermore, decisionmaking in fact-intensive disputes necessarily requires judgment calls. Regardless of whether those judgment calls are made by juries or judges, they necessarily involve some degree of uncertainty, particularly when they have to do with how reasonable persons would behave. . 735 F. 3d 1158, affirmed. THE CHIEF JUSTICE, concurring in the judgment, affirmed the judgment of the Ninth Circuit. P.. THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p..

2014_13-604

https://www.oyez.org/cases/2014/13-604

. The Fourth Amendment prohibits “unreasonable searches and seizures.” Under this standard, a search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. An officer might, for example, stop a motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon approaching the car that two children are slumped over asleep in the back seat. The driver has not violated the law, but neither has the officer violated the Fourth Amendment. But what if the police officer’s reasonable mistake is not one of fact but of law? In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can. Because the officer’s mistake about the brake-light law was reasonable, the stop in this case was lawful under the Fourth Amendment. I On the morning of April 29, 2009, Sergeant Matt Da-risse of the Surry County Sheriff’s Department sat in his patrol car near Dobson, North Carolina, observing northbound traffic on Interstate 77. Shortly before 8 a.m., a Ford Escort passed by. Darisse thought the driver looked “very stiff and nervous,” so he pulled onto the interstate and began following the Escort. A few miles down the road, the Escort braked as it approached a slower vehicle, but only the left brake light came on. Noting the faulty right brake light, Darisse activated his vehicle’s lights and pulled the Escort over. App. 4–7, 15–16. Two men were in the car: Maynor Javier Vasquez sat behind the wheel, and petitioner Nicholas Brady Heien lay across the rear seat. Sergeant Darisse explained to Vasquez that as long as his license and registration checked out, he would receive only a warning ticket for the broken brake light. A records check revealed no problems with the documents, and Darisse gave Vasquez the warning ticket. But Darisse had become suspicious during the course of the stop—Vasquez appeared nervous, Heien remained lying down the entire time, and the two gave inconsistent answers about their destination. Darisse asked Vasquez if he would be willing to answer some questions. Vasquez assented, and Darisse asked whether the men were transporting various types of contraband. Told no, Darisse asked whether he could search the Escort. Vasquez said he had no objection, but told Darisse he should ask Heien, because Heien owned the car. Heien gave his consent, and Darisse, aided by a fellow officer who had since arrived, began a thorough search of the vehicle. In the side compartment of a duffle bag, Darisse found a sandwich bag containing cocaine. The officers arrested both men. 366 N. C. 271, 272–273, 737 S. E. 2d 351, 352–353 (2012); App. 5–6, 25, 37. The State charged Heien with attempted trafficking in cocaine. Heien moved to suppress the evidence seized from the car, contending that the stop and search had violated the Fourth Amendment of the United States Constitution. After a hearing at which both officers testified and the State played a video recording of the stop, the trial court denied the suppression motion, concluding that the faulty brake light had given Sergeant Darisse reasonable suspicion to initiate the stop, and that Heien’s subsequent consent to the search was valid. Heien pleaded guilty but reserved his right to appeal the suppression decision. App. 1, 7–10, 12, 29, 43–44. The North Carolina Court of Appeals reversed. 214 N. C. App. 515, 714 S. E. 2d 827 (2011). The initial stop was not valid, the court held, because driving with only one working brake light was not actually a violation of North Carolina law. The relevant provision of the vehicle code provides that a car must be “equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or moreother rear lamps.” N. C. Gen. Stat. Ann. §20–129(g) (2007). Focusing on the statute’s references to “a stop lamp” and “[t]he stop lamp” in the singular, the court concluded that a vehicle is required to have only one working brake light—which Heien’s vehicle indisputably did. The justification for the stop was therefore “objectively unreason-able,” and the stop violated the Fourth Amendment. 214 N. C. App., at 518–522, 714 S. E. 2d, at 829–831. The State appealed, and the North Carolina Supreme Court reversed. 366 N. C. 271, 737 S. E. 2d 351. Noting that the State had chosen not to seek review of the Court of Appeals’ interpretation of the vehicle code, the North Carolina Supreme Court assumed for purposes of its decision that the faulty brake light was not a violation. Id., at 275, 737 S. E. 2d, at 354. But the court concluded that, for several reasons, Sergeant Darisse could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order. Most notably, a nearby code provision requires that “all originally equipped rear lamps” be functional. Id., at 282–283, 737 S. E. 2d, at 358–359 (quoting N. C. Gen. Stat. Ann. §20–129(d)). Because Sergeant Darisse’s mistaken understanding of the vehicle code was reasonable, the stop was valid. “An officer may make a mistake, including a mistake of law, yet still act reasonably under the circumstances. . . . [W]hen an officer acts reasonably under the circumstances, he is not violating the Fourth Amendment.” Id., at 279, 737 S. E. 2d, at 356. The North Carolina Supreme Court remanded to the Court of Appeals to address Heien’s other arguments for suppression (which are not at issue here). Id., at 283, 737 S. E. 2d, at 359. The Court of Appeals rejected those arguments and affirmed the trial court’s denial of his motion to suppress. ___ N. C. App. ___, 741 S. E. 2d 1 (2013). The North Carolina Supreme Court affirmed in turn. 367 N. C. 163, 749 S. E. 2d 278 (2013). We granted certiorari. 572 U. S. ___ (2014). II The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreason-able 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.” A traffic stop for a suspected violation of law is a “seizure” of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment. Brendlin v. California, 551 U. S. 249 –259 (2007). All parties agree that to justify this type of seizure, officers need only “reasonable suspicion”—that is, “a particularized and objective basis for suspecting the particular person stopped” of breaking the law. Prado Navarette v. California, 572 U. S. ___, ___ (2014) (slip op., at 3) (internal quotation marks omitted). The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can. As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5) (some internal quotation marks omitted). To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U. S. 160, 176 (1949) . We have recognized that searches and seizures based on mistakes of fact can be reasonable. The warrantless search of a home, for instance, is reasonable if undertaken with the consent of a resident, and remains lawful when officers obtain the consent of someone who reasonably appears to be but is not in fact a resident. See Illinois v. Rodriguez, 497 U. S. 177 –186 (1990). By the same token, if officers with probable cause to arrest a suspect mistakenly arrest an individual matching the suspect’s description, neither the seizure nor an accompanying search of the arrestee would be unlawful. See Hill v. California, 401 U. S. 797 –805 (1971). The limit is that “the mistakes must be those of reasonable men.” Brinegar, supra, at 176. But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law. The dissent counters that our cases discussing probable cause and reasonable suspicion, most notably Ornelas v. United States, 517 U. S. 690 –697 (1996), have contained “scarcely a peep” about mistakes of law. Post, at 2–3 (opinion of Sotomayor, J.). It would have been surprising, of course, if they had, since none of those cases involved a mistake of law. Although such recent cases did not address mistakes of law, older precedents did. In fact, cases dating back two centuries support treating legal and factual errors alike in this context. Customs statutes enacted by Congress not long after the founding authorized courts to issue certificates indemnifying customs officers against damages suits premised on unlawful seizures. See, e.g., Act of Mar. 2, 1799, ch. 22, §89, 1Stat. 695–696. Courts were to issue such certificates on a showing that the officer had “reasonable cause”—a synonym for “probable cause”—for the challenged seizure. Ibid.; see Stacey v. Emery, 97 U. S. 642, 646 (1878); United States v. Riddle, 5 Cranch 311 (1809). In United States v. Riddle, a customs officer seized goods on the ground that the English shipper had violated the customs laws by preparing an invoice that undervalued the merchandise, even though the American consignee declared the true value to the customs collector. Chief Justice Marshall held that there had been no violation of the customs law because, whatever the shipper’s intention, the consignee had not actually attempted to defraud the Government. Nevertheless, because “the construction of the law was liable to some question,” he affirmed the issuance of a certificate of probable cause: “A doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact.” Id., at 313. This holding—that reasonable mistakes of law, like those of fact, would justify certificates of probable cause—was reiterated in a number of 19th-century decisions. See, e.g., The Friendship, 9 F. Cas. 825, 826 (No. 5,125) (CC Mass. 1812) (Story, J.); United States v. The Reindeer, 27 F. Cas. 758, 768 (No. 16,145) (CC RI 1848); United States v. The Recorder, 27 F. Cas. 723 (No. 16,130) (CC SDNY 1849). By the Civil War, there had been “numerous cases in which [a] captured vessel was in no fault, and had not, under a true construction of the law, presented even ground of suspicion, and yet the captor was exonerated because he acted under an honest mistake of the law.” The La Manche, 14 F. Cas. 965, 972 (No. 8,004) (D Mass. 1863). Riddle and its progeny are not directly on point. Chief Justice Marshall was not construing the Fourth Amendment, and a certificate of probable cause functioned much like a modern-day finding of qualified immunity, which depends on an inquiry distinct from whether an officer has committed a constitutional violation. See, e.g., Carroll v. Carman, ante, at 7 (per curiam). But Chief Justice Marshall was nevertheless explaining the concept of probable cause, which, he noted elsewhere, “in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion.” Locke v. United States, 7 Cranch 339, 348 (1813). We have said the phrase “probable cause” bore this “fixed and well known meaning” in the Fourth Amendment, see Brinegar, supra, at 175, and n. 14, and Riddle illustrates that it encompassed suspicion based on reasonable mistakes of both fact and law. No decision of this Court in the two centuries since has undermined that understanding.[1] The contrary conclusion would be hard to reconcile with a much more recent precedent. In Michigan v. DeFillippo, 443 U. S. 31 (1979) , we addressed the validity of an arrest made under a criminal law later declared unconstitu-tional. A Detroit ordinance that authorized police officers to stop and question individuals suspected of criminal activ-ity also made it an offense for such an individual “to refuse to identify himself and produce evidence of his identity.” Id., at 33. Detroit police officers sent to investigate a report of public intoxication arrested Gary DeFillippo after he failed to identify himself. A search incident to arrest uncovered drugs, and DeFillippo was charged with possession of a controlled substance. The Michigan Court of Appeals ordered the suppression of the drugs, concluding that the identification ordinance was unconstitutionally vague and that DeFillippo’s arrest was therefore invalid. Id., at 34–35. Accepting the unconstitutionality of the ordinance as a given, we nonetheless reversed. At the time the officers arrested DeFillippo, we explained, “there was no controlling precedent that this ordinance was or was not constitutional, and hence the conduct observed violated a presumptively valid ordinance.” Id., at 37. Acknowledging that the outcome might have been different had the ordinance been “grossly and flagrantly unconstitutional,” we concluded that under the circumstances “there was abundant probable cause to satisfy the constitutional prerequisite for an arrest.” Id., at 37–38. The officers were wrong in concluding that DeFillippo was guilty of a criminal offense when he declined to iden-tify himself. That a court only later declared the ordinance unconstitutional does not change the fact that DeFillippo’s conduct was lawful when the officers observed it. See Danforth v. Minnesota, 552 U. S. 264, 271 (2008) . But the officers’ assumption that the law was valid was reason-able, and their observations gave them “abundant probable cause” to arrest DeFillippo. 443 U. S., at 37. Although DeFillippo could not be prosecuted under the identifica-tion ordinance, the search that turned up the drugs was constitutional. Heien struggles to recast DeFillippo as a case solely about the exclusionary rule, not the Fourth Amendment itself. In his view, the officers’ mistake of law resulted in a violation the Fourth Amendment, but suppression of the drugs was not the proper remedy. We did say in a footnote that suppression of the evidence found on DeFillippo would serve none of the purposes of the exclusionary rule. See id., at 38, n. 3. But that literally marginal discussion does not displace our express holding that the arrest was constitutionally valid because the officers had probable cause. See id., at 40. Nor, contrary to Heien’s suggestion, did either United States v. Leon, 468 U. S. 897 (1984) , or Illinois v. Gates, 462 U. S. 213 (1983) , somehow erase that holding and transform DeFillippo into an exclusionary rule decision. See Brief for Petitioner 28–29. In Leon, we said DeFillippo paid “attention to the purposes underlying the exclusionary rule,” but we also clarified that it did “not involv[e] the scope of the rule itself.” 468 U. S., at 911–912. As for Gates, only Justice White’s separate opinion (joined by no other Justice) discussed DeFillippo, and it acknowledged that “DeFillippo did not modify the exclusionary rule itself” but instead “upheld the validity of an arrest.” 462 U. S., at 256, n. 12 (opinion concurring in judgment). Heien is correct that in a number of decisions we have looked to the reasonableness of an officer’s legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. See, e.g., Davis v. United States, 564 U. S. ___, ___ (2011) (slip op., at 11) (exclusionary rule); Illinois v. Krull, 480 U. S. 340 –360 (1987) (exclusionary rule); Wilson v. Layne, 526 U. S. 603, 615 (1999) (qualified immunity); Anderson v. Creighton, 483 U. S. 635, 641 (1987) (qualified immunity). In those cases, however, we had already found or assumed a Fourth Amendment violation. An officer’s mistaken view that the conduct at issue did not give rise to such a violation—no matter how reason-able—could not change that ultimate conclusion. See Brief for Respondent 29–31; Brief for United States as Amicus Curiae 30, n. 3. Any consideration of the reasonableness of an officer’s mistake was therefore limited to the separate matter of remedy. Here, by contrast, the mistake of law relates to the antecedent question of whether it was reasonable for an officer to suspect that the defendant’s conduct was illegal. If so, there was no violation of the Fourth Amendment in the first place. None of the cases Heien or the dissent cites precludes a court from considering a reasonable mistake of law in addressing that question. Cf. Herring v. United States, 555 U. S. 135, 139 (2009) (assuming a Fourth Amendment violation while rejecting application of the exclusionary rule, but noting that “[w]hen a probable-cause determination was based on reasonable but mis-taken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation”). Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien’s view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything “an officer might suddenly confront in the field.” Brief for Petitioner 21. But Heien’s point does not consider the reality that an officer may “suddenly confront” a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting “vehicles” in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36–38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) . And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce. Finally, Heien and amici point to the well-known maxim, “Ignorance of the law is no excuse,” and contend that itis fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law. III Here we have little difficulty concluding that the officer’s error of law was reasonable. Although the North Carolina statute at issue refers to “a stop lamp,” suggesting the need for only a single working brake light, it also provides that “[t]he stop lamp may be incorporated into a unit with one or more other rear lamps.” N. C. Gen. Stat. Ann. §20–129(g) (emphasis added). The use of “other” suggests to the everyday reader of English that a “stop lamp” is a type of “rear lamp.” And another subsection of the same provision requires that vehicles “have all originally equipped rear lamps or the equivalent in good working order,” §20–129(d), arguably indicating that if a vehicle has multiple “stop lamp[s],” all must be functional. The North Carolina Court of Appeals concluded that the “rear lamps” discussed in subsection (d) do not include brake lights, but, given the “other,” it would at least have been reasonable to think they did. Both the majority and the dissent in the North Carolina Supreme Court so concluded, and we agree. See 366 N. C., at 282–283, 737 S. E. 2d, at 358–359; id., at 283, 737 S. E. 2d, at 359 (Hudson, J., dissenting) (calling the Court of Appeals’ decision “surprising”). This “stop lamp” provision, moreover, had never been previously construed by North Carolina’s appellate courts. See id., at 283, 737 S. E. 2d, at 359 (majority opinion). It was thus objectively reasonable for an officer in Sergeant Darisse’s position to think that Heien’s faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop. The judgment of the Supreme Court of North Carolina is Affirmed.Notes 1 The dissent contends that “the tolerance of mistakes of law in cases like Riddle was a result of the specific customs statute that Congress had enacted.” Post, at 8, n. 3 (citing The Apollon, 9 Wheat. 362, 373 (1824) (Story, J.)). The relevant portion of The Apollon, however, addressed “the effect of probable cause,” not what gave rise to it. Id., at 372 (emphasis added); see id., at 376 (finding it “unnecessary” to decide whether probable cause existed because it “would not, under the circumstances of this case, constitute a valid defence”). Justice Story understandably did not cite Riddle or discuss its tolerance of mistakes of law anywhere in The Apollon.

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 heien v. north carolina certiorari to the supreme court of north carolina No. 13–604. Argued October 6, 2014—Decided December 15, 2014 Following a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle’s brake lights was working and pulled the driver over. While issuing a warning ticket for the broken brake light, Darisse became suspicious of the actions of the two occupants and their answers to his questions. Petitioner Nicholas Brady Heien, the car’s owner, gave Darisse consent to search the vehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking. The trial court denied Heien’s motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle’s faulty brake light gave Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be “equipped with a stop lamp,” N. C. Gen. Stat. Ann. §20–129(g), requires only a single lamp—which Heien’s vehicle had—and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that, even assuming no violation of the state law had occurred, Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid. Held: Because Darisse’s mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment. . (a) The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials “fair leeway for enforcing the law,” Brinegar v. United States, 338 U.S. 160, 176. Searches and seizures based on mistakes of fact may be reasonable. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 183–186. The limiting factor is that “the mistakes must be those of reasonable men.” Brinegar, supra, at 176. Mistakes of law are no less compatible with the concept of reasonable suspicion, which arises from an understanding of both the facts and the relevant law. Whether an officer is reasonably mistaken about the one or the other, the result is the same: the facts are outside the scope of the law. And neither the Fourth Amendment’s text nor this Court’s precedents offer any reason why that result should not be acceptable when reached by a reasonable mistake of law. More than two centuries ago, this Court held that reasonable mistakes of law, like those of fact, could justify a certificate of probable cause. United States v. Riddle, 5 Cranch 311, 313. That holding was reiterated in numerous 19th-century decisions. Although Riddle was not a Fourth Amendment case, it explained the concept of probable cause, which this Court has said carried the same “fixed and well known meaning” in the Fourth Amendment, Brinegar, supra, at 175, and n. 14, and no subsequent decision of this Court has undermined that understanding. The contrary conclusion would be hard to reconcile with the more recent precedent of Michigan v. DeFillippo, 443 U.S. 31, where the Court, addressing the validity of an arrest made under a criminal law later declared unconstitutional, held that the officers’ reasonable assumption that the law was valid gave them “abundant probable cause” to make the arrest, id., at 37. Heien attempts to recast DeFillippo as a case solely about the exclusionary rule, not the Fourth Amendment itself, but DeFillippo’s express holding is that the arrest was constitutionally valid because the officers had probable cause. See id., at 40. Heien misplaces his reliance on cases such as Davis v. United States, 564 U. S. ___, where any consideration of reasonableness was limited to the separate matter of remedy, not whether there was a Fourth Amendment violation in the first place. Heien contends that the rationale that permits reasonable errors of fact does not extend to reasonable errors of law, arguing that officers in the field deserve a margin of error when making factual assessments on the fly. An officer may, however, also be suddenly confronted with a situation requiring application of an unclear statute. This Court’s holding does not discourage officers from learning the law. Because the Fourth Amendment tolerates only objectively reasonable mistakes, cf. Whren v. United States, 517 U.S. 806, 813, an officer can gain no advantage through poor study. Finally, while the maxim “Ignorance of the law is no excuse” correctly implies that the State cannot impose punishment based on a mistake of law, it does not mean a reasonable mistake of law cannot justify an investigatory stop. . (b) There is little difficulty in concluding that Officer Darisse’s error of law was reasonable. The North Carolina vehicle code that requires “a stop lamp” also provides that the lamp “may be incorporated into a unit with one or more other rear lamps,” N. C. Gen. Stat. Ann. §20–129(g), and that “all originally equipped rear lamps” must be “in good working order,” §20–129(d). Although the State Court of Appeals held that “rear lamps” do not include brake lights, the word “other,” coupled with the lack of state-court precedent interpreting the provision, made it objectively reasonable to think that a faulty brake light constituted a violation. . 367 N. C. 163, 749 S.E.2d 278, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Kagan, J., filed a concurring opinion, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion.

A North Carolina law enforcement officer, while observing northbound traffic on Interstate 77, thought the driver looked very stiff and nervous. He pulled his patrol car over to investigate a report of public intoxication. A records check revealed no problems with the documents, and the officer gave petitioner Vasquez a warning ticket for a broken brake light. But Vasquez, who was sitting across the wheel, and petitioner Heien, who lay across the rear seat, both gave consent to the officer conducting a thorough search of the vehicle. In the side compartment of a duffle bag, the officer found a sandwich bag containing cocaine. The officers arrested both men and charged Heien with attempted trafficking in cocaine. Heien moved to suppress the evidence seized from the car, contending that the stop and search had violated the Fourth Amendment. After a hearing at which both officers testified and the State played a video recording of the stop, the trial court denied the motion, concluding that the faulty brake light had given the officer reasonable suspicion to initiate the stop. The court held that the initial stop was not valid because driving with only one working brake light was not actually a violation. The North Carolina Court of Appeals reversed. Noting that the State had chosen not to seek review of the court of Appeals interpretation, the Supreme Court assumed for purposes of its decision that the defective brake light in question was not a violation, but concluded that the officer could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order, and that, therefore, the stop was valid. Held: The stop in this case was lawful. . (a) A search or seizure may be permissible even though the justification for the action includes a reasonable factual mistake. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to not be what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake law. P.. (b) The Fourth Amendment tolerates only reasonable mistakes, and those mistakes must be objectively reasonable. Cf. United States v. Riddle, 5 Cranch 311; Illinois v. Gates, 462 U. S. 213; Riddle and its progeny. Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability on the wrongdoers of that law... 367 N. C. 163, 749 S. E. 2d 278, affirmed. (c) The officer erred in concluding that Heien was guilty of a criminal offense when he declined to iden-tify himself. That a court only later declared the ordinance unconstitutional does not change the fact that the conduct was lawful when the officers observed it. But the officers' assumption that the law was valid was reasonable, and their observations gave them anabundant probable cause to arrest him. Although DeFillippo could not be prosecuted under the identifica-tion ordinance, the search that turned up the drugs was constitutional. Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted error of fact or law; and the mistake of law was reasonable.

2014_13-1487

https://www.oyez.org/cases/2014/13-1487

. Government agencies sometimes come into possession of firearms lawfully owned by individuals facing serious criminal charges. If convicted, such a person cannot recover his guns because a federal statute, 18 U. S. C. §922(g), prohibits any felon from possessing firearms. In this case, we consider what §922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party. We hold that §922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use. I The Federal Government charged petitioner Tony Henderson, then a U. S. Border Patrol agent, with the felony offense of distributing marijuana. See 21 U. S. C. §§841(a)(1), (b)(1)(D). A Magistrate Judge required that Henderson surrender all his firearms as a condition of his release on bail. Henderson complied, and the Federal Bureau of Investigation (FBI) took custody of the guns. Soon afterward, Henderson pleaded guilty to the distribution charge; as a result of that conviction, §922(g) prevents him from legally repossessing his firearms. Following his release from prison, Henderson asked the FBI to transfer the guns to Robert Rosier, a friend who had agreed to purchase them for an unspecified price. The FBI denied the request. In a letter to Henderson, it explained that “the release of the firearms to [Rosier] would place you in violation of [§922(g)], as it would amount to constructive possession” of the guns. App. 121. Henderson then returned to the court that had handled his criminal case to seek release of his firearms. Invoking the court’s equitable powers, Henderson asked for an order directing the FBI to transfer the guns either to his wife or to Rosier. The District Court denied the motion, concluding (as the FBI had) that Henderson could not “transfer the firearms or receive money from their sale” without “constructive[ly] possessi[ng]” them in violation of §922(g). No. 3:06–cr–211 (MD Fla., Aug. 8, 2012), App. to Pet. for Cert. 5a–6a, 12a. The Court of Appeals for the Eleventh Circuit affirmed on the same ground, reasoning that granting Henderson’s motion would amount to giving a felon “constructive possession” of his firearms. 555 Fed. Appx. 851, 853 (2014) (per curiam).[1] We granted certiorari, 574 U. S. ___ (2014), to resolve a circuit split over whether, as the courts below held, §922(g) categorically prohibits a court from approving a convicted felon’s request to transfer his firearms to an-other person.[2] We now vacate the decision below. II A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the rightful owner or his designee. See, e.g.,United States v. Martinez, 241 F. 3d 1329, 1330–1331 (CA11 2001) (citing numerous appellate decisions to that effect); Tr. of Oral Arg. 41 (Solicitor General agreeing). Congress, however, may cabin that power in various ways. As relevant here, §922(g) makes it unlawful for any person convicted of a felony to “possess in or affecting commerce[ ] any firearm or ammunition.” That provision prevents a court from instructing an agency to return guns in its custody to a felon-owner like Henderson, because that would place him in violation of the law. The question here is how §922(g) affects a court’s authority to instead direct the transfer of such firearms to a third party. Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an-other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike. 2A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal §39.12, p. 55 (6th ed. 2009) (hereinafter O’Malley); see National Safe Deposit Co. v. Stead, 232 U. S. 58, 67 (1914) (noting that in “legal terminology” the word “possession” is “interchangeably used to describe” both the actual and the constructive kinds). Actual possession exists when a person has direct physical control over a thing. See Black’s Law Dictionary 1047 (5th ed. 1979) (hereinafter Black’s); 2A O’Malley §39.12, at 55. Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. See Black’s 1047; 2A O’Malley §39.12, at 55. Section 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others. That means, as all parties agree, that §922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use. See Brief for United States 23; Reply Brief 12. In such a case, the felon would have control over the guns, even while another person kept physical custody. The idea of constructive possession is designed to preclude just that result, “allow[ing] the law to reach beyond puppets to puppeteers.” United States v. Al-Rekabi, 454 F. 3d 1113, 1118 (CA10 2006). A felon cannot evade the strictures of §922(g) by arranging a sham transfer that leaves him in effective control of his guns. And because that is so, a court may no more approve such a transfer than order the return of the firearms to the felon himself. The Government argues that §922(g) prohibits still more—that it bars a felon, except in one circumstance, from transferring his firearms to another person, no matter how independent of the felon’s influence. According to the Government, a felon “exercises his right to control” his firearms, and thus violates §922(g)’s broad ban on possession, merely by “select[ing] the[ir] first recipient,” because that choice “determine[s] who [will] (and who [will] not) next have access to the firearms.” Brief for United States 24. And that remains so even if a felon never retakes physical custody of the guns and needs a court order to approve and effectuate the proposed transfer. The felon (so says the Government) still exerts enough sway over the guns’ disposition to “have constructive possession” of them. Id., at 25. The only time that is not true, the Government claims, is when a felon asks the court to transfer the guns to a licensed dealer or other party who will sell the guns for him on the open market. See id., at 20–22; Tr. of Oral Arg. 18–21. Because the felon then does not control the firearms’ final destination, the Government avers, he does not constructively possess them and a court may approve the transfer. See ibid. But the Government’s theory wrongly conflates the right to possess a gun with another incident of ownership, which §922(g) does not affect: the right merely to sell or otherwise dispose of that item. Cf. Andrus v. Allard, 444 U. S. 51 –66 (1979) (distinguishing between entitlements to possess and sell property). Consider the scenario that the Government claims would violate §922(g). The felon has nothing to do with his guns before, during, or after the transaction in question, except to nominate their recipient. Prior to the transfer, the guns sit in an evidence vault, under the sole custody of law enforcement officers. Assuming the court approves the proposed recipient, FBI agents handle the firearms’ physical conveyance, without the felon’s participation. Afterward, the purchaser or other custodian denies the felon any access to or influence over the guns; the recipient alone decides where to store them, when to loan them out, how to use them, and so on. In short, the arrangement serves only to divest the felon of his firearms—and even that much depends on a court’s approving the designee’s fitness and ordering the transfer to go forward. Such a felon exercises not a possessory interest (whether directly or through another), but instead a naked right of alienation—the capacity to sell or transfer his guns, unaccompanied by any control over them.[3] The Government’s view of what counts as “possession” would also extend §922(g)’s scope far beyond its purpose. Congress enacted that ban to keep firearms away from felons like Henderson, for fear that they would use those guns irresponsibly. See Small v. United States, 544 U. S. 385, 393 (2005) . Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. See Tr. of Oral Arg. 22. Results of that kind would do nothing to advance §922(g)’s purpose. Finally, the Government’s expansive idea of constructive possession fits poorly with its concession that a felon in Henderson’s position may select a firearms dealer or other third party to sell his guns and give him the proceeds. After all, the felon chooses the guns’ “first recipient” in that case too, deciding who “next ha[s] access to the firearms.” Brief for United States 24; see supra, at 5. If (as the Government argues) that is all it takes to exercise control over and thus constructively possess an item, then (contrary to the Government’s view) the felon would violate §922(g) merely by selecting a dealer to sell his guns. To be sure, that person will predictably convey the firearms to someone whom the felon does not know and cannot control: That is why the Government, as a practical matter, has no worries about the transfer. See Tr. of Oral Arg. 19–21. But that fact merely demonstrates how the Government’s view of §922(g) errs in its focus in a case like this one. What matters here is not whether a felon plays a role in deciding where his firearms should go next: That test would logically prohibit a transfer even whenthe chosen recipient will later sell the guns to someone else. What matters instead is whether the felon will have the ability to use or direct the use of his firearms afterthe transfer. That is what gives the felon constructive possession. Accordingly, a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. See, e.g., United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon’s motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under §922(g). A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request. Neither of the courts below assessed Henderson’s motion for a transfer of his firearms in accord with these principles. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 The Court of Appeals added that Henderson’s “equitable argument rings hollow” because a convicted felon has “unclean hands to demand return [or transfer] of his firearms.” 555 Fed. Appx., at 854. That view is wrong, as all parties now agree. See Brief for Petitioner 35–39; Brief for United States 31, n. 8; Tr. of Oral Arg. 33, 42. The unclean hands doctrine proscribes equitable relief when, but only when, an individ-ual’s misconduct has “immediate and necessary relation to the equity that he seeks.” Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 245 (1933) . The doctrine might apply, for example, if a felon requests the return or transfer of property used in furtherance of his offense. See, e.g., United States v. Kaczynski, 551 F. 3d 1120, 1129–1130 (CA9 2009) (holding that the Unabomber had unclean hands to request the return of bomb-making materials). But Henderson’s felony conviction had nothing to do with his firearms, so the unclean hands rule has no role to play here. 2 Compare 555 Fed. Appx. 851, 853–854 (CA11 2014) (per curiam) (case below) (holding that §922(g) bars any transfer); United States v. Felici, 208 F. 3d 667, 670 (CA8 2000) (same), with United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012) (holding that §922(g) permits some transfers); United States v. Miller, 588 F. 3d 418, 419–420 (CA7 2009) (same). 3 The Government calls our attention to several cases in which courts have found constructive possession of firearms based on evidence that a felon negotiated and arranged a sale of guns while using a third party to make the physical handoff to the buyer. See, e.g., United States v. Nungaray, 697 F. 3d 1114, 1116–1119 (CA9 2012); United States v. Virciglio, 441 F. 2d 1295, 1297–1298 (CA5 1971). But the facts in the cited cases bear no similarity to those here. In each, the defendant-felon controlled the guns’ movement both before and during the transaction at issue (and even was present at the delivery site). As the Government explains, the felon could “make a gun appear” at the time and place of his choosing and decide what would happen to it once it got there. Tr. of Oral Arg. 27. Indeed, he could have chosen to take the firearms for himself or direct them to someone under his influence. The felon’s management of the sale thus exemplified, and served as evidence of, his broader command over the guns’ location and use—the very hallmark of possession. But as just explained, that kind of control is absent when a felon can do no more than nominate an independent recipient for firearms in a federal agency’s custody. The decisions the Government invokes thus have no bearing on this case; nor does our decision here, which addresses only §922(g)’s application to court-supervised transfers of guns, prevent the Government from bringing charges under §922(g) in cases resembling those cited.

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 . SUPREME COURT OF THE UNITED STATES Syllabus HENDERSON v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 13–1487. Argued February 24, 2015—Decided May 18, 2015 After being charged with the felony offense of distributing marijuana, petitioner Tony Henderson was required as a condition of his bail to turn over firearms that he lawfully owned. Henderson ultimately pleaded guilty, and, as a felon, was prohibited under 18 U. S. C. §922(g) from possessing his (or any other) firearms. Henderson therefore asked the Federal Bureau of Investigation, which had custody of his firearms, to transfer them to his friend. But the agency refused to do so. Henderson then filed a motion in federal district court seeking to transfer his firearms, but the court denied the motion on the ground that Henderson’s requested transfer would give him constructive possession of the firearms in violation of §922(g). The Eleventh Circuit affirmed. Held: A court-ordered transfer of a felon’s lawfully owned firearms from Government custody to a third party is not barred by §922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Federal courts have equitable authority to order law enforcement to return property obtained during the course of a criminal proceeding to its rightful owner. Section 922(g), however, bars a court from ordering guns returned to a felon-owner like Henderson, because that would place the owner in violation of the law. And because §922(g) bans constructive as well as actual possession, it also prevents a court from ordering the transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use. The Government goes further, arguing that §922(g) prevents all transfers to a third party, no matter how independent of the felon’s influence, unless that recipient is a licensed firearms dealer or other third party who will sell the guns on the open market. But that view conflates possession, which §922(g) prohibits, with an owner’s right merely to alienate his property, which it does not. After all, the Government’s reading of §922(g) would prohibit a felon from disposing of his firearms even when he would lack any control over and thus not possess them before, during, or after the disposition. That reading would also extend §922(g)’s scope far beyond its purpose; preventing a felon like Henderson from disposing of his firearms, even in ways that guarantee he never uses them again, does nothing to advance the statute’s goal of keeping firearms away from felons. Finally, the Government’s insistence that a felon cannot select a third-party recipient over whom he exercises no influence fits poorly with its concession that a felon may select a firearms dealer or third party to sell his guns. The Government’s reading of §922(g) is thus overbroad. Accordingly, a court may approve the transfer of a felon’s guns consistently with §922(g) if, but only if, the recipient will not grant the felon control over those weapons. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. But that is not the only option; a court, with proper assurances from the recipient, may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them. Either way, once a court is satisfied that the transferee will not allow the felon to exert any influence over the firearms, the court has equitable power to accommodate the felon’s transfer request. . 555 Fed. Appx. 851, vacated and remanded. Kagan, J., delivered the opinion for a unanimous Court.

A federal court has equitable authority, even after a criminal proceeding has ended, to order a law enforcement agency to turn over property it has obtained during the case to the rightful owner or designee. However, Congress may cabin that power in various ways. As relevant here, 18 U.S. C. §922(g) makes it unlawful for any person convicted of a felony to possess or affect commerce any firearm or ammunition. That provision prevents a court from instructing an agency to return guns in its custody to a felon-owner like petitioner, because that would place him in violation of the law. In this case, petitioner was convicted of distributing marijuana. Following his release from prison, he asked the FBI to transfer the guns to a friend who had agreed to purchase them for an unspecified price. The FBI denied the request, and the District Court denied the motion, concluding that petitioner could not transfer the firearms or receive money from their sale withoutconstructive possession. The Court of Appeals affirmed, reasoning that granting petitioner constructive possession of the guns would amount to giving a felon constructive possession. Held: Section922 (g) does not categorically prohibit a federal court from approving a convicted felon's request to transfer his firearms to an-other person. . (a) By proscribing possession alone in terms of possession alone, § 922(G) covers every form of possession, but does not prohibit possession incident to every form incident to the criminal law incident. By preventing a felon from owning the firearms incident to its incident, the felon interferes with the rights of ownership, association, and property. Rather, by preventing the felon from possessing his firearms incident in law, rather than with his own, the statute prevents him not only from holding his firearms himself but also from maintaining control over those guns in the hands of others. Constructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. A felon cannot evade the strictures of §919(g), merely by arranging a sham transfer that leaves him in effective control of his guns. And because that is so, a court may no more approve such a transfer than order the return of the firearms to the felon himself. Here, petitioner exercised enough sway over the guns' disposition to have constructive possession, and that kind of control is absent when a felon can do no more than nominate an independent recipient for firearms in a federal agency's custody. Cf. Andrus v. Allard, 444 U. S. 51-66; Tr. of Oral Arg. 27, 555 Fed. Appx. 851, 853 (CA7), (per curiam). The unclean hands doctrine proscribes equitable relief when, but only when, an individual's misconduct has "immediate and necessary relation to the equity that he seeks." The fact that petitioner had a felony conviction had nothing to do with his firearms, so the rule has no role to play here. P.. (b) A court facing a motion like Henderson's may approve the transfer of guns consistently with §921(g)'s bar on the theory that a felon negotiated and arranged a sale of guns while using a third party to make the physical handoff to the buyer. Although the felon may choose a dealer to sell his guns, that test would logically prohibit a transfer even whenthe chosen recipient will later sell those guns to someone else. What matters here is not whether the felon plays a role in deciding where his firearms should go next: That test is logically prohibitable even if the felon chooses the first recipient to sell the guns, since that person will predictably convey them to someone whom the felon does not know and cannot control. However, the fact that the felon will have the ability to use or direct the use of his firearms afterthe transfer is what gives him constructive possession and prevents him from later exercising control over them so that he could either use them or tell someone else how to do so. One way to ensure that result is to order that the guns be turned over to a firearms dealer, himself independent of the felon's control, for subsequent sale on the open market. Such an order is not the only one available under the statute. But a court facing such a motion may properly seek certain assurances that the proposed transferee promises to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §931(g)-violation violation. Moreover, the court may also grant a felon a request for a transfer to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. Thus, the petitioner, who has no control over his guns before, during, or after the transaction in question, could make a gun appear and decide what would happen to it once it got there

2014_13-6827

https://www.oyez.org/cases/2014/13-6827

. Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1∕2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),114Stat.803,42 U. S. C. §2000cc et seq., which prohibits a stateor local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest. We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.IA Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA),107Stat.1488,42 U. S. C. §2000bb et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith,494 U. S. 872 (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Id., at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder,406 U. S. 205 (1972), and Sherbert v. Verner,374 U. S. 398 (1963). In those cases, we employed a balancing test that considered whether a challenged government action that substantially burdened the exercise of religion was necessary to further a compelling state interest. See Yoder, supra, at 214, 219; Sherbert, supra, at 403, 406. Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby Lobby, supra, at ___ – ___ (slip op., at 5–6). RFRA provides that “[g]overnment shall not substantially burden 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). In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of Boerne v. Flores,521 U. S. 507 (1997), this Court held that RFRA exceeded Congress’ powers under that provision. Id., at 532–536. Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivisions and invokes congressional authority under the Spending and Commerce Clauses. See §2000cc–1(b). RLUIPA concerns two areas of government activity: Section 2 governs land-use regulation, §2000cc; and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons, §2000cc–1. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a). RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente União do Vegetal,546 U. S. 418,436 (2006). Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “religious exercise” capaciously to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). Congress mandated that this concept “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). And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby, supra, at ___ – ___, ___ (slip op., at 6–7, 43).B Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” App. to Brief for Petitioner 11a. The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” Ibid. The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.” Id., at 12a. Petitioner sought permission to grow a beard and, al-though he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a 1∕2-inch beard. App. 164. Prison officials denied his request, and the warden told him: “[Y]ou will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.” No. 5:11–cv–00164 (ED Ark., July 21, 2011), Doc. 13, p. 6 (Letter from Gaylon Lay to Gregory Holt (July 19, 2011)). Petitioner filed a pro se complaint in Federal District Court challenging the grooming policy under RLUIPA. We refer to the respondent prison officials collectively as the Department. In October 2011, the District Court granted petitioner a preliminary injunction and remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department called two witnesses. Both expressed the belief that inmates could hide contraband in even a 1∕2-inch beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere. Both witnesses also acknowledged that inmates could hide items in many other places, such as in the hair on their heads or their clothing. In addition, one of the witnesses—Gaylon Lay, the warden of petitioner’s prison—testified that a prisoner who escaped could change his appearance by shaving his beard, and that a prisoner could shave his beard to disguise himself and enter a restricted area of the prison. Neither witness, however, was able to explain why these problems could not be addressed by taking a photograph of an inmate without a beard, a practice followed in other prison systems. Lay voiced concern that the Department would be unable to monitor the length of a prisoner’s beard to ensure that it did not exceed one-half inch, but he acknowledged that the Department kept track of the length of the beards of those inmates who are allowed to wear a 1∕4-inch beard for medical reasons. As a result of the preliminary injunction, petitioner had a short beard at the time of the hearing, and the Magistrate Judge commented: “I look at your particular circumstance and I say, you know, it’s almost preposterous to think that you could hide contraband in your beard.” App. 155. Nevertheless, the Magistrate Judge recommended that the preliminary injunction be vacated and that petitioner’s complaint be dismissed for failure to state a claim on which relief can be granted. The Magistrate Judge emphasized that “the prison officials are entitled to deference,” id., at 168, and that the grooming policy allowed petitioner to exercise his religion in other ways, such as by praying on a prayer rug, maintaining the diet required by his faith, and observing religious holidays. The District Court adopted the Magistrate Judge’s recommendation in full, and the Court of Appeals for the Eighth Circuit affirmed in a brief per curiam opinion, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests. 509 Fed. Appx. 561 (2013). The Court of Appeals stated that “courts should ordinarily defer to [prison officials’] expert judgment” in security matters unless there is substantial evidence that a prison’s response is exaggerated. Id., at 562. And while acknowledging that other prisons allow inmates to maintain facial hair, the Eighth Circuit held that this evidence “does not outweigh deference owed to [the] expert judgment of prison officials who are more familiar with their own institutions.” Ibid. We entered an injunction pending resolution of petitioner’s petition for writ of certiorari, 571 U. S. ___ (2013), and we then granted certiorari, 571 U. S. ___ (2014).II Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” §2000cc–5(7)(A), but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation, see Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief. In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The Department’s grooming policy requires petitioner to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” Id., at ___ (slip op., at 32). If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise. The District Court reached the opposite conclusion, but its reasoning (adopted from the recommendation of the Magistrate Judge) misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” App. 177. In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. See, e.g., O’Lone v. Estate of Shabazz,482 U. S. 342–352 (1987); see also Turner v. Safley,482 U. S. 78,90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1∕2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise. Second, the District Court committed a similar error in suggesting that the burden on petitioner’s religious exercise was slight because, according to petitioner’s testi-mony, his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt provedto be unsuccessful. RLUIPA, however, applies to an exercise of religion regardless of whether it is “compelled.” §2000cc–5(7)(A). Finally, the District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic. See Brief for Islamic Law Scholars as Amici Curiae 2 (“hadith requiring beards . . . are widely followed by observant Muslims across the various schools of Islam”). But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div.,450 U. S. 707–716 (1981).III Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a 1∕2-inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest.” §2000cc–1(a). The Department argues that its grooming policy represents the least restrictive means of furthering a “ ‘broadly formulated interes[t],’ ” see Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, 546 U. S., at 431), namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “ ‘more focused’ ” inquiry and “ ‘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.’ ” Hobby Lobby, 573 U. S., at ___ (slip op., at 39) (quoting O Centro, supra, at 430–431 (quoting §2000bb–1(b))). RLUIPA requires us to “ ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ ” and “to look to the marginal interest in enforcing” the challenged government action in that particular context. Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, supra, at 431; alteration in original). In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a 1∕2-inch beard. The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.A The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards. We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1∕2-inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost preposterous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the evidentiary hearing. App. 155. An item of contraband would have to be very small indeed to be concealed by a 1∕2-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1∕2-inch beard rather than in the longer hair on his head. Although the Magistrate Judge dismissed the possibility that contraband could be hidden in a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought that they were bound to defer to the Department’s assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband. RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” O Centro, supra, at 434. That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a 1∕2-inch beard actually furthers the Department’s interest in rooting out contraband. Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is exceptionally demanding,” and it requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___ (slip op., at 40). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United States v. Playboy Entertainment Group, Inc.,529 U. S. 803,815 (2000). The Department failed to establish that it could not satisfy its security concerns by simply searching petitioner’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the 1∕4-inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and 1∕4-inch beards can be searched but 1∕2-inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and 1∕4-inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a 1∕2-inch beard.B The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows secu-rity officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping. We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appearance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the 1∕2-inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identifications. In fact, the Department (like many other States, see Brief for Petitioner 39) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during [his] incarceration.” Arkansas Department of Correction, Inmate Handbook 3–4 (rev. Jan. 2013). The Department argues that the dual-photo method is inadequate because, even if it might help authorities apprehend a bearded prisoner who escapes and then shaves his beard once outside the prison, this method is unlikely to assist guards when an inmate quickly shaves his beard in order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner’s prison, where inmates live in barracks and work in fields. Counsel for the Department suggested at oral argument that a pris-oner could gain entry to a restricted area by shavinghis beard and swapping identification cards with an-other inmate while out in the fields. Tr. of Oral Arg. 28–30, 39–43. We are unpersuaded by these arguments for at least two reasons. First, the Department failed to show, in the face of petitioner’s evidence, that its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. Second, the Department failed to establish why the risk that a prisoner will shave a 1∕2-inch beard to disguise himself is so great that 1∕2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1∕4-inch beards for medical reasons. All of these could also be shaved off at a moment’s notice, but the Department apparently does not think that this possibility raises a serious security concern.C In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis. First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a 1∕2-inch beard, it permits prisoners with a dermatological condition to grow 1∕4-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a 1∕2-inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the neck.” App. to Brief for Petitioner 11a. Hair on the head is a more plausible place to hide contraband than a 1∕2-inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah,508 U. S. 520,546 (1993). In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department emphasizes that petitioner’s 1∕2-inch beard is longer than the 1∕4-inch beard allowed for medical reasons. But the Department has failed to establish (and the District Court did not find) that a 1∕4-inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” O Centro, 546 U. S., at 436. We have rejected a similar argument in analogous contexts, see ibid.; Sherbert, 374 U. S., at 407, and we reject it again today. Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow 1∕2-inch beards, either for any reason or for religious reasons, but it cannot. See Brief for Petitioner 24–25; Brief for United States as Amicus Curiae 28–29. “While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” Procunier v. Martinez,416 U. S. 396, n. 14 (1974). That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks. We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.” Playboy Entertainment, 529 U. S., at 824. We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Cutter v. Wilkinson,544 U. S. 709, n. 13 (2005). See also Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Third, even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.IV In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1∕2-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.

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 holt, aka muhammad v. hobbs, director, arkansas department of correction, et al. certiorari to the united states court of appeals for the eighth circuit No. 13–6827. Argued October 7, 2014—Decided January 20, 2015 Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) provides that “[n]o government shall impose a substantial burden on the religious exercise” of an institutionalized person unless the government demonstrates that the burden “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §2000cc–1(a). Petitioner is an Arkansas inmate and devout Muslim who wishes to grow a ½-inch beard in accordance with his religious beliefs. Respondent Arkansas Department of Correction (Department) prohibits its prisoners from growing beards, with the single exception that inmates with diagnosed skin conditions may grow ¼-inch beards. Petitioner sought an exemption on religious grounds and, although he believes that his faith requires him not to trim his beard at all, he proposed a compromise under which he would be allowed to maintain a ½-inch beard. Prison officials denied his request, and petitioner sued in Federal District Court. At an evidentiary hearing before a Magistrate Judge, Department witnesses testified that beards compromised prison safety because they could be used to hide contraband and because an inmate could quickly shave his beard to disguise his identity. The Magistrate Judge recommended dismissing petitioner’s complaint, emphasizing that prison officials are entitled to deference on security matters and that the prison permitted petitioner to exercise his religion in other ways. The District Court adopted the recommendation in full, and the Eighth Circuit affirmed, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests, and reiterating that courts should defer to prison officials on matters of security. Held: The Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½-inch beard in accordance with his religious beliefs. . (a) Under RLUIPA, the challenging party bears the initial burden of proving that his religious exercise is grounded in a sincerely held religious belief, see Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 28, and that the government’s action substantially burdens his religious exercise. Here, petitioner’s sincerity is not in dispute, and he easily satisfies the second obligation. The Department’s policy forces him to choose between “engag[ing] in conduct that seriously violates [his] religious belie[f],” id., at ___, or contravening the grooming policy and risking disciplinary action. In reaching the opposite conclusion, the District Court misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because he could practice his religion in other ways. Second, the District Court erroneously suggested that the burden on petitioner’s religious exercise was slight because petitioner testified that his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt proved unsuccessful. RLUIPA, however, applies to religious exercise regardless of whether it is “compelled.” §2000cc–5(7)(A). Finally, the District Court improperly relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Even if petitioner’s belief were idiosyncratic, RLUIPA’s guarantees are “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715–716. . (b) Once the challenging party satisfies his burden, the burden shifts to the government to show that substantially burdening the religious exercise of the “particular claimant” is “the least restrictive means of furthering [a] compelling governmental interest.” Hobby Lobby, supra, at ___; §2000cc–1(a). The Department fails to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities. . (i) While the Department has a compelling interest in regulating contraband, its argument that this interest is compromised by allowing an inmate to grow a ½-inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head. RLUIPA does not permit the unquestioning deference required to accept the Department’s assessment. See Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 434. Even if the Department could show that denying petitioner a ½-inch beard furthers its interest in rooting out contraband, it would still have to show that its policy is the least restrictive means of furthering that interest, a standard that is “exceptionally demanding” and requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___. Here, the Department fails to establish that its security concerns cannot be satisfied by simply searching a ½-inch beard. . (ii) Even if the Department’s grooming policy furthers its compelling interest in prisoner identification, its policy still violates RLUIPA as applied in the present circumstances. As petitioner argues, re-quiring inmates to be photographed both with and without beards and then periodically thereafter is a less restrictive means of solving the Department’s identification concerns. The Department fails to show why its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. It also fails to show why the security risk presented by a prisoner shaving a ½-inch beard is so different from the risk of a prisoner shaving a mustache, head hair, or ¼-inch beard. . (c) In addition to the Department’s failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department also fails to adequately explain the substantial underinclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than ½ inch of hair on the head. Its failure to pursue its proffered objectives with regard to such “analogous nonreligious conduct” suggests that its interests “could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546. Nor does the Department explain why the vast majority of States and the Federal Government can permit inmates to grow ½-inch beards, either for any reason or for religious reasons, but it cannot. Such evidence requires a prison, at a minimum, to offer persuasive reasons why it believes it must take a different course. See Procunier v. Martinez, 416 U.S. 396, 414, n. 14. . 509 Fed. Appx. 561, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion, in which Sotomayor, J., joined. Sotomayor, J., filed a concurring opinion.

Petitioner Holt, an Arkansas inmate, objected on religious grounds to the Department of Correction grooming policy, which provides that inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip. Holt, who believes that his faith requires him not to trim his beard, proposed a beard-growing compromise under which he would grow only a 1∕2-inch beard. However, the warden told him that he would abide by the policy, and that he could suffer the consequences if he chose to disobey the policy. Holt filed a pro se complaint in Federal District Court challenging the grooming policy under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which prohibits a stateor local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest. The District Court granted a preliminary injunction, and remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department called two witnesses who expressed the belief that inmates could hide contraband in even a small beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere, and one of the witnesses testified that a prisoner who escaped could change his appearance by shaving his beard. The court dismissed the complaint on the ground that the state officials were entitled to deference on the basis of religious exercise, and the Court of Appeals affirmed. Held: The Department has failed to show that its grooming policy is the least restrictive means furthering its compelling interest about contraband. . (a) The religious exercise at issue is the growing of a beard, which Holt believes is a dictate of his religious faith and the Department does not dispute the sincerity of his belief. In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, Holt also bore the burden of proving that the Department's grooming policy substantially burdened that exercise. See Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). Moreover, the District Court erred in concluding that the no-beard policy did not substantially burden petitioner's religious exercise because he had been provided a prayer rug and a list of distributors of Islamic material, was allowed to correspond with a religious advisor, and was permitted to maintain the required diet and observe religious holidays. The court improperly imported a strand of reasoning from cases involving prisoners' First Amendment rights, see, e.g., O’Lone v. Estate of Shabazz,, which held that RLUIPA provides greater protection than is available under the First Amendment. It also erred by suggesting that the burden on a religious exercise was slight because, according to Holt, his religion would credit him for attempting to follow his religious beliefs, even if that attempt provedto be unsuccessful. Furthermore, the court went astray when it relied on Holt, as a result of his testimony that not all Muslims believe that men must grow beards. There is no evidence that Holt will be allowed to grow beard in accordance with his beliefs, and it is impossible to prove that he is sincere in his belief that his beard will disguise himself as a beard. RLUipA requires courts to consider whether exceptions are required under the test set forth by Congress. Courts must hold prisons to their statutory burden, and must not assume a plausible, less restrictive alternative would be ineffective. P.. (b) The Department failed to demonstrate, in the face of petitioner's evidence, that its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions, and failed to establish why it will not be able to conceal contraband so as to disguise itself as a bald head. Thus, the statutory burden is not properly met here, since the Department failed not merely to explain why it denied the exemption, but to demonstrate that it could not satisfy its security concerns by simply searching petitioner's beard, and thus failed to satisfy its burden. Even if the Department did prove that the facial beard policy sufficiently furthers its interest in preventing prisoners from disguising their identities, it still violated RLU IPA as applied in the circumstances present here. Both the Department and the courts below deferred to the prison officials' mere say-so that they could not accommodate Holt. After applying the standard of applying the statutory standard, the courts, applying a blindingly rigorous standard, held that Holt was entitled to an accommodation, even though it undermines an authentic religious belief that he was requested to be an authentic accommodation. Although the Department has offered no sound reason why hair, clothing, and beards can be searched but cannot be searched, it failed to prove (and the court did not find) that a 1-4-inch difference in beard length

2014_13-433

https://www.oyez.org/cases/2014/13-433

. The employer in this case required its employees, warehouse workers who retrieved inventory and packaged itfor shipment, to undergo an antitheft security screen-ing before leaving the warehouse each day. The question presented is whether the employees’ time spent waiting to undergo and undergoing those security screenings is compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., as amended by the Portal-to-Portal Act of 1947, §251 et seq. We hold that the time is not compensable. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit. I Petitioner Integrity Staffing Solutions, Inc., provides warehouse staffing to Amazon.com throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers. Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors. In 2010, Busk and Castro filed a putative class action against Integrity Staffing on behalf of similarly situated employees in the Nevada warehouses for alleged violations of the FLSA and Nevada labor laws. As relevant here, the employees alleged that they were entitled to compensation under the FLSA for the time spent waiting to undergo and actually undergoing the security screenings. They alleged that such time amounted to roughly 25 minutes each day and that it could have been reduced to a de minimis amount by adding more security screeners or by staggering the termination of shifts so that employees could flow through the checkpoint more quickly. They also alleged that the screenings were conducted “to prevent employee theft” and thus occurred “solely for the benefit of the employers and their customers.” App. 19, 21. The District Court dismissed the complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA. It explained that, because the screenings occurred after the regular work shift, the employees could state a claim for compensation only if the screenings were an integral and indispensable part of the principal activities they were employed to perform. The District Court held that these screenings were not integral and indispensable but instead fell into a noncompensable category of postliminary activities. The United States Court of Appeals for the Ninth Circuit reversed in relevant part. 713 F. 3d 525 (2013). The Court of Appeals asserted that postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee’s principal activities if those postshift activities are necessary to the principal work performed and done for the benefit of the employer. Id., at 530. Accepting as true the allegation that Integrity Staffing required the security screenings to prevent employee theft, the Court of Appeals concluded that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for Integrity Staffing’s benefit. Id., at 531. We granted certiorari, 571 U. S. ___ (2014), and now reverse. II A Enacted in 1938, the FLSA established a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek. §§6(a)(1), 7(a)(3), 52Stat. 1062–1063. An employer who violated these provisions could be held civilly liable for backpay, liquidated damages, and attorney’s fees. §16, id., at 1069. But the FLSA did not define “work” or “workweek,” and this Court interpreted those terms broadly. It defined “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590, 598 (1944) . Similarly, it defined “the statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 –691 (1946). Applying these expansive definitions, the Court found compensable the time spent traveling between mine portals and underground work areas, Tennessee Coal, supra, at 598, and the time spent walking from timeclocks to work benches, Anderson, supra, at 691–692. These decisions provoked a flood of litigation. In the six months following this Court’s decision in Anderson, unions and employees filed more than 1,500 lawsuits under the FLSA. S. Rep. No. 37, 80th Cong., 1st Sess., pp. 2–3 (1947). These suits sought nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities. Ibid. Congress responded swiftly. It found that the FLSAhad “been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U. S. C. §251(a). Declaring the situation to be an “emergency,” Congress found that, if such interpretations “were permitted to stand, . . . the payment of such liabilities would bring about financial ruin of many employers” and “employees would receive windfall payments . . . for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.” §§251(a)–(b). Congress met this emergency with the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows: “(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer . . .to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— “(1) walking, riding, or traveling to and from the ac-tual place of performance of the principal activity or ac-tivities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, “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.” §4, 61Stat. 86–87 (codified at 29 U. S. C. §254(a)). At issue here is the exemption for “activities which are preliminary to or postliminary to said principal activity or activities.” B This Court has consistently interpreted “the term ‘principal activity or activities’ [to] embrac[e] all activities which are an ‘integral and indispensable part of the principal activities.’ ” IBP, Inc. v. Alvarez, 546 U. S. 21 –30 (2005) (quoting Steiner v. Mitchell, 350 U. S. 247 –253 (1956)). Our prior opinions used those words in their ordinary sense. The word “integral” means “[b]elonging to or making up an integral whole; constituent, component; spec[ifically] necessary to the completeness or integrity of the whole; forming an intrinsic portion or element, as distinguished from an adjunct or appendage.” 5 Oxford English Dictionary 366 (1933) (OED); accord, Brief for United States as Amicus Curiae 20 (Brief for United States); see also Webster’s New International Dictionary 1290 (2d ed. 1954) (Webster’s Second) (“[e]ssential to completeness; constituent, as a part”). And, when used to describe a duty, “indispensable” means a duty “[t]hat cannot be dispensed with, remitted, set aside, disregarded, or neglected.” 5 OED 219; accord, Brief for United States 19; see also Webster’s Second 1267 (“[n]ot capable of being dispensed with, set aside, neglected, or pronounced nonobligatory”). An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. As we describe below, this definition, as applied in these circumstances, is consistent with the Department of Labor’s regulations. Our precedents have identified several activities that satisfy this test. For example, we have held compensable the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were “toxic to human beings” and the employer conceded that “the clothes-changing and showering activities of the employees [were] indispensable to the performance of their productive work and integrally related thereto.” Steiner, supra, at 249, 251. And we have held compensable the time meatpacker employees spent sharpening their knives because dull knives would “slow down production” on the assembly line, “affect the appearance of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents.” Mitchell v. King Packing Co., 350 U. S. 260, 262 (1956) . By contrast, we have held noncompensable the time poultry-plant employees spent waiting to don protective gear because such waiting was “two steps removed from the productive activity on the assembly line.” IBP, supra, at 42. The Department of Labor’s regulations are consistent with this approach. See 29 CFR §790.8(b) (2013) (“The term ‘principal activities’ includes all activities which are an integral part of a principal activity”); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance”). As an illustration, those regulations explain that the time spent by an employee in a chemical plant changing clothes would be compensable if he “c[ould not] perform his principal activities without putting on certain clothes” but would not be compensable if “changing clothes [were] merely a convenience to the employee and not directly related to his principal activities.” See §790.8(c). As the regulations explain, “when performed under the conditions normally present,” activities including “checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks” are “ ‘preliminary’ ” or “ ‘postliminary’ ” activities. §790.7(g). III A The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” 29 U. S. C. §254(a)(1). Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers. As explained above, an activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work. The Solicitor General, adopting the position of the Department of Labor, agrees that these screenings were noncompensable postliminary activities. See Brief for United States 10. That view is fully consistent with an Opinion Letter the Department issued in 1951. The letter found noncompensable a preshift security search of employees in a rocket-powder plant “ ‘for matches, spark producing devices such as cigarette lighters, and other items which have a direct bearing on the safety of the employees,’ ” as well as a postshift security search of the employees done “ ‘for the purpose of preventing theft.’ ” Opinion Letter from Dept. of Labor, Wage and Hour Div., to Dept. of Army, Office of Chief of Ordnance (Apr. 18, 1951), pp. 1–2 (available in Clerk of Court’s case file). The Department drew no distinction between the searches conducted for the safety of the employees and those conducted for the purpose of preventing theft—neither were compensable under the Portal-to-Portal Act. B The Court of Appeals erred by focusing on whether an employer required a particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform. See, e.g., IBP, 546 U. S., at 42; Mitchell, supra, at 262; Steiner, 350 U. S., at 249–251; see also 29 CFR §790.8(a) (explaining that the term “principal activities” was “considered sufficiently broad to embrace within its terms such activities as are indispensable to the performance of productive work” (internal quotation marks omitted; emphasis added)); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance” (emphasis added)). If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities” the very activities that the Portal-to-Portal Act was designed to address. The employer in Anderson, for instance, required its employees to walk “from a timeclock near the factory gate to a workstation” so that they could “begin their work,” “but it is indisputable that the Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson’s holding that such walking time was compensable under the FLSA.” IBP, supra, at 41. A test that turns on whether the activity is for the benefit of the employer is similarly overbroad. Finally, we reject the employees’ argument that time spent waiting to undergo the security screenings is compensable under the FLSA because Integrity Staffing could have reduced that time to a de minimis amount. The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform. These arguments are properly presented to the employer at the bargaining table, see 29 U. S. C. §254(b)(1), not to a court in an FLSA claim. * * * We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. Because the employees’ time spent waiting to undergo and undergoing Integrity Staffing’s security screenings does not meet these criteria, we reverse the judgment of the Court of Appeals. 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 integrity staffing solutions, INC. v. busk et al. certiorari to the united states court of appeals for the ninth circuit No. 13–433. Argued October 8, 2014—Decided December 9, 2014 Petitioner Integrity Staffing Solutions, Inc., required its hourly warehouse workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Respondents, former employees, sued the company alleging, as relevant here, that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the roughly 25 minutes each day that they spent waiting to undergo and undergoing those screenings. They also alleged that the company could have reduced that time to a de minimis amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the employers and their customers. The District Court dismissed the complaint for failure to state a claim, holding that the screenings were not integral and indispensable to the employees’ principal activities but were instead postliminary and noncompensable. The U. S. Court of Appeals for the Ninth Circuit reversed in relevant part, asserting that postshift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee’s principal activities if the postshift activities are necessary to the principal work and performed for the employer’s benefit. Held: The time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA. . (a) Congress passed the Portal-to-Portal Act to respond to an economic emergency created by the broad judicial interpretation given to the FLSA’s undefined terms “work” and “workweek.” See 29 U. S. C. §251(a); Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598. The Portal-to-Portal Act exempted employers from FLSA liability for claims based on “activities which are preliminary to or postliminary to” the performance of the principal activities that an employee is employed to perform. §254(a)(2). Under this Court’s precedents, the term “principal activities” includes all activities which are an “integral and indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 252–253. An activity is “integral and indispensable” if it is an intrinsic element of the employee’s principal activities and one with which the employee cannot dispense if he is to perform his principal activities. This Court has identified several activities that satisfy this test—see, e.g., id., at 249, 251; Mitchell v. King Packing Co., 350 U.S. 260, 262—and Department of Labor regulations are consistent with this approach, see 29 CFR §§790.8(c), 790.7(g). . (b) The security screenings at issue are noncompensable postliminary activities. To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they “integral and indispensable” to those activities. This view is consistent with a 1951 Department of Labor opinion letter, which found noncompensable under the Portal-to-Portal Act both a preshift screening conducted for employee safety and a postshift search conducted to prevent employee theft. The Ninth Circuit’s test, which focused on whether the particular activity was required by the employer rather than whether it was tied to the productive work that the employee was employed to perform, would sweep into “principal activities” the very activities that the Portal-to-Portal Act was designed to exclude from compensation. See, e.g., IBP, supra, at 41. Finally, respondents’ claim that the screenings are compensable because Integrity Staffing could have reduced the time to a de minimis amount is properly presented at the bargaining table, not to a court in an FLSA claim. . 713 F.3d 525, reversed. Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Kagan, J., joined.

Petitioner employer required its warehouse workers, who retrieved inventory and packaged it for delivery to customers, to undergo an antitheft security screen-ing before leaving the warehouse each day. Respondent employees filed a putative class action against petitioner in Federal District Court, alleging that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the time spent waiting to undergo and actually undergoing the security screenings. The District Court dismissed the complaint for failure to state a claim, holding that the time was not compensable under the FLSA. The Court of Appeals reversed in relevant part, asserting that postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee's principal activities if those post-shift activities are necessary to the principal work performed and done for the benefit of the employer. Held: The time is not sufficiently compensable to satisfy the test of whether an employer required a particular activity to be an integral part of the principal activities that an employee is employed to perform.. (a) The wordintegral means to embrac[e] all activities which are anintegral and indispensable part of a principal activity. It means that it is tied to the work that is employed and that is productive to the employee, and therefore is indispensable if it is an integral element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. Steiner v. Mitchell, 350 U. S. 247-253. Pp. 691-691. (b) An activity is not integral and indispensable to a specific activity, and thus compensable under §254(a)(1) of the Act, if it (i.e., an activity such as that involved here) is an intrinsic element of the activities and an integral component of those activities, and with which the employee is not dispensed with or remitted, set aside, disregarded, or neglected. Here, petitioner could have reduced the time to a de minimis amount. The fact that an employer could conceivably reduce time spent by employees on any preliminary or preliminary activity does not change the nature of the activity or its relationship to the principal activities an employee is employing to perform, and these arguments are properly presented to the employer at the bargaining table, not to a court in an FLSA claim. . 713 F. 3d 525, reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed a dissenting opinion, post, p..

2014_13-684

https://www.oyez.org/cases/2014/13-684

. The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written no-tice to his lender, or whether he must also file a lawsuit before the 3-year period elapses. On February 23, 2007, petitioners Larry and Cheryle Jesinoski refinanced the mortgage on their home by borrowing $611,000 from respondent Countrywide Home Loans, Inc. Exactly three years later, on February 23, 2010, the Jesinoskis mailed respondents a letter purporting to rescind the loan. Respondent Bank of America Home Loans replied on March 12, 2010, refusing to acknowledge the validity of the rescission. On February 24, 2011, the Jesinoskis filed suit in Federal District Court seeking a declaration of rescission and damages. Respondents moved for judgment on the pleadings, which the District Court granted. The court concluded that the Act requires a borrower seeking rescission to file a lawsuit within three years of the transaction’s consummation. Although the Jesinoskis notified respondents of their intention to rescind within that time, they did not file their first complaint until four years and one day after the loan’s consummation. 2012 WL 1365751, *3 (D Minn., Apr. 19, 2012). The Eighth Circuit affirmed. 729 F. 3d 1092, 1093 (2013) (per curiam). Congress passed the Truth in Lending Act,82Stat.146, as amended, to help consumers “avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing.”15 U. S. C. §1601(a). To this end, the Act grants borrowers the right to rescind a loan “until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later, by notifying the creditor, in accordance with regulations of the [Federal Reserve] Board, of his intention to do so.” §1635(a) (2006 ed.).[1] This regime grants borrowers an unconditional right to rescind for three days, after which they may rescind only if the lender failed to satisfy the Act’s disclosure requirements. But this conditional right to rescind does not last forever. Even if a lender never makes the required disclosures, the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first.” §1635(f). The Eighth Circuit’s affirmance in the present case rested upon its holding in Keiran v. Home Capital, Inc., 720 F. 3d 721, 727–728 (2013) that, unless a borrower has filed a suit for rescission within three years of the transaction’s consummation, §1635(f) extinguishes the right to rescind and bars relief. That was error. Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised: It provides that a borrower “shall have the right to rescind . . . by notifying the creditor, in accordance with regulations of the Board, of his intention to do so” (emphasis added). The language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. It follows that, so long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years. Nothing in §1635(f) changes this conclusion. Although §1635(f) tells us when the right to rescind must be exercised, it says nothing about how that right is exercised. Our observation in Beach v. Ocwen Fed. Bank,523 U. S. 410,417 (1998), that §1635(f) “govern[s] the life of the underlying right” is beside the point. That case concerned a borrower’s attempt to rescind in the course of a foreclosure proceeding initiated six years after the loan’s consummation. We concluded only that there was “no federal right to rescind, defensively or otherwise, after the 3-year period of §1635(f) has run,” id., at 419, not that there was no rescission until a suit is filed. Respondents do not dispute that §1635(a) requires only written notice of rescission. Indeed, they concede that written notice suffices to rescind a loan within the first three days after the transaction is consummated. They further concede that written notice suffices after that period if the parties agree that the lender failed to make the required disclosures. Respondents argue, however, that if the parties dispute the adequacy of the disclosures—and thus the continued availability of the right to rescind—then written notice does not suffice. Section 1635(a) nowhere suggests a distinction between disputed and undisputed rescissions, much less that a lawsuit would be required for the latter. In an effort to sidestep this problem, respondents point to a neighboring provision, §1635(g), which they believe provides support for their interpretation of the Act. Section 1635(g) states merely that, “[i]n any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award relief under section 1640 of this title for violations of this subchapter not relating to the right to rescind.” Respondents argue that the phrase “award relief” “in addition to rescission” confirms that rescission is a consequence of judicial action. But the fact that it can be a consequence of judicial action when §1635(g) is triggered in no way suggests that it can only follow from such action. The Act contemplates various situations in which the question of a lender’s compliance with the Act’s disclosure requirements may arise in a lawsuit—for example, a lender’s foreclosure action in which the borrower raises inadequate disclosure as an affirmative defense. Section 1635(g) makes clear that a court may not only award rescission and thereby relieve the borrower of his financial obligation to the lender, but may also grant any of the remedies available under §1640 (including statutory damages). It has no bearing upon whether and how borrower-rescission under §1635(a) may occur. Finally, respondents invoke the common law. It is true that rescission traditionally required either that the rescinding party return what he received before a rescission could be effected (rescission at law), or else that a court affirmatively decree rescission (rescission in equity). 2 D. Dobbs, Law of Remedies §9.3(3), pp. 585–586 (2d ed. 1993). It is also true that the Act disclaims the common-law condition precedent to rescission at law that the borrower tender the proceeds received under the transaction.15 U. S. C. §1635(b). But the negation of rescission-at-law’s tender requirement hardly implies that the Act codifies rescission in equity. Nothing in our jurisprudence, and no tool of statutory interpretation, requires that a congressional Act must be construed as implementing its closest common-law analogue. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino,501 U. S. 104–109 (1991). The clear import of §1635(a) is that a borrower need only provide written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which statutory law modifies common-law practice.* * * The Jesinoskis mailed respondents written notice of their intention to rescind within three years of their loan’s consummation. Because this is all that a borrower must do in order to exercise his right to rescind under the Act, the court below erred in dismissing the complaint. Accordingly, we reverse the judgment of the Eighth Circuit and remand the case for further proceedings consistent with this opinion.It is so ordered.Notes1 Following the events in this case, Congress transferred the author-ity to promulgate rules implementing the Act to the Consumer Finance Protection Bureau. See Dodd-Frank Wall Street Reform and Consumer Protection Act, §§1061(b)(1), 1100A(2), 1100H,124Stat.2036,2107,2113.

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 jesinoski et ux. v. countrywide home loans, inc., et al. certiorari to the united states court of appeals for the eighth circuit No. 13–684. Argued November 4, 2014—Decided January 13, 2015 Exactly three years after borrowing money from respondent Countrywide Home Loans, Inc., to refinance their home mortgage, petitioners Larry and Cheryle Jesinoski sent Countrywide and respondent Bank of America Home Loans, which had acquired Countrywide, a letter purporting to rescind the transaction. Bank of America replied, refusing to acknowledge the rescission’s validity. One year and one day later, the Jesinoskis filed suit in federal court, seeking a declaration of rescission and damages. The District Court entered judgment on the pleadings for respondents, concluding that a borrower can exercise the Truth in Lending Act’s right to rescind a loan, see 15 U. S. C. §1635(a), (f), only by filing a lawsuit within three years of the date the loan was consummated. The Jesinoskis’ complaint, filed four years and one day after the loan’s consummation, was ineffective. The Eighth Circuit affirmed. Held: A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file suit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the right to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condition precedent to rescission at law, see §1635(b), hardly implies that the Act thereby codified rescission in equity. . 729 F.3d 1092, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court.

The Truth in Lending Act (Act) gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written no-tice to his lender, or whether he must also file a lawsuit before the 3-year period elapses. Petitioners, who refinanced the mortgage on their home by borrowing $611,000 from respondent Countrywide Home Loans, Inc., mailed respondents a letter purporting to rescind the loan. Respondent Bank of America Home Loans replied on March 12, 2010, refusing to acknowledge the validity of the rescission. Petitioners then filed suit in Federal District Court seeking a declaration of rescission and damages, and the court granted respondents judgment on the pleadings, concluding that the Act requires a borrower seeking rescission to file a suit within three years of the transaction's consummation. The Court of Appeals affirmed, holding that, unless a borrower has filed a suit for rescission, §1635(f) extinguishes the right and bars relief. Held: Because this is all that a borrower must do in order to exercise his right of rescind under the Act, the court below erred in dismissing the complaint. . 729 F. 3d 1092, reversed and remanded. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p..

2014_13-7120

https://www.oyez.org/cases/2014/13-7120

. Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws. I Federal law forbids certain people—such as convicted felons, persons committed to mental institutions, and drug users—to ship, possess, and receive firearms. §922(g). In general, the law punishes violation of this ban by up to 10 years’ imprisonment. §924(a)(2). But if the violator has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. §924(e)(1); Johnson v. United States, 559 U. S. 133, 136 (2010) . The Act defines “violent felony” as follows: “any crime punishable by imprisonment for a term exceeding one year . . . that— “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, have come to be known as the Act’s residual clause. Since 2007, this Court has decided four cases attempting to discern its meaning. We have held that the residual clause (1) covers Florida’s offense of attempted burglary, James v. United States, 550 U. S. 192 (2007) ; (2) does not cover New Mexico’s offense of driving under the influence, Begay v. United States, 553 U. S. 137 (2008) ; (3) does not cover Illinois’ offense of failure to report to a penal institution, Chambers v. United States, 555 U. S. 122 (2009) ; and (4) does cover Indiana’s offense of vehicular flight from a law-enforcement officer, Sykes v. United States, 564 U. S. 1 (2011) . In both James and Sykes, the Court rejected suggestions by dissenting Justices that the residual clause violates the Constitution’s prohibition of vague criminal laws. Compare James, 550 U. S., at 210, n. 6, with id., at 230 (Scalia, J., dissenting); compare Sykes, 564 U. S., at ___ (slip op., at 13–14), with id., at ___ (Scalia, J., dissenting) (slip op., at 6–8). This case involves the application of the residual clause to another crime, Minnesota’s offense of unlawful possession of a short-barreled shotgun. Petitioner Samuel Johnson is a felon with a long criminal record. In 2010, the Federal Bureau of Investigation began to monitor him because of his involvement in a white-supremacist organization that the Bureau suspected was planning to commit acts of terrorism. During the investigation, Johnson disclosed to undercover agents that he had manufactured explosives and that he planned to attack “the Mexican consulate” in Minnesota, “progressive bookstores,” and “ ‘liberals.’ ” Revised Presentence Investigation in No. 0:12CR00104–001 (D. Minn.), p. 15, ¶16. Johnson showed the agents his AK–47 rifle, several semiautomatic firearms, and over 1,000 rounds of ammunition. After his eventual arrest, Johnson pleaded guilty to being a felon in possession of a firearm in violation of §922(g). The Government requested an enhanced sentence under the Armed Career Criminal Act. It argued that three of Johnson’s previous offenses—including unlawful possession of a short-barreled shotgun, see Minn. Stat. §609.67 (2006)—qualified as violent felonies. The District Court agreed and sentenced Johnson to a 15-year prison term under the Act. The Court of Appeals affirmed. 526 Fed. Appx. 708 (CA8 2013) (per curiam). We granted certiorari to decide whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause. 572 U. S. ___ (2014). We later asked the parties to present reargument addressing the compatibility of the residual clause with the Constitution’s prohibition of vague criminal laws. 574 U. S. ___ (2015). II The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352 –358 (1983). The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) . These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder, 442 U. S. 114, 123 (1979) . In Taylor v. United States, 495 U. S. 575, 600 (1990) , this Court held that the Armed Career Criminal Act requires courts to use a framework known as the categorical approach when deciding whether an offense “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Under the categorical approach, a court assesses whether a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, supra, at 141. Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. The court’s task goes beyond deciding whether creation of risk is an element of the crime. That is so because, unlike the part of the definition of a violent felony that asks whether the crime “has as an element the use . . . of physical force,” the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury. What is more, the inclusion of burglary and extortion among the enumerated offenses preceding the residual clause confirms that the court’s task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone’s homedoes not, in and of itself, normally cause physical injury. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering. We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law. A Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the “ordinary case” of a crime involves? “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” United States v. Mayer, 560 F. 3d 948, 952 (CA9 2009) (Kozinski, C. J., dissenting from denial of rehearing en banc). To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Critically, picturing the criminal’s behavior is not enough; as we have already discussed, assessing “potential risk” seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out. James illustrates how speculative (and how detached from statutory elements) this enterprise can become. Explaining why attempted burglary poses a serious potential risk of physical injury, the Court said: “An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner . . . may give chase, and a violent encounter may ensue.” 550 U. S., at 211. The dissent, by contrast, asserted that any confrontation that occurs during an attempted burglary “is likely to consist of nothing more than the occupant’s yelling ‘Who’s there?’ from his window, and the burglar’s running away.” Id., at 226 (opinion of Scalia, J.). The residual clause offers no reliable way to choose between these competing accounts of what “ordinary” attempted burglary involves. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise “serious potential risk” standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. By asking whether the crime “otherwise involves conduct that presents a serious potential risk,” moreover, the residual clause forces courts to interpret “serious potential risk” in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These offenses are “far from clear in respect to the degree of risk each poses.” Begay, 553 U. S., at 143. Does the ordinary burglar invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information? By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court has acknowledged that the failure of “persistent efforts . . . to establish a standard” can provide evidence of vagueness. United States v. L. Cohen Grocery Co., 255 U. S. 81, 91 (1921) . Here, this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Three of the Court’s previous four decisions about the clause concentrated on the level of risk posed by the crime in question, though in each case we found it necessary to resort to a different ad hoc test to guide our inquiry. In James, we asked whether “the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses,” namely completed burglary; we concluded that it was. 550 U. S., at 203. That rule takes care of attempted burglary, but offers no help at all with respect to the vast majority of offenses, which have no apparent analog among the enumerated crimes. “Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives?” Id., at 215 (Scalia, J., dissenting). Chambers, our next case to focus on risk, relied principally on a statistical report prepared by the Sentencing Commission to conclude that an offender who fails to report to prison is not “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’ ” 555 U. S., at 128–129. So much for failure to report to prison, but what about the tens of thousands of federal and state crimes for which no comparable reports exist? And even those studies that are available might suffer from methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures of the riskiness of the conduct that the crime involves. See Sykes, 564 U. S., at ___–___ (Scalia, J., dissenting) (slip op., at 4–6); id., at ___, n. 4 (Kagan, J., dissenting) (slip op., at 6, n. 4). Our most recent case, Sykes, also relied on statistics, though only to “confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Id., at ___ (majority opinion) (slip op., at 8). But common sense is a much less useful criterion than it sounds—as Sykes itself illustrates. The Indiana statute involved in that case covered everything from provoking a high-speed car chase to merely failing to stop immediately after seeing a police officer’s signal. See id., at ___ (Kagan, J., dissenting) (slip op., at 3–4). How does common sense help a federal court discern where the “ordinary case” of vehicular flight in Indiana lies along this spectrum? Common sense has not even produced a consistent conception of the degree of risk posed by each of the four enumerated crimes; there is no reason to expect it to fare any better with respect to thousands of unenumerated crimes. All in all, James, Chambers, and Sykes failed to establish any generally appli-cable test that prevents the risk comparison required by the residual clause from devolving into guesswork and intuition. The remaining case, Begay, which preceded Chambers and Sykes, took an entirely different approach. The Court held that in order to qualify as a violent felony under the residual clause, a crime must resemble the enumerated offenses “in kind as well as in degree of risk posed.” 553 U. S., at 143. The Court deemed drunk driving insufficiently similar to the listed crimes, because it typically does not involve “purposeful, violent, and aggressive conduct.” Id., at 144–145 (internal quotation marks omitted). Alas, Begay did not succeed in bringing clarity to the meaning of the residual clause. It did not (and could not) eliminate the need to imagine the kind of conduct typically involved in a crime. In addition, the enumerated crimes are not much more similar to one another in kind than in degree of risk posed, and the concept of “aggressive conduct” is far from clear. Sykes criticized the “purposeful, violent, and aggressive” test as an “addition to the statu-tory text,” explained that “levels of risk” would normally be dispositive, and confined Begay to “strict liability, negligence, and recklessness crimes.” 564 U. S., at ___–___ (slip op., at 10–11). The present case, our fifth about the meaning of the residual clause, opens a new front of uncertainty. When deciding whether unlawful possession of a short-barreled shotgun is a violent felony, do we confine our attention to the risk that the shotgun will go off by accident while in someone’s possession? Or do we also consider the possibility that the person possessing the shotgun will later use it to commit a crime? The inclusion of burglary and extortion among the enumerated offenses suggests that a crime may qualify under the residual clause even if the physical injury is remote from the criminal act. But how remote is too remote? Once again, the residual clause yields no answers. This Court is not the only one that has had trouble making sense of the residual clause. The clause has “created numerous splits among the lower federal courts,” where it has proved “nearly impossible to apply consistently.” Chambers, 555 U. S., at 133 (Alito, J., concurring in judgment). The most telling feature of the lower courts’ decisions is not division about whether the residual clause covers this or that crime (even clear laws produce close cases); it is, rather, pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider. Some judges have concluded that deciding whether conspiracy is a violent felony requires evaluating only the dangers posed by the “simple act of agreeing [to commit a crime],” United States v. Whitson, 597 F. 3d 1218, 1222 (CA11 2010) (per curiam); others have also considered the probability that the agreement will be carried out, United States v. White, 571 F. 3d 365, 370–371 (CA4 2009). Some judges have assumed that the battery of a police officer (defined to include the slightest touching) could “explode into violence and result in physical injury,” United States v. Williams, 559 F. 3d 1143, 1149 (CA10 2009); others have felt that it “do[es] a great disservice to law enforcement officers” to assume that they would “explod[e] into violence” rather than “rely on their training and experience to determine the best method of responding,” United States v. Carthorne, 726 F. 3d 503, 514 (CA4 2013). Some judges considering whether statutory rape qualifies as a violent felony have concentrated on cases involving a perpetrator much older than the victim, United States v. Daye, 571 F. 3d 225, 230–231 (CA2 2009); others have tried to account for the possibility that “the perpetrator and the victim [might be] close in age,” United States v. McDonald, 592 F. 3d 808, 815 (CA7 2010). Disagreements like these go well beyond disputes over matters of degree. It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes a task for us which at best could be only guesswork.” United States v. Evans, 333 U. S. 483, 495 (1948) . Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process. B The Government and the dissent claim that there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another. See post, at 14–15 (opinion of Alito, J.). True enough, though we think many of the cases the Government and the dissent deem easy turn out not to be so easy after all. Consider just one of the Government’s examples, Connecticut’s offense of “rioting at a correctional institution.” See United States v. Johnson, 616 F. 3d 85 (CA2 2010). That certainly sounds like a violent felony—until one realizes that Connecticut defines this offense to include taking part in “any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations” of the prison. Conn. Gen. Stat. §53a–179b(a) (2012). Who is to say which the ordinary “disorder” most closely resembles—a full-fledged prison riot, a food-fight in the prison cafeteria, or a “passive and nonviolent [act] such as disregarding an order to move,” Johnson, 616 F. 3d, at 95 (Parker, J., dissenting)? In all events, although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp. For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate” void for vagueness—even though charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. L. Cohen Grocery Co., 255 U. S., at 89. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from “conduct[ing] themselves in a manner annoying to persons passing by”—even though spitting in someone’s face would surely be annoying. Coates v. Cincinnati, 402 U. S. 611 (1971) . These decisions refute any suggestion that the existence of some obviously risky crimes establishes the residual clause’s constitutionality. Resisting the force of these decisions, the dissent insists that “a statute is void for vagueness only if it is vague in all its applications.” Post, at 1. It claims that the prohibition of unjust or unreasonable rates in L. Cohen Grocery was “vague in all applications,” even though one can easily envision rates so high that they are unreasonable by any measure. Post, at 16. It seems to us that the dissent’s supposed requirement of vagueness in all applications is not a requirement at all, but a tautology: If we hold a statute to be vague, it is vague in all its applications (and never mind the reality). If the existence of some clearly unreasonable rates would not save the law in L. Cohen Grocery, why should the existence of some clearly risky crimes save the residual clause? The Government and the dissent next point out that dozens of federal and state criminal laws use terms like “substantial risk,” “grave risk,” and “unreasonable risk,” suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt. See post, at 7–8. Not at all. Almost none of the cited laws links a phrase such as “substantial risk” to a confusing list of examples. “The phrase ‘shades of red,’ standing alone, does not generate confusion or unpredictability; but the phrase ‘fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red’ assuredly does so.” James, 550 U. S., at 230, n. 7 (Scalia, J., dissenting). More importantly, almost all of the cited laws require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as “substantial risk” to real-world conduct; “the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree,” Nash v. United States, 229 U. S. 373, 377 (1913) . The residual clause, however, requires application of the “serious potential risk” standard to an idealized ordinary case of the crime. Because “the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,” this abstract inquiry offers significantly less predictability than one “[t]hat deals with the actual, not with an imaginary condition other than the facts.” International Harvester Co. of America v. Kentucky, 234 U. S. 216, 223 (1914) . Finally, the dissent urges us to save the residual clause from vagueness by interpreting it to refer to the risk posed by the particular conduct in which the defendant engaged, not the risk posed by the ordinary case of the defendant’s crime. See post, at 9–13. In other words, the dissent suggests that we jettison for the residual clause (though not for the enumerated crimes) the categorical approach adopted in Taylor, see 495 U. S., at 599–602, and reaffirmed in each of our four residual-clause cases, see James, 550 U. S., at 202; Begay, 553 U. S., at 141; Chambers, 555 U. S., at 125; Sykes, 564 U. S., ___ (slip op., at 5). We decline the dissent’s invitation. In the first place, the Government has not asked us to abandon the categorical approach in residual-clause cases. In addition, Taylor had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes. Taylor explained that the relevant part of the Armed Career Criminal Act “refers to ‘a person who . . . has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U. S., at 600. This emphasis on convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Ibid. Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction. For example, if the original conviction rested on a guilty plea, no record of the underlying facts may be available. “[T]he only plausible interpretation” of the law, therefore, requires use of the categorical approach. Id., at 602. C That brings us to stare decisis. This is the first case in which the Court has received briefing and heard argument from the parties about whether the residual clause is void for vagueness. In James, however, the Court stated in a footnote that it was “not persuaded by [the principal dissent’s] suggestion . . . that the residual provision is unconstitutionally vague.” 550 U. S., at 210, n. 6. In Sykes, the Court again rejected a dissenting opinion’s claim of vagueness. 564 U. S., at ___–___ (slip op., at 13–14). The doctrine of stare decisis allows us to revisit an ear-lier decision where experience with its application reveals that it is unworkable. Payne v. Tennessee, 501 U. S. 808, 827 (1991) . Experience is all the more instructive when the decision in question rejected a claim of unconstitu-tional vagueness. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicial decisions: the inability of later opinions to impart the predictability that the earlier opinion forecast. Here, the experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause. Even after Sykes tried to clarify the residual clause’s meaning, the provision remains a “judicial morass that defies systemic solution,” “a black hole of confusion and uncertainty” that frustrates any effort to impart “some sense of order and direction.” United States v. Vann, 660 F. 3d 771, 787 (CA4 2011) (Agee, J., concurring). This Court’s cases make plain that even decisions rendered after full adversarial presentation may have to yield to the lessons of subsequent experience. See, e.g., United States v. Dixon, 509 U. S. 688, 711 (1993) ; Payne, 501 U. S., at 828–830 (1991). But James and Sykes opined about vagueness without full briefing or argument on that issue—a circumstance that leaves us “less constrained to follow precedent,” Hohn v. United States, 524 U. S. 236, 251 (1998) . The brief discussions of vagueness in James and Sykes homed in on the imprecision of the phrase “serious potential risk”; neither opinion evaluated the uncertainty introduced by the need to evaluate the riskiness of an abstract ordinary case of a crime. 550 U. S., at 210, n. 6; 564 U. S., at ___ (slip op., at 13–14). And departing from those decisions does not raise any concerns about upsetting private reliance interests. Although it is a vital rule of judicial self-government, stare decisis does not matter for its own sake. It matters because it “promotes the evenhanded, predictable, and consistent development of legal principles.” Payne, supra, at 827. Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent. Standing by James and Sykes would undermine, rather than promote, the goals that stare decisis is meant to serve. * * * We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony. We reverse the 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.

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 . SUPREME COURT OF THE UNITED STATES Syllabus johnson v. united states certiorari to the united states court of appeals for the eighth circuit No. 13–7120. Argued November 5, 2014—Reargued April 20, 2015—Decided June 26, 2015 After petitioner Johnson pleaded guilty to being a felon in possession of a firearm, see 18 U. S. C. §922(g), the Government sought an enhanced sentence under the Armed Career Criminal Act, which imposes an increased prison term upon a defendant with three prior convictions for a “violent felony,” §924(e)(1), a term defined by §924(e)(2)(B)’s residual clause to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The Government argued that Johnson’s prior conviction for unlawful possession of a short-barreled shotgun met this definition, making the third conviction of a violent felony. This Court had previously pronounced upon the meaning of the residual clause in James v. United States, 550 U. S. 192 ; Begay v. United States, 553 U. S. 137 ; Chambers v. United States, 555 U. S. 122 ; and Sykes v. United States, 564 U. S. 1 , and had rejected suggestions by dissenting Justices in both James and Sykes that the clause is void for vagueness. Here, the District Court held that the residual clause does cover unlawful possession of a short-barreled shotgun, and imposed a 15-year sentence under ACCA. The Eighth Circuit affirmed. Held: Imposing an increased sentence under ACCA’s residual clause violates due process. . (a) The Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U. S. 352 –358. Courts must use the “categorical approach” when deciding whether an offense is a violent felony, looking “only to the fact that the defendant has been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Taylor v. United States, 495 U. S. 575 . Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury. James, supra, at 208. . (b) Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. See James, supra, at 211. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy. . (c) This Court’s cases squarely contradict the theory that the residual clause is constitutional merely because some underlying crimes may clearly pose a serious potential risk of physical injury to another. See, e.g., United States v. L. Cohen Grocery Co., 255 U. S. 81 . Holding the residual clause void for vagueness does not put other criminal laws that use terms such as “substantial risk” in doubt, because those laws generally require gauging the riskiness of an individual’s conduct on a particular occasion, not the riskiness of an idealized ordinary case of the crime. . (d) The doctrine of stare decisis does not require continued adherence to James and Sykes. Experience leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause. James and Sykes opined about vagueness without full briefing or argument. And continued adherence to those decisions would undermine, rather than promote, the goals of evenhandedness, predictability, and consistency served by stare decisis. . 526 Fed. Appx. 708, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kennedy, J., and Thomas, J., filed opinions concurring in the judgment. Alito, J., filed a dissenting opinion.

The Armed Career Criminal Act of 1984 (Act) provides that a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a "violent felony," a term defined to include any felony that "involves conduct that presents a serious potential risk of physical injury to another...." The Act defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary, arson, extortion, or crimes involving the use of explosives. The Act defines the term as follows: (a) The Act requires courts to use a framework known as the categorical approach when deciding whether an offense is burglary or extortion. Under the approach, a court assesses whether a crime qualifies as a violent fel felony in terms of how the law defines the offense and not in terms how an individual offender might have committed it on a particular occasion. Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in the ordinary case, and to judge whether that abstraction presents a seriously potential risk for physical injury. James v. United States, 550 U.S. 192 (2007); Sykes v. Sykes, 564 U. S. 1 (2011). The inclusion of burglary and extortion among the enumerated offenses preceding the clause confirms that the court also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. Rather, risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering. . (b) The indeterminacy of the wide-ranging inquiry required by the clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Thus, increasing a defendant's sentence under the clause denies due process of law. In the first place, the clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined ordinary case of a crime, not to real-world facts or statutory elements. Moreover, by asking whether the crime "otherwise involves conduct that [otherwise] involves conduct... presents a potential potential risk, [the residual clause] forces courts to interpret such risk in light of the four enumerated crimes. This creates more unpredictability and arbitrariness than the Due Process Clause tolerates. See James, supra, at 210, n. 6. More importantly, the experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause. Even after Sykes tried to clarify the clause's meaning, the provision remains ajudicial morass that defies systemic solution, creates a black hole of confusion and uncertainty that frustrates any effort to impart some sense of order and direction, and is rendered evenhanded, predictable, or consistent by the Court of Appeals. Standing by James and Sykes would undermine, rather than promote, the goals that stare decisis is meant to serve. P.. (c) The Government and the dissent claim that there will be straightforward cases under the residual clause, because some crimes clearly pose a serious threat of physical injuries to another, and since the clause offers no reliable way to choose between these competing accounts of what constitutes what constitutes an ordinary case of attempted burglary involves. At the same time, the residual clauses leaves uncertainty about the risk that the particular conduct in which the defendant engaged involves, and the risks posed by the other crimes, in kind as well as in degree of risk posed. It is one thing to apply an imprecise risk-cable test to real world facts; it is quite another to apply it to a judge-imagined abstraction. There is also the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction. With regard to the possibility that the person possessing the shotgun will later use it to commit a crime in the future, the fact that the shotgun might go off by accident while in someone else's possession does not save the clause, since the likelihood that the individual involved in the crime would later use the shotgun is remote from the criminal act. Unlike other judicial mistakes that need correction, the error of having rejected a vagueness challenge manifests itself precisely in subsequent judicial decisions: the inability of later opinions to impart the predictability that the earlier opinion forecast. Almost none of the cited laws links a phrase such as the phrase "substantial risk" to a confusing list of examples. Although some judges considering whether statutory rape qualifies as an offense have concentrated on cases involving a perpetrator much older than the victim, others have tried to account for the possibility of violence.

2014_12-1497

https://www.oyez.org/cases/2014/12-1497

. Wars have often provided “exceptional opportunities” for fraud on the United States Government. See United States v. Smith, 342 U. S. 225, 228 (1952) . “The False Claims Act was adopted in 1863 and signed into law by President Abraham Lincoln in order to combat rampant fraud in Civil War defense contracts.” S. Rep. No. 99–345, p. 8 (1986). Predecessors of the Wartime Suspension of Limitations Act were enacted to address similar problems that arose during the First and Second World Wars. See Smith, supra, at 228–229. In this case, we must decide two questions regarding those laws: first, whether the Wartime Suspension of Limitations Act applies only to criminal charges or also to civil claims; second, whether the False Claims Act’s first-to-file bar keeps new claims out of court only while related claims are still alive or whether it may bar those claims in perpetuity. I A The False Claims Act (FCA) imposes liability on any person who “knowingly presents . . . a false or fraudulent claim for payment or approval,” 31 U. S. C. §3729(a)(1)(A), “to an officer or employee of the United States,” 3729(b)(2)(A)(i). The FCA may be enforced not just through litigation brought by the Government itself, but also through civil qui tam actions that are filed by private parties, called relators, “in the name of the Government.” §3730(b). In a qui tam suit under the FCA, the relator files a complaint under seal and serves the United States with a copy of the complaint and a disclosure of all material evidence. §3730(b)(2). After reviewing these materials, the United States may “proceed with the action, in which case the action shall be conducted by the Government,” or it may “notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.” §3730(b)(4). Regardless of the option that the United States selects, it retains the right at any time to dismiss the action entirely, §3730(c)(2)(A), or to settle the case, §3730(c)(2)(B). The FCA imposes two restrictions on qui tam suits that are relevant here. One, the “first-to-file” bar, precludes a qui tam suit “based on the facts underlying [a] pending action.” §3730(b)(5) (emphasis added). The other, the FCA’s statute of limitations provision, states that a qui tam action must be brought within six years of a violation or within three years of the date by which the United States should have known about a violation. In no circumstances, however, may a suit be brought more than 10 years after the date of a violation. §3731(b). B The Wartime Suspension of Limitations Act (WSLA) suspends the statute of limitations for “any offense” involving fraud against the Federal Government. 18 U. S. C. §3287. Before 2008, this provision was activated only “[w]hen the United States [was] at war.” Ibid. (2006 ed.). In 2008, however, this provision was made to apply as well whenever Congress has enacted “a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).” Ibid. (2012 ed.). II Petitioners are defense contractors and related entities that provided logistical services to the United States military during the armed conflict in Iraq. From January to April 2005, respondent worked in Iraq for one of the petitioners as a water purification operator. He subsequently filed a qui tam complaint against petitioners (Carter I), alleging that they had fraudulently billed the Government for water purification services that were not performed or not performed properly. The Government declined to intervene. In 2010, shortly before trial, the Government informed the parties about an earlier filed qui tam lawsuit, United States ex rel. Thorpe v. Halliburton Co., No. 05–cv–08924 (CD Cal., filed Dec. 23, 2005), that arguably contained similar claims. This initiated a remarkable sequence of dismissals and filings. The District Court held that respondent’s suit was related to Thorpe and thus dismissed his case without prejudice under the first-to-file bar. Respondent appealed, and while his appeal was pending, Thorpe was dismissed for failure to prosecute. Respondent quickly filed a new complaint (Carter II), but the District Court dismissed this second complaint under the first-to-file rule because respondent’s own earlier case was still pending on appeal. Respondent then voluntarily dismissed this appeal, and in June 2011, more than six years after the alleged fraud, he filed yet another complaint (Carter III ), and it is this complaint that is now at issue. Petitioners sought dismissal of this third complaint under the first-to-file rule, pointing to two allegedly related cases, one in Maryland and one in Texas, that had been filed in the interim between the filing of Carter I and Carter III. This time, the court dismissed respondent’s complaint with prejudice. The court held that the latest complaint was barred under the first-to-file rule because the Maryland suit was already pending when that complaint was filed. The court also ruled that the WSLA applies only to criminal charges and thus did not suspend the time for filing respondent’s civil claims. As a result, the court concluded, all but one of those claims were untimely because they were filed more than six years after the alleged wrongdoing. The Fourth Circuit reversed, rejecting the District Court’s analysis of both the WSLA and first-to-file issues. United States ex rel. Carter v. Halliburton Co., 710 F. 3d 171 (2013). Concluding that the WSLA applies to civil claims based on fraud committed during the conflict in Iraq,[1] the Court of Appeals held that respondent’s claims had been filed on time. The Court of Appeals also held that the first-to-file bar ceases to apply once a related action is dismissed. Since the Maryland and Texas cases had been dismissed by the time of the Fourth Circuit’s decision, the court held that respondent had the right to refile his case. The Court of Appeals thus remanded Carter III with instructions to dismiss without prejudice. After this was done, respondent filed Carter IV, but the District Court dismissed Carter IV on the ground that the petition for a writ of certiorari in Carter III (the case now before us) was still pending. We granted that petition, 573 U. S. ___ (2014), and we now reverse in part and affirm in part. III The text, structure, and history of the WSLA show that the Act applies only to criminal offenses. A The WSLA’s roots extend back to the time after the end of World War I. Concerned about war-related frauds, Congress in 1921 enacted a statute that extended the statute of limitations for such offenses. The new law provided as follows: “[I]n offenses involving the defrauding or attempts to defraud the United States or any agency thereof . . . and now indictable under any existing statutes, the period of limitations shall be six years.” Act ofNov. 17, 1921, ch. 124, 42Stat. 220 (emphasis added). Since only crimes are “indictable,” this provision quite clearly was limited to the filing of criminal charges. In 1942, after the United States entered World War II, Congress enacted a similar suspension statute. This law, like its predecessor, applied to fraud “offenses . . . now indictable under any existing statutes,” but this time the law suspended “any” “existing statute of limitations” until the fixed date of June 30, 1945. Act of Aug. 24, 1942, ch. 555, 56Stat. 747–748. As that date approached, Congress decided to adopt a suspension statute which would remain in force for the duration of the war. Congress amended the 1942 WSLA in three important ways. First, Congress deleted the phrase “now indictable under any statute,” so that the WSLA was made to apply simply to “any offense against the laws of the United States.” 58Stat. 667. Second, although previous versions of the WSLA were of definite duration, Congress now suspended the limitations period for the open-ended timeframe of “three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress.” Ibid. Third, Congress expanded the statute’s coverage beyond offenses “involving defrauding or attempts to defraud the United States” to include other offenses pertaining to Government contracts and the handling and disposal of Government property. Ibid., and §28, 58Stat. 781. Congress made more changes in 1948. From then until 2008, the WSLA’s relevant language was as follows: “When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not . . . shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.” Act of June 25, 1948, §3287, 62Stat. 828. In addition, Congress codified the WSLA in Title 18 ofthe United States Code, titled “Crimes and Criminal Procedure.” Finally, in 2008, Congress once again amended the WSLA, this time in two relevant ways. First, as noted, Congress changed the Act’s triggering event, providing that tolling is available not only “[w]hen the United States is at war,” but also when Congress has enacted a specific authorization for the use of military force. Second, Congress extended the suspension period from three to five years. §855, 122Stat. 4545.[2] B With this background in mind, we turn to the question whether the WSLA applies to civil claims as well as criminal charges. We hold that the Act applies only to the latter. We begin with the WSLA’s text. The WSLA suspends “the running of any statute of limitations applicable to any offense . . . involving fraud or attempted fraud against the United States or any agency thereof.” 18 U. S. C. §3287 (emphasis added). The term “offense” is most commonly used to refer to crimes. At the time of both the 1948 and 2008 amendments to the Act, the primary definition of “offense” in Black’s Law Dictionary referred to crime. Black’s Law Dictionary 1110 (8th ed. 2004) (Black’s) (“A violation of the law; a crime, often a minor one. See crime”); id., at 1232 (4th ed. 1951) (“A crime or misdemeanor; a breach of the criminal laws”); id., at 1282 (3d ed. 1933) (same). The 1942 edition of Webster’s similarly states that “offense” “has no technical legal meaning; but it is sometimes used specifically for an indictable crime . . . and sometimes for a misdemeanor or wrong punishable only by fine or penalty.” Webster’s New International Dictionary 1690 (2d ed.). See also Webster’s Third New International Dictionary 1566 (1976) (Webster’s Third) (“an infraction of law: crime, misdemeanor”); American Heritage Dictionary 1255 (3d ed. 1992) (“A transgression of law; a crime”). It is true that the term “offense” is sometimes used more broadly. For instance, the 1948 edition of Ballentine’s Law Dictionary cautions: “The words ‘crime’ and ‘offense’ are not necessarily synonymous. All crimes are offenses, but some offenses are not crimes.” Ballentine’s Law Dictionary 900. But while the term “offense” is sometimes used in this way, that is not how the word is used in Title 18. Al-though the term appears hundreds of times in Title 18, neither respondent nor the Solicitor General, appearing as an amicus in support of respondent, has been able to find a single provision of that title in which “offense” is employed to denote a civil violation. The Solicitor General cites eight provisions,[3] but not one actually labels a civil wrong as an “offense.” Instead, they all simply attach civil penalties to criminal offenses—as the Deputy Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 28–29. Not only is this pattern of usage telling, but when Title 18 was enacted in 1948, the very first provision, what was then 18 U.S.C. §1, classified all offenses as crimes. That provision read in pertinent part as follows: “§1. Offenses classified. “Notwithstanding any Act of Congress to thecontrary: “(1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony. “(2) Any other offense is a misdemeanor.” 62Stat. 684 (repealed Oct. 12, 1984). The Solicitor General correctly points out that regulatory provisions outside Title 18 sometimes use the term “offense” to describe a civil violation, see Brief for United States as Amicus Curiae 10 (United States Brief), but it is significant that Congress chose to place the WSLA in Title 18. Although we have cautioned against “plac[ing] too much significance on the location of a statute in the United States Code,” Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 376 (2004) , we have in similar circumstances regarded the placement of a provision as relevant in determining whether its content is civil or criminal in nature, see Kansas v. Hendricks, 521 U. S. 346, 361 (1997) . It is also revealing that Congress has used clearer and more specific language when it has wanted to toll the statutes of limitations for civil suits as well as crimes. Only two months after enacting the WSLA, Congress passed a tolling statute for “violations of the antitrust laws . . . now indictable or subject to civil proceedings.” Act of Oct. 10, 1942, ch. 589, 56Stat. 781 (emphasisadded). Congress obviously could have included a similar “civil proceedings” clause in the WSLA, but it did notdo so. The WSLA’s history provides what is perhaps the strongest support for the conclusion that it applies only to criminal charges. The parties do not dispute that the term “offenses” in the 1921 and 1942 suspension statutes applied only to crimes, Brief for Petitioners 23; Brief for Respondent at 24–25, and after 1942, the WSLA continued to use that same term. The retention of the same term in the later laws suggests that no fundamental alteration was intended. Respondent and the Government latch onto the 1944 Act’s removal of the phrase “now indictable under any statute” and argue that this deletion had the effect of sweeping in civil claims, but this argument is most improbable. Simply deleting the phrase “now indictable under the statute,” while leaving the operative term “offense” unchanged would have been an obscure way of substantially expanding the WSLA’s reach. Fundamental changes in the scope of a statute are not typically accomplished with so subtle a move. Converting the WSLA from a provision that suspended the statute of limitations for criminal prosecutions into one that also suspended the time for commencing a civil action would have been a big step. If Congress had meant to make such a change, we would expect it to have used language that made this important modification clear to litigants and courts. Respondent’s and the Government’s interpretation of the significance of the deletion of the phrase “now indict-able” ignores a more plausible explanation, namely, Congress’ decision to make the WSLA applicable, not just to offenses committed in the past during or in the aftermath of particular wars, but also to future offenses committed during future wars. When the phrase “now indictable” first appeared in the 1921 Act, it meant that the statute of limitations was suspended for only those crimes that had already been committed when the Act took effect. This made sense because the 1921 Act was a temporary measure enacted to deal with problems resulting from the First World War. The 1942 Act simply “readopt[ed] the [same] World War I policy” to deal with claims during World War II. Bridges v. United States, 346 U. S. 209, 219 (1953) . The 1944 amendments, however, changed the WSLA from a retroactive measure designed to deal exclusively with past fraud into a measure applicable to future fraud as well. In order to complete this transformation, it was necessary to remove the phrase “now indictable,” which, as noted, limited the applicability of the suspension to offenses committed in the past. Thus, the removal of the “now indictable” provision was more plausibly driven by Congress’ intent to apply the WSLA prospectively, not by any desire to expand the WSLA’s reach to civil suits. For all these reasons, we think it clear that the term “offense” in the WSLA applies solely to crimes. But even if there were some ambiguity in the WSLA’s use of that term, our cases instruct us to resolve that ambiguity in favor of the narrower definition. We have said that the WSLA should be “narrowly construed” and “ ‘interpreted in favor of repose.’ ” Id., at 216 (quoting United States v. Scharton, 285 U. S. 518 –522 (1932). Applying that principle here means that the term “offense” must be construed to refer only to crimes. Because this case involves civil claims, the WSLA does not suspend the applicable statute of limitations under either the 1948 or the 2008 version of the statute.[4] IV Petitioners acknowledge that respondent has raised other arguments that, if successful, could render at least one claim timely on remand. We therefore consider whether respondent’s claims must be dismissed with prejudice under the first-to-file rule. We conclude that dismissal with prejudice was not called for. The first-to-file bar provides that “[w]hen a person brings an action . . . no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U. S. C. §3730(b)(5) (emphasis added). The term “pending” means “[r]emaining undecided; awaiting decision.” Black’s 1314 (10th ed. 2014). See also Webster’s Third 1669 (1976) (defining “pending” to mean “not yet decided: in continuance: in suspense”). If the reference to a “pending” action in the FCA is interpreted in this way, an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed. We see no reason not to interpret the term “pending” in the FCA in accordance with its ordinary meaning. Petitioners argue that Congress used the term “pending” in a very different—and very peculiar—way. In the FCA, according to petitioners, the term “pending” “is ‘used as a short-hand for the first filed action.’ ” Brief for Petitioners 44. Thus, as petitioners see things, the first-filed action remains “pending” even after it has been dismissed, and it forever bars any subsequent related action. This interpretation does not comport with any known usage of the term “pending.” Under this interpretation, Marbury v. Madison, 1 Cranch 137 (1803), is still “pending.” So is the trial of Socrates. Petitioners say that Congress used the term “pending” in the FCA as a sort of “short-hand,” but a shorthand phrase or term is employed to provide a succinct way of expressing a concept that would otherwise require a lengthy or complex formulation. Here, we are told that “pending” is shorthand for “first-filed,” a term that is neither lengthy nor complex. And if Congress had wanted to adopt the rule that petitioners favor, the task could have been accomplished in other equally economical ways—for example, by replacing “pending,” with “earlier” or “prior.” Not only does petitioners’ argument push the term “pending” far beyond the breaking point, but it wouldlead to strange results that Congress is unlikely to have wanted. Under petitioners’ interpretation, a first-filed suit would bar all subsequent related suits even if that earlier suit was dismissed for a reason having nothing to do with the merits. Here, for example, the Thorpe suit, which provided the ground for the initial invocation of the first-to-file rule, was dismissed for failure to prosecute. Why would Congress want the abandonment of an earlier suit to bar a later potentially successful suit that might result in a large recovery for the Government? Petitioners contend that interpreting “pending” to mean pending would produce practical problems, and there is some merit to their arguments. In particular, as petitioners note, if the first-to-file bar is lifted once the first-filed action ends, defendants may be reluctant to settle such actions for the full amount that they would accept if there were no prospect of subsequent suits asserting the same claims. See Brief for Petitioners at 56–57. Respondent and the United States argue that the doctrine of claim preclusion may protect defendants if the first-filed action is decided on the merits, id., at 60–61; United States Brief 30, but that issue is not before us in this case. The False Claims Act’s qui tam provisions present many interpretive challenges, and it is beyond our ability in this case to make them operate together smoothly like a finely tuned machine. We hold that a qui tam suit under the FCA ceases to be “pending” once it is dismissed. We therefore agree with the Fourth Circuit that the dismissal with prejudice of respondent’s one live claim was error. * * * The judgment of the United States Court of Appeals for the Fourth Circuit is reversed in part and affirmed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 The Court of Appeals held that the Authorization for Use of Military Force Against Iraq Resolution of 2002, 116Stat. 1498, note following 50 U. S. C. §1541, p. 312, was sufficient to satisfy the “at war” requirement in the pre-2008 version of the WSLA. The Court of Appeals consequently found it unnecessary to decide whether the pre- or post-2008 version of the WSLA governed respondent’s claims. 2 The claims giving rise to the present suit originated in 2005, but respondent filed the operative complaint in 2011. Resolution of the questions before us in this case does not require us to decide which of these two versions of the WSLA applies to respondent’s claims. 3 18 U. S. C. §§38; 248, 670, 1033(a), 1964, 2292(a), 2339B, 2339C. 4 This holding obviates any need to determine which version of the WSLA applies or whether the term “war” in the 1948 Act applies only when Congress has formally declared war.

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 . SUPREME COURT OF THE UNITED STATES Syllabus KELLOGG BROWN & ROOT SERVICES, INC., et al. v. UNITED STATES ex rel. CARTER certiorari to the united states court of appeals for the fourth circuit No. 12–1497. Argued January 13, 2015—Decided May 26, 2015 Private parties may file civil qui tam actions to enforce the False Claims Act (FCA), which prohibits making “a false or fraudulent claim for payment or approval,” 31 U. S. C. §3729(a)(1), “to . . . the United States,” 3729(b)(2)(A)(i). A qui tam action must generally be brought within six years of a violation, §3731(b), but the Wartime Suspension of Limitations Act (WSLA) suspends “the running of any statute of limitations applicable to any offense” involving fraud against the Federal Government. 18 U. S. C. §3287. Separately, the FCA’s “first-to-file bar” precludes a qui tam suit “based on the facts underlying [a] pending action,” §3730(b)(5). In 2005, respondent worked for one of the petitioners, providing logistical services to the United States military in Iraq. He subsequently filed a qui tam complaint (Carter I), alleging that petitioners, who are defense contractors and related entities, had fraudulently billed the Government for water purification services that were not performed or not performed properly. In 2010, shortly before trial, the Government informed the parties that an earlier-filed qui tam suit (Thorpe) had similar claims, leading the District Court to dismiss Carter I without prejudice under the first-to-file bar. While respondent’s appeal was pending, Thorpe was dismissed for failure to prosecute. Respondent quickly filed a new complaint (Carter II), but the court dismissed it under the first-to-file rule because Carter I’s appeal was pending. Respondent then dismissed that appeal, and in June 2011, more than six years after the alleged fraud, filed the instant complaint (Carter III). The District Court dismissed this complaint with prejudice under the first-to-file rule because of a pending Maryland suit. Further, because the WSLA applies only to criminal charges, the court reasoned, all but one of respondent’s civil actions were untimely. Reversing, the Fourth Circuit concluded that the WSLA applied to civil claims and that the first-to-file bar ceases to apply once a related action is dismissed. Since any pending suits had by then been dismissed, the court held, respondent had the right to refile his case. It thus remanded Carter III with instructions to dismiss without prejudice. Held: 1. As shown by the WSLA’s text, structure, and history, the Act applies only to criminal offenses, not to civil claims like those in this case. . (a) The 1921 and 1942 versions of the WSLA were enacted to address war-related fraud during, respectively, the First and Second World Wars. Both extended the statute of limitations for fraud offenses “now indictable under any existing statutes.” Since only crimes are “indictable,” these provisions quite clearly were limited to criminal charges. In 1944, Congress made the WSLA prospectively applicable to future wartime frauds rather than merely applicable to past frauds as earlier versions had been. In doing so, it deleted the phrase “now indictable under any statute,” so that the WSLA now applied to “any offense against the laws of the United States.” Congress made additional changes in 1948 and codified the WSLA in Title 18 U. S. C. . (b) Section 3287’s text supports limiting the WSLA to criminal charges. The term “offense” is most commonly used to refer to crimes, especially given the WSLA’s location in Title 18, titled “Crimes and Criminal Procedure,” where no provision appears to employ “offense” to denote a civil violation rather than a civil penalty attached to a criminal offense. And when Title 18 was enacted in 1948, its very first provision classified all offenses as crimes. In similar circumstances, this Court has regarded a provision’s placement as relevant in determining whether its content is civil or criminal. Kansas v. Hendricks, 521 U. S. 346 . The WSLA’s history provides further support for this reading. The term “offenses” in the 1921 and 1942 statutes, the parties agree, applied only to crimes. And it is improbable that the 1944 Act’s removal of the phrase “now indictable under any statute” had the effect of sweeping in civil claims, a fundamental change in scope not typically accomplished with so subtle a move. The more plausible explanation is that Congress removed that phrase in order to change the WSLA from a retroactive measure designed to deal exclusively with past fraud into a permanent measure applicable to future fraud as well. If there were any ambiguity in the WSLA’s use of the term “offense,” that ambiguity should be resolved in favor of a narrower definition. See Bridges v. United States, 346 U. S. 209, 216. . 2. The FCA’s first-to-file bar keeps new claims out of court only while related claims are still alive, not in perpetuity. Thus, dismissal with prejudice was not called for in this case. This reading of §3730(b)(5) is in accordance with the ordinary dictionary meaning of the term “pending.” Contrary to petitioners’ reading, the term “pending” cannot be seen as a sort of “short-hand” for first-filed, which is neither a lengthy nor a complex term. Petitioners’ reading would also bar even a suit dismissed for a reason having nothing to do with the merits, such as Thorpe, which was dismissed for failure to prosecute. . 710 F. 3d 171, reversed in part, affirmed in part, and remanded. Alito, J., delivered the opinion for a unanimous Court.

The False Claims Act (Act) imposes liability on any person who knowingly presents a false or fraudulent claim for payment or approval to an officer or employee of the United States. The Act may be enforced not just through litigation brought by the Government itself, but also through civil qui tam actions that are filed by private parties, such as relators, in the name of the Government. In a qui tam suit under the Act, the relator files a complaint under seal and serves the Government with a copy of the complaint and a disclosure of all material evidence. After reviewing these materials, the Government may proceed with the action or notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action. Regardless of the option that the Government selects, it retains the right at any time to dismiss the action entirely, or to settle the case. The Act also imposes two restrictions on qui tam suits that are relevant here: (1) the first-to-file bar precludes a suit based on the facts underlying a pending action, and (2) the statute of limitations provision, which states that, in no circumstances, may a suit be brought more than 10 years after the date of a violation. Respondent worked in Iraq for one of petitioners defense contractors and related entities that provided logistical services to the Government during the armed conflict in Iraq. He subsequently filed a complaint against petitioners, alleging that they had not properly performed water purification services before the Government declined to intervene. Petitioners filed a similar lawsuit shortly before the District Court dismissed the complaint, and thus filed a new complaint without prejudice. This time, the complaint was dismissed with prejudice of respondent's one live claim, and the Court of Appeals reversed, holding that, since the Maryland and Texas cases had been dismissed by the time of the Fourth Circuit decision, respondent had a right to refile his case, and that the WSLA applies only to criminal charges. After this was done, respondent filed Carter IV, but the court dismissed Carter III on the ground that the petition for a writ of certiorari in Carter III (the case now before this) was still pending. Held: The dismissal with prejudice of respondent his live claim was error. . (a) The Wartime Suspension of Limitations Act (WSLA) suspends the running of any statute of limitation applicable to any offense involving fraud or attempted fraud against the Government, 18 U. S. C. §3287. P.. (b) The term "offense" in the Act applies solely to crimes. But even if there were some ambiguity in the use of that term in its use, this Court will not resolve that ambiguity in favor of the narrower definition of the term. Because the term must be construed to refer only to crimes, this means that the statute does not suspend the limitations period for either a civil claim or a civil one. See, e.g., United States v. Caliburton Co., 62 Stat. 781. Thus, an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed. Cf. United States ex rel. Carter v. Halliburton,. This holding obviates any need to determine which version of the Act or whether the term for civil claims applies only when Congress has formally declared war applies. However, the 1944 Act, which changed the Act from a retroactive measure designed to deal exclusively with past fraud into a measure applicable to future fraud as well, did not include a similar civil proceedings clause. Rather, the removal of the FCA provision was more plausibly driven by Congress' intent to apply the Act prospectively, not by any desire to expand the Act's reach to civil suits. Nor is there any merit to petitioners' argument that the doctrine of claim preclusion may protect defendants if a first-filed action is decided on the merits, since that issue is not before this case, but is beyond this Court's ability in this case to make them operate together smoothly like a finely tuned machine. Moreover, the history of the provisions in question discloses that they were intended to toll the statutes of limitations for civil suits as well as crimes, and demonstrate that no fundamental alteration was intended. Only two months after enacting the Act in 1948, Congress passed a tolling statute for the "violations of the antitrust laws... now indictable or subject to civil proceedings...." The 1944 Act deleted the phrase as a sort of shorthand phrase or term is employed to provide a succinct way of expressing a concept that would otherwise require a lengthy or complex formulation. Here, however, the shorthand phrase is employed by the term shorthand for First-Filed, a term that is neither lengthy nor complex. And if Congress had wanted to adopt the rule that petitioners favor, the task could

2014_13-1402

https://www.oyez.org/cases/2014/13-1402

, in which The Chief Justice and Justice Thomas join. Fauzia Din is a citizen and resident of the United States. Her husband, Kanishka Berashk, is an Afghan citizen and former civil servant in the Taliban regime who resides in that country. When the Government declined to issue an immigrant visa to Berashk, Din sued. The state action of which Din complains is the denial of Berashk’s visa application. Naturally, one would expect him—not Din—to bring this suit. But because Berashk is an unadmitted and nonresident alien, he has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission. See Kleindienst v. Mandel, 408 U. S. 753, 762 (1972) . So, Din attempts to bring suit on his behalf, alleging that the Government’s denial of her husband’s visa application violated her constitutional rights. See App. 36–37, Complaint ¶56. In particular, she claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right. What Justice Breyer’s dissent strangely describes as a “deprivation of her freedom to live together with her spouse in America,” post, at 4–5, is, in any world other than the artificial world of ever-expanding constitutional rights, nothing more than a deprivation of her spouse’s freedom to immigrate into America. For the reasons given in this opinion and in the opinion concurring in the judgment, we vacate and remand. I A Under the Immigration and Nationality Act (INA), 66Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. §1181(a). The INA creates a special visa-application process for aliens sponsored by “immediate relatives” in the United States. §§1151(b), 1153(a). Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. See §§1153(f), 1154(a)(1). If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer. See §§1201(a)(1), 1202. Before issuing a visa, the consular officer must ensure the alien is not inadmissible under any provision of the INA. §1361. One ground for inadmissibility, §1182(a)(3)(B), covers “[t]errorist activities.” In addition to the violent and destructive acts the term immediately brings to mind, the INA defines “terrorist activity” to include providing material support to a terrorist organization and serving as a terrorist organization’s representative. §1182(a)(3)(B)(i), (iii)–(vi). B Fauzia Din came to the United States as a refugee in 2000, and became a naturalized citizen in 2007. She filed a petition to have Kanishka Berashk, whom she married in 2006, classified as her immediate relative. The petition was granted, and Berashk filed a visa application. The U. S. Embassy in Islamabad, Pakistan, interviewedBerashk and denied his application. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B) but provided no further explanation. Din then brought suit in Federal District Court seeking a writ of mandamus directing the United States to prop-erly adjudicate Berashk’s visa application; a declaratory judgment that 8 U. S. C. §1182(b)(2)–(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied; and a declaratory judgment that the denial violated the Administrative Procedure Act. App. 36–39, Complaint ¶¶55–68. The District Court granted the Government’s motion to dismiss, but the Ninth Circuit reversed. The Ninth Circuit concluded that Din “has a protected liberty interest in marriage that entitled [her] to review of the denial of [her] spouse’s visa,” 718 F. 3d 856, 860 (2013), and that the Government’s citation of §1182(a)(3)(B) did not provide Din with the “limited judicial review” to which she was entitled under the Due Process Clause, id., at 868. This Court granted certiorari. 573 U. S. ___ (2014). II The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” Although the amount and quality of process that our precedents have recognized as “due” under the Clause has changed considerably since the founding, see Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1 –36 (1991) (Scalia, J., concurring in judgment), it remains the case that no process is due if one is not deprived of “life, liberty, or property,” Swarthout v. Cooke, 562 U. S. 216, 219 (2011) (per curiam). The first question that we must ask, then, is whether the denial of Berashk’s visa application deprived Din of any of these interests. Only if we answer in the affirmative must we proceed to consider whether the Government’s explanation afforded sufficient process. A The Due Process Clause has its origin in Magna Carta. As originally drafted, the Great Charter provided that “[n]o freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797) (emphasis added). The Court has recognized that at the time of the Fifth Amendment’s ratification, the words “due process of law” were understood “to convey the same meaning as the words ‘by the law of the land’ ” in Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856). Although the terminology associated with the guarantee of due process changed dramatically between 1215 and 1791, the general scope of the underlying rights protected stayed roughly constant. Edward Coke, whose Institutes “were read in the American Colonies by virtually every student of law,” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967) , thoroughly described the scope of the interests that could be deprived only pursuant to “the law of the land.” Magna Carta, he wrote, ensured that, without due process, “no man [may] be taken or imprisoned”; “disseised of his lands, or tenements, or dispossessed of his goods, or chattels”; “put from his livelihood without answer”; “barred to have the benefit of the law”; denied “the franchises, and priviledges, which the subjects have of the gift of the king”; “exiled”; or “fore-judged of life, or limbe, disherited, or put to torture, or death.” 1 Coke, supra, at 46–48. Blackstone’s description of the rights protected by Magna Carta is similar, al-though he discusses them in terms much closer to the “life, liberty, or property” terminology used in the Fifth Amendment. He described first an interest in “personal security,” “consist[ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health,and his reputation.” 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the “personal liberty of individuals” “consist[ed] in the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint.” Id., at 130. And finally, a person’s right to property included “the free use, enjoyment, and disposal of all his acquisitions.” Id., at 134. Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd. The Government has not “taken or imprisoned” Din, nor has it “confine[d]” her, either by “keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.” Id., at 132. Indeed, not even Berashk has suffered a deprivation of liberty so understood. B Despite this historical evidence, this Court has seen fit on several occasions to expand the meaning of “liberty” under the Due Process Clause to include certain implied “fundamental rights.” (The reasoning presumably goes like this: If you have a right to do something, you are free to do it, and deprivation of freedom is a deprivation of “liberty”—never mind the original meaning of that word in the Due Process Clause.) These implied rights have been given more protection than “life, liberty, or property” properly understood. While one may be dispossessed of property, thrown in jail, or even executed so long as proper procedures are followed, the enjoyment of implied constitutional rights cannot be limited at all, except by provisions that are “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U. S. 292 –302 (1993). Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest. She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Govern-ment must first provide her a full battery of procedural-due-process protections. I think it worth explaining why, even if one accepts the textually unsupportable doctrine of implied fundamental rights, Din’s arguments would fail. Because “extending constitutional protection to an asserted right or liberty interest . . . place[s] the matter outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) , and because the “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights, 503 U. S. 115, 125 (1992) , “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field,” ibid. Accordingly, before conferring constitutional status upon a previously unrecognized “liberty,” we have required “a careful description of the asserted fundamental liberty interest,” as well as a demonstration that the interest is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” Glucksberg, supra, at 720–721 (citations and internal quotation marks omitted). Din describes the denial of Berashk’s visa application as implicating, alternately, a “liberty interest in her marriage,” Brief for Respondent 28, a “right of association with one’s spouse,” id., at 18, “a liberty interest in being reunited with certain blood relatives,” id., at 22, and “the liberty interest of a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on his right to live with his spouse,” ibid. To be sure, this Court has at times indulged a propensity for grandiloquence when reviewing the sweep of implied rights, describing them so broadly that they would include not only the interests Din asserts but many others as well. For example: “Without doubt, [the liberty guaranteed by the Due Process Clause] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in anyof the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship God according to the dictates of his own conscience” Meyer v. Nebraska, 262 U. S. 390, 399 (1923) . But this Court is not bound by dicta, especially dicta that have been repudiated by the holdings of our subsequent cases. And the actual holdings of the cases Din relies upon hardly establish the capacious right she now asserts. Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967) , Zablocki v. Redhail, 434 U. S. 374 (1978) , and Turner v. Safley, 482 U. S. 78 (1987) , the Federal Government here has not attempted to forbid a marriage. Al-though Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases establishing a right to marital privacy. Brief for Respondent 16, 18. The dissent supplements the fundamental right to marriage with a fundamental right to live in the United States in order to find an affected liberty interest. Post, at 2–3 (Breyer, J., dissenting). Attempting to abstract from these cases some liberty interest that might be implicated by Berashk’s visa denial, Din draws on even more inapposite cases. Meyer, for example, invalidated a state statute proscribing the teaching of foreign language to children who had not yet passed the eighth grade, reasoning that it violated the teacher’s “right thus to teach and the right of parents to engage him so to instruct their children.” 262 U. S., at 400. Pierce v. Society of Sisters, 268 U. S. 510 –535 (1925), extended Meyer, finding that a law requiring children to attend public schools “interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Moore v. East Cleveland, 431 U. S. 494 –506 (1977), extended this interest in raising children to caretakers in a child’s extended family, striking down an ordinance that limited occupancy of a single-family house to members of a nuclear family on the ground that “[d]ecisions concerning child rearing . . . long have been shared with grandparents or other relatives.” And Griswold v. Connecticut, 381 U. S. 479, 485 (1965) , concluded that a law criminalizing the use of contraceptives by married couples violated “penumbral rights of ‘privacy and repose’ ” protecting “the sacred precincts of the marital bedroom”—rights which do not plausibly extend into the offices of our consulates abroad. Nothing in the cases Din cites establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship. Even if our cases could be construed so broadly, the relevant question is not whether the asserted interest “is consistent with this Court’s substantive-due-process line of cases,” but whether it is supported by “this Nation’s history and practice.” Glucksberg, 521 U. S., at 723–724 (emphasis deleted). Even if we might “imply” a liberty interest in marriage generally speaking, that must give way when there is a tradition denying the specific application of that general interest. Thus, Glucksberg rejected a claimed liberty interest in “self-sovereignty” and “personal autonomy” that extended to assisted suicide when there was a longstanding tradition of outlawing the practice of suicide. Id., at 724, 727–728 (internal quotation marks omitted). Here, a long practice of regulating spousal immigration precludes Din’s claim that the denial of Berashk’s visa application has deprived her of a fundamental liberty interest. Although immigration was effectively unregu-lated prior to 1875, as soon as Congress began legislating in this area it enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States. See Abrams, What Makes the Family Special? 80 U. Chi. L. Rev. 7, 10–16 (2013). Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Ch. 2534, 34Stat. 1228. Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiancés and husbands from the family relations eligible for preferred status in the allocation of quota spots. §2(d), 42Stat. 6. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924, §4(a), 43Stat. 155. To be sure, these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Never-theless, this all-too-recent practice repudiates any con-tention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” Glucksberg, supra, at 720 (citations and internal quotations marks omitted). Indeed, the law showed little more solicitude for the marital relationship when it was a male resident or citizen seeking admission for his fiancée or wife. The Immigration Act of 1921 granted nonquota status only to unmarried, minor children of citizens, §2(a), while granting fiancées and wives preferred status within the allocation of quota spots, §2(d). In other words, a citizen could move his spouse forward in the line, but once all the quota spots were filled for the year, the spouse was barred without exception. This was not just a theoretical possibility: As one commentator has observed, “[f]or many immigrants, the family categories did little to help, because the quotas were so small that the number of family members seeking slots far outstripped the number available.” Abrams, supra, at 13. Although Congress has tended to show “a continuing and kindly concern . . . for the unity and the happiness of the immigrant family,” E. Hutchinson, Legislative History of American Immigration Policy 1798–1965, p. 518 (1981), this has been a matter of legislative grace rather than fundamental right. Even where Congress has provided special privileges to promote family immigration, it has also “written in careful checks and qualifications.” Ibid. This Court has consistently recognized that these various distinctions are “policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.” Fiallo v. Bell, 430 U. S. 787, 798 (1977) . Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests. C Justice Breyer suggests that procedural due process rights attach to liberty interests that either are (1) created by nonconstitutional law, such as a statute, or (2) “sufficiently important” so as to “flow ‘implicit[ly]’ from the design, object, and nature of the Due Process Clause.” Post, at 2. The first point is unobjectionable, at least given this Court’s case law. See, e.g., Goldberg v. Kelly, 397 U. S. 254 , and n. 8 (1970); Collins 503 U. S., at 129. But it is unhelpful to Din, who does not argue that a statute confers on her a liberty interest protected by the Due Process Clause. Justice Breyer attempts to make this argument for Din, latching onto language in Wilkinson v. Austin, 545 U. S. 209, 221 (2005) , saying that a liberty interest “may arise from an expectation or interest created by state laws or policies.” Such an “expectation” has been created here, he asserts, because “the law . . . surrounds marriage with a host of legal protections to the point that it creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure,” post, at 3. But what Wilkinson meant by an “expectation or interest” was not that sort of judicially unenforceable substantial hope, but a present and legally recognized substantive entitlement.[1]* As sole support for its conclusion that nonconstitutional law can create constitutionally protected liberty interests, Wilkinson cited Wolff v. McDonnell, 418 U. S. 539 –558 (1974), which held that a prisoner could not be deprived of statutory good-time credit without procedural due process. That was not because a prisoner might have “ ‘a strong expectation’ ” that the government would not deprive him of good-time credit “ ‘without strong reasons’ ” or “ ‘fair procedure,’ ” but because “the State itself has not only provided a statutory right to good time [credit] but also specifies that it is to be forfeited only for serious misbehavior,” id., at 557 (emphasis added). The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process. Justice Breyer’s second point—that procedural due process rights attach even to some nonfundamental liberty interests that have not been created by statute—is much more troubling. He relies on the implied-fundamental-rights cases discussed above to divine a “right of spouses to live together and to raise a family,” along with “a citizen’s right to live within this country.” Post, at 2–3. But perhaps recognizing that our established methodology for identifying fundamental rights cuts against his conclusion, see Part II–B, supra, he argues that the term “liberty” in the Due Process Clause includes implied rights that, although not so fundamental as to deserve substantive-due-process protection, are important enough to deserve procedural-due-process protection. Post, at 2. In other words, there are two categories of implied rights protected by the Due Process Clause: really fundamental rights, which cannot be taken away at all absent a compelling state interest; and not-so-fundamental rights, whichcan be taken away so long as procedural due process is observed. The dissent fails to cite a single case supporting its novel theory of implied nonfundamental rights. It is certainly true that Vitek v. Jones, 445 U. S. 480 (1980) , and Washington v. Harper, 494 U. S. 210 (1990) , do not entail implied fundamental rights, but this is because they do not entail implied rights at all. Vitek concerned the involuntary commitment of a prisoner, deprivation of the expressly protected right of liberty under the original understanding of the term, see Part II–A, supra. “ ‘Among the historic liberties’ protected by the Due Process Clause is the ‘right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.’ ” Vitek, supra, at 492. The same is true of Harper, which concerned forced administration of psychotropic drugs to an inmate. 494 U. S., at 214. Arguably, Paul v. Davis, 424 U. S. 693 (1976) , also addressed an interest expressly contemplated within the meaning of “liberty.” See 1 W. Blackstone, Commentaries on the Laws of England 125 (“The right of personal security consists in a person’s . . . reputation”). But that case is of no help to the dissent anyway, since it found no liberty interest entitled to the Due Process Clause’s protection. Paul, supra, at 713–714. Finally, the dissent points to Goss v. Lopez, 419 U. S. 565, 574 (1975) , a case that “recognize[d] . . . as a property interest” a student’s right to a public education conferred by Ohio’s express statutory creation of a public school system; and further concluded that the student’s 10-day suspension implicated the constitutionally grounded liberty interest in “ ‘a person’s good name, reputation, honor, or integrity.’ ” Ultimately, the dissent identifies no case holding that there is an implied nonfundamental right protected by procedural due process, and only one case even suggesting that there is. That suggestion, in Smith v. Organization of Foster Families For Equality & Reform, 431 U. S. 816 (1977) , is contained in dictum in a footnote, id., at 842, n. 48. The holding of the case was that “the procedures provided by New York State . . . and by New York Cit[y] . . . are adequate to protect whatever liberty interests appellees may have.” Id., at 856 (emphasis added). The footnoted dictum that Justice Breyer proposes to elevate to constitutional law is a dangerous doctrine. It vastly expands the scope of our implied-rights jurisprudence by setting it free from the requirement that the liberty interest be “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty,” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted). Even shallow-rooted liberties would, thanks to this new procedural-rights-only notion of quasi-fundamental rights, qualify for judicially imposed procedural requirements. Moreover, Justice Breyer gives no basis for distinguishing the fundamental rights recognized in the cases he depends on from the nonfundamental right he believes they give rise to in the present case. Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that di-rectly affects a citizen’s legal rights, or imposes a direct re-straint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” O’Bannon v. Town Court Nursing Center, 447 U. S. 773, 788 (1980) . The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country. This might, indeed, deprive Din of something “important,” post, at 2, but if that is the criterion for Justice Breyer’s new pairing of substantive and procedural due process, we are in for quite a ride. * * * Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required. The judgment of the Ninth Circuit is vacated, and the case is remanded for further proceedings. It is so ordered.Notes 1 * Justice Breyer characterizes this as a reintroduction of “the rights/privilege distinction that this Court rejected almost five decades ago.” Post, at 3. Not so. All I insist upon (and all that our cases over the past five decades require) is that the privilege be one to which the claimant has been given an entitlement.

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 . SUPREME COURT OF THE UNITED STATES Syllabus KERRY, SECRETARY OF STATE, et al. v. DIN certiorari to the united states court of appeals for the ninth circuit No. 13–1402. Argued February 23, 2015—Decided June 15, 2015 Respondent Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed suit in Federal District Court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons. Held: The judgment is vacated, and the case is remanded. 718 F. 3d 856, vacated and remanded. Justice Scalia, joined by The Chief Justice and Justice Thomas, concluded that the Government did not deprive Din of any constitutional right entitling her to due process of law. . (a) Under a historical understanding of the Due Process Clause, Din cannot possibly claim that the denial of Berashk’s visa application deprived her of life, liberty, or property. . (b) Even accepting the textually unsupportable doctrine of implied fundamental rights, nothing in that line of cases establishes a free-floating and categorical liberty interest sufficient to trigger constitutional protection whenever a regulation touches upon any aspect of the marital relationship. Even if those cases could be so broadly construed, the relevant question is not whether the asserted interest “is consistent with this Court’s substantive-due-process line of cases,” but whether it is supported by “this Nation’s history and practice,” Washington v. Glucksberg, 521 U. S. 702 –724. Here, the Government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Din’s claim. And this Court has consistently recognized its lack of “judicial authority to substitute [its] political judgment for that of Congress” with regard to the various distinctions in immigration policy. Fiallo v. Bell, 430 U. S. 787 . . Justice Kennedy, joined by Justice Alito, concluded that there is no need to decide whether Din has a protected liberty interest, because, even assuming she does, the notice she received satisfied due process. . (a) This conclusion is dictated by the reasoning of Kleindienst v. Mandel, 408 U. S. 753 . There the Court declined to balance the asserted First Amendment interest of college professors seeking a nonimmigrant visa for a revolutionary Marxist speaker against “Congress’ ‘plenary power to make rules for the admission of aliens,’ ” id., at 766, and limited its inquiry to whether the Government had provided a “facially legitimate and bona fide” reason for its action, id., at 770. Mandel’s reasoning has particular force here, where national security is involved. . (b) Assuming that Din’s rights were burdened directly by the visa denial, the consular officer’s citation of §1182(a)(3)(B) satisfies Mandel’s “facially legitimate and bona fide” standard. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 , the Government’s decision to exclude Berashk because he did not satisfy a statutory condition for admissibility is facially legitimate. Supporting this conclusion is the fact that, by Din’s own admission, Berashk worked for the Taliban government. These considerations lend to the conclusion that there was a bona fide factual basis for exclusion, absent an affirmative showing of bad faith on the consular officer’s part, which Din has not plausibly alleged. . Scalia, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Thomas, J., joined. Kennedy, J., filed an opinion concurring in the judgment, in which Alito, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

The Immigration and Nationality Act (INA) creates a special visa-application process for aliens sponsored by immediate relatives in the United States. Under this process, the citizen-relative first files a petition on behalf of the alien living abroad, asking to have the alien classified as an immediate relative. If and when a petition is approved, the alien may apply for a visa by submitting the required documents and appearing at a United States Embassy or Consular Office. Before issuing a visa, the consular officer must ensure that the alien is not inadmissible under any provision of the INA. One of the grounds for inadmissibility, §1182(a)(3)(B), covers, inter alia, providing material support to a terrorist organization and serving as its representative. Fauzia Din brought suit in Federal District Court, seeking a writ of mandamus directing the Government to prop-erly adjudicate Berashk visa application, a declaratory judgment that §1181(b) is exempt from the Federal Administrative Procedure Act, and a bar to Din and her husband from providing a marriage notice to the Government. The District Court granted Din a motion to dismiss the complaint, but the Court of Appeals reversed, concluding that Din was entitled to judicial review under the Due Process Clause of the Fifth Amendment, which provides that no process is due if one is not deprived of life, liberty, or property without due process of law. Held: Din was not deprived of her liberty when the Government denied her husband visa application. . (a) Din has not suffered a deprivation of liberty so understood as depriving her of her constitutional right to live together with her husband in America. These implied rights have been given more protection than any other constitutional right properly understood. While they may be dispossessed of property, thrown in jail, or executed so long as proper procedures are followed, the enjoyment of implied constitutional rights cannot be limited at all, except by provisions that are narrowly tailored to serve a compelling state interest. Nothing in Din cites establishes a free-floating and categorical liberty interest in marriage sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship. Even if procedural due process rights attach to liberty interests that either are (1) created by nonconstitutional law, such as a statute, or (2) sufficiently important so as to flow "implicit[ly] from the design, object, and nature of the due process Clause," Glucksberg, supra, at 720, is unhelpful to Din, who does not argue that a statute confers on her a liberty interest protected by the Due process Clause. Here, a long practice of regulating spousal immigration precludes Din from claiming that the visa denial has deprived her of any of her fundamental liberty interests. Although immigration was effectively unregu-lated prior to 1875, as soon as Congress began legislating in this area it enacted a complicated web of regulations that erected serious impediments to a person's ability to bring a spouse into the country. See Abrams, What Makes the Family Special? 80 U. Chi. L. Rev. 7, 10–16 (2013). See, e.g., Goldberg v. Kelly, 397 U. S. 254, and n. 8 (1970); Collins v. Harker Heights, 503 U.S. 115, 125 (CA), Griswold v. Connecticut,, and Harper v. Harper,, distinguished. The fact that the Immigration Act of 1921 granted nonquota status only to unmarried, minor children of citizens, while granting fiancées and wives preferred status within the allocation of quota spots, §2(d), does not mean that she had no right of entry into the United States for her husband, since the Government has not expelled Din from the country, and thus denied him admission. To the extent that Din received any explanation for the Government's decision, this was more than the due Process Clause required. Pp. 475 U. s. 475-476. (c) There are two categories of implied rights protected by due process: really fundamental rights, which cannot be taken away at all absent a compelling State interest, and not-so-fundamental rights, that cannot be confined at all except by a narrowly tailored provision that is not constitutionally tailored. Procedural due process does not attach to the liberty interest that either is created by a statute or is sufficiently important to flowimplicitly from the concept of ordered liberty. See Wilkinson v. Austin, 545 U. S. 209, 221. However, a procedural-rights-only notion of a quasifundamental right may give rise to a fundamental liberty interest, since it gives rise to no fundamental right directly implicated in Din or implicated in her legal action. Moreover, Justice Breyer, a judicially recognized citizen, does not give her a fundamental right, since he has refused to

2014_14-114

https://www.oyez.org/cases/2014/14-114

. The Patient Protection and Affordable Care Act adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market. First, the Act bars insurers from taking a person’s health into account when deciding whether to sell health insurance or how much to charge. Second, the Act generally requires each person to maintain insurance coverage or make a payment to the Internal Revenue Service. And third, the Act gives tax credits to certain people to make insurance more affordable. In addition to those reforms, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish the Exchange if the State does not. This case is about whether the Act’s interlocking reforms apply equally in each State no matter who establishes the State’s Exchange. Specifically, the question pre-sented is whether the Act’s tax credits are available in States that have a Federal Exchange. I A The Patient Protection and Affordable Care Act, 124Stat. 119, grew out of a long history of failed health insurance reform. In the 1990s, several States began experimenting with ways to expand people’s access to coverage. One common approach was to impose a pair of insurance market regulations—a “guaranteed issue” requirement, which barred insurers from denying coverage to any person because of his health, and a “community rating” requirement, which barred insurers from charging a person higher premiums for the same reason. Together, those requirements were designed to ensure that anyone who wanted to buy health insurance could do so. The guaranteed issue and community rating requirements achieved that goal, but they had an unintended consequence: They encouraged people to wait until they got sick to buy insurance. Why buy insurance coverage when you are healthy, if you can buy the same coverage for the same price when you become ill? This consequence—known as “adverse selection”—led to a second: Insurers were forced to increase premiums to account for the fact that, more and more, it was the sick rather than the healthy who were buying insurance. And that consequence fed back into the first: As the cost of insurance rose, even more people waited until they became ill tobuy it. This led to an economic “death spiral.” As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely. As a result, the number of people without insurance increased dramatically. This cycle happened repeatedly during the 1990s. For example, in 1993, the State of Washington reformed its individual insurance market by adopting the guaranteed issue and community rating requirements. Over the next three years, premiums rose by 78 percent and the number of people enrolled fell by 25 percent. By 1999, 17 of the State’s 19 private insurers had left the market, and the remaining two had announced their intention to do so. Brief for America’s Health Insurance Plans as Amicus Curiae 10–11. For another example, also in 1993, New York adopted the guaranteed issue and community rating requirements. Over the next few years, some major insurers in the individual market raised premiums by roughly 40 percent. By 1996, these reforms had “effectively eliminated the commercial individual indemnity market in New York with the largest individual health insurer exiting the market.” L. Wachenheim & H. Leida, The Impact of Guaranteed Issue and Community Rating Reforms on States’ Individual Insurance Markets 38 (2012). In 1996, Massachusetts adopted the guaranteed issue and community rating requirements and experienced similar results. But in 2006, Massachusetts added two more reforms: The Commonwealth required individuals to buy insurance or pay a penalty, and it gave tax credits to certain individuals to ensure that they could afford the insurance they were required to buy. Brief for Bipartisan Economic Scholars as Amici Curiae 24–25. The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the Nation. Hearing on Examining Individual State Experiences with Health Care Reform Coverage Initiatives in the Context of National Reform before the Senate Committee on Health, Education, Labor, and Pensions, 111th Cong., 1st Sess., 9 (2009). B The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements. The Act provides that “each health insurance issuer that offers health insurance coverage in the individual . . . market in a State must accept every . . . individual in the State that applies for such coverage.” 42 U. S. C. §300gg–1(a). The Act also bars insurers from charging higher premiums on the basis of a person’s health. §300gg. Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS. 26 U. S. C. §5000A. Congress recognized that, without an incentive, “many individuals would wait to purchase health insurance until they needed care.” 42 U. S. C. §18091(2)(I). So Congress adopted a coverage requirement to “minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums.” Ibid. In Congress’s view, that coverage requirement was “essential to creating effective health insurance markets.” Ibid. Congress also provided an exemption from the coverage requirement for anyone who has to spend more than eight percent of his income on health insurance. 26 U. S. C. §§5000A(e)(1)(A), (e)(1)(B)(ii). Third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line. §36B. Individuals who meet the Act’s requirements may purchase insurance with the tax credits, which are provided in advance directly to the individual’s insurer. 42 U. S. C. §§18081, 18082. These three reforms are closely intertwined. As noted, Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement. §18091(2)(I). And the coverage requirement would not work without the tax credits. The reason is that, without the tax credits, the cost of buying insurance would exceed eight percent of income for a large number of individuals, which would exempt them from the coverage requirement. Given the relationship between these three reforms, the Act provided that they should take effect on the same day—January 1, 2014. See Affordable Care Act, §1253, redesignated §1255, 124Stat. 162, 895; §§1401(e), 1501(d), id., at 220, 249. C In addition to those three reforms, the Act requires the creation of an “Exchange” in each State where peoplecan shop for insurance, usually online. 42 U. S. C. §18031(b)(1). An Exchange may be created in one of two ways. First, the Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” Ibid. Second, if a State nonetheless chooses not to establish its own Exchange, the Act provides that the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State.” §18041(c)(1). The issue in this case is whether the Act’s tax credits are available in States that have a Federal Exchange rather than a State Exchange. The Act initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” 26 U. S. C. §36B(a). The Act then provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act [hereinafter 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)–(c) (emphasis added). The IRS addressed the availability of tax credits by promulgating a rule that made them available on both State and Federal Exchanges. 77 Fed. Reg. 30378 (2012). As relevant here, the IRS Rule provides that a taxpayer is eligible for a tax credit if he enrolled in an insurance plan through “an Exchange,” 26 CFR §1.36B–2 (2013), which is defined as “an Exchange serving the individual market . . . regardless of whether the Exchange is established and operated by a State . . . or by HHS,” 45 CFR §155.20 (2014). At this point, 16 States and the District of Columbia have established their own Exchanges; the other 34 States have elected to have HHS do so. D Petitioners are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State under [ 42 U. S. C. §18031],” so they should not receive any tax credits. That would make the cost of buying insurance more than eight percent of their income, which would exempt them from the Act’s coverage requirement. 26 U. S. C. §5000A(e)(1). Under the IRS Rule, however, Virginia’s Exchange would qualify as “an Exchange established by the State under [ 42 U. S. C. §18031],” so petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of petitioners’ income, which would subject them to the Act’s coverage requirement. The IRS Rule therefore requires petitioners to either buy health insurance they do not want, or make a payment to the IRS. Petitioners challenged the IRS Rule in Federal District Court. The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. King v. Sebelius, 997 F. Supp. 2d 415 (ED Va. 2014). The Court of Appeals for the Fourth Circuit affirmed. 759 F. 3d 358 (2014). The Fourth Circuit viewed the Act as “ambiguous and subject to at least two different interpretations.” Id., at 372. The court therefore deferred to the IRS’s interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . 759 F. 3d, at 376. The same day that the Fourth Circuit issued its decision, the Court of Appeals for the District of Columbia Circuit vacated the IRS Rule in a different case, holding that the Act “unambiguously restricts” the tax credits to State Exchanges. Halbig v. Burwell, 758 F. 3d 390, 394 (2014). We granted certiorari in the present case. 574 U. S. ___ (2014). II The Affordable Care Act addresses tax credits in what is now Section 36B of the Internal Revenue Code. That section provides: “In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle . . . an amount equal to the premium assistance credit amount.” 26 U. S. C. §36B(a). Section 36B then defines the term “premium assistance credit amount” as “the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year.” §36B(b)(1) (emphasis added). Section 36B goes on to define the two italicized terms—“premium assistance amount” and “coverage month”—in part by referring to an insurance plan that is enrolled in through “an Exchange established by the State under [ 42 U. S. C. §18031].” 26 U. S. C. §§36B(b)(2)(A), (c)(2)(A)(i). The parties dispute whether Section 36B authorizes tax credits for individuals who enroll in an insurance plan through a Federal Exchange. Petitioners argue that a Federal Exchange is not “an Exchange established by the State under [ 42 U. S. C. §18031],” and that the IRS Rule therefore contradicts Section 36B. Brief for Petitioners 18–20. The Government responds that the IRS Rule is lawful because the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” should be read to include Federal Exchanges. Brief for Respondents 20–25. When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837 . Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000) . “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson, 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, 546 U. S. 243 –267 (2006). This is not a case for the IRS. It is instead our task to determine the correct reading of Section 36B. If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010) . But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 290 (2010) (internal quotation marks omitted). A We begin with the text of Section 36B. As relevant here, Section 36B allows an individual to receive tax credits only if the individual enrolls in an insurance plan through “an Exchange established by the State under [ 42 U. S. C. §18031].” In other words, three things must be true: First, the individual must enroll in an insurance plan through “an Exchange.” Second, that Exchange must be “established by the State.” And third, that Exchange must be established “under [ 42 U. S. C. §18031].” We address each requirement in turn. First, all parties agree that a Federal Exchange qualifies as “an Exchange” for purposes of Section 36B. See Brief for Petitioners 22; Brief for Respondents 22. Section 18031 provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” §18031(b)(1). Although phrased as a requirement, the Act gives the States “flexibility” by allowing them to “elect” whether they want to establish an Exchange. §18041(b). If the State chooses not to do so, Section 18041 provides that the Secretary “shall . . . establish and operatesuch Exchange within the State.” §18041(c)(1) (emphasis added). By using the phrase “such Exchange,” Section 18041 instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section 18031. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). In other words, State Exchanges and Fed-eral Exchanges are equivalent—they must meet the same requirements, perform the same functions, and serve the same purposes. Although State and Federal Exchanges are established by different sovereigns, Sections 18031 and 18041 do not suggest that they differ in any meaningful way. A Federal Exchange therefore counts as “an Exchange” under Section 36B. Second, we must determine whether a Federal Exchange is “established by the State” for purposes of Section 36B. At the outset, it might seem that a Federal Exchange cannot fulfill this requirement. After all, the Act defines “State” to mean “each of the 50 States and the District of Columbia”—a definition that does not include the Federal Government. 42 U. S. C. §18024(d). But when read in context, “with a view to [its] place in the overall statutory scheme,” the meaning of the phrase “established by the State” is not so clear. Brown &Williamson, 529 U. S., at 133 (internal quotation marks omitted). After telling each State to establish an Exchange, Section 18031 provides that all Exchanges “shall make available qualified health plans to qualified individuals.” 42 U. S. C. §18031(d)(2)(A). Section 18032 then defines the term “qualified individual” in part as an individual who “resides in the State that established the Exchange.” §18032(f)(1)(A). And that’s a problem: If we give the phrase “the State that established the Exchange” its most natural meaning, there would be no “qualified individuals” on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange. As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals. §18031(d)(2)(A). And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individ-uals did not exist. §18031(e)(1)(B). This problem arises repeatedly throughout the Act. See, e.g., §18031(b)(2) (allowing a State to create “one Exchange . . . for providing . . . services to both qualified individuals and qualified small employers,” rather than creating separate Exchanges for those two groups).[1] These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context. Third, we must determine whether a Federal Exchange is established “under [ 42 U. S. C. §18031].” This too might seem a requirement that a Federal Exchange cannot fulfill, because it is Section 18041 that tells the Secretary when to “establish and operate such Exchange.” But here again, the way different provisions in the statute interact suggests otherwise. The Act defines the term “Exchange” to mean “an American Health Benefit Exchange established under section 18031.” §300gg–91(d)(21). If we import that definition into Section 18041, the Act tells the Secretary to “establish and operate such ‘American Health Benefit Exchange established under section 18031.’ ” That suggests that Section 18041 authorizes the Secretary to establish an Exchange under Section 18031, not (or not only) under Section 18041. Otherwise, the Federal Exchange, by definition, would not be an “Exchange” at all. See Halbig, 758 F. 3d, at 399–400 (acknowledging that the Secretary establishes Federal Exchanges under Section 18031). This interpretation of “under [ 42 U. S. C. §18031]” fits best with the statutory context. All of the requirements that an Exchange must meet are in Section 18031, so it is sensible to regard all Exchanges as established under that provision. In addition, every time the Act uses the word “Exchange,” the definitional provision requires that we substitute the phrase “Exchange established under section 18031.” If Federal Exchanges were not established under Section 18031, therefore, literally none of the Act’s requirements would apply to them. Finally, the Act repeatedly uses the phrase “established under [ 42 U. S. C. §18031]” in situations where it would make no sense to distinguish between State and Federal Exchanges. See, e.g., 26 U. S. C. §125(f)(3)(A) (2012 ed., Supp. I) (“The term ‘qualified benefit’ shall not include any qualified health plan . . . offered through an Exchange established under [ 42 U. S. C. §18031]”); 26 U. S. C. §6055(b)(1)(B)(iii)(I) (2012 ed.) (requiring insurers to report whether each insurance plan they provided “is a qualified health plan offered through an Exchange established under [ 42 U. S. C. §18031]”). A Federal Exchange may therefore be considered one established “under [ 42 U. S. C. §18031].” The upshot of all this is that the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 that it establish an Exchange, the Act tells the Secretary to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not.[2] The conclusion that Section 36B is ambiguous is further supported by several provisions that assume tax credits will be available on both State and Federal Exchanges. For example, the Act requires all Exchanges to create outreach programs that must “distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B.” §18031(i)(3)(B). The Act also requires all Exchanges to “establish and make avail-able by electronic means a calculator to determine the actual cost of coverage after the application of any pre-mium tax credit under section 36B.” §18031(d)(4)(G). And the Act requires all Exchanges to report to the Treasury Secretary information about each health plan they sell, including the “aggregate amount of any advance payment of such credit,” “[a]ny information . . . necessary to determine eligibility for, and the amount of, such credit,” and any “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” 26 U. S. C. §36B(f)(3). If tax credits were not available on Federal Exchanges, these provisions would make little sense. Petitioners and the dissent respond that the words “established by the State” would be unnecessary if Congress meant to extend tax credits to both State and Fed-eral Exchanges. Brief for Petitioners 20; post, at 4–5. But “our preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee, 540 U. S. 526, 536 (2004) ; see also Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 13) (“The canon against surplusage is not an absolute rule”). And specifically with respect to this Act, rigorous application of the canon does not seem a particularly useful guide to a fair construction of the statute. The Affordable Care Act contains more than a few examples of inartful drafting. (To cite just one, the Act creates three separate Section 1563s. See 124Stat. 270, 911, 912.) Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key partsof the Act behind closed doors, rather than through “the traditional legislative process.” Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 L. Lib. J. 131, 163 (2013). And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. Id., at 159–167. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Cf. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 545 (1947) (describing a cartoon “in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means.’ ”). Anyway, we “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.” Util-ity Air Regulatory Group, 573 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under [Section 18031]” is unambiguous. B Given that the text is ambiguous, we must turn to the broader structure of the Act to determine the meaning of Section 36B. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statu-tory 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) . Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405 –420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).[3] As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. The guaranteed issue and community rating requirements ensure that anyone can buy insurance; the coverage requirement creates an incentive for people to do so before they get sick; and the tax credits—it is hoped—make insurance more affordable. Together, those reforms “minimize . . . adverse selection and broaden the health in-surance risk pool to include healthy individuals, which will lower health insurance premiums.” 42 U. S. C. §18091(2)(I). Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. As explained earlier, the coverage requirement applies only when the cost of buying health insurance (minus the amount of the tax credits) is less than eight percent of an individual’s income. 26 U. S. C. §§5000A(e)(1)(A), (e)(1)(B)(ii). So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer. In 2014, approximately 87 percent of people who bought insurance on a Federal Exchange did so with tax credits, and virtually all of those people would become exempt. HHS, A. Burke, A. Misra, & S. Sheingold, Premium Affordability, Competition, and Choice in the Health Insurance Marketplace 5 (2014); Brief for Bipartisan Economic Scholars as Amici Curiae 19–20. If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange. The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enrollment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable Care Act’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan, The Implications of a Supreme Court Finding for the Plaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insurance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool, 42 U. S. C. §18032(c)(1), premiums outside the Exchange would rise along with those inside the Exchange. Brief for Bipartisan Economic Scholars as Amici Curiae 11–12. It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.[4] Petitioners respond that Congress was not worried about the effects of withholding tax credits from States with Federal Exchanges because “Congress evidently believed it was offering states a deal they would not refuse.” Brief for Petitioners 36. Congress may have been wrong about the States’ willingness to establish their own Exchanges, petitioners continue, but that does not allow this Court to rewrite the Act to fix that problem. That is particularly true, petitioners conclude, because the States likely would have created their own Exchanges in the absence of the IRS Rule, which eliminated any incentive that the States had to do so. Id., at 36–38. Section 18041 refutes the argument that Congress believed it was offering the States a deal they would not refuse. That section provides that, if a State elects not to establish an Exchange, the Secretary “shall . . . establish and operate such Exchange within the State.” 42 U. S. C. §18041(c)(1)(A). The whole point of that provision is to create a federal fallback in case a State chooses not to establish its own Exchange. Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal. C Finally, the structure of Section 36B itself suggests that tax credits are not limited to State Exchanges. Section 36B(a) initially provides that tax credits “shall be allowed” for any “applicable taxpayer.” Section 36B(c)(1) then defines an “applicable taxpayer” as someone who (among other things) has a household income between 100 percent and 400 percent of the federal poverty line. Together, these two provisions appear to make anyone in the specified income range eligible to receive a tax credit. According to petitioners, however, those provisions are an empty promise in States with a Federal Exchange. In their view, an applicable taxpayer in such a State would be eligible for a tax credit—but the amount of that tax credit would always be zero. And that is because—diving several layers down into the Tax Code—Section 36B says that the amount of the tax credits shall be “an amount equal to the premium assistance credit amount,” §36B(a); and then says that the term “premium assistance credit amount” means “the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year,” §36B(b)(1); and then says that the term “premium assistance amount” is tied to the amount of the monthly premium for insurance purchased on “an Exchange established by the State under [42 U. S. C. §18031],” §36B(b)(2); and then says that the term “coverage month” means any month in which the taxpayer has insurance through “an Exchange established by the State under [ 42 U. S. C. §18031],” §36B(c)(2)(A)(i). We have held that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) . But in petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code. We doubt that is what Congress meant to do. Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the definition of “applicable taxpayer” or in some other prominent manner. It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.[5] D Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994) . In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939) . For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. * * * In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. The judgment of the United States Court of Appeals for the Fourth Circuit is Affirmed.Notes 1 The dissent argues that one would “naturally read instructions about qualified individuals to be inapplicable to the extent a particular Exchange has no such individuals.” Post, at 10–11 (Scalia, J., dissenting). But the fact that the dissent’s interpretation would make so many parts of the Act “inapplicable” to Federal Exchanges is precisely what creates the problem. It would be odd indeed for Congress to write such detailed instructions about customers on a State Exchange, while having nothing to say about those on a Federal Exchange. 2 The dissent argues that the phrase “such Exchange” does not suggest that State and Federal Exchanges “are in all respects equivalent.” Post, at 8. In support, it quotes the Constitution’s Elections Clause, which makes the state legislature primarily responsible for prescribing election regulations, but allows Congress to “make or alter such Regulations.” Art. I, §4, cl. 1. No one would say that state and federal election regulations are in all respects equivalent, the dissent contends, so we should not say that State and Federal Exchanges are. But the Elections Clause does not precisely define what an election regulation must look like, so Congress can prescribe regulations that differ from what the State would prescribe. The Affordable Care Act does precisely define what an Exchange must look like, however, so a Federal Exchange cannot differ from a State Exchange. 3 The dissent notes that several other provisions in the Act use the phrase “established by the State,” and argues that our holding applies to each of those provisions. Post, at 5–6. But “the presumption of consistent usage readily yields to context,” and a statutory term may mean different things in different places. Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 15) (internal quotation marks omitted). That is particularly true when, as here, “the Act is far from a chef d’oeuvre of legislative draftsmanship.” Ibid. Because the other provisions cited by the dissent are not at issue here, we do not address them. 4 The dissent argues that our analysis “show[s] only that the statu-tory scheme contains a flaw,” one “that appeared as well in other parts of the Act.” Post, at 14. For support, the dissent notes that the guaranteed issue and community rating requirements might apply in the federal territories, even though the coverage requirement does not. Id., at 14–15. The confusion arises from the fact that the guaranteed issue and community rating requirements were added as amendments to the Public Health Service Act, which contains a definition of the word “State” that includes the territories, 42 U. S. C. §201(f), while the later-enacted Affordable Care Act contains a definition of the word “State” that excludes the territories, §18024(d). The predicate for the dissent’s point is therefore uncertain at best. 5 The dissent cites several provisions that “make[ ] taxpayers of all States eligible for a credit, only to provide later that the amount of the credit may be zero.” Post, at 11 (citing 26 U. S. C. §§24, 32, 35, 36). None of those provisions, however, is crucial to the viability of a comprehensive program like the Affordable Care Act. No one suggests, for example, that the first-time-homebuyer tax credit, §36, is essential to the viability of federal housing regulation.

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 . SUPREME COURT OF THE UNITED STATES Syllabus KING et al. v. BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. certiorari to the united states court of appeals for the fourth circuit No. 14–114. Argued March 4, 2015—Decided June 25, 2015 The Patient Protection and Affordable Care Act grew out of a long history of failed health insurance reform. In the 1990s, several States sought to expand access to coverage by imposing a pair of insurance market regulations—a “guaranteed issue” requirement, which bars insurers from denying coverage to any person because of his health, and a “community rating” requirement, which bars insurers from charging a person higher premiums for the same reason. The reforms achieved the goal of expanding access to coverage, but they also encouraged people to wait until they got sick to buy insurance. The result was an economic “death spiral”: premiums rose, the number of people buying insurance declined, and insurers left the market entirely. In 2006, however, Massachusetts discovered a way to make the guaranteed issue and community rating requirements work—by requiring individuals to buy insurance and by providing tax credits to certain individuals to make insurance more affordable. The combination of these three reforms—insurance market regulations, a coverage mandate, and tax credits—enabled Massachusetts to drastically reduce its uninsured rate. The Affordable Care Act adopts a version of the three key reforms that made the Massachusetts system successful. First, the Act adopts the guaranteed issue and community rating requirements. 42 U. S. C. §§300gg, 300gg–1. Second, the Act generally requires individuals to maintain health insurance coverage or make a payment to the IRS, unless the cost of buying insurance would exceed eight percent of that individual’s income. 26 U. S. C. §5000A. And third, the Act seeks to make insurance more affordable by giving refundable tax credits to individuals with household incomes between 100 percent and 400 percent of the federal poverty line. §36B. In addition to those three reforms, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish “such Exchange” if the State does not. 42 U. S. C. §§18031, 18041. Relatedly, the Act provides that tax credits “shall be allowed” for any “applicable taxpayer,” 26 U. S. C. §36B(a), but only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State under [ 42 U. S. C. §18031],” §§36B(b)–(c). An IRS regulation interprets that language as making tax credits available on “an Exchange,” 26 CFR §1.36B–2, “regardless of whether the Exchange is established and operated by a State . . . or by HHS,” 45 CFR §155.20. Petitioners are four individuals who live in Virginia, which has a Federal Exchange. They do not wish to purchase health insurance. In their view, Virginia’s Exchange does not qualify as “an Exchange established by the State under [ 42 U. S. C. §18031],” so they should not receive any tax credits. That would make the cost of buying insurance more than eight percent of petitioners’ income, exempting them from the Act’s coverage requirement. As a result of the IRS Rule, however, petitioners would receive tax credits. That would make the cost of buying insurance less than eight percent of their income, which would subject them to the Act’s coverage requirement. Petitioners challenged the IRS Rule in Federal District Court. The District Court dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through a Federal Exchange. The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit viewed the Act as ambiguous, and deferred to the IRS’s interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . Held: Section 36B’s tax credits are available to individuals in States that have a Federal Exchange. . (a) When analyzing an agency’s interpretation of a statute, this Court often applies the two-step framework announced in Chevron, 467 U. S. 837 . But Chevron does not provide the appropriate framework here. The tax credits are one of the Act’s key reforms and whether they are available on Federal Exchanges is a question of deep “economic and political significance”; had Congress wished to assign that question to an agency, it surely would have done so expressly. And it is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. It is instead the Court’s task to determine the correct reading of Section 36B. If the statutory language is plain, the Court must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words “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 . . (b) When read in context, the phrase “an Exchange established by the State under [ 42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it could also refer to all Exchanges—both State and Federal—for purposes of the tax credits. If a State chooses not to follow the directive in Section 18031 to establish an Exchange, the Act tells the Secretary of Health and Human Services to establish “such Exchange.” §18041. And by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges—one type of Exchange would help make insurance more affordable by providing billions of dollars to the States’ citizens; the other type of Exchange would not. Several other provisions in the Act—e.g., Section 18031(i)(3)(B)’s requirement that all Exchanges create outreach programs to “distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B”—would make little sense if tax credits were not available on Federal Exchanges. The argument that the phrase “established by the State” would be superfluous if Congress meant to extend tax credits to both State and Federal Exchanges is unpersuasive. This Court’s “preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee, 540 U. S. 526 . And rigorous application of that canon does not seem a particularly useful guide to a fair construction of the Affordable Care Act, which contains more than a few examples of inartful drafting. The Court nevertheless must do its 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.’ ” Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___. . (c) Given that the text is ambiguous, the Court must look to the broader structure of the Act to determine whether one of Section 36B’s “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 . Here, the statutory scheme compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. Under petitioners’ reading, the Act would not work in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way, because so many individuals would be exempt from the requirement without the tax credits. If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange.The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. It is implausible that Congress meant the Act to operate in this manner. Congress made the guaranteed issue and community rating requirements applicable in every State in the Nation, but those requirements only work when combined with the coverage requirement and tax credits. It thus stands to reason that Congress meant for those provisions to apply in every State as well. . (d) The structure of Section 36B itself also suggests that tax credits are not limited to State Exchanges. Together, Section 36B(a), which allows tax credits for any “applicable taxpayer,” and Section 36B(c)(1), which defines that term as someone with a household income between 100 percent and 400 percent of the federal poverty line, appear to make anyone in the specified income range eligible for a tax credit. According to petitioners, however, those provisions are an empty promise in States with a Federal Exchange. In their view, an applicable taxpayer in such a State would be eligible for a tax credit, but the amount of that tax credit would always be zero because of two provisions buried deep within the Tax Code. That argument fails because Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457 . . (e) Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. . 759 F. 3d 358, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

The Patient Protection and Affordable Care Act (Act) adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market. First, the Act bars insurers from taking a person's health into account when deciding whether to sell health insurance or how much to charge. Second, it generally requires each person to maintain insurance coverage or make a payment to the Internal Revenue Service. And third, it gives tax credits to certain people to make insurance more affordable. The Act requires the creation of an Exchange in each State where peoplecan shop for insurance, usually online. Section 36B of the Act provides that, if a State chooses not to establish its own Exchange, the Secretary of Health and Human Services shall establish and operate such Exchange within the State. The issue in this case is whether the Act's tax credits are available in States that have a Federal Exchange rather than a State Exchange. Petitioners, who live in Virginia and have established their own health insurance exchanges, challenged the IRS Rule in Federal District Court, which dismissed the suit, holding that the Act unambiguously made tax credits available to individuals enrolled through the Federal Exchange, and the Court of Appeals affirmed. Held: The Act does not apply equally to State Exchanges. . (a) The Act addresses tax credits only if the individual enrolls in an insurance plan through an Exchange established by the State under 42 U.S. C. §18031. The parties dispute whether § 36B authorizes tax credits for insurance purchased on any Exchange created under the Act. This is one of the rare cases in which the Act appears to be ambiguous, because the phrase refers to all Exchanges, not just the Federal Government. Moreover, the statutory scheme compels this Court to reject petitioners' interpretation because it would destabilize the individual insurance market in any State with a federal Exchange, which is likely to create its own Exchanges and likely create the problems that Congress intended to avoid. Pp. 467 U. S. 837-839. (b) Section 36b is ambiguous, since the phrase may be ambiguous when read in context, but when read in isolation, the meaning of the phrase in § 18031 is not so clear. It is also possible that the phrase would refer to all State and Federal Exchanges at least for purposes of the tax credits. Thus, it would be odd indeed for Congress to write such detailed instructions about customers on State Exchange, while having nothing to say about those on Federal Exchange.. 759 F. 3d 358, affirmed. Justice Halbig v. Burwell, 758 F.3d 390, vacated.

2014_14-6368

https://www.oyez.org/cases/2014/14-6368

. In this case, an individual detained in a jail prior to trial brought a claim under Rev. Stat. §1979, 42 U. S. C. §1983, against several jail officers, alleging that they used excessive force against him, in violation of the Fourteenth Amendment’s Due Process Clause. The officers concede that they intended to use the force that they used. Butthe parties disagree about whether the force used was excessive. The question before us is whether, to prove an excessive force claim, a pretrial detainee must show that the officers were subjectively aware that their use of force was unreasonable, or only that the officers’ use of that force was objectively unreasonable. We conclude that the latter standard is the correct one. I A Some but not all of the facts are undisputed: Michael Kingsley, the petitioner, was arrested on a drug charge and detained in a Wisconsin county jail prior to trial. On the evening of May 20, 2010, an officer performing a cell check noticed a piece of paper covering the light fixture above Kingsley’s bed. The officer told Kingsley to remove it; Kingsley refused; subsequently other officers told Kingsley to remove the paper; and each time Kingsley refused. The next morning, the jail administrator, Lieutenant Robert Conroy, ordered Kingsley to remove the paper. Kingsley once again refused. Conroy then told Kingsley that officers would remove the paper and that he would be moved to a receiving cell in the interim. Shortly thereafter, four officers, including respondents Sergeant Stan Hendrickson and Deputy Sheriff Fritz Degner, approached the cell and ordered Kingsley to stand, back up to the door, and keep his hands behind him. When Kingsley refused to comply, the officers handcuffed him, forcibly removed him from the cell, carried him to a receiving cell, and placed him face down on a bunk with his hands handcuffed behind his back. The parties’ views about what happened next differ. The officers testified that Kingsley resisted their efforts to remove his handcuffs. Kingsley testified that he did not resist. All agree that Sergeant Hendrickson placed his knee in Kingsley’s back and Kingsley told him in impolite language to get off. Kingsley testified that Hendrickson and Degner then slammed his head into the concrete bunk—an allegation the officers deny. The parties agree, however, about what happened next: Hendrickson directed Degner to stun Kingsley with a Taser; Degner applied a Taser to Kingsley’s back for approximately five seconds; the officers then left the handcuffed Kingsley alone in the receiving cell; and officers returned to the cell 15 minutes later and removed Kingsley’s handcuffs. B Based on these and related events, Kingsley filed a §1983 complaint in Federal District Court claiming (among other things) that Hendrickson and Degner used excessive force against him, in violation of the Fourteenth Amendment’s Due Process Clause. The officers moved for summary judgment, which the District Court denied, stating that “a reasonable jury could conclude that [the officers] acted with malice and intended to harm [Kingsley] when they used force against him.” Kingsley v. Josvai, No. 10–cv–832–bbc (WD Wis., Nov. 16, 2011), App to Pet. for Cert. 66a–67a. Kingsley’s excessive force claim accordingly proceeded to trial. At the conclusion of the trial, the District Court instructed the jury as follows: “Excessive force means force applied recklessly that is unreasonable in light of the facts and circumstances of the time. Thus, to succeed on his claim of excessive use of force, plaintiff must prove each of the following factors by a preponderance of the evidence: “(1) Defendants used force on plaintiff; “(2) Defendants’ use of force was unreasonable in light of the facts and circumstances at the time; “(3) Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety by failing to take reasonable measures to minimize the risk of harm to plaintiff; and “(4) Defendants’ conduct caused some harm to plaintiff. “In deciding whether one or more defendants used ‘unreasonable’ force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now. “Also, in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiff’s rights, you may consider factors such as: “• The need to use force; “• The relationship between the need to use force and the amount of force used; “• The extent of plaintiff’s injury; “• Whether defendants reasonably believed there was a threat to the safety of staff or prisoners; and “• Any efforts made by defendants to limit the amount of force used.” App. 277–278 (emphasis added). The jury found in the officers’ favor. On appeal, Kingsley argued that the correct standard for judging a pretrial detainee’s excessive force claim is objective unreasonableness. And, the jury instruction, he said, did not hew to that standard. A panel of the Court of Appeals disagreed, with one judge dissenting. The major-ity held that the law required a “subjective inquiry” into the officer’s state of mind. There must be “ ‘an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights.’ ” 744 F. 3d 443, 451 (CA7 2014) (quoting Wilson v. Williams, 83 F. 3d 870, 875 (CA7 1996)). The dissent would have used instructions promulgated by the Committee on Pattern Civil Jury Instructions of the Seventh Circuit, which require a pretrial detainee claiming excessive force to show only that the use of force was objectively unreasonable. 744 F. 3d, at 455 (opinion of Hamilton, J.); see Pattern Civ. Jury Instr. §7.08 (2009). The dissent further stated that the District Court’s use of the word “reckless” in the jury instruction added “an unnecessary and confusing element.” 744 F. 3d, at 455. Kingsley filed a petition for certiorari asking us to determine whether the requirements of a §1983 excessive force claim brought by a pretrial detainee must satisfy the subjective standard or only the objective standard. In light of disagreement among the Circuits, we agreed to do so. Compare, e.g., Murray v. Johnson No. 260, 367 Fed. Appx. 196, 198 (CA2 2010); Bozeman v. Orum, 422 F. 3d 1265, 1271 (CA11 2005) (per curiam), with Aldini v. Johnson, 609 F. 3d 858, 865–866 (CA6 2010); Young v. Wolfe, 478 Fed. Appx. 354, 356 (CA9 2012). II A We consider a legally requisite state of mind. In a case like this one, there are, in a sense, two separate state-of-mind questions. The first concerns the defendant’s state of mind with respect to his physical acts—i.e., his state of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant’s state of mind with respect to whether his use of force was “excessive.” Here, as to the first question, there is no dispute. As to the second, whether to interpret the defendant’s physical acts in the world as involving force that was “excessive,” there is a dispute. We conclude with respect to that question that the relevant standard is objective not subjective. Thus, the defendant’s state of mind is not a matter that a plaintiff is required to prove. Consider the series of physical events that take place in the world—a series of events that might consist, for example, of the swing of a fist that hits a face, a push that leads to a fall, or the shot of a Taser that leads to the stunning of its recipient. No one here denies, and we must assume, that, as to the series of events that have taken place in the world, the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind. That is because, as we have stated, “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U. S. 833, 849 (1998) (emphasis added). See also Daniels v. Williams, 474 U. S. 327, 331 (1986) (“Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property”). Thus, if an officer’s Taser goes off by accident or if an officer unintentionally trips and falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an excessive force claim. But if the use of force is delib-erate—i.e., purposeful or knowing—the pretrial detainee’s claim may proceed. In the context of a police pursuit of a suspect the Court noted, though without so holding, that recklessness in some cases might suffice as a standard for imposing liability. See Lewis, supra, at 849. Whether that standard might suffice for liability in the case of an alleged mistreatment of a pretrial detainee need not be decided here; for the officers do not dispute that they acted purposefully or knowingly with respect to the force they used against Kingsley. We now consider the question before us here—the defendant’s state of mind with respect to the proper interpretation of the force (a series of events in the world) that the defendant deliberately (not accidentally or negligently) used. In deciding whether the force deliberately used is, constitutionally speaking, “excessive,” should courts use an objective standard only, or instead a subjective standard that takes into account a defendant’s state of mind? It is with respect to this question that we hold that courts must use an objective standard. In short, we agree with the dissenting appeals court judge, the Seventh Circuit’s jury instruction committee, and Kingsley, that a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable. A court (judge or jury) cannot apply this standard mechanically. See Lewis, supra, at 850. Rather, objective reasonableness turns on the “facts and circumstances of each particular case.” Graham v. Connor, 490 U. S. 386, 396 (1989) . A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight. See ibid. A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U. S. 520, 540, 547 (1979) . Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. See, e.g., Graham, supra, at 396. We do not consider this list to be exclusive. We mention these factors only to illustrate the types of objective circumstances potentially relevant to a determination of excessive force. B Several considerations have led us to conclude that the appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have said that “the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham, supra, at 395, n. 10. And in Bell, we explained that such “punishment” can consist of actions taken with an “expressed intent to punish.” 441 U. S., at 538. But the Bell Court went on to explain that, in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not “rationally related to a legitimate nonpunitive governmental purpose” or that the actions “appear excessive in relation to that purpose.” Id., at 561. The Bell Court applied this latter objective standard to evaluate a variety of prison conditions, including a prison’s practice of double-bunking. In doing so, it did not consider the prison officials’ subjective beliefs about the policy. Id., at 541–543. Rather, the Court examined objective evidence, such as the size of the rooms and available amenities, before concluding that the conditions were reasonably related to the legitimate purpose of holding detainees for trial and did not appear excessive in relation to that purpose. Ibid. Bell’s focus on “punishment” does not mean that proof of intent (or motive) to punish is required for a pretrial detainee to prevail on a claim that his due process rights were violated. Rather, as Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose. Cf. Block v. Rutherford, 468 U. S. 576 –586 (1984) (where there was no suggestion that the purpose of jail policy of denying contact visitation was to punish inmates, the Court need only evaluate whether the policy was “reasonably related to legitimate governmental objectives” and whether it appears excessive in relation to that objective); Schall v. Martin, 467 U. S. 253 –271 (1984) (similar); see also United States v. Salerno, 481 U. S. 739, 747 (1987) (“[T]he punitive/regulatory distinction turns on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]’ ” (quoting Schall, supra, at 269; emphasis added and some internal quotation marks omitted)). The Court did not suggest in any of these cases, either by its words or its analysis, that its application of Bell’s objective standard should involve subjective considerations. Our standard is also consistent with our use of an objective “excessive force” standard where officers apply force to a person who, like Kingsley, has been accused but not convicted of a crime, but who, unlike Kingsley, is free on bail. See Graham, supra. For another thing, experience suggests that an objective standard is workable. It is consistent with the pattern jury instructions used in several Circuits. We are also told that many facilities, including the facility at issue here, train officers to interact with all detainees as if the officers’ conduct is subject to an objective reasonableness standard. See Brief for Petitioner 26; App. 247–248; Brief for Former Corrections Administrators and Experts as Amici Curiae 8–18. Finally, the use of an objective standard adequately protects an officer who acts in good faith. We recognize that “[r]unning a prison is an inordinately difficult undertaking,” Turner v. Safley, 482 U. S. 78 –85 (1987), and that “safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face,” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___ (2012) (slip op., at 5). Officers facing disturbances “are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham, 490 U. S., at 397. For these reasons, we have stressed that a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer. We have also explained that a court must take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate. See Part II–A, supra. And we have limited liability for excessive force to situations in which the use of force was the result of an intentional and knowing act (though we leave open the possibility of including a “reckless” act as well). Ibid. Additionally, an officer enjoys qualified immunity and is not liable for excessive force unless he has violated a “clearly established” right, such that “it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001) ; see also Brief for United States as Amicus Curiae 27–28. It is unlikely (though theoretically possible) that a plaintiff could overcome these hurdles where an officer acted in good faith. C Respondents believe that the relevant legal standard should be subjective, i.e., that the plaintiff must prove that the use of force was not “applied in a good-faith effort to maintain or restore discipline” but, rather, was applied “maliciously and sadistically to cause harm.” Brief for Respondents 27. And they refer to several cases that they believe support their position. See id., at 26–31 (citing Whitley v. Albers, 475 U. S. 312 (1986) ; Hudson v. McMillian, 503 U. S. 1 (1992) ; Lewis, 523 U. S. 833 ; Johnson v. Glick, 481 F. 2d 1028 (CA2 1973)). The first two of these cases, however, concern excessive force claims brought by convicted prisoners under the Eighth Amendment’s Cruel and Unusual Punishment Clause, not claims brought by pretrial detainees under the Fourteenth Amendment’s Due Process Clause. Whitley, supra, at 320; Hudson, supra, at 6–7. The language of the two Clauses differs, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less “maliciously and sadistically.” Ingraham v. Wright, 430 U. S. 651 –672, n. 40 (1977); Graham, supra, at 395, n. 10 (1989); see also 4 W. Blackstone, Commentaries *300 (“[I]f the offence be not bailable, or the party cannot find bail, he is to be committed to the county [jail] . . . [b]ut . . . only for safe custody, and not for punishment”). Thus, there is no need here, as there might be in an Eighth Amendment case, to determine when punishment is unconstitutional. Whitley and Hudson are relevant here only insofar as they address the practical importance of taking into account the legitimate safety-related concerns of those who run jails. And, as explained above, we believe we have done so. Lewis does not prove respondents’ point, either. There, the Court considered a claim that a police officer had violated due process by causing a death during a high-speed automobile chase aimed at apprehending a suspect. We wrote that “[j]ust as a purpose to cause harm is needed for Eighth Amendment liability in a [prison] riot case, so it ought to be needed for due process liability in a pursuit case.” 523 U. S., at 854. Respondents contend that this statement shows that the Court embraced a standard for due process claims that requires a showing of subjective intent. Brief for Respondents 30–31. Other portions of the Lewis opinion make clear, however, that this statement referred to the defendant’s intent to commit the acts in question, not to whether the force intentionally used was “excessive.” 523 U. S., at 854, and n. 13. As explained above, the parties here do not dispute that respondents’ use of force was intentional. See Part II–A, supra. Nor does Glick provide respondents with significant support. In that case Judge Friendly, writing for the Second Circuit, considered an excessive force claim brought by a pretrial detainee under the Fourteenth Amendment’s Due Process Clause. Judge Friendly pointed out that the “management by a few guards of large numbers of prisoners” in an institution “may require and justify the occasional use of a degree of intentional force.” 481 F. 2d, at 1033. He added that, in determining whether that intentional use of force “crosse[s]” the “constitutional line,” a court should look: “to such factors as [(1)] the need for the application of force, [(2)] the relationship between the need and the amount of force that was used, [(3)] the extent of in-jury inflicted, and [(4)] whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Ibid. This statement does not suggest that the fourth factor (malicious and sadistic purpose to cause harm) is a necessary condition for liability. To the contrary, the words “such . . . as” make clear that the four factors provide examples of some considerations, among others, that might help show that the use of force was excessive. Respondents believe these cases nonetheless help them make a broader point—namely, that a subjective standard “protects against a relative flood of claims,” many of them perhaps unfounded, brought by pretrial detainees. Brief for Respondents 38. But we note that the Prison Litigation Reform Act of 1995, 42 U. S. C. §1997e, which is designed to deter the filing of frivolous litigation against prison officials, applies to both pretrial detainees and convicted prisoners. Nor is there evidence of a rash of unfounded filings in Circuits that use an objective standard. We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today. III We now consider the lawfulness of the jury instruction given in this case in light of our adoption of an objective standard for pretrial detainees’ excessive force claims. See Part II–A, supra. That jury instruction defined “excessive force” as “force applied recklessly that is unreasonable in light of the facts and circumstances of the time.” App. 277. It required Kingsley to show that the officers “recklessly disregarded [Kingsley’s] safety.” Id., at 278. And it suggested that Kingsley must show the defendants “acted with reckless disregard of [Kingsley’s] rights,” while telling the jury that it could consider several objective factors in making this determination. Ibid. Kingsley argues that the jury instruction is faulty because the word “reckless” suggests a need to prove that respondents acted with a certain subjective state of mind with respect to the excessive or nonexcessive nature of the force used, contrary to what we have just held. Reply Brief 20–22. Respondents argue that irrespective of our holding, any error in the instruction was harmless. Brief for Respondents 57–58. And the Solicitor General suggests that, because the instructions defined “recklessness” with reference to objective factors, those instructions effectively embody our objective standard and did not confuse the jury. Brief for United States as Amicus Curiae 28–32. We agree with Kingsley that the instructions were erroneous. “[R]eckles[s] disregar[d] [of Kingsley’s] safety” was listed as an additional requirement, beyond the need to find that “[respondents’] use of force was unreasonable in light of the facts and circumstances at the time.” App. 278. See also ibid. (Kingsley had to show respondents “used unreasonable force and acted with reckless disregard of [Kingsley’s] rights” (emphasis added)). And in determining whether respondents “acted with reckless disregard of [Kingsley’s] rights,” the jury was instructed to “consider . . . [w]hether [respondents] reasonably believed there was a threat to the safety of staff or prisoners.” Ibid. (emphasis added). Together, these features suggested the jury should weigh respondents’ subjective reasons for using force and subjective views about the excessiveness of the force. As we have just held, that was error. But because the question whether that error was harmless may depend in part on the detailed specifics of this case, we leave that question for the Court of Appeals to resolve in the first instance. The decision of the Court of Appeals is vacated, and the case is remanded for 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 . SUPREME COURT OF THE UNITED STATES Syllabus KINGSLEY v. HENDRICKSON et al. certiorari to the united states court of appeals for the seventh circuit No. 14–6368. Argued April 27, 2015—Decided June 22, 2015 While petitioner Kingsley was awaiting trial in county jail, officers forcibly removed him from his cell when he refused to comply with their instructions. Kingsley filed a complaint in Federal District Court claiming, as relevant here, that two of the officers used excessive force against him in violation of the Fourteenth Amendment’s Due Process Clause. At the trial’s conclusion, the District Court instructed the jury that Kingsley was required to prove, inter alia, that the officers “recklessly disregarded [Kingsley’s] safety” and “acted with reckless disregard of [his] rights.” The jury found in the officers’ favor. On appeal, Kingsley argued that the jury instruction did not adhere to the proper standard for judging a pretrial detainee’s excessive force claim, namely, objective unreasonableness. The Seventh Circuit disagreed, holding that the law required a subjective inquiry into the officers’ state of mind, i.e., whether the officers actually intended to violate, or recklessly disregarded, Kingsley’s rights. Held: 1. Under 42 U. S. C. §1983, a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim. . (a) This determination must be made from the perspective of a reasonable officer on the scene, including what the officer knew at the time, see Graham v. Connor, 490 U. S. 386 , and must account for the “legitimate interests [stemming from the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security,” Bell v. Wolfish, 441 U. S. 520, 540, 547. . (b) Several considerations lead to this conclusion. An objective standard is consistent with precedent. In Bell, for instance, this Court held that a pretrial detainee could prevail on a claim that his due process rights were violated by providing only objective evidence that the challenged governmental action was not rationally related to a legitimate governmental objective or that it was excessive in relation to that purpose. 441 U. S., at 541–543. Cf. Block v. Rutherford, 468 U. S. 576 –586. Experience also suggests that an objective standard is workable. It is consistent with the pattern jury instructions used in several Circuits, and many facilities train officers to interact with detainees as if the officers’ conduct is subject to objective reasonableness. Finally, the use of an objective standard adequately protects an officer who acts in good faith, e.g., by acknowledging that judging the reasonableness of the force used from the perspective and with the knowledge of the defendant officer is an appropriate part of the analysis. . (c) None of the cases respondents point to provides significant support for a subjective standard. Whitley v. Albers, 475 U. S. 312 , and Hudson v. McMillian, 503 U. S. 1 , lack relevance in this context because they involved claims brought by convicted prisoners under the Eighth Amendment’s Cruel and Unusual Punishment Clause, not claims brought by pretrial detainees under the Fourteenth Amendment’s Due Process Clause. And in County of Sacramento v. Lewis, 523 U. S. 833 , a statement indicating the need to show “purpose to cause harm,” id., at 854, for due process liability refers not to whether the force intentionally used was excessive, but whether the defendant intended to commit the acts in question, id., at 854, and n. 13. Finally, in Johnson v. Glick, 481 F. 2d 1028 (CA2), a malicious-and-sadistic-purpose-to-cause-harm factor was not suggested as a necessary condition for liability, but as a factor, among others, that might help show that the use of force was excessive. . 2. Applying the proper standard, the jury instruction was erroneous. Taken together, the features of that instruction suggested that the jury should weigh respondents’ subjective reasons for using force and subjective views about the excessiveness of that force. Respondents’ claim that, irrespective of this Court’s holding, any error in the instruction was harmless is left to the Seventh Circuit to resolve on remand. . 744 F. 3d 443, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Alito, J., filed a dissenting opinion.

Petitioner, a pretrial detainee, was arrested on a drug charge and detained in a county jail prior to trial. At his cell check, an officer told petitioner to remove a piece of paper covering his bed. The next morning, the jail administrator told petitioner that officers would remove the paper and that he would be moved to a receiving cell in the interim. Shortly thereafter, four jail officers approached petitioner and ordered him to stand, back up to the door, and keep his hands behind him. When petitioner refused to comply, the officers handcuffed him, forcibly removed him from the cell, carried him to the receiving cell, and placed him face down on a bunk with his hands handcuffed behind his back. All agree that the officers placed his knee in petitioner's back and told him in impolite language to get off. The parties agree that one of the officers directed the other to stun petitioner with a Taser; the other applied the Taser to his back for approximately five seconds; and the officers returned to the cell 15 minutes later and removed petitioner's handcuffs. Petitioner then filed a §1983 excessive force claim in Federal District Court, claiming, inter alia, that these officers used excessive force in violation of the Due Process Clause of the Fourteenth Amendment. The District Court denied petitioner's motion for summary judgment, but the Court of Appeals reversed, holding that the law required a subjective inquiry into the officer's state of mind, and that there must be an actual intent to violate petitioner's rights or reckless disregard for his rights. Held: The standard for determining whether the requirements of an excessive force claimed by the pretrial prisoner must satisfy the subjective standard or only the objective standard is the correct one. . (a) The relevant standard is objective, not subjective. Thus, the defendant is not required to prove that the force applied was excessive in relation to a legitimate nonpunitive governmental purpose. Thus, he must possess a purposeful, a knowing, or possibly a reckless state-of mind. Here, as to the first question, there is no dispute. As to the second, whether to interpret the defendant’s physical acts in the world as involving force that was excessive, there is a dispute. It is unlikely (though theoretically possible) that a plaintiff could overcome the hurdles where an officer acted in good faith by showing that the use of force was not applied in a good-faith effort to maintain or restore discipline, but, rather, was applied maliciously and sadistically to cause harm. See County of Sacramento v. Lewis, 523 U. S. 833, 849 (CA2 1973)). Rather, the relevant legal standard should be subjective, i.e., that the plaintiff must show that the excessive force was applied maliciously or sadistically in light of the facts and circumstances at the time. Cf. Rutherford v. Rutherford, 476 U.S. 468, 576. However, the focus on punishment does not mean that proof of intent (or motive) to punish is required for a claim on a claim of excessive force. Rather, it affirms that due process rights were violated by the government officials applying excessive force to a person accused of or not convicted of a crime, but only if the governmental action was rationally related to the legitimate pretrial purpose of providing pretrial contact with inmates. In deciding whether the force deliberately used is constitutionally speaking, a court (judge or jury) cannot apply an objective standard only, or instead a subjective standard that takes into account a defendant. With respect to this question, it is with respect to the question whether the error was harmless, this Court will resolve in the first instance. P.. 744 F. 3d 443, vacated and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed an opinion concurring in part and dissenting in part, post, p..

2014_13-1010

https://www.oyez.org/cases/2014/13-1010

. This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance.IA Respondents Hobert Freel Tackett, Woodrow K. Pyles, and Harlan B. Conley worked at (and retired from) the Point Pleasant Polyester Plant in Apple Grove, West Virginia (hereinafter referred to as the Plant). During their employment, respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, or its predecessor unions (hereinafter referred to as the Union), represented them in collective bargaining. Tackett and Pyles retired in 1996, and Conley retired in 1998. They represent a class of retired employees from the Plant, along with their surviving spouses and other dependents. Petitioner M&G Polymers USA, LLC, is the current owner of the Plant. When M&G purchased the Plant in 2000, it entered a master collective-bargaining agreement and a Pension, Insurance, and Service Award Agreement (P & I agreement) with the Union, generally similar to agreements the Union had negotiated with M&G’s predecessor. The P & I agreement provided for retiree health care benefits as follows:“Employees who retire on or after January 1, 1996 and who are eligible for and receiving a monthly pension under the 1993 Pension Plan . . . whose full years of attained age and full years of attained continuous service . . . at the time of retirement equals 95 or more points will receive a full Company contribution towards the cost of [health care] benefits described in this Exhibit B–1 . . . . Employees who have less than 95 points at the time of retirement will receive a reduced Company contribution. The Company contribution will be reduced by 2% for every point less than 95. Employees will be required to pay the balance of the health care contribution, as estimated by the Company annually in advance, for the [health care] benefits described in this Exhibit B–1. Failure to pay the required medical contribution will result in cancellation of coverage.” App. 415–416.Exhibit B–1, which described the health care benefits at issue, opened with the following durational clause: “Effective January 1, 1998, and for the duration of this Agreement thereafter, the Employer will provide the following program of hospital benefits, hospital-medical benefits, surgical benefits and prescription drug benefits for eligible employees and their dependents . . . . ” Id., at 377–378 (emphasis deleted). The P & I agreement provided for renegotiation of its terms in three years.[1]B In December 2006, M&G announced that it would begin requiring retirees to contribute to the cost of their health care benefits. Respondent retirees, on behalf of themselves and others similarly situated, sued M&G and re-lated entities, alleging that the decision to require these contributions breached both the collective-bargaining agreement and the P & I agreement, in violation of §301 of the Labor Management Relations Act, 1947 (LMRA) and §502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA),88Stat.891.[2] Specifically, the retirees alleged that M&G had promised to provide lifetime contribution-free health care benefits for them, their surviving spouses, and their dependents. They pointed to the language in the 2000 P & I agreement providing that employees with a certain level of seniority “will receive a full Company contribution towards the cost of [health care] benefits described in . . . Exhibit B–1.” The retirees alleged that, with this promise, M&G had created a vested right to such benefits that continued beyond the expiration of the 2000 P & I agreement. The District Court dismissed the complaint for failure to state a claim. 523 F. Supp. 2d 684, 696 (SD Ohio 2007). It concluded that the cited language unambiguously did not create a vested right to retiree benefits. The Court of Appeals reversed based on the reasoning of its earlier decision in Yard-Man. 561 F. 3d 478 (CA6 2009) (Tackett I). Yard-Man involved a similar claim that an employer had breached a collective-bargaining agreement when it terminated retiree benefits. 716 F. 2d, at 1478. Although the court found the text of the provision in that case ambiguous, it relied on the “context” of labor negotiations to resolve that ambiguity in favor of the retirees’ interpretation. Id., at 1482. Specifically, the court inferred that parties to collective bargaining would intend retiree benefits to vest for life because such benefits are “not mandatory” or required to be included in collective-bargaining agreements, are “typically understood as a form of delayed compensation or reward for past services,” and are keyed to the acquisition of retirement status. Ibid. The court concluded that these inferences “outweigh[ed] any contrary implications [about the termination of retiree benefits] derived from” general termination clauses. Id., at 1483. Applying the Yard-Man inferences on review of the District Court’s dismissal of the action, the Court of Appeals concluded that the retirees had stated a plausible claim. Tackett I, 561 F. 3d, at 490. “Keeping in mind the context of the labor-management negotiations identified in Yard-Man,” the court found “it unlikely that [the Union] would agree to language that ensures its members a ‘full Company contribution,’ if the company could unilaterally change the level of contribution.” Ibid. The court construed the language about “employees” contributing to their health care premiums as limited to employees who had not attained the requisite seniority points to be entitled to a full company contribution. Ibid. And it discerned an intent to vest lifetime contribution-free health care benefits from provisions tying eligibility for health care benefits to eligibility for pension benefits. Id., at 490–491. On remand, the District Court conducted a bench trial and ruled in favor of the retirees. It declined to revisit the question whether the P & I agreement created a vested right to retiree benefits, concluding that the Court of Appeals had definitively resolved that issue. It then issued a permanent injunction ordering M&G to reinstate contribution-free health care benefits for the individual respondents and similarly situated retirees. 853 F. Supp. 2d 697 (SD Ohio 2012). The Court of Appeals affirmed, concluding that, al-though the District Court had erred in treating Tackett I as a conclusive resolution of the meaning of the P & I agreement, it had not erred in “presum[ing]” that, “in the absence of extrinsic evidence to the contrary, the agreements indicated an intent to vest lifetime contribution-free benefits.” 733 F. 3d 589, 600 (CA6 2013) (Tackett II). And because the District Court had concluded that the proffered extrinsic evidence was inapplicable, it had not clearly erred in finding that the agreement created those vested rights. We granted certiorari, 572 U. S. ___ (2014), and now vacate and remand.II This case is about the interpretation of collective-bargaining agreements that define rights to welfare benefits plans. The LMRA grants federal courts jurisdiction to resolve disputes between employers and labor unions about collective-bargaining agreements.29 U. S. C. §185. When collective-bargaining agreements create pension or welfare benefits plans, those plans are subject to rules established in ERISA. ERISA defines pension plans as plans, funds, or programs that “provid[e] retirement income to employees” or that “resul[t] in a deferral of income.” §1002(2)(A). It defines welfare benefits plans as plans, funds, or programs established or maintained to provide participants with additional benefits, such as life insurance and disability coverage. §1002(1). ERISA treats these two types of plans differently. Although ERISA imposes elaborate minimum funding and vesting standards for pension plans, §§1053, 1082, 1083, 1084, it explicitly exempts welfare benefits plans from those rules, §§1051(1), 1081(a)(1). Welfare benefits plans must be “established and maintained pursuant to a written instrument,” §1102(a)(1), but “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans,” Curtiss-Wright Corp. v. Schoonejongen,514 U. S. 73,78 (1995). As we have previously recognized, “[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, we have observed, the rule that contractual “provisions ordinarily should be enforced as written is especially appropriate when enforcing an ERISA [welfare benefits] plan.” Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U. S. ___, ___ (2013) (slip op., at 7). That is because the “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 [welfare benefits] plans in the first place.” Id., at ___ (slip op., at 8) (internal quotation marks, brackets, and citation omitted). We interpret collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy. See Textile Workers v. Lincoln Mills of Ala.,353 U. S. 448–457 (1957). “In this endeavor, as with any other contract, the parties’ intentions control.” Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp.,559 U. S. 662,682 (2010) (internal quotation marks omitted). “Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.” 11 R. Lord, Williston on Contracts §30:6, p. 108 (4th ed. 2012) (Williston) (internal quotation marks omitted). In this case, the Court of Appeals applied the Yard-Man inferences to conclude that, in the absence of extrinsic evidence to the contrary, the provisions of the contract indicated an intent to vest retirees with lifetime benefits. Tackett II, 733 F. 3d, at 599–600. As we now explain, those inferences conflict with ordinary principles of contract law.IIIA1 The Court of Appeals has long insisted that its Yard-Man inferences are drawn from ordinary contract law. In Yard-Man itself, the court purported to apply “traditional rules for contractual interpretation.” 716 F. 2d, at 1479. The court first concluded that the provision governing retiree insurance benefits—which stated only that the employer “will provide” such benefits—was ambiguous as to the duration of those benefits. Id., at 1480. To resolve that ambiguity, it looked to other provisions of the agreement. The agreement included provisions for terminating active employees’ insurance benefits in the case of layoffs and for terminating benefits for a retiree’s spouse and dependents in case of the retiree’s death before the expiration of the collective-bargaining agreement, but no provision specifically addressed the duration of retiree health care benefits. Id., at 1481–1482. From the existence of these termination provisions and the absence of a termination provision specifically addressing retiree benefits, the court inferred an intent to vest those retiree benefits for life. The court then purported to apply the rule that contracts should be interpreted to avoid illusory promises. It noted that the retiree insurance provisions “contain[ed] a promise that the company will pay an early retiree’s insurance upon such retiree reaching age 65 but that the retiree must bear the cost of company insurance until that time.” Id., at 1481. Employees could retire at age 55, but the agreement containing this promise applied only for a 3-year term. Ibid. Thus, retirees between the ages of 55 and 62 would not turn 65 and become eligible for the company contribution before the 3-year agreement expired. In light of this fact, the court reasoned that the promise would be “completely illusory for many early retirees under age 62” if the retiree benefits terminated when the contract expired. Ibid. Finally, the court turned to “the context” of labor negotiations. Id., at 1482. It observed that “[b]enefits for retirees are . . . not mandatory subjects of collective bargaining” and that “employees are presumably aware that the union owes no obligation to bargain for continued benefits for retirees.” Ibid. Based on these observations, the court concluded that “it is unlikely that such benefits . . . would be left to the contingencies of future negotiations.” Ibid. It also asserted that “retiree benefits are in a sense ‘status’ benefits which, as such, carry with them an inference that they continue so long as the prerequisite status is maintained.” Ibid. Although the contract included a general durational clause—meaning that the contract itself would expire at a set time—the court concluded that these contextual clues “outweigh[ed] any contrary implications derived from a routine duration clause.” Id., at 1483.2 Two years after Yard-Man, the court took this analysis even further. In a dispute between retirees and a steel company over retiree health insurance benefits, it construed the language “will continue to provide at its expense, supplemental medicare and major medical benefits for Pensioners aged 65 and over” to “unambiguously confe[r]” lifetime benefits. Policy v. Powell Pressed Steel Co., 770 F. 2d 609, 615 (CA6 1985) (emphasis added). Yet it had interpreted similar language—“will provide insurance benefits equal to the active group”—to be ambiguous in Yard-Man. The court refused to give any weight to provisions that supported a contrary construction—namely, one establishing a fund to pay pension, but not welfare, benefits, and another providing for the continuation of pension, but not welfare, benefits after the agreement expired. Policy, 770 F. 2d, at 615–616. According to the court, a contrary interpretation “would render the Company’s promise [of benefits for retirees aged 65 and over] in substantial part nugatory and illusory” to retirees who were 62 or younger when the 3-year agreement was signed. Ibid. And it faulted the District Court for failing “to give effect” to Yard-Man’s admonition “that retiree benefits normally . . . are interminable.” 770 F. 2d, at 616. The Court of Appeals has continued to extend the reasoning of Yard-Man. Relying on Yard-Man’s statement that context considerations outweigh the effect of a general termination clause, it has concluded that, “ ‘[a]bsent specific durational language referring to retiree benefits themselves,’ a general durational clause says nothing about the vesting of retiree benefits.” Noe v. PolyOne Corp., 520 F. 3d 548, 555 (CA6 2008) (emphasis added). It has also held that a provision that “ties eligibility for retirement-health benefits to eligibility for a pension . . . [leaves] little room for debate that retirees’ health benefits ves[t] upon retirement.” Id., at 558 (internal quotation marks omitted). Commenting on these extensions of Yard-Man, the court has acknowledged that “there is a reasonable argument to be made that, while th[e] court has repeatedly cautioned that Yard-Man does not create a presumption of vesting, [it] ha[s] gone on to apply just such a presumption.” Cole v. ArvinMeritor, Inc., 549 F. 3d 1064, 1074 (CA6 2008).B We disagree with the Court of Appeals’ assessment that the inferences applied in Yard-Man and its progeny represent ordinary principles of contract law. As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law. And it distorts the attempt “to ascertain the intention of the parties.” 11 Williston §30:2, at 18 (emphasis added); see also Stolt-Nielsen, 559 U. S., at 682. Yard-Man’s assessment of likely behavior in collective bargaining is too speculative and too far removed from the context of any particular contract to be useful in discerning the parties’ intention. And the Court of Appeals derived its assessment of likely behavior not from record evidence, but instead from its own suppositions about the intentions of employees, unions, and employers negotiating retiree benefits. See Yard-Man, 716 F. 2d, at 1482. For example, it asserted, without any foundation, that, “when . . . parties contract for benefits which accrue upon achievement of retiree status, there is an inference that the parties likely in-tended those benefits to continue as long as the benefi-ciary remains a retiree.” Ibid.; see also ibid. (“[I]t is unlikely that [retiree] benefits . . . would be left to the contingencies of future negotiations”). Although a court may look to known customs or usages in a particular industry to determine the meaning of a contract, the parties must prove those customs or usages using affirmative evidentiary support in a given case. 12 Williston §34:3; accord, Robinson v. United States, 13 Wall. 363, 366 (1872); Oelricks v. Ford, 23 How. 49, 61–62 (1860). Yard-Man relied on no record evidence indicating that employers and unions in that industry customarily vest retiree benefits. Worse, the Court of Appeals has taken the inferences in Yard-Man and applied them indiscriminately across industries. See, e.g., Cole, supra, at 1074 (automobile); Armistead v. Vernitron Corp., 944 F. 2d 1287, 1297 (CA6 1991) (electronics); Policy, supra, at 618 (steel). Because the Court of Appeals did not ground its Yard-Man inferences in any record evidence, it is unsurprising that the inferences rest on a shaky factual foundation. For example, Yard-Man relied in part on the premise that retiree health care benefits are not subjects of mandatory collective bargaining. Parties, however, can and do voluntarily agree to make retiree benefits a subject of mandatory collective bargaining. Indeed, the employer and union in this case entered such an agreement in 2001. App. 435–436. Yard-Man also relied on the premise that re-tiree benefits are a form of deferred compensation, but that characterization is contrary to Congress’ determi-nation otherwise. In ERISA, Congress specifically defined plans that “resul[t] in a deferral of income by employ-ees” as pension plans, §1002(2)(A)(ii), and plans that offer medical benefits as welfare plans, §1002(1)(A). Thus, retiree health care benefits are not a form of deferred compensation. Further compounding this error, the Court of Appeals has refused to apply general durational clauses to provisions governing retiree benefits. Having inferred that parties would not leave retiree benefits to the contingencies of future negotiations, and that retiree benefits generally last as long as the recipient remains a retiree, the court in Yard-Man explicitly concluded that these inferences “outweigh[ed] any contrary implications derived from a routine duration clause terminating the agreement generally.” 716 F. 2d, at 1482–1483. The court’s subsequent decisions went even further, requiring a contract to include a specific durational clause for retiree health care benefits to prevent vesting. E.g., Noe, supra, at 555. These decisions distort the text of the agreement and conflict with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties. See 1 W. Story, Law of Contracts §780 (M. Bigelow ed., 5th ed. 1874); see also 11 Williston §31:5. Perhaps tugged by these inferences, the Court of Appeals misapplied other traditional principles of contract law, including the illusory promises doctrine. That doctrine instructs courts to avoid constructions of contracts that would render promises illusory because such promises cannot serve as consideration for a contract. See 3Williston §7:7 (4th ed. 2008). But the Court of Appeals construed provisions that admittedly benefited some class of retirees as “illusory” merely because they did not equally benefit all retirees. See Yard-Man, supra, at 1480–1481. That interpretation is a contradiction in terms—a promise that is “partly” illusory is by definition not illusory. If it benefits some class of retirees, then it may serveas consideration for the union’s promises. And the court’s interpretation is particularly inappropriate in the context of collective-bargaining agreements, which are negotiated on behalf of a broad category of individuals and consequently will often include provisions inapplicable to some category of employees. The Court of Appeals also failed even to consider the traditional principle that courts should not construe ambiguous writings to create lifetime promises. See 3 A. Corbin, Corbin on Contracts §553, p. 216 (1960) (explaining that contracts that are silent as to their duration will ordinarily be treated not as “operative in perpetuity” but as “operative for a reasonable time” (internal quotation marks omitted)). The court recognized that “traditional rules of contractual interpretation require a clear manifestation of intent before conferring a benefit or obligation,” but asserted that “the duration of the benefit once clearly conferred is [not] subject to this stricture.” Yard-Man, supra, at 1481, n. 2. In stark contrast to this assertion, however, the court later applied that very stricture to noncollectively bargained contracts offering retiree benefits. See Sprague v. General Motors Corp., 133 F. 3d 388, 400 (CA6 1998) (“To vest benefits is to render them forever unalterable. Because vesting of welfare plan benefits is not required by law, an employer’s commitment to vest such benefits is not to be inferred lightly; the intent to vest must be found in the plan documents and must be stated in clear and express language” (internal quotation marks omitted)). The different treatment of these two types of employment contracts only underscores Yard-Man’s deviation from ordinary principles of contract law. Similarly, the Court of Appeals failed to consider the traditional principle that “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.” Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB,501 U. S. 190,207 (1991). That principle does not preclude the conclusion that the parties intended to vest lifetime benefits for retirees. Indeed, we have already recognized that “a collective-bargaining agreement [may] provid[e] in explicit terms that certain benefits continue after the agreement’s expiration.” Ibid. But when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.C There is no doubt that Yard-Man and its progeny af-fected the outcome here. As in its previous decisions, the Court of Appeals here cited the “context of . . . labor-management negotiations” and reasoned that the Union likely would not have agreed to language ensuring its members a “full Company contribution” if the company could change the level of that contribution. Tackett I, 561 F. 3d, at 490 (internal quotation marks omitted). It similarly concluded that the tying of eligibility for health care benefits to receipt of pension benefits suggested an intent to vest health care benefits. Ibid. And it framed its analysis from beginning to end in light of the principles it announced in Yard-Man and its progeny. See 561 F. 3d, at 489; see also Tackett II, 733 F. 3d, at 599–600. We reject the Yard-Man inferences as inconsistent with ordinary principles of contract law. But because “[t]his Court is one of final review, not of first view,” Ford Motor Co. v. United States, 571 U. S. ___, ___ (2013) (per curiam) (slip op., at 2) (internal quotation marks omitted), the Court of Appeals should be the first to review the agreements at issue under the correct legal principles. We vacate the judgment of the Court of Appeals and remand the case for that court to apply ordinary principles of contract law in the first instance.It is so ordered.Notes1 In accordance with this provision, M&G and the Union began bargaining anew in 2003, ultimately reaching a new agreement in 2005. The provisions of the existing agreements remained in effect during the course of those negotiations. See App. to Pet. for Cert. 25, n. 1.2 The Union was a plaintiff in the suit and is a respondent here. For ease of reference, we refer to the respondents collectively as “the retirees.”

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 m&g polymers usa, llc, et al. v. tackett et al certiorari to the united states court of appeals for the sixth circuit No. 13–1010. Argued November 10, 2014—Decided January 26, 2015 When petitioner M&G Polymers USA, LLC (M&G), purchased the Point Pleasant Polyester Plant in 2000, it entered a collective-bargaining agreement and related Pension, Insurance, and Service Award Agreement (P & I agreement) with respondent union. As relevant here, the P & I agreement provided that certain retirees, along with their surviving spouses and dependents, would “receive a full Company contribution towards the cost of [health care] benefits”; that such benefits would be provided “for the duration of [the] Agreement”; and that the agreement would be subject to renegotiation in three years. Following the expiration of those agreements, M&G announced that it would require retirees to contribute to the cost of their health care benefits. Respondent retirees, on behalf of themselves and others similarly situated, sued M&G and related entities, alleging that the P & I agreement created a vested right to lifetime contribution-free health care benefits. The District Court dismissed the complaint for failure to state a claim, but the Sixth Circuit reversed based on the reasoning of its earlier decision in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476. On remand, the District Court ruled in favor of the retirees, and the Sixth Circuit affirmed. Held: The Sixth Circuit’s decision rested on principles that are incompatible with ordinary principles of contract law. . (a) The Employee Retirement Income Security Act of 1974 (ERISA) governs pension and welfare benefits plans, including those established by collective-bargaining agreements. ERISA establishes minimum funding and vesting standards for pension plans, but exempts welfare benefits plans—which provide the types of benefits at issue here—from those rules. See 29 U. S. C. §§1051(1), 1053, 1081(a)(2), 1083. “[E]mployers have large leeway to design . . . welfare plans as they see fit.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 833. . (b) This Court interprets collective-bargaining agreements, including those establishing ERISA plans, according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy. See Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 456–457. When a collective-bargaining agreement is unambiguous, its meaning must be ascertained in accordance with its plainly expressed intent. 11 R. Lord, Williston on Contracts §30:6, p. 108. P. 7. (c) In Yard-Man, the Sixth Circuit found a provision governing retiree insurance benefits ambiguous as to the duration of those benefits; and, looking to other provisions of the agreement, purported to apply ordinary contract law to resolve the ambiguity. First, the court inferred from the existence of termination provisions for other benefits that the absence of a termination provision specifically addressing retiree benefits expressed an intent to vest those benefits for life. The court then purported to apply the rule that contracts should be interpreted to avoid illusory promises, reasoning that, absent vesting, the promise would be illusory for the subset of retirees who would not become eligible for those benefits before the contract expired. Finally, the court relied on “the context” of labor negotiations to resolve the ambiguity, inferring that the parties would have intended such benefits to vest for life because they are not mandatory subjects of collective bargaining; are “typically understood as a form of delayed compensation,” 716 F. 2d, at 1482; and are keyed to the acquisition of retirement status. The court concluded that these contextual clues “outweigh[ed] any contrary implications derived from a routine duration clause.” Id., at 1483. The Sixth Circuit has since extended its Yard-Man analysis in a series of other cases. . (d) The inferences applied in Yard-Man and its progeny do not represent ordinary principles of contract law. Yard-Man distorts the attempt to ascertain the intention of the parties by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. Rather than relying on known customs and usages in a particular industry as proven by the parties, the Yard-Man court relied on its own suppositions about the intentions of parties negotiating retiree benefits. It then compounded the error by applying those suppositions indiscriminately across industries. Furthermore, the Sixth Circuit’s refusal to apply general durational clauses to provisions governing retiree benefits distorts an agreement’s text and conflicts with the principle that a written agreement is presumed to encompass the whole agreement of the parties. Perhaps tugged by its inferences, the Sixth Circuit also misapplied the illusory promises doctrine. It construed provisions that admittedly benefited some class of retirees as “illusory” merely because they did not benefit all retirees. That interpretation is a contradiction in terms—a promise that is “partly illusory” is by definition not illusory. And its use of this doctrine is particularly inappropriate in the context of collective-bargaining agreements, which often include provisions inapplicable to some category of employees. The Sixth Circuit also failed even to consider other traditional contract principles, including the rule that courts should not construe ambiguous writings to create lifetime promises and the rule that “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement,” Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 207. . (e) Though there is no doubt that Yard-Man and its progeny affected the outcome here, the Sixth Circuit should be the first to review the agreements under ordinary principles of contract law. P. 14. 733 F.3d 589, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Respondent retirees (and their former union) filed suit in Federal District Court, alleging that the decision to require retirees to contribute to the cost of their health care benefits breached both the collective-bargaining agreement and the P & I agreement, in violation of §301 of the Labor Management Relations Act, 1947 (LMRA) and §502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), and in the absence of extrinsic evidence to the contrary, the agreements indicated an intent to vest lifetime contribution-free benefits. The District Court dismissed the complaint on the ground that the agreement did not create a vested right to retiree benefits. The Court of Appeals reversed, relying on International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479, which held that collective bargaining agreements, including those establishing ERISA plans, ordinarily should be enforced as written, especially when those principles are not inconsistent with federal labor policy. Held: The judgment is vacated and the case is remanded for that court to apply ordinary principles of contract law in the first instance. . (a) The inferences applied in Yard- Man inferences are drawn from ordinary contract law. The court first concluded that the provision governing retiree insurance benefits was ambiguous as to the duration of such benefits, and then construed the language about employees contributing to health care premiums as limited to employees who had not attained the requisite seniority points to be entitled to a full company contribution. And it discerned a general durational clause to the provisions tying eligibility for health care benefit benefits to eligibility for pension benefits. Tackett II, 733 F. 3d 589, vacated and remanded. (b) The court also erred in applying the rule that contracts should be interpreted to avoid illusory promises, since a promise that the company will pay an early retiree's insurance upon such a retiree reaching age 65 but that the retiree must bear the costs of company insurance until that time is too speculative and too far removed from the context of any particular contract to be useful in discerning the parties' intention. Moreover, the court erred even to consider the traditional principle that contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB,501 U. S. 190,207 (CA6), distinguished. Pp. 462 U.S. 573. (c) Yard-man and its progeny violate ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-againing agreements. That rule has no basis in ordinary contract law, and distorts the attempt to ascertain the intention of the parties. And the court's inferences have been taken indiscriminately across industries, where, as here, no record supports the conclusion that employers and unions in that industry customarily vest retirede benefits, or that the parties intended those benefits to vest for life. Worse, the inferences here rest on a shaky factual foundation, and have been applied indiscriminately in industries such as automotive, construction, and insurance. In a dispute between retirees and a steel company over retiree health insurance benefits, it was inferred from the existence of the termination provisions and the absence of a termination provision specifically addressing such benefits that they did not equally benefit all retirees, and from the fact that such provisions were ambiguous on their face. Furthermore, the Court of Appeals misapplied other traditional principles of contractual law, such as the ill-usory promise doctrine, which instructs courts to avoid constructions of contracts that would render promises illusorious because such promises cannot serve as consideration for a contract, but which requires a clear manifestation of a contractual manifestation before the manifestation is asserted. It is clear that the court recognized that contractual rules require a manifestation of an intent before a benefit is vestable once the benefits are given in a particular plan, and that a strict assertion of such intent must be found in documents, documents, and customs, as well as in official documents, which must be express and found in clear language and express documents. Similarly, the different treatment of these two types of employment contracts only underscores Yard-Mere Motors v. United States,, and is a deviation from ordinary contract law principles. Cf. e.g., Cole v. ArvinMeritor Inc., 549 F.3d 1064, 1074. To the extent that it is assumed that a court will not construe ambiguous writings to create lifetime promises, it must first look to the customs of the particular industry in which the promise is asserted, and, once applied, to those customs and customs in which benefits may be accorded or left to those who would accord them a future benefit.

2014_13-1019

https://www.oyez.org/cases/2014/13-1019

. Before suing an employer for discrimination, the Equal Employment Opportunity Commission (EEOC or Commission) must try to remedy unlawful workplace practices through informal methods of conciliation. This case requires us to decide whether and how courts may review those efforts. We hold that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.I Title VII of the Civil Rights Act of 1964,78Stat.241,42 U. S. C. §2000e et seq., sets out a detailed, multi-step procedure through which the Commission enforces the statute’s prohibition on employment discrimination. The process generally starts when “a person claiming to be aggrieved” files a charge of an unlawful workplace practice with the EEOC. §2000e–5(b). At that point, the EEOC notifies the employer of the complaint and undertakes an investigation. See ibid. If the Commission finds no “reasonable cause” to think that the allegation has merit, it dismisses the charge and notifies the parties. Ibid. The complainant may then pursue her own lawsuit if she chooses. See §2000e–5(f )(1). If, on the other hand, the Commission finds reasonable cause, it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants’ statements: “Nothing said or done during and as a part of such informal endeavors” may be publicized by the Commission or “used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Ibid. The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So long as “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, the EEOC may sue the employer. §2000e–5(f )(1). This case began when a woman filed a charge with the EEOC claiming that petitioner Mach Mining, LLC, had refused to hire her as a coal miner because of her sex. The Commission investigated the allegation and found reasonable cause to believe that Mach Mining had discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. See App. 15. In a letter announcing that determination, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution, promising that a Commission representative would soon “contact [them] to begin the conciliation process.” Id., at 16. The record does not disclose what happened next. But about a year later, the Commission sent Mach Mining a second letter, stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and that any further efforts would be “futile.” Id., at 18–19. The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The Commission’s complaint maintained that “[a]ll conditions precedent to the institution of this lawsuit”—including an attempt to end the challenged practice through conciliation—“ha[d] been fulfilled.” Id., at 22. In its answer, Mach Mining contested that statement, asserting that the EEOC had failed to “conciliat[e] in good faith” prior to filing suit. Id., at 30. The Commission subsequently moved for summary judgment on that issue, contending that its “conciliation efforts are not subject to judicial review.” Motion for Summary Judgment in No. 3:11–cv–00879 (SD Ill.), p. 1. At most, the Commission argued, the court could inspect the EEOC’s two letters to Mach Mining to confirm that the EEOC had met its duty to attempt conciliation. See id., at 11, 19. Mach Mining responded by urging the court to consider the overall “reasonable[ness]” of the EEOC’s efforts, based on evidence the company would present about the conciliation process. Memorandum in Opposition to Motion for Partial Summary Judgment in No. 3:11–cv–00879 (SD Ill.), p. 20. The trial court agreed with Mach Mining that it should review whether the Commission had made “a sincere and reasonable effort to negotiate.” Civ. No. 11–879 (SD Ill., Jan. 28, 2013), App. to Pet. for Cert. 40a, 2013 WL 319337, *5 (internal quotation marks omitted). At the EEOC’s request, the court then authorized an immediate appeal of its ruling. See Civ. No. 11–879 (SD Ill., May 20, 2013), App. to Pet. for Cert. 52a–55a, 2013 WL 2177770, *5–*6;28 U. S. C. §1292(b). The Court of Appeals for the Seventh Circuit reversed, holding that “the statutory directive to attempt conciliation” is “not subject to judicial review.” 738 F. 3d 171, 177 (2013). According to the court, that provision entrusts conciliation “solely to the EEOC’s expert judgment” and thus provides no “workable standard” of review for courts to apply. Id., at 174, 177. The Seventh Circuit further reasoned that judicial review of the conciliation process would “undermine enforcement of Title VII” by “protract[ing] and complicat[ing]” discrimination suits. Id., at 178–179 (quoting Doe v. Oberweis Diary, 456 F. 3d 704, 710 (CA7 2006)). In its concluding paragraph, however, the court indicated that it had in fact subjected the EEOC’s activities to a smidgen of review: Because the Commission “pled on the face of its complaint that it ha[d] complied with all” prerequisites to suit and because its two letters to Mach Mining were “facially sufficient” to show that conciliation had occurred, the court stated, “our review of [that process] is satisfied.” 738 F. 3d, at 184. Other Courts of Appeals have held that Title VII allows judicial review of the EEOC’s conciliation efforts, but without agreeing on what that review entails.[1] We granted certiorari, 573 U. S. ___ (2014), to address whether andto what extent such an attempt to conciliate is subject to judicial consideration.II Congress rarely intends to prevent courts from enforcing its directives to federal agencies. For that reason, this Court applies a “strong presumption” favoring judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians,476 U. S. 667,670 (1986). That presumption is rebuttable: It fails when a statute’s lan-guage or structure demonstrates that Congress wanted an agency to police its own conduct. See Block v. Community Nutrition Institute,467 U. S. 340,349,351 (1984). But the agency bears a “heavy burden” in attempting to show that Congress “prohibit[ed] all judicial review” of the agency’s compliance with a legislative mandate. Dunlop v. Bachowski,421 U. S. 560,567 (1975). Title VII, as the Government acknowledges, imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit. See Brief for Respondent 20. That obligation is a key component of the statutory scheme. In pursuing the goal of “bring[ing] employment discrimination to an end,” Congress chose “[c]ooperation and voluntary compliance” as its “preferred means.” Ford Motor Co. v. EEOC,458 U. S. 219,228 (1982) (quoting Alexander v. Gardner-Denver Co.,415 U. S. 36,44 (1974)). Accordingly, the statute provides, as earlier noted, that the Commission “shall endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b); see supra, at 2. That language is mandatory, not precatory. Cf. National Railroad Passenger Corporation v. Morgan,536 U. S. 101,109 (2002) (noting that the word “shall” admits of no discretion). And the duty it imposes serves as a necessary precondition to filing a lawsuit. Only if the Commission is “unable to secure” an acceptable conciliation agreement—that is, only if its attempt to conciliate has failed—may a claim against the employer go forward. §2000e–5(f )(1). Courts routinely enforce such compulsory prerequisites to suit in Title VII litigation (and in many other contexts besides). An employee, for example, may bring a Title VII claim only if she has first filed a timely charge with the EEOC—and a court will usually dismiss a complaint for failure to do so. See, e.g., id., at 104–105, 114–115. Similarly, an employee must obtain a right-to-sue letter before bringing suit—and a court will typically insist on satisfaction of that condition. See, e.g., McDonnell Douglas Corp. v. Green,411 U. S. 792,798 (1973); see also, e.g., Hallstrom v. Tillamook County,493 U. S. 20,26 (1989) (upholding dismissal of an environmental suit for failure to comply with a notice provision serving as a “condition precedent”); United States v. Zucca,351 U. S. 91 (1956) (affirming dismissal of a denaturalization suit because of the Government’s failure to comply with a mandatory prerequisite). That ordinary part of Title VII litigation—see a prerequisite to suit, enforce a prerequisite to suit—supports judicial review of the EEOC’s compliance with the law’s conciliation provision. The Government, reiterating the Seventh Circuit’s view, contests that conclusion, arguing that Title VII provides “no standards by which to judge” the EEOC’s performance of its statutory duty. Brief for Respondent 17. The Government highlights the broad leeway the statute gives the EEOC to decide how to engage in, and when to give up on, conciliation. In granting that discretion, the Government contends, Congress deprived courts of any “judicially manageable” criteria with which to review the EEOC’s efforts. Id., at 36 (quoting Heckler v. Chaney,470 U. S. 821,830 (1985)). And in that way Congress “demonstrate[d] [its] intention to preclude judicial review.” Brief for Respondent 39. But in thus denying that Title VII creates a “reviewable prerequisite to suit,” the Government takes its observation about discretion too far. Id., at 37 (quoting 738 F. 3d, at 175). Yes, the statute provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review. See infra, at 10–11. But no, Congress has not left everything to the Commission. Consider if the EEOC declined to make any attempt to conciliate a claim—if, after finding reasonable cause to support a charge, the EEOC took the employer straight to court. In such a case, Title VII would offer a perfectly serviceable standard for judicial review: Without any “endeavor” at all, the EEOC would have failed to satisfy a necessary condition of litigation. Still more, the statute provides certain concrete standards pertaining to what that endeavor must entail. Again, think of how the statute describes the obligatory attempt: “to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). Those specified methods necessarily involve communication between parties, including the exchange of information and views. As one dictionary variously defines the terms, they involve “consultation or discussion,” an attempt to “reconcile” different positions, and a “means of argument, reasoning, or entreaty.” American Heritage Dictionary 385, 382, 1318 (5th ed. 2011). That communication, moreover, concerns a particular thing: the “alleged unlawful employment practice.” So the EEOC, to meet the statutory condition, must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. See also infra, at 13. If the Commission does not take those specified actions, it has not satisfied Title VII’s requirement to attempt conciliation. And in insisting that the Commission do so, as the statutory language directs, a court applies a manageable standard. Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action. See supra, at 4–5. Nothing overcomes that presumption with respect to the EEOC’s duty to attempt conciliation of employment discrimination claims.III That conclusion raises a second dispute between the parties: What is the proper scope of judicial review of the EEOC’s conciliation activities? The Government (once having accepted the necessity for some review) proposes that courts rely solely on facial examination of certain EEOC documents. Mach Mining argues for far more intrusive review, in part analogizing to the way judges superintend bargaining between employers and unions. We accept neither suggestion, because we think neither consistent with the choices Congress made in enacting Title VII. The appropriate scope of review enforces the statute’s requirements as just described—in brief, that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further. See supra, at 7; infra, at 13. Such limited review respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the law. The Government argues for the most minimalist form of review imaginable. Echoing the final paragraph of the decision below, the Government observes that the EEOC, in line with its standard practice, wrote two letters to Mach Mining. See supra, at 2–3, 4. The first, after announcing the Commission’s finding of reasonable cause, informed the company that “[a] representative of this office will be in contact with each party in the near future to begin the conciliation process.” App. 16. The second, sent about a year later, stated that the legally mandated conciliation attempt had “occurred” and failed. Id., at 18. According to the Government, those “bookend” letters are all a court ever needs for review, because they “establish” that the EEOC met its obligation to attempt conciliation. Brief for Respondent 21. But review of that kind falls short of what Title VII demands because the EEOC’s bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient—to take them at face value, as the Government wants—is simply to accept the EEOC’s say-so that it complied with the law. And as earlier explained, the point of judicial review is instead to verify the EEOC’s say-so—that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. See supra, at 7–8. For that, a court needs more than the two bookend letters the Government proffers. Mach Mining, for its part, would have a court do a deep dive into the conciliation process. Citing the standard set out in the National Labor Relations Act (NLRA), Mach Mining wants a court to consider whether the EEOC has “negotiate[d] in good faith” over a discrimination claim. Brief for Petitioner 37; see29 U. S. C. §158(d) (imposing a duty on employers and unions to bargain “in good faith with respect to . . . terms and conditions of employment”). That good-faith obligation, Mach Mining maintains, here incorporates a number of specific requirements. In every case, the EEOC must let the employer know the “minimum . . . it would take to resolve” the claim—that is, the smallest remedial award the EEOC would accept. Tr. of Oral Arg. 63. The Commission must also lay out “the factual and legal basis for” all its positions, including the calculations underlying any monetary request. Brief for Petitioner 39. And the Commission must refrain from making “take-it-or-leave-it” offers; rather, the EEOC has to go back and forth with the employer, considering and addressing its various counter-offers and giving it sufficient time at each turn “to review and respond.” Id., at 40. The function of judicial review, Mach Mining concludes, is to compel the Commission to abide by these rules. To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining—in which both sides have a mutual obligation to deal fairly—without expressing any preference as to the substantive agreements the parties should reach. See §§151, 158(d). By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace.42 U. S. C. §2000e–5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the employer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA’s duty of good-faith bargaining a poor model for review of Title VII’s conciliation requirement. In addressing labor disputes, courts have devised a detailed body of rules to police good-faith dealing divorced from outcomes—and so to protect the NLRA’s core procedural apparatus. But those kinds of rules do not properly apply to a law that treats the conciliation process not as an end in itself, but only as a tool to redress workplace discrimination. More concretely, Mach Mining’s proposed code of con-duct conflicts with the latitude Title VII gives the Commission to pursue voluntary compliance with the law’s commands. Every aspect of Title VII’s conciliation provision smacks of flexibility. To begin with, the EEOC need only “endeavor” to conciliate a claim, without having to devote a set amount of time or resources to that project. §2000e–5(b). Further, the attempt need not involve any specific steps or measures; rather, the Commission may use in each case whatever “informal” means of “conference, conciliation, and persuasion” it deems appropriate. Ibid. And the EEOC alone decides whether in the end to make an agreement or resort to litigation: The Commission may sue whenever “unable to secure” terms “accept-able to the Commission.” §2000e–5(f )(1) (emphasis added). All that leeway respecting how to seek voluntary compliance and when to quit the effort is at odds with Mach Mining’s bargaining checklist. Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield. So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. For a court to assess any of those choices—as Mach Mining urges and many courts have done, see n. 1, supra—is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far. Mach Mining’s brand of review would also flout Title VII’s protection of the confidentiality of conciliation efforts. The statute, recall, provides that “[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission . . . or used as evidence in a subsequent proceeding without the written consent of the persons concerned”—both the employer and the complainant. §2000e–5(b); see EEOC v. Associated Dry Goods Corp.,449 U. S. 590, and n. 13 (1981). But the judicial inquiry Mach Mining proposes would necessitate the disclosure and use of such information in a later Title VII suit: How else could a court address an allegation that the EEOC failed to comply with all the negotiating rules Mach Mining espouses?[2] The proof is in this very case: The District Court held that it could not strike from the record descriptions of the conciliation process because they spoke to whether the EEOC had made a “sincere and reasonable effort to negotiate.” App. to Pet. for Cert. 40a (internal quotation marks omitted); see supra, at 3. The court thus failed to give effect to the law’s non-disclosure provision. And in so doing, the court undermined the conciliation process itself, because confidentiality promotes candor in discussions and thereby enhances the prospects for agreement. As this Court has explained, “[t]he maximum results from the voluntary approach will be achieved if ” the parties know that statements they make cannot come back to haunt them in litigation. Associated Dry Goods Corp., 449 U. S., at 599, n. 16 (quoting 110 Cong. Rec. 8193 (1964) (remarks of Sen. Dirksen)). And conversely, the minimum results will be achieved if a party can hope to use accounts of those discussions to derail or delay a meritorious claim. By contrast with these flawed proposals, the proper scope of judicial review matches the terms of Title VII’s conciliation provision, as we earlier described them. See supra, at 7. The statute demands, once again, that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an employer’s voluntary compliance. §2000e–5(b). That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.” Ibid. Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions. A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. Cf. United States v. Clarke, 573 U. S. ___, ___ (2014) (slip op., at 6) (“[A]bsent contrary evidence, the [agency] can satisfy [the relevant] standard by submitting a simple affidavit from” the agency representative involved). If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute. Cf. id., at ___–___ (slip op., at 6–7). Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. See §2000e–5(f )(1) (authorizing a stay of a Title VII action for that purpose).IV Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims. But the scope of that review is narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case. In addressing a claim like Mach Mining’s, courts may not impinge on that latitude and on the Commission’s concomitant responsibility to eliminate unlawful workplace discrimination. For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered.Notes1 See, e.g., EEOC v. Asplundh Tree Expert Co., 340 F. 3d 1256, 1259 (CA11 2003) (holding that the EEOC must, among other things, “respond in a reasonable and flexible manner to the reasonable attitudes of the employer”); EEOC v. Keco Industries, Inc., 748 F. 2d 1097, 1102 (CA6 1984) (holding that the EEOC must “make a good faith effort to conciliate”).2 Mach Mining tries to show that broad judicial review is compatible with Title VII’s non-disclosure provision, but fails to do so. The com-pany first contends that the statutory bar is limited to “using what was said or done in a conciliation as evidence going to the merits of the claims.” Brief for Petitioner 27 (emphasis added). But to make that argument, Mach Mining must add many words to the text (those shown here in italics). The actual language refers to “evidence in a subsequent proceeding,” without carving out evidence relating to non-merits issues.42 U. S. C. §2000e–5(b). And in any case, under Mach Mining’s own view of Title VII, compliance with the conciliation mandate is a merits issue, because it is a necessary “element of the [EEOC’s] claim, which the [EEOC] must plead and prove.” Brief for Petitioner 9; see id., at 31. Mach Mining therefore presents a back-up argument: “[T]he confidentiality limitation should be deemed waived” when the employer puts conciliation at issue. Id., at 30. But again, to effect a waiver Title VII requires “the written consent of the persons concerned,” which includes not just the employer but the complainant too. §2000e–5(b); see supra, at 11. And the employer’s decision to contest the EEOC’s conciliation efforts cannot waive, by “deem[ing]” or otherwise, the employee’s statutory rights.

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 . SUPREME COURT OF THE UNITED STATES Syllabus MACH MINING, LLC v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION certiorari to the united states court of appeals for the seventh circuit No. 13–1019. Argued January 13, 2015—Decided April 29, 2015 Before suing an employer for employment discrimination under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC or Commission) must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U. S. C. §2000e–5(b). Once the Commission determines that conciliation has failed, it may file suit in federal court. §2000e–5(f)(1). However, “[n]othing said or done during” conciliation may be “used as evidence in a subsequent proceeding without written consent of the persons concerned.” §2000e–5(b). After investigating a sex discrimination charge against petitioner Mach Mining, LLC, respondent EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The Commission sent a letter inviting Mach Mining and the complainant to participate in informal conciliation proceedings and notifying them that a representative would be contacting them to begin the process. About a year later, the Commission sent Mach Mining another letter stating that it had determined that conciliation efforts had been unsuccessful. The Commission then sued Mach Mining in federal court. In its answer, Mach Mining alleged that the Commission had not attempted to conciliate in good faith. The Commission countered that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statutory duty. The District Court agreed that it could review the adequacy of the Commission’s efforts, but granted the Commission leave to immediately appeal. The Seventh Circuit reversed, holding that the Commission’s statutory conciliation obligation was unreviewable. Held: 1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation. This Court has recognized a “strong presumption” that Congress means to allow judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 . That presumption is rebuttable when a statute’s language or structure demonstrates that Congress intended an agency to police itself. Block v. Community Nutrition Institute, 467 U. S. 340 . But nothing rebuts that presumption here. By its choice of language, Congress imposed a mandatory duty on the EEOC to attempt conciliation and made that duty a precondition to filing a lawsuit. Such compulsory prerequisites are routinely enforced by courts in Title VII litigation. And though Congress gave the EEOC wide latitude to choose which “informal methods” to use, it did not deprive courts of judicially manageable criteria by which to review the conciliation process. By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice. The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. In enforcing that statutory condition, a court applies a manageable standard. . 2. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. This limited review respects the expansive discretion that Title VII gives the EEOC while still ensuring that it follows the law. The Government’s suggestion that review be limited to checking the facial validity of its two letters to Mach Mining falls short of Title VII’s demands. That standard would merely accept the EEOC’s word that it followed the law, whereas the aim of judicial review is to verify that the EEOC actually tried to conciliate a discrimination charge. Citing the standard set out in the National Labor Relations Act, Mach Mining proposes review for whether the EEOC engaged in good-faith negotiation, laying out a number of specific requirements to implement that standard. But the NLRA’s process-based approach provides a poor analogy for Title VII, which ultimately cares about substantive outcomes and eschews any reciprocal duty to negotiate in good faith. Mach Mining’s proposed code of conduct also conflicts with the wide latitude Congress gave the Commission to decide how to conduct and when to end conciliation efforts. And because information obtained during conciliation would be necessary evidence in a good-faith determination proceeding, Mach Mining’s brand of review would violate Title VII’s confidentiality protections. The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement. Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute. Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts. . 738 F. 3d 171, vacated and remanded. Kagan, J., delivered the opinion for a unanimous Court.

Title VII of the Civil Rights Act of 1964 requires the Equal Employment Opportunity Commission (EEOC) to try to remedy unlawful workplace practices through informal methods of conciliation. The EEOC, in accordance with its standard practice, invites both the company and the complainant to participate in informal dispute resolution, promising that a Commission representative would soon begin the process. But about a year later, the Commission sent the EEOC a second letter, stating that such conciliation efforts had been unsuccessful and that any further efforts would be "futile.” Respondent company then sued petitioner in Federal District Court, alleging sex discrimination in hiring. The court granted summary judgment for petitioner on the ground that its efforts were not subject to judicial review under Title VII. The Court of Appeals reversed, holding that the statutory directive to attempt conciliation is subject to such review, but that, because the Commission had not been able to obtain a conciliation agreement acceptable to it itself, it may sue the employer. Held:1. A court may review whether the Equal Opportunity Commission satisfied its statutory obligation to attempt conciliation before filing suit. Although Title VII applies a strong presumption favoring judicial review of administrative action, it fails when a statute's lan-guage or structure demonstrates that Congress wanted an agency to police its own conduct. Pp. 2. The scope of that review is narrow, thus recognizing the extent of EEOC discretion to determine the kind and amount of communication with an employer appropriate in any given case. . (a) Title VII is about process and process alone, and the duty it imposes as a precondition to filing a lawsuit is a necessary prerequisite to the filing of a lawsuit. Only if the Commission has filed an acceptable agreement is the acceptable conciliation requirement. That ordinary part of Title VII litigation (see a prerequisite to suit, enforce a prerequisite) is the conciliation process. While Title VII provides that the Commission shall endeavor to eliminate unlawful employment practices by informal means of conference, conciliation, and persuasion, the language of that language is mandatory, not precatory. In contrast to Title VII, Title VII has a duty to confer with both parties if possible, and to secure conciliation from the Commission only if an agreement is acceptable. By contrast, §2000e-5(b) of the Act requires the Commission to communicate to both parties about the cause of action, the employer having the right to bring suit and the employee having a right to obtain satisfaction from the employer by bringing a complaint before the court. And every aspect of that conciliation provision smacks of flexibility. Moreover, the statute provides certain concrete standards pertaining to what that endeavor must entail. For a court to assess any of those choices, to treat the letters as sufficient, to take them at face value, is simply to accept the Commission's say-so that it complied with the law. Such review would also flout Title VII's protection of the confidentiality of such efforts. A court need more than the two bookend letters the Government proffers. Cf. EEOC v. Associated Dry Goods Corp.,449 U. S. 590, and n. 13. Mach Mining, for its part, would also have a court do a deep dive into the Conciliation process, and would necessitate the disclosure and use of such information in a later Title VII suit: How else could a court address an allegation that the EEoc failed to comply with all the negotiating rules Mach Mining espouses?.. 3. Judicial review is the norm in this legal system, and nothing in Title VII withdraws the courts' authority to determine whether the EEEC has fulfilled its duty to attempt Conciliation of claims. However, the scope of the review in this case narrows, reflecting the abundant discretion the law gives EEOC to decide the kinds and extent of discussions appropriate in a given case, and courts may not impinge on that latitude and on the Commission, its concomitant responsibility to eliminate illegal workplace discrimination. P.. 738 F. 3d 171, vacated and remanded. REHNQUIST, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined, and in Parts I and II of which STEWART and STEVENS, JJ. joined. DOUGLAS J., filed a dissenting opinion, post, p..

2014_13-1034

https://www.oyez.org/cases/2014/13-1034

. This case requires us to decide how immigration judges should apply a deportation (removal) provision, defined with reference to federal drug laws, to an alien convicted of a state drug-paraphernalia misdemeanor. Lawful permanent resident Moones Mellouli, in 2010, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia to “store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the human body.” Kan. Stat. Ann. §21–5709(b)(2) (2013 Cum. Supp.). The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four orange tablets. The criminal charge and plea agreement did not identify the controlled substance involved, but Mellouli had acknowledged, prior to the charge and plea, that the tablets were Adderall. Mellouli was sentenced to a suspended term of 359 days and 12 months’ probation. In February 2012, several months after Mellouli successfully completed probation, Immigration and Customs Enforcement officers arrested him as deportable under 8 U. S. C. §1227(a)(2)(B)(i) based on his Kansas misde-meanor conviction. Section 1227(a)(2)(B)(i) authorizes the removal of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” We hold that Mellouli’s Kansas conviction for concealing unnamed pills in his sock didnot trigger removal under §1227(a)(2)(B)(i). The drug-paraphernalia possession law under which he was convicted, Kan. Stat. Ann. §21–5709(b), by definition, related to a controlled substance: The Kansas statute made it unlawful “to use or possess with intent to use any drug paraphernalia to . . . store [or] conceal . . . a controlled substance.” But it was immaterial under that law whether the substance was defined in 21 U. S. C. §802. Nor didthe State charge, or seek to prove, that Mellouli possessed a substance on the §802 schedules. Federal law (§1227(a)(2)(B)(i)), therefore, did not authorize Mellouli’s removal. I A This case involves the interplay between several federal and state statutes. Section 1227(a)(2)(B)(i), a provision of the Immigration and Nationality Act, 66Stat. 163, as amended, authorizes the removal of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” Section 1227(a)(2)(B)(i) incorporates 21 U. S. C. §802, which limits the term “controlled substance” to a “drug or other substance” included in one of five federal schedules. §802(6). The statute defining the offense to which Mellouli pleaded guilty, Kan. Stat. Ann. §21–5709(b), proscribes “possess[ion] with intent to use any drug paraphernalia to,” among other things, “store” or “conceal” a “controlled substance.” Kansas defines “controlled substance” as any drug included on its own schedules, and makes no reference to §802 or any other federal law. §21–5701(a).[1] At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not included in the federal lists. See §65–4105(d)(30), (31), (33), (34), (36) (2010 Cum. Supp.); §65–4111(g) (2002); §65–4113(d)(1), (e), (f ) (2010 Cum. Supp.); see also Brief for Respondent 9, n. 2. The question presented is whether a Kansas conviction for using drug paraphernalia to store or conceal a controlled substance, §21–5709(b), subjects an alien to deportation under §1227(a)(2)(B)(i), which applies to an alien “convicted of a violation of [a state law] relating to a controlled substance (as defined in [§802]).” B Mellouli, a citizen of Tunisia, entered the United States on a student visa in 2004. He attended U. S. universities, earning a bachelor of arts degree, magna cum laude, as well as master’s degrees in applied mathematics and economics. After completing his education, Mellouli worked as an actuary and taught mathematics at the University of Missouri-Columbia. In 2009, he became a conditional permanent resident and, in 2011, a lawful permanent resident. Since December 2011, Mellouli has been engaged to be married to a U. S. citizen. In 2010, Mellouli was arrested for driving under the influence and driving with a suspended license. During a postarrest search in a Kansas detention facility, deputies discovered four orange tablets hidden in Mellouli’s sock. According to a probable-cause affidavit submitted in the state prosecution, Mellouli acknowledged that the tablets were Adderall and that he did not have a prescription for the drugs. Adderall, the brand name of an amphetamine-based drug typically prescribed to treat attention-deficit hyperactivity disorder,[2] is a controlled substance under both federal and Kansas law. See 21 CFR §1308.12(d)(1) (2014) (listing “amphetamine” and its “salts” and “isomers”); Kan. Stat. Ann. §65–4107(d)(1) (2013 Cum. Supp.) (same). Based on the probable-cause affidavit, a criminal complaint was filed charging Mellouli with trafficking contraband in jail. Ultimately, Mellouli was charged with only the lesser offense of possessing drug paraphernalia, a misdemeanor. The amended complaint alleged that Mellouli had “use[d] or possess[ed] with intent to use drug paraphernalia, to-wit: a sock, to store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.” App. 23. The complaint did not identify the substance contained in the sock. Mellouli pleaded guilty to the paraphernalia possession charge; he also pleaded guilty to driving under the influence. For both offenses, Mellouli was sentenced to a suspended term of 359 days and 12 months’ probation. In February 2012, several months after Mellouli successfully completed probation, Immigration and Customs Enforcement officers arrested him as deportable under §1227(a)(2)(B)(i) based on his paraphernalia possession conviction. An Immigration Judge ordered Mellouli deported, and the Board of Immigration Appeals (BIA) affirmed the order. Mellouli was deported in 2012. Under federal law, Mellouli’s concealment of controlled-substance tablets in his sock would not have qualified as a drug-paraphernalia offense. Federal law criminalizes the sale of or commerce in drug paraphernalia, but possession alone is not criminalized at all. See 21 U. S. C. §863(a)–(b). Nor does federal law define drug paraphernalia to include common household or ready-to-wear items like socks; rather, it defines paraphernalia as any “equipment, product, or material” which is “primarily intended or designed for use” in connection with various drug-related activities. §863(d) (emphasis added). In 19 States as well, the conduct for which Mellouli was convicted—use of a sock to conceal a controlled substance—is not a criminal offense. Brief for National Immigrant Justice Center et al. as Amici Curiae 7. At most, it is a low-level infraction, often not attended by a right to counsel. Id., at 9–11. The Eighth Circuit denied Mellouli’s petition for review. 719 F. 3d 995 (2013). We granted certiorari, 573 U. S.___ (2014), and now reverse the judgment of the EighthCircuit. II We address first the rationale offered by the BIA and affirmed by the Eighth Circuit, which differentiates paraphernalia offenses from possession and distribution offenses. Essential background, in evaluating the rationale shared by the BIA and the Eighth Circuit, is the categorical approach historically taken in determining whether a state conviction renders an alien removable under the immigration statute.[3] Because Congress predicated de-portation “on convictions, not conduct,” the approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior. Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1701, 1746 (2011). The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. Ibid. An alien’s actual conduct is irrelevant to the inquiry, as the adjudicator must “presume that the conviction rested upon nothing more than the least of the acts criminalized” under the state statute. Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (slip op., at 5) (internal quotation marks and alterations omitted).[4] The categorical approach “has a long pedigree in our Nation’s immigration law.” Id., at ___ (slip op., at 6). As early as 1913, courts examining the federal immigration statute concluded that Congress, by tying immigration penalties to convictions, intended to “limi[t] the immigration adjudicator’s assessment of a past criminal conviction to a legal analysis of the statutory offense,” and to disallow “[examination] of the facts underlying the crime.” Das, supra, at 1688, 1690. Rooted in Congress’ specification of conviction, not conduct, as the trigger for immigration consequences, the categorical approach is suited to the realities of the system. Asking immigration judges in each case to determine the circumstances underlying a state conviction would burden a system in which “large numbers of cases [are resolved by] immigration judges and front-line immigration officers, often years after the convictions.” Koh, The Whole Better than the Sum: A Case for the Categorical Approach to Determining the Immigration Consequences of Crime, 26 Geo. Immigration L. J. 257, 295 (2012). By focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law. See id., at 295–310; Das, supra, at 1725–1742. In particular, the approach enables aliens “to anticipate the immigration consequences of guilty pleas in criminal court,” and to enter “ ‘safe harbor’ guilty pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.” Koh, supra, at 307. See Das, supra, at 1737–1738.[5] The categorical approach has been applied routinely to assess whether a state drug conviction triggers removal under the immigration statute. As originally enacted, the removal statute specifically listed covered offenses and covered substances. It made deportable, for example, any alien convicted of “import[ing],” “buy[ing],” or “sell[ing]” any “narcotic drug,” defined as “opium, coca leaves, cocaine, or any salt, derivative, or preparation of opium or coca leaves, or cocaine.” Ch. 202, 42Stat. 596–597. Over time, Congress amended the statute to include additional offenses and additional narcotic drugs.[6] Ultimately, the Anti-Drug Abuse Act of 1986 replaced the increasingly long list of controlled substances with the now familiar reference to “a controlled substance (as defined in [§802]).” See §1751, 100Stat. 3207–47. In interpreting successive versions of the removal statute, the BIA inquired whether the state statute under which the alien was convicted covered federally controlled substances and not others.[7] Matter of Paulus, 11 I. & N. Dec. 274 (1965), is illustrative. At the time the BIA decided Paulus, the immigration statute made deportable any alien who had been “convicted of a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or mari-huana.” Id., at 275. California controlled certain “narcotics,” such as peyote, not listed as “narcotic drugs” under federal law. Ibid. The BIA concluded that an alien’s California conviction for offering to sell an unidentified “narcotic” was not a deportable offense, for it was possible that the conviction involved a substance, such as peyote, controlled only under California law. Id., at 275–276. Because the alien’s conviction was not necessarily predicated upon a federally controlled “narcotic drug,” the BIA concluded that the conviction did not establish the alien’s deportability. Id., at 276. Under the Paulus analysis, adhered to as recently as 2014 in Matter of Ferreira, 26 I. & N. Dec. 415 (BIA 2014),[8] Mellouli would not be deportable. Mellouli pleaded guilty to concealing unnamed pills in his sock. At the time of Mellouli’s conviction, Kansas’ schedules of controlled substances included at least nine substances—e.g., salvia and jimson weed—not defined in §802. See Kan. Stat. Ann. §65–4105(d)(30), (31). The state law involved in Mellouli’s conviction, therefore, like the California statute in Paulus, was not confined to federally controlled substances; it required no proof by the prosecutor that Mellouli used his sock to conceal a substance listed under §802, as opposed to a substance controlled only under Kansas law. Under the categorical approach applied in Paulus, Mellouli’s drug-paraphernalia conviction does not render him deportable. In short, the state law under which he was charged categorically “relat[ed] to a controlled substance,” but was not limited to substances “defined in [§802].”[9] The BIA, however, announced and applied a different approach to drug-paraphernalia offenses (as distinguished from drug possession and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N. Dec. 118 (2009). There, the BIA ranked paraphernalia statutes as relating to “the drug trade in general.” Id., at 121. The BIA rejected the argument that a paraphernalia conviction should not count at all because it targeted implements, not controlled substances. Id., at 120. It then reasoned that a paraphernalia conviction “relates to” any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Id., at 121. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in §802. The Immigration Judge in this case relied upon Martinez Espinoza in ordering Mellouli’s removal, quoting that decision for the proposition that “ ‘the requirement of a correspondence between the Federal and State controlled substance schedules, embraced by Matter of Paulus . . . has never been extended’ ” to paraphernalia offenses. App. to Pet. for Cert. 32 (quoting Martinez Espinoza, 25 I. & N. Dec., at 121). The BIA affirmed, reasoning that Mellouli’s conviction for possession of drug paraphernalia “involves drug trade in general and, thus, is covered under [§1227(a)(2)(B)(i)].” App. to Pet. for Cert. 18. Denying Mellouli’s petition for review, the Eighth Circuit deferred to the BIA’s decision in Martinez Espinoza, and held that a Kansas paraphernalia conviction “ ‘relates to’ a federal controlled substance because it is a crime . . . ‘associated with the drug trade in general.’ ” 719 F. 3d, at 1000. The disparate approach to state drug convictions, devised by the BIA and applied by the Eighth Circuit, finds no home in the text of §1227(a)(2)(B)(i). The approach, moreover, “leads to consequences Congress could not have intended.” Moncrieffe, 569 U. S., at ___ (slip op., at 15). Statutes should be interpreted “as a symmetrical and coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (internal quotation marks omitted). The BIA, however, has adopted conflicting positions on the meaning of §1227(a)(2)(B)(i), distinguishing drug possession and distribution offenses from offenses involving the drug trade in general, with the anomalous result that minor paraphernalia possession offenses are treated more harshly than drug possession and distribution offenses. Drug possession and distribution convictions trigger removal only if they necessarily involve a federally controlled substance, see Paulus, 11 I. & N. Dec. 274, while convictions for paraphernalia possession, an offense less grave than drug possession and distribution, trigger removal whether or not they necessarily implicate a federally controlled substance, see Martinez Espinoza, 25 I. & N. Dec. 118. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference under the doctrine described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) . III Offering an addition to the BIA’s rationale, the Eighth Circuit reasoned that a state paraphernalia possession conviction categorically relates to a federally controlled substance so long as there is “nearly a complete overlap” between the drugs controlled under state and federal law. 719 F. 3d, at 1000.[10] The Eighth Circuit’s analysis, however, scarcely explains or ameliorates the BIA’s anomalous separation of paraphernalia possession offenses from drug possession and distribution offenses. Apparently recognizing this problem, the Government urges, as does the dissent, that the overlap between state and federal drug schedules supports the removal of aliens convicted of any drug crime, not just paraphernalia of-fenses. As noted, §1227(a)(2)(B)(i) authorizes the removal of any alien “convicted of a violation of . . . any law or reg-ulation of a State, the United States, or a foreigncountry relating to a controlled substance (as defined in [§802]).” According to the Government, the words “relating to” modify “law or regulation,” rather than “violation.” Brief for Respondent 25–26 (a limiting phrase ordinarily modifies the last antecedent). Therefore, the Government argues, aliens who commit “drug crimes” in States whose drug schedules substantially overlap the federal schedules are removable, for “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” Brief for Respondent 17. We do not gainsay that, as the Government urges, the last reasonable referent of “relating to,” as those words appear in §1227(a)(2)(B)(i), is “law or regulation.” The removal provision is thus satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance. As this case illustrates, however, the Government’s construction of the federal removal statute stretches to the breaking point, reaching state-court convictions, like Mellouli’s, in which “[no] controlled substance (as defined in [§802])” figures as an element of the offense. We recognize, too, that the §1227(a)(2)(B)(i) words to which the dissent attaches great weight, i.e., “relating to,” post, at 2–3, are “broad” and “indeterminate.” Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) (internal quotation marks and brackets omitted).[11] As we cautioned in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) , those words, “extend[ed] to the furthest stretch of [their] indeterminacy, . . . stop nowhere.” “[C]ontext,” therefore, may “tu[g] . . . in favor of a narrower reading.” Yates v. United States, 574 U. S. ___, ___ (2015) (slip op., at 10). Context does so here. The historical background of §1227(a)(2)(B)(i) demonstrates that Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug. Supra, at 8–9. The Government’s position here severs that link by authorizing deportation any time the state statute of conviction bears some general relation to federally controlled drugs. The Government offers no cogent reason why its position is limited to state drug schedules that have a “substantial overlap” with the federal schedules. Brief for Respondent 31. A statute with any overlap would seem to be related to federally controlled drugs. Indeed, the Government’s position might well encompass convictions for offenses related to drug activity more generally, such as gun possession, even if those convictions do not actually involve drugs (let alone federally controlled drugs). The Solicitor General, while resisting this particular example, acknowledged that convictions under statutes “that have some connection to drugs indirectly” might fall within §1227(a)(2)(B)(i). Tr. of Oral Arg. 36. This sweeping interpretation departs so sharply from the statute’s text and history that it cannot be considered a permissible reading. In sum, construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance,” for removal purposes, to the substances controlled under §802. We therefore reject the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a §802 schedule. Instead, to trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].” * * * For the reasons stated, the judgment of the U. S. Court of Appeals for the Eighth Circuit is reversed. It is so ordered.Notes 1 At the time of Mellouli’s conviction, Kan. Stat. Ann. §§21–5701(a) and 21–5709(b) (2013 Cum. Supp.) were codified at, respectively, §§21–36a01(a) and 21–36a09(b) (2010 Cum. Supp.). 2 See H. Silverman, The Pill Book 23 (13th ed. 2008). 3 We departed from the categorical approach in Nijhawan v. Holder, 557 U. S. 29 (2009) , based on the atypical cast of the prescription at issue, 8 U. S. C. §1101(a)(43)(M)(i). That provision defines as an “aggravated felony” an offense “involv[ing] fraud or deceit in which the loss to the victim or victims exceeds $10,000.” The following subparagraph, (M)(ii), refers to an offense “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” No offense “described in section 7201 of title 26,” we pointed out, “has a specific loss amount as an element.” 557 U. S., at 38. Similarly, “no widely applicable federal fraud statute . . . contains a relevant monetary loss threshold,” id., at 39, and “[most] States had no major fraud or deceit statute with any relevant monetary threshold,” id., at 40. As categorically interpreted, (M)(ii), the tax evasion provision, would have no application, and (M)(i), the fraud or deceit provision, would apply only in an extraordinarily limited and haphazard manner. Ibid. We therefore concluded that Congress intended the monetary thresholds in subparagraphs (M)(i) and (M)(ii) to apply “to the specific circumstances surrounding an offender’s commission of[the defined] crime on a specific occasion.” Ibid. In the main, §1227(a)(2)(B)(i), the provision at issue here, has no such circumstance-specific thrust; its language refers to crimes generically defined. 4 A version of this approach, known as the “modified categorical approach,” applies to “state statutes that contain several different crimes, each described separately.” Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (slip op., at 5). In such cases, “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.” Ibid. (internal quotation marks omitted). Off limits to the adjudicator, however, is any inquiry into the particular facts of the case. Because the Government has not argued that this case falls within the compass of the modified-categorical approach, we need not reach the issue. 5 Mellouli’s plea may be an example. In admitting only paraphernalia possession, Mellouli avoided any identification, in the record of conviction, of the federally controlled substance (Adderall) his sock contained. See supra, at 3–4. 6 The 1956 version of the statute, for example, permitted removal of any alien “who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.” Narcotic Control Act of 1956, §301(b), 70Stat. 575. 7 See, e.g., Matter of Fong, 10 I. & N. Dec. 616, 619 (BIA 1964) (a Pennsylvania conviction for unlawful use of a drug rendered alien removable because “every drug enumerated in the Pennsylvania law [was] found to be a narcotic drug or marijuana within the meaning of [the federal removal statute]”), overruled in part on other grounds, Matter of Sum, 13 I. & N. Dec. 569 (1970). 8 The Government acknowledges that Ferreira “assumed the applicability of [the Paulus] framework.” Brief for Respondent 49. Whether Ferreira applied that framework correctly is not a matter this case calls upon us to decide. 9 The dissent maintains that it is simply following “the statutory text.” Post, at 1. It is evident, however, that the dissent shrinks to the vanishing point the words “as defined in [§802].” If §1227(a)(2)(B)(i) stopped with the words “relating to a controlled substance,” the dissent would make sense. But Congress did not stop there. It qualified “relating to a controlled substance” by adding the limitation “as defined in [§802].” If those words do not confine §1227(a)(2)(B)(i)’s application to drugs defined in §802, one can only wonder why Congress put them there. 10 The BIA posited, but did not rely on, a similar rationale in Martinez Espinoza. See 25 I. & N. Dec., 118, 121 (2009) (basing decision on a “distinction between crimes involving the possession or distribution of a particular drug and those involving other conduct associated with the drug trade in general”). 11 The dissent observes that certain provisions of the immigration statute involving firearms and domestic violence “specif[y] the conduct that subjects an alien to removal” without “the expansive phrase ‘relating to.’ ” Post, at 3. From this statutory context, the dissent infers that Congress must have intended the words “relating to” to have expansive meaning. Post, at 3–4. But the dissent overlooks another contextual clue—i.e., that other provisions of the immigration statute tying immigration consequences to controlled-substance offenses contain no reference to §802. See 8 U. S. C. §1357(d) (allowing detainer of any alien who has been “arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled sub-stances”); §1184(d)(3)(B)(iii) (allowing Secretary of Homeland Security to deny certain visa applications when applicant has at least three convictions of crimes “relating to a controlled substance or alcohol not arising from a single act”). These provisions demonstrate that when Congress seeks to capture conduct involving a “controlled substance,” it says just that, not “a controlled substance (as defined in [§802]).”

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 . SUPREME COURT OF THE UNITED STATES Syllabus MELLOULI v. LYNCH, ATTORNEY GENERAL certiorari to the united states court of appeals for the eighth circuit No. 13–1034. Argued January 14, 2015—Decided June 1, 2015 Petitioner Moones Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance.” Kan. Stat. Ann. §21–5709(b)(2). The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing Mellouli’s misdemeanor conviction, an Immigration Judge ordered him deported under 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Section 802, in turn, limits the term “controlled substance” to a “drug or other substance” included in one of five federal schedules. 21 U. S. C. §802(6). Kansas defines “controlled substance” as any drug included on its own schedules, without reference to §802. Kan. Stat. Ann. §21–5701(a). At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals (BIA) affirmed Mellouli’s deportation order, and the Eighth Circuit denied his petition for review. Held: Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). . (a) The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now §1227(a)(2)(B)(i). Matter of Paulus, 11 I. & N. Dec. 274, is illustrative. At the time the BIA decided Paulus, California controlled certain “narcotics” not listed as “narcotic drugs” under federal law. Id., at 275. The BIA concluded that an alien’s California conviction for offering to sell an unidentified “narcotic” was not a deportable offense, for it was possible that the conviction involved a substance controlled only under California, not federal, law. Under the Paulus analysis, Mellouli would not be deportable. The state law involved in Mellouli’s conviction, like the California statute in Paulus, was not confined to federally controlled substances; it also included substances controlled only under state, not federal, law. The BIA, however, announced and applied a different approach to drug-paraphernalia offenses (as distinguished from drug possession and distribution offenses) in Matter of Martinez Espinoza, 25 I. & N. Dec. 118. There, the BIA ranked paraphernalia statutes as relating to “the drug trade in general,” reasoning that a paraphernalia conviction “relates to” any and all controlled substances, whether or not federally listed, with which the paraphernalia can be used. Id., at 120–121. Under this reasoning, there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in §802. The BIA’s disparate approach to drug possession and distribution offenses and paraphernalia possession offenses finds no home in §1227(a)(2)(B)(i)’s text and “leads to consequences Congress could not have intended.” Moncrieffe v. Holder, 569 U. S. ___, ___. That approach has the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation is owed no deference under the doctrine described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . . (b) The Government’s interpretation of the statute is similarly flawed. The Government argues that aliens who commit any drug crime, not just paraphernalia offenses, in States whose drug schedules substantially overlap the federal schedules are deportable, for “state statutes that criminalize hundreds of federally controlled drugs and a handful of similar substances, are laws ‘relating to’ federally controlled substances.” Brief for Respondent 17. While the words “relating to” are broad, the Government’s reading stretches the construction of §1227(a)(2)(B)(i) to the breaking point, reaching state-court convictions, like Mellouli’s, in which “[no] controlled substance (as defined in [§802])” figures as an element of the offense. Construction of §1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of “controlled substance,” for removal purposes, to the substances controlled under §802. Accordingly, to trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802].” . 719 F. 3d 995, reversed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Held: His Kansas conviction for concealing pills in his sock triggered removal under 8 U.S.C. §1227(a)(2)(B)(i), which authorizes the removal of an alien convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in §802 of Title 21). The drug-paraphernalia possession law under which he pleaded guilty to a Kansas misdemeanor charge made it unlawful to use or possess with intent to use any drug paraphernalia to store or conceal a drug. Nor did the State charge, or seek to prove, that he possessed a substance on the §802 schedules. Federal law therefore did not authorize his deportation.. 719 F. 3d 995, reversed. THE CHIEF JUSTICE, in an opinion joined by the Board of Immigration Appeals and the Court of Appeals, concluded that Congress intended the monetary thresholds in subparagraphs (M)(i) and(M)(ii) to apply to the specific circumstances surrounding an offender's commission of a state drug conviction on a specific occasion. . (a) The categorical approach of the Immigration and Nationality Act, whereby the definition of a statutory offense looks to the particulars of a removable alien, and not to the actual facts underlying the crime, is suited to the realities of the system. Rooted in Congress' specification of conviction, not conduct, as the trigger for immigration consequences, the approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law. By focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily helps to promote efficient compliance with immigration law by enabling aliens to anticipate the immigration consequences of guilty pleas in criminal court, and to enter guilty pleas that do not expose the alien to the risk of immigration sanctions. Pp. (b) In this case, however, the historical background of the statute demonstrates that Congress and the BIA have long required a direct link between an alien's crime of conviction and a particular federally controlled drug, and the Government has offered no cogent reason why its position is limited to state drug schedules that have a "substantial overlap" with the federal schedules. A statute with any overlap would seem to be related to federally controlled drugs. Indeed, the Government's position might well encompass convictions for offenses related to drug activity more generally, such as gun possession, even if those convictions do not actually involve drugs (let alone federally controlled substances). P.. (c) Off limits to the adjudicator is any inquiry into the particular facts of the case. Because the Government does not argue that this case falls within the compass of the modified-categorical approach, it cannot be considered a permissible reading of §802. Instead, §802 is a sum of the sum of any substance under §802, without regard to the substance under which the alien is removable for removal for removal purposes. For purposes of removal purposes, the removal is to trigger removal of the alien for the time served for removal under the drug-defined offense. The removal provision is thus satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance. Here, the statutory context stretches to the breaking point, reaching state-court convictions, like Mellouli, in which no controlled substance figures as an element of the offense, and other provisions of the immigration statute tying immigration consequences to controlled-substance offenses contain no reference to the statute. Moreover, other immigration provisions tying immigration consequences to such offenses contain, but do not refer to, § 802. On remand, the Eighth Circuit ordered the removal, but the District Court denied the petition for review. ,. BLACKMUN, J., announced and applied a different approach in Matter of Martinez Espinoza, 25 I. & N. Dec. 118, which distinguished from drug possession and distribution offenses, and which, inter alia, has no such circumstance-specific thrust; its language refers to crimes generically defined. In the main, the provision at issue here has no such thrust, since it severs that link by authorizing deportation any time the state statute of conviction bears some general relation to federal controlled substances, with the anomalous result that minor drug possession or distribution offenses are treated more harshly than drug possession offenses. Although convictions under statutes that have some connection to drugs indirectly might fall within §1209(a), §802 cannot be deemed to be faithful to the text of the text, since §802 renders an element removable without regard for a drug controlled substance under a drug schedule. Since the Government is not owed a deference owed to §802 for the construction of a drug-controlled substance, §1184(d)(3)(B) (emphasis added), it is unnecessary to reach the issue of the removal argument. Cf. Nijhawan v.

2014_14-556

https://www.oyez.org/cases/2014/14-556

.The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.IThese cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g., Mich. Const., Art. I, 25; Ky. Const. 233A; Ohio Rev. Code Ann. 3101.01 (Lexis 2008); Tenn. Const., Art. XI, 18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra. The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoerv. Snyder, 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State.The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.IIBefore addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court.AFrom their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, "The first bond of society is marriage; next, children; and then the family." See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world.The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.Recounting the circumstances of three of these cases illustrates the urgency of the petitioners' cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur's death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems "hurtful for the rest of time." App. in No. 14 556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur's death certificate.April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses' memory, joined by its bond.BThe ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time.For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9 17 (2000); S. Coontz, Marriage, A History 15 16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16 19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.This dynamic can be seen in the Nation's experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5 28.For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7 17.In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law.This Court first gave detailed consideration to the legal status of homosexuals in Bowersv. Hardwick, 478 U. S. 186 (1986) . There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romerv. Evans, 517 U. S. 620 (1996) , the Court invalidated an amendment to Colorado's Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that laws making same-sex intimacy a crime "demea[n] the lives of homosexual persons." Lawrencev. Texas, 539 U. S. 558 .Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii's law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehrv. Lewin, 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110Stat. 2419, defining marriage for all federal-law purposes as "only a legal union between one man and one woman as husband and wife." 1 U. S. C. 7.The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State's Constitution guaranteed same-sex couples the right to marry. See Goodridgev. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to same-sex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra. Two Terms ago, in United Statesv. Windsor, 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples "who wanted to affirm their commitment to one another before their children, their family, their friends, and their community." Id., at ___ (slip op., at 14).Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864 868 (CAAdd hyphens between digits006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage and most of them, too, have concluded same-sex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015).IIIUnder the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property, without due process of law." The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncanv. Louisiana, 391 U. S. 145 149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadtv. Baird, 405 U. S. 438, 453 (1972) ; Griswoldv. Connecticut, 381 U. S. 479 486 (1965).The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, "has not been reduced to any formula." Poev. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it without allowing the past alone to rule the present.The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Lovingv. Virginia, 388 U. S. 1, 12 (1967) , which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." The Court reaffirmed that holding in Zablockiv. Redhail, 434 U. S. 374, 384 (1978) , which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turnerv. Safley, 482 U. S. 78, 95 (1987) , which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B.v. S. L. J., 519 U. S. 102, 116 (1996) ; Cleveland Bd. of Ed.v. LaFleur, 414 U. S. 632 640 (1974); Griswold, supra, at 486; Skinnerv. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) ; Meyerv. Nebraska, 262 U. S. 390, 399 (1923) .It cannot be denied that this Court's cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Bakerv. Nelson, 409 U. S. 810 , a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question.Still, there are other, more instructive precedents. This Court's cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g., Lawrence, 539 U. S., at 574; Turner, supra, at 95; Zablocki, supra, at 384; Loving, supra, at 12; Griswold, supra, at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453 454; Poe, supra, at 542 553 (Harlan, J., dissenting).This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held "the right to marry is of fundamental importance for all individuals"). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Zablocki, supra, at 386.Choices about marriage shape an individual's destiny. As the Supreme Judicial Court of Massachusetts has explained, because "it fulfils yearnings for security, safe haven, and connection that express our common human ity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition." Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___ ___ (slip op., at 22 23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 ("[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State").A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right "older than the Bill of Rights," Griswold described marriage this way:"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. " Id., at 486.And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95 96. The right to marry thus dignifies couples who "wish to define themselves by their commitment to each other." Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Piercev. Society of Sisters, 268 U. S. 510 (1925) ; Meyer, 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Zablocki, 434 U. S., at 384 (quoting Meyer, supra, at 399). Under the laws of the several States, some of marriage's protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents' relationship, marriage allows 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." Windsor, supra, at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children's best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22 27.As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id., at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago:"There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs." 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).In Maynardv. Hill, 125 U. S. 190, 211 (1888) , the Court echoed de Tocqueville, explaining that marriage is "the foundation of the family and of society, without which there would be neither civilization nor progress." Marriage, the Maynard Court said, has long been " 'a great public institution, giving character to our whole civil polity.' " Id., at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community.For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6 9; Brief for American Bar Association as Amicus Curiae 8 29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ ___ (slip op., at 15 16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washingtonv. Glucksberg, 521 U. S. 702, 721 (1997) , which called for a " 'careful description' " of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent "right to same-sex marriage." Brief for Respondent in No. 14 556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a "right of fathers with unpaid child support duties to marry." Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg, 521 U. S., at 752 773 (Souter, J., concurring in judgment); id., at 789 792 (Breyer, J., concurring in judgments).That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence, 539 U. S., at 566 567.The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B., 519 U. S., at 120 121; id., at 128 129 (Kennedy, J., concurring in judgment); Beardenv. Georgia, 461 U. S. 660, 665 (1983) . This interrelation of the two principles furthers our understanding of what freedom is and must become.The Court's cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its un-equal treatment of interracial couples. It stated: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.The synergy between the two protections is illustrated further in Zablocki. There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court's holding that the law burdened a right "of fundamental importance." 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki, see id., at 383 387, that made apparent the law's incompatibility with requirements of equality. Each concept liberty and equal protection leads to a stronger understanding of the other.Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970's and 1980's. Notwithstanding the gradual erosion of the doctrine of coverture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reedv. Reed, O. T. 1971, No. 70 4, pp. 69 88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State's law, for example, provided in 1971 that "the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit." Ga. Code Ann. 53 501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchbergv. Feenstra, 450 U. S. 455 (1981) ; Wenglerv. Druggists Mut. Ins. Co., 446 U. S. 142 (1980) ; Califanov. Westcott, 443 U. S. 76 (1979) ; Orrv. Orr, 440 U. S. 268 (1979) ; Califanov. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinbergerv. Wiesenfeld, 420 U. S. 636 (1975) ; Frontierov. Richardson, 411 U. S. 677 (1973) . Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.Other cases confirm this relation between liberty and equality. In M. L. B.v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119 124. In Eisenstadtv. Baird, the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446 454. And in Skinnerv. Oklahoma ex rel. Williamson, the Court invalidated under both principles a law that allowed sterilization of habitual criminals. See 316 U. S., at 538 543.In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State "cannot demean their existence or control their destiny by making their private sexual conduct a crime." Id., at 578.This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383 388; Skinner, 316 U. S., at 541.These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Bakerv. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.IVThere may be an initial inclination in these cases to proceed with caution to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents' States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer, 772 F. 3d, at 409.Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities have devoted substantial attention to the question. This has led to an enhanced understanding of the issue an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuettev. BAMN, 572 U. S. ___ (2014), noting 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." Id., at ___ ___ (slip op., at 15 16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, "[t]he 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." Id., at ___ (slip op., at 15). Thus, when the rights of persons are violated, "the Constitution requires redress by the courts," notwithstanding the more general value of democratic decisionmaking. Id., at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of Ed.v. Barnette, 319 U. S. 624, 638 (1943) . This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Ibid. It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers, a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190 195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id., at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was "not correct when it was decided." 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.A ruling against same-sex couples would have the same effect and, like Bowers, would be unjustified under the Fourteenth Amendment. The petitioners' stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners' cases, the Court has a duty to address these claims and answer these questions.Indeed, faced with a disagreement among the Courts of Appeals a disagreement that caused impermissible geographic variation in the meaning of federal law the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society's most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple's decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchenv. Herbert, 755 F. 3d 1193, 1223 (CA1Add hyphens between digits014) ("[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples"). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.VThese cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples.Being married in one State but having that valid marriage denied in another is one of "the most perplexing and distressing complication[s]" in the law of domestic relations. Williamsv. North Carolina, 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse's hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage and hundreds of thousands of these marriages already have occurred the disruption caused by the recognition bans is significant and ever-growing.As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold and it now does hold that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.* * *No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.The judgment of the Court of Appeals for the Sixth Circuit is reversed.It is so ordered.APPENDICESAState and Federal Judicial DecisionsAddressing Same-Sex MarriageUnited States Courts of Appeals DecisionsAdamsv. Howerton, 673 F. 2d 1036 (CAAdd hyphens between digits982)Smeltv. County of Orange, 447 F. 3d 673 (CAAdd hyphens between digits006)Citizens for Equal Protectionv. Bruning, 455 F. 3d 859 (CAAdd hyphens between digits006)Windsorv. United States, 699 F. 3d 169 (CAAdd hyphens between digits012)Massachusettsv. Department of Health and Human Services, 682 F. 3d 1 (CAAdd hyphens between digits012)Perryv. Brown, 671 F. 3d 1052 (CAAdd hyphens between digits012)Lattav. Otter, 771 F. 3d 456 (CAAdd hyphens between digits014)Baskinv. Bogan, 766 F. 3d 648 (CAAdd hyphens between digits014)Bishopv. Smith, 760 F. 3d 1070 (CA1Add hyphens between digits014)Bosticv. Schaefer, 760 F. 3d 352 (CAAdd hyphens between digits014)Kitchenv. Herbert, 755 F. 3d 1193 (CA1Add hyphens between digits014)DeBoerv. Snyder, 772 F. 3d 388 (CAAdd hyphens between digits014)Lattav. Otter, 779 F. 3d 902 (CAAdd hyphens between digits015) (O'Scannlain, J., dissenting from the denial of rehearing en banc) United States District Court DecisionsAdamsv. Howerton, 486 F. Supp. 1119 (CD Cal. 1980) Citizens for Equal Protection, Inc.v. Bruning, 290 F. Supp. 2d 1004 (Neb. 2003)Citizens for Equal Protectionv. Bruning, 368 F. Supp. 2d 980 (Neb. 2005)Wilsonv. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005) Smeltv. County of Orange, 374 F. Supp. 2d 861 (CD Cal. 2005)Bishopv. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d 1239 (ND Okla. 2006)Massachusettsv. Department of Health and Human Services, 698 F. Supp. 2d 234 (Mass. 2010)Gillv. Office of Personnel Management, 699 F. Supp. 2d 374 (Mass. 2010)Perryv. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal. 2010) Dragovichv. Department of Treasury, 764 F. Supp. 2d 1178 (ND Cal. 2011) Golinski v. Office of Personnel Management, 824 F. Supp. 2d 968 (ND Cal. 2012)Dragovichv. Department of Treasury, 872 F. Supp. 2d 944 (ND Cal. 2012)Windsorv. United States, 833 F. Supp. 2d 394 (SDNY 2012)Pedersenv. Office of Personnel Management, 881 F. Supp. 2d 294 (Conn. 2012)Jacksonv. Abercrombie, 884 F. Supp. 2d 1065 (Haw. 2012)Sevcikv. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012)Merrittv. Attorney General, 2013 WL 6044329 (MD La., Nov. 14, 2013) Grayv. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013) Leev. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013)Kitchenv. Herbert, 961 F. Supp. 2d 1181 (Utah 2013)Obergefellv. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio 2013)Bishopv. United States ex rel. Holder, 962 F. Supp. 2d 1252 (ND Okla. 2014)Bourkev. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014)Leev. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014)Bosticv. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014)De Leonv. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014)Tancov. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014)DeBoerv. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014)Henryv. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014)Lattav. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)Geigerv. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014)Evansv. Utah, 21 F. Supp. 3d 1192 (Utah 2014)Whitewoodv. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014)Wolfv. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014)Baskinv. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014)Lovev. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014)Burnsv. Hickenlooper, 2014 WL 3634834 (Colo., July 23, 2014)Bowlingv. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014)Brennerv. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014)Robicheauxv. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014)General Synod of the United Church of Christv. Resinger, 12 F. Supp. 3d 790 (WDNC 2014)Hambyv. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014)Fisher-Bornev. Smith, 14 F. Supp. 3d 695 (MDNC 2014)Majorsv. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014)Connollyv. Jeanes, ___ F. Supp. 3d ___, 2014 WL 5320642 (Ariz., Oct. 17, 2014)Guzzov. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014)Conde-Vidalv. Garcia-Padilla, 54 F. Supp. 3d 157 (PR 2014)Mariev. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128 (Kan., Nov. 4, 2014)Lawsonv. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014)McGeev. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665 (SD W. Va., Nov. 7, 2014)Condonv. Haley, 21 F. Supp. 3d 572 (S. C. 2014)Bradacsv. Haley, 58 F. Supp. 3d 514 (S. C. 2014)Rolandov. Fox, 23 F. Supp. 3d 1227 (Mont. 2014)Jerniganv. Crane, ___ F. Supp. 3d ___, 2014 WL 6685391 (ED Ark., Nov. 25, 2014)Campaign for Southern Equalityv. Bryant, ___ F. Supp. 3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014)Innissv. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593 (ND Ga., Jan. 8, 2015) Rosenbrahnv. Daugaard, 61 F. Supp. 3d 862 (S. D., 2015)Casparv. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741 (ED Mich., Jan. 15, 2015)Searceyv. Strange, 2015 U. S. Dist. LEXIS 7776 (SD Ala., Jan. 23, 2015)Strawserv. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015)Watersv. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)State Highest Court Decisions Bakerv. Nelson, 291 Minn. 310, 191 N. W. 2d 185 (1971)Jonesv. Hallahan, 501 S. W. 2d 588 (Ky. 1973)Baehrv. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993)Deanv. District of Columbia, 653 A. 2d 307 (D. C. 1995)Bakerv. State, 170 Vt. 194, 744 A. 2d 864 (1999)Brausev. State, 21 P. 3d 357 (Alaska 2001) (ripeness)Goodridgev. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003) In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N. E. 2d 565 (2004)Liv. State, 338 Or. 376, 110 P. 3d 91 (2005)Cote-Whitacrev. Department of Public Health,446 Mass. 350, 844 N. E. 2d 623 (2006)Lewisv. Harris, 188 N. J. 415, 908 A. 2d 196 (2006)Andersenv. King County, 158 Wash. 2d 1, 138 P. 3d 963 (2006)Hernandezv. Robles, 7 N. Y. 3d 338, 855 N. E. 2d 1 (2006)Conawayv. Deane, 401 Md. 219, 932 A. 2d 571 (2007)In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384 (2008)Kerriganv. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008)Straussv. Horton, 46 Cal. 4th 364, 207 P. 3d 48 (2009)Varnumv. Brien, 763 N. W. 2d 862 (Iowa 2009)Griegov. Oliver, 2014 NMSC 003, ___ N. M. ___, 316 P. 3d 865 (2013)Garden State Equalityv. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013)Ex parte State ex rel. Alabama Policy Institute, ___ So. 3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)BState Legislation and Judicial DecisionsLegalizing Same-Sex MarriageLegislationDel. Code Ann., Tit. 13, 129 (Cum. Supp. 2014)D. C. Act No. 18 248, 57 D. C. Reg. 27 (2010)Haw. Rev. Stat. 572 1 (2006) and 2013 Cum. Supp.)Ill. Pub. Act No. 98 597Me. Rev. Stat. Ann., Tit. 19, 650 A (Cum. Supp. 2014)2012 Md. Laws p. 92013 Minn Laws p. 4042009 N. H. Laws p. 602011 N. Y Laws p. 7492013 R. I. Laws p. 72009 Vt. Acts & Resolves p. 332012 Wash. Sess. Laws p. 199Judicial DecisionsGoodridgev. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003)Kerriganv. Commissioner of Public Health, 289 Conn. 135, 957 A. 2d 407 (2008)Varnumv. Brien, 763 N. W. 2d 862 (Iowa 2009)Griegov. Oliver, 2014 NMSC 003, ___ N. M. ___, 316 P. 3d 865 (2013)Garden State Equalityv. Dow, 216 N. J. 314, 79 A. 3d 1036 (2013)

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 . SUPREME COURT OF THE UNITED STATES Syllabus OBERGEFELL et al. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al. certiorari to the united states court of appeals for the sixth circuit No. 14–556. Argued April 28, 2015—Decided June 26, 2015[1] Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit consolidated the cases and reversed. Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. . (a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. . (1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the petitioners’ own experiences. . (2) The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations. This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186 , which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558 . In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. . (b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. . (1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 ; Griswold v. Connecticut, 381 U. S. 479 –486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed. Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1 , invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78 , held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810 , a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. . (2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation. A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510 . Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate. Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190 . States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. . (3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374 , where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455 –461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102 –121. The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. . (4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. . (5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. . (c) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. . 772 F. 3d 388, reversed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.Notes 1 Together with No. 14–562, Tanco et al. v. Haslam, Governor of Tennessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky, also on certiorari to the same court.

Petitioners, 14 same-sex couples and two men whose lives are deceased, filed actions in Federal District Courts in their home States, claiming that respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition. The District Courts ruled in petitioners' favor, and the Court of Appeals reversed. Held: 1. Petitioners seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex violates the Constitution. . (a) The history of marriage is one of both continuity and change. That institution, even as confined to opposite-sex relations, has evolved over time. The Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. P.. (b) Here the challenged laws are in essence unequal, since, in light of precedent protecting the right of a married couple not to procreate, it cannot be said that the Court or the States have conditioned the right under the Due Process Clause on the capacity or commitment to reproduce. Here, the Court's decisions and the Nation's traditions make clear that marriage is a keystone of our social order, and thus the Constitution grants petitioners an equal dignity in the eyes of the law. Bakerv. Nelson, 772 F. 3d 388; DeKoe v. Kostura, 774 U. S. ___, reversed. Opinion of petitioners in No. 14 556, in which they argued that the constitutional right to marriage is fundamental to the rights of both sexes, and that it should be the end of the world, compels the conclusion that same-Sex couples may exercise the right. See, e.g., Loving v. Virginia, 388 U.S. 1, 12; Zablocki v. Michigan,,. This conclusion is further supported by the following precedents: (1) Loving, supra, at 566 567. (2) Darkevin v. Oklahoma ex rel. Edmondson, 466 F. Supp. 2d 1279, distinguished; Loving, 567, distinguished. ,. (3) The challenged laws burden the individual's liberty, and therefore abridge central precepts of equality. Those principles and traditions that abridge the fundamental right of marriage, including liberty and equal protection, require courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. Griswold v. Connecticut,; Turner v. Massachusetts,, and in determining whether the Constitution requires States to recognize the right, see id., at ___ (slip op., at 23), see id. at 568). And, in assessing whether the force and rationale of its cases apply to same- sex couples, the court must respect the basic reasons why the right has been long protected. With that knowledge must come the recognition that laws excluding such-sex relationships from the marriage right impose stigma and injury of the kind prohibited by the constitutional charter. And when new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. KENNEDY, J., filed an opinion concurring in the judgment, post, p.. STEVENS, O'CONNOR, and SCALIA, JJ., took no part in the consideration or decision of the cases.

2014_13-1352

https://www.oyez.org/cases/2014/13-1352

. Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be cross-examined. Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial. I Darius Clark, who went by the nickname “Dee,” lived in Cleveland, Ohio, with his girlfriend, T. T., and her two children: L. P., a 3-year-old boy, and A. T., an 18-month-old girl.[1] Clark was also T. T.’s pimp, and he would regularly send her on trips to Washington, D. C., to work as a prostitute. In March 2010, T. T. went on one such trip, and she left the children in Clark’s care. The next day, Clark took L. P. to preschool. In the lunchroom, one of L. P.’s teachers, Ramona Whitley, observed that L. P.’s left eye appeared bloodshot. She asked him “ ‘[w]hat happened,’ ” and he initially said nothing. 137 Ohio St. 3d 346, 347, 2013–Ohio–4731, 999 N. E. 2d 592, 594. Eventually, however, he told the teacher that he “ ‘fell.’ ” Ibid. When they moved into the brighter lights of a classroom, Whitley noticed “ ‘[r]ed marks, like whips of some sort,’ ” on L. P.’s face. Ibid. She notified the lead teacher, Debra Jones, who asked L. P., “ ‘Who did this? What happened to you?’ ” Id., at 348, 999 N. E. 2d, at 595. According to Jones, L. P. “ ‘seemed kind of bewildered’ ” and “ ‘said something like, Dee, Dee.’ ” Ibid. Jones asked L. P. whether Dee is “big or little,” to which L. P. responded that “Dee is big.” App. 60, 64. Jones then brought L. P.to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. When Clark later arrived at the school, he denied responsibility for the injuries and quickly left with L. P. The next day, a social worker found the children at Clark’s mother’s house and took them to a hospital, where a physician discovered additional injuries suggesting child abuse. L. P. had a black eye, belt marks on his back and stomach, and bruises all over his body. A. T. had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify. Under Ohio law, children younger than 10 years old are incompetent to testify if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not competent to testify. But under Ohio Rule of Evidence 807, which allows the admission of reliable hearsay by child abuse victims, the court ruled that L. P.’s statements to his teachers bore sufficient guarantees of trustworthiness to be admitted as evidence. Clark moved to exclude testimony about L. P.’s out-of-court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.’s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T., and it sentenced him to 28 years’ imprisonment. Clark appealed his conviction, and a state appellate court reversed on the ground that the introduction of L. P.’s out-of-court statements violated the Confrontation Clause. In a 4-to-3 decision, the Supreme Court of Ohio affirmed. It held that, under this Court’s Confrontation Clause decisions, L. P.’s statements qualified as testimonial because the primary purpose of the teachers’ questioning “was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution.” 137 Ohio St. 3d, at 350, 999 N. E. 2d, at 597. The court noted that Ohio has a “mandatory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. See id., at 349–350, 999 N. E. 2d, at 596–597. In the court’s view, the teachers acted as agents of the State under the mandatory reporting law and “sought facts concerning past criminal activity to identify the person responsible, eliciting statements that ‘are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.’ ” Id., at 355, 999 N. E. 2d, at 600 (quoting Melendez-Diaz v. Massachusetts, 557 U. S. 305 –311 (2009); some internal quotation marks omitted). We granted certiorari, 573 U. S. ___ (2014), and we now reverse. II A The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the wit-nesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66 (1980) , we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliability.’ ” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid. In Crawford v. Washington, 541 U. S. 36 (2004) , we adopted a different approach. We explained that “witnesses,” under the Confrontation Clause, are those “who bear testimony,” and we defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id., at 51 (internal quotation marks and alteration omitted). The Sixth Amendment, we concluded, prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id., at 54. Applying that definition to the facts in Crawford, we held that statements by a witness during police questioning at the station house were testimonial and thus could not be admitted. But our decision in Crawford did not offer an exhaustive definition of “testimonial” statements. Instead, Crawford stated that the label “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id., at 68. Our more recent cases have labored to flesh out what it means for a statement to be “testimonial.” In Davis v. Washington and Hammon v. Indiana, 547 U. S. 813 (2006) , which we decided together, we dealt with statements given to law enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend’s violent attack. In Hammon, the victim, after being isolated from her abusive husband, made statements to police that were memorialized in a “ ‘battery affidavit.’ ” Id., at 820. We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the “primary purpose” test, we explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events poten-tially relevant to later criminal prosecution.” Id., at 822. Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause. See id., at 823, n. 2. In Michigan v. Bryant, 562 U. S. 344 (2011) , we further expounded on the primary purpose test. The inquiry, we emphasized, must consider “all of the relevant circumstances.” Id., at 369. And we reiterated our view in Davis that, when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.” 562 U. S., at 358. At the same time, we noted that “there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Ibid. “[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry.” Id., at 374. Instead, “whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Id., at 366. One additional factor is “the informality of the situation and the interrogation.” Id., at 377. A “formal station-house interrogation,” like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused. Id., at 366, 377. And in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” Id., at 358–359. In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” Id., at 358. Applying these principles in Bryant, we held that the statements made by a dying victim about his assailant were not testimonial because the circumstances objectively indicated that the conversation was primarily aimed at quelling an ongoing emergency, not establishing evidence for the prosecution. Because the relevant statements were made to law enforcement officers, we again declined to decide whether the same analysis applies to statements made to individuals other than the police. See id., at 357, n. 3. Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id., at 359. But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. We have recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See Giles v. California, 554 U. S. 353 –359 (2008); Crawford, 541 U. S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause. B In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L. P.’s statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause. L. P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L. P.’s teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L. P. to his guardian at the end of the day, they needed to determine who might be abusing the child.[2] Thus, the immediate concern was to protect a vulnerable child who needed help. Our holding in Bryant is instructive. As in Bryant, the emergency in this case was ongoing, and the circumstances were not entirely clear. L. P.’s teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and L. P.’s answers were primarily aimed at identifying and ending the threat. Though not as harried, the conversation here was also similar to the 911 call in Davis. The teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by apprehending the abuser or by some other means is irrelevant. And the circumstances in this case were unlike the interrogation in Hammon, where the police knew the identity of the assailant and questioned the victim after shielding her from potential harm. There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution. On the contrary, it is clear that the first objective was to protect L. P. At no point did the teachers inform L. P. that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation between L. P. and his teachers was informal and spontaneous. The teachers asked L. P. about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse. This was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon. L. P.’s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. Rather, “[r]esearch on children’s understanding of the legal system finds that” young children “have little understanding of prosecution.” Brief for American Professional Society on the Abuse of Children as Amicus Curiae 7, and n. 5 (collecting sources). And Clark does not dispute those findings. Thus, it is extremely unlikely that a 3-year-old child in L. P.’s position would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all. As a historical matter, moreover, there is strong evidence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law. See Lyon & LaMagna, The History of Children’s Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030 (2007); see also id., at 1041–1044 (examining child rape cases from 1687 to 1788); J. Langbein, The Origins of Adversary Criminal Trial 239 (2003) (“The Old Bailey” court in 18th-century London “tolerated flagrant hearsay in rape prosecutions involving a child victim who was not competent to testify because she was too young to appreciate the significance of her oath”). And when 18th-century courts excluded statements of this sort, see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (K. B. 1779), they appeared to do so because the child should have been ruled competent to testify, not because the statements were otherwise inadmissible. See Lyon & LaMagna, supra, at 1053–1054. It is thus highly doubtful that statements like L. P.’s ever would have been understood to raise Confrontation Clause concerns. Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding. Certainly, the statements in this case are nothing like the notorious use of ex parte examination in Sir Walter Raleigh’s trial for treason, which we have frequently identified as “the principal evil at which the Confrontation Clause was directed.” Crawford, 541 U. S., at 50; see also Bryant, 562 U. S., at 358. Finally, although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L. P. was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner’s iden-tity. See id., at 369. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. See, e.g., Giles, 554 U. S., at 376. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial. III Clark’s efforts to avoid this conclusion are all off-base. He emphasizes Ohio’s mandatory reporting obligations, in an attempt to equate L. P.’s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers’ pressing concern was to protect L. P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. The statements at issue in Davis and Bryant supported the defendants’ convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those cases that the Confrontation Clause did not prohibit introduction of the statements because they were not primarily intended to be testimonial. Thus, Clark is also wrong to suggest that admitting L. P.’s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify. In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt. The fact that the witness is unavailable because of a different rule of evidence does not change our analysis. Finally, Clark asks us to shift our focus from the context of L. P.’s conversation with his teachers to the jury’s perception of those statements. Because, in his view, the “jury treated L. P.’s accusation as the functional equivalent of testimony,” Clark argues that we must prohibit its introduction. Brief for Respondent 42. Our Confrontation Clause decisions, however, do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. The logic of this argument, moreover, would lead to the conclusion that virtually all out-of-court statements offered by the prosecution are testimonial. The prosecution is unlikely to offer out-of-court statements unless they tend to support the defendant’s guilt, and all such statements could be viewed as a substitute for in-court testimony. We have never suggested, however, that the Confrontation Clause bars the introduction of all out-of-court statements that support the prosecution’s case. Instead, we ask whether a statement was given with the “primary purpose of creating an out-of-court substitutefor trial testimony.” Bryant, supra, at 358. Here, the an-swer is clear: L. P.’s statements to his teachers were not testimonial. IV We reverse the judgment of the Supreme Court of Ohio and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 Like the Ohio courts, we identify Clark’s victims and their mother by their initials. 2 In fact, the teachers and a social worker who had come to the school were reluctant to release L. P. into Clark’s care after the boy identified Clark as his abuser. But after a brief “stare-down” with the social worker, Clark bolted out the door with L. P., and social services were not able to locate the children until the next day. App. 92–102, 150–151.

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 . SUPREME COURT OF THE UNITED STATES Syllabus OHIO v. CLARK certiorari to the supreme court of ohio No. 13–1352. Argued March 2, 2015—Decided June 18, 2015 Respondent Darius Clark sent his girlfriend away to engage in prostitution while he cared for her 3-year-old son L. P. and 18-month-old daughter A. T. When L. P.’s preschool teachers noticed marks on his body, he identified Clark as his abuser. Clark was subsequently tried on multiple counts related to the abuse of both children. At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s motion to exclude the statements under the Sixth Amendment’s Confrontation Clause. A jury convicted Clark on all but one count. The state appellate court reversed the conviction on Confrontation Clause grounds, and the Supreme Court of Ohio affirmed. Held: The introduction of L. P.’s statements at trial did not violate the Confrontation Clause. . (a) This Court’s decision in Crawford v. Washington, 541 U. S. 36 , held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A statement qualifies as testimonial if the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U. S. 344 . In making that “primary purpose” determination, courts must consider “all of the relevant circumstances.” Ibid. “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id., at 359. But that does not mean that the Confrontation Clause bars every statement that satisfies the “primary purpose” test. The Court has recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See Giles v. California, 554 U. S. 353 –359; Crawford, 541 U. S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause. . (b) Considering all the relevant circumstances, L. P.’s statements were not testimonial. L. P.’s statements were not made with the primary purpose of creating evidence for Clark’s prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L. P.’s teachers asked questions aimed at identifying and ending a threat. They did not inform the child that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation was informal and spontaneous. L. P.’s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause. As a historical matter, moreover, there is strong evidence that statements made in circumstances like these were regularly admitted at common law. Finally, although statements to individuals other than law enforcement officers are not categorically outside the Sixth Amendment’s reach, the fact that L. P. was speaking to his teachers is highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than those given to law enforcement officers. . (c) Clark’s arguments to the contrary are unpersuasive. Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution. It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. And this Court’s Confrontation Clause decisions do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. Instead, the test is whether a statement was given with the “primary purpose of creating an out-of-court substitute for trial testimony.” Bryant, supra, at 358. Here, the answer is clear: L. P.’s statements to his teachers were not testimonial. . 137 Ohio St. 3d 346, 2013–Ohio–4731, 999 N. E. 2d 592, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in the judgment.

Petitioner, a pimp, sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, schoolteachers discovered red marks on one of the children, identified petitioner as his abuser. At petitioner's trial for felonious assault, the State introduced petitioner's out-of-court statements to his teachers as evidence of petitioner's guilt, but petitioner did not testify. Under Ohio law, children younger than 10 years old are incompetent to testify if they are incapable of receiving just impressions of the facts and transactions respecting which they are examined or examined. The trial court ruled that petitioner was competent to testify under the Confrontation Clause of the Sixth Amendment, but denied petitioner a motion to exclude testimony about the abuse from evidence. Petitioner was convicted, and the Ohio Supreme Court affirmed. Held: The statements to the teachers were not testimonial. . (a) A statement cannot fall within the Clause unless its primary purpose was testimonial, and where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Clause. But that does not mean that the Clause bars every statement that satisfies the "primary purpose" test. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, this Court will not adopt a categorical rule excluding them from the Clause, but will instead ask whether a statement was given with the primary purpose of creating an out of-court substitutefor trial testimony. Cf. Davis v. Washington and Hammon v. Indiana, 547 U. S. 813. Pp. 462 U.S. 821-885. (b) In light of the circumstances, viewed objectively, petitioner was not entitled to introduce the statements in question when the child was not available to be cross-examined. Although petitioner emphasized Ohio mandatory reporting obligations, in an attempt to equate petitioner with the police and their caring questions with official interrogations, the comparison of the relationship between a student and his teacher is inapt, since the teachers undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse, and since aformal station-house interrogation is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused. Moreover, it is extremely unlikely that a 3-year-old child in petitioner's position would intend his statements to be a substitute for trial testimony, on the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all at all. It is thus highly doubtful that statements like petitioner's ever would have been understood to raise the Clause concerns, and it is therefore doubtful that such statements ever would be understood by the Court. See, e.g., Bryant, supra, at 358, n. 6. Finally, petitioner declines to evaluate the context of petitioner, who was charged with an ongoing emergency involving violence involving a serious, serious child, and who is not charged with criminal behavior, since petitioner is not a testimonial person. He emphasizes that Ohio law does not allow incompetent children to testify, and that the teachers and the conversation between petitioner and his teachers was informal and spontaneous. However, the fact that petitioner asked the child about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and did so precisely as any concerned citizen would talk to a child who might be the victim of abuse, does not change the analysis. And petitioner is also wrong to suggest that admitting L. P.'s statements would be fundamentally unfair given Ohio law. As a historical matter, there is strong evidence that statements made by very young children will rarely, if ever, implicate the Clause and that virtually all such statements were admissible at common law at the time of the founding. Crawford, id., at 1053-1054, and similar cases have not mounted evidence that the adoption of the Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at that time. Furthermore, petitioner argues that the Court should prohibit introduction of such statements because the jury treated petitioner's accusation as the functional equivalent of testimony, since it would be unfair to the jury, who would view the statement as the equivalent of in-court testimony, and thus would have to shift the focus from the context to petitioner, rather than the jury. Here, the an-swer is clear: Petitioner's statements to teachers, not police, did not violate the Clause because they were not primarily intended to be testimonial in light of all the relevant circumstances. A statement made in circumstances similar to those facing petitioner, and petitioner is unlikely to offer such statements unless they tend

2014_13-435

https://www.oyez.org/cases/2014/13-435

. Before a company may sell securities in interstate commerce, it must file a registration statement with the Securities and Exchange Commission (SEC). If that document either “contain[s] an untrue statement of a material fact” or “omit[s] to state a material fact . . . necessary to make the statements therein not misleading,” a purchaser of the stock may sue for damages. 15 U. S. C. §77k(a). This case requires us to decide how each of those phrases applies to statements of opinion. I The Securities Act of 1933, 48Stat. 74, 15 U. S. C. §77a et seq., protects investors by ensuring that companies issuing securities (known as “issuers”) make a “full and fair disclosure of information” relevant to a public offering. Pinter v. Dahl, 486 U. S. 622, 646 (1988) . The linchpin of the Act is its registration requirement. With limited exceptions not relevant here, an issuer may offer securities to the public only after filing a registration statement. See §§77d, 77e. That statement must contain specified information about both the company itself and the security for sale. See §§77g, 77aa. Beyond those required disclosures, the issuer may include additional representations of either fact or opinion. Section 11 of the Act promotes compliance with these disclosure provisions by giving purchasers a right of action against an issuer or designated individuals (directors, partners, underwriters, and so forth) for material misstatements or omissions in registration statements. As relevant here, that section provides: “In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security . . . [may] sue.” §77k(a). Section 11 thus creates two ways to hold issuers liable for the contents of a registration statement—one focusing on what the statement says and the other on what it leaves out. Either way, the buyer need not prove (as he must to establish certain other securities offenses) that the defendant acted with any intent to deceive or defraud. Herman & MacLean v. Huddleston, 459 U. S. 375 –382 (1983). This case arises out of a registration statement that petitioner Omnicare filed in connection with a public offering of common stock. Omnicare is the nation’s largest provider of pharmacy services for residents of nursing homes. Its registration statement contained (along with all mandated disclosures) analysis of the effects of various federal and state laws on its business model, including its acceptance of rebates from pharmaceutical manufacturers. See, e.g., App. 88–107, 132–140, 154–166. Of significance here, two sentences in the registration statement expressed Omnicare’s view of its compliance with legal requirements: “We believe our contract arrangements with other healthcare providers, our pharmaceutical suppliers and our pharmacy practices are in compliance with applicable federal and state laws.” Id., at 95. “We believe that our contracts with pharmaceutical manufacturers are legally and economically valid arrangements that bring value to the healthcare system and the patients that we serve.” Id., at 137. Accompanying those legal opinions were some caveats. On the same page as the first statement above, Omnicare mentioned several state-initiated “enforcement actions against pharmaceutical manufacturers” for offering payments to pharmacies that dispensed their products; it then cautioned that the laws relating to that practice might “be interpreted in the future in a manner inconsistent with our interpretation and application.” Id., at 96. And adjacent to the second statement, Omnicare noted that the Federal Government had expressed “significant concerns” about some manufacturers’ rebates to pharmacies and warned that business might suffer “if these price concessions were no longer provided.” Id., at 136–137. Respondents here, pension funds that purchased Omnicare stock in the public offering (hereinafter Funds), brought suit alleging that the company’s two opinion statements about legal compliance give rise to liability under §11. Citing lawsuits that the Federal Government later pressed against Omnicare, the Funds’ complaint maintained that the company’s receipt of payments from drug manufacturers violated anti-kickback laws. See id., at 181–186, 203–226. Accordingly, the complaint asserted, Omnicare made “materially false” representations about legal compliance. Id., at 274. And so too, the complaint continued, the company “omitted to state [material] facts necessary” to make its representations not misleading. Id., at 273. The Funds claimed that none of Omnicare’s officers and directors “possessed reasonable grounds” for thinking that the opinions offered were truthful and complete. Id., at 274. Indeed, the complaint noted that one of Omnicare’s attorneys had warned that a particular contract “carrie[d] a heightened risk” of liability under anti-kickback laws. Id., at 225 (emphasis deleted). At the same time, the Funds made clear that in light of §11’s strict liability standard, they chose to “exclude and disclaim any allegation that could be construed as alleging fraud or intentional or reckless misconduct.” Id., at 273. The District Court granted Omnicare’s motion to dismiss. See Civ. No. 2006–26 (ED Ky., Feb. 13, 2012), App. to Pet. for Cert. 28a, 38a–40a, 2012 WL 462551, *4–*5. In the court’s view, “statements regarding a company’s belief as to its legal compliance are considered ‘soft’ information” and are actionable only if those who made them “knew [they] were untrue at the time.” App. to Pet. for Cert. 38a. The court concluded that the Funds’ complaint failed to meet that standard because it nowhere claimed that “the company’s officers knew they were violating the law.” Id., at 39a. The Court of Appeals for the Sixth Circuit reversed. See 719 F. 3d 498 (2013). It acknowledged that the two statements highlighted in the Funds’ complaint expressed Omnicare’s “opinion” of legal compliance, rather than “hard facts.” Id., at 504 (quoting In re Sofamor Danek Group Inc., 123 F. 3d 394, 401–402 (CA6 1997)). But even so, the court held, the Funds had to allege only that the stated belief was “objectively false”; they did not need to contend that anyone at Omnicare “disbelieved [the opinion] at the time it was expressed.” 719 F. 3d, at 506 (quoting Fait v. Regions Financial Corp., 655 F. 3d 105, 110 (CA2 2011)). We granted certiorari, 571 U. S. ___ (2014), to consider how §11 pertains to statements of opinion. We do so in two steps, corresponding to the two parts of §11 and the two theories in the Funds’ complaint. We initially address the Funds’ claim that Omnicare made “untrue statement[s] of . . . material fact” in offering its views on legal compliance. §77k(a); see App. 273–274. We then take up the Funds’ argument that Omnicare “omitted to state a material fact . . . necessary to make the statements [in its registration filing] not misleading.” §77k(a); see App. 273–274. Unlike both courts below, we see those allegations as presenting different issues.[1] In resolving the first, we discuss when an opinion itself constitutes a factual misstatement. In analyzing the second, we address when an opinion may be rendered misleading by the omission of discrete factual representations. Because we find that the Court of Appeals applied the wrong standard, we vacate its decision. II The Sixth Circuit held, and the Funds now urge, that a statement of opinion that is ultimately found incorrect—even if believed at the time made—may count as an “untrue statement of a material fact.” 15 U. S. C §77k(a); see 719 F. 3d, at 505; Brief for Respondents 20–26. As the Funds put the point, a statement of belief may make an implicit assertion about the belief’s “subject matter”: To say “we believe X is true” is often to indicate that “X is in fact true.” Id., at 23; see Tr. of Oral Arg. 36. In just that way, the Funds conclude, an issuer’s statement that “we believe we are following the law” conveys that “we in fact are following the law”—which is “materially false,” no matter what the issuer thinks, if instead it is violating an anti-kickback statute. Brief for Respondents 1. But that argument wrongly conflates facts and opinions. A fact is “a thing done or existing” or “[a]n actual happening.” Webster’s New International Dictionary 782 (1927). An opinion is “a belief[,] a view,” or a “sentiment which the mind forms of persons or things.” Id., at 1509. Most important, a statement of fact (“the coffee is hot”) expresses certainty about a thing, whereas a statement of opinion (“I think the coffee is hot”) does not. See ibid. (“An opinion, in ordinary usage . . . does not imply . . . definiteness . . . or certainty”); 7 Oxford English Dictionary 151 (1933) (an opinion “rests[s] on grounds insufficient for complete demonstration”). Indeed, that difference between the two is so ingrained in our everyday ways of speaking and thinking as to make resort to old dictionaries seem a mite silly. And Congress effectively incorporated just that distinction in §11’s first part by exposing issuers to liability not for “untrue statement[s]” full stop (which would have included ones of opinion), but only for “untrue statement[s] of . . . fact.” §77k(a) (emphasis added). Consider that statutory phrase’s application to two hypothetical statements, couched in ways the Funds claim are equivalent. A company’s CEO states: “The TVs we manufacture have the highest resolution available on the market.” Or, alternatively, the CEO transforms that factual statement into one of opinion: “I believe” (or “I think”) “the TVs we manufacture have the highest resolution available on the market.” The first version would be an untrue statement of fact if a competitor had introduced a higher resolution TV a month before—even assuming the CEO had not yet learned of the new product. The CEO’s assertion, after all, is not mere puffery, but a determinate, verifiable statement about her company’s TVs; and the CEO, however innocently, got the facts wrong. But in the same set of circumstances, the second version would remain true. Just as she said, the CEO really did believe, when she made the statement, that her company’s TVs had the sharpest picture around. And although a plaintiff could later prove that opinion erroneous, the words “I believe” themselves admitted that possibility, thus precluding liability for an untrue statement of fact. That remains the case if the CEO’s opinion, as here, concerned legal compliance. If, for example, she said, “I believe our marketing practices are lawful,” and actually did think that, she could not be liable for a false statement of fact—even if she afterward discovered a longtime violation of law. Once again, the statement would have been true, because all she expressed was a view, not a certainty, about legal compliance. That still leaves some room for §11’s false-statement provision to apply to expressions of opinion. As even Omnicare acknowledges, every such statement explicitly affirms one fact: that the speaker actually holds the stated belief. See Brief for Petitioners 15–16; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts §109, p. 755 (5th ed. 1984) (Prosser and Keeton) (“[A]n expression of opinion is itself always a statement of . . . the fact of the belief, the existing state of mind, of the one who asserts it”). For that reason, the CEO’s statement about product quality (“I believe our TVs have the highest resolution available on the market”) would be an untrue statement of fact—namely, the fact of her own belief—if she knew that her company’s TVs only placed second. And so too the statement about legal compliance (“I believe our marketing practices are lawful”) would falsely describe her own state of mind if she thought her company was breaking the law. In such cases, §11’s first part would subject the issuer to liability (assuming the misrepresentation were material).[2] In addition, some sentences that begin with opinion words like “I believe” contain embedded statements of fact—as, once again, Omnicare recognizes. See Reply Brief 6. Suppose the CEO in our running hypothetical said: “I believe our TVs have the highest resolution available because we use a patented technology to which our competitors do not have access.” That statement may be read to affirm not only the speaker’s state of mind, as described above, but also an underlying fact: that the company uses a patented technology. See Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1109 (1991) (Scalia, J., concurring in part and concurring in judgment) (showing that a statement can sometimes be “most fairly read as affirming separately both the fact of the [speaker’s] opinion and the accuracy of the facts” given to support or explain it (emphasis deleted)). Accordingly, liability under §11’s false-statement provision would follow (once again, assuming materiality) not only if the speaker did not hold the belief she professed but also if the supporting fact she supplied were untrue. But the Funds cannot avail themselves of either of those ways of demonstrating liability. The two sentences to which the Funds object are pure statements of opinion: To simplify their content only a bit, Omnicare said in each that “we believe we are obeying the law.” And the Funds do not contest that Omnicare’s opinion was honestly held. Recall that their complaint explicitly “exclude[s] and disclaim[s]” any allegation sounding in fraud or deception. App. 273. What the Funds instead claim is that Omni-care’s belief turned out to be wrong—that whatever the company thought, it was in fact violating anti-kickback laws. But that allegation alone will not give rise to liability under §11’s first clause because, as we have shown, a sincere statement of pure opinion is not an “untrue statement of material fact,” regardless whether an investor can ultimately prove the belief wrong. That clause, limited as it is to factual statements, does not allow investors to second-guess inherently subjective and uncertain assessments. In other words, the provision is not, as the Court of Appeals and the Funds would have it, an invitation to Monday morning quarterback an issuer’s opinions. III A That conclusion, however, does not end this case because the Funds also rely on §11’s omissions provision, alleging that Omnicare “omitted to state facts necessary” to make its opinion on legal compliance “not misleading.” App. 273; see §77k(a).[3] As all parties accept, whether a statement is “misleading” depends on the perspective of a reasonable investor: The inquiry (like the one into materiality) is objective. Cf. TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 445 (1976) (noting that the securities laws care only about the “significance of an omitted or misrepresented fact to a reasonable investor”). We therefore must consider when, if ever, the omission of a fact can make a statement of opinion like Omnicare’s, even if literally accurate, misleading to an ordinary investor. Omnicare claims that is just not possible. On its view, no reasonable person, in any context, can understand a pure statement of opinion to convey anything more than the speaker’s own mindset. See Reply Brief 5–6. As long as an opinion is sincerely held, Omnicare argues, it cannot mislead as to any matter, regardless what related facts the speaker has omitted. Such statements of belief (concludes Omnicare) are thus immune from liability under §11’s second part, just as they are under its first.[4] That claim has more than a kernel of truth. A reason-able person understands, and takes into account, the differ-ence we have discussed above between a statement of fact and one of opinion. See supra, at 6–7. She recognizes the import of words like “I think” or “I believe,” and grasps that they convey some lack of certainty as to the statement’s content. See, e.g., Restatement (Second) of Contracts §168, Comment a, p. 456 (1979) (noting that a statement of opinion “implies that [the speaker] . . . is not certain enough of what he says” to do without the qualifying language). And that may be especially so when the phrases appear in a registration statement, which the reasonable investor expects has been carefully wordsmithed to comply with the law. When reading such a document, the investor thus distinguishes between the sentences “we believe X is true” and “X is true.” And because she does so, the omission of a fact that merely rebuts the latter statement fails to render the former misleading. In other words, a statement of opinion is not misleading just because external facts show the opinion to be incorrect. Reasonable investors do not understand such statements as guarantees, and §11’s omissions clause therefore does not treat them that way. But Omnicare takes its point too far, because a reason-able investor may, depending on the circumstances, under-stand an opinion statement to convey facts about how the speaker has formed the opinion—or, otherwise put, about the speaker’s basis for holding that view. And if the real facts are otherwise, but not provided, the opinion statement will mislead its audience. Consider an unadorned statement of opinion about legal compliance: “We believe our conduct is lawful.” If the issuer makes that statement without having consulted a lawyer, it could be misleadingly incomplete. In the context of the securities market, an investor, though recognizing that legal opinions can prove wrong in the end, still likely expects such an assertion to rest on some meaningful legal inquiry—rather than, say, on mere intuition, however sincere.[5] Similarly, if the issuer made the statement in the face of its lawyers’ contrary advice, or with knowledge that the Federal Government was taking the opposite view, the investor again has cause to complain: He expects not just that the issuer believes the opinion (however irrationally), but that it fairly aligns with the information in the issuer’s possession at the time.[6] Thus, if a registration statement omits material facts about the issuer’s inquiry into or knowledge concerning a statement of opinion, and if those factsconflict with what a reasonable investor would take from the statement itself, then §11’s omissions clause creates liability.[7] An opinion statement, however, is not necessarily misleading when an issuer knows, but fails to disclose, some fact cutting the other way. Reasonable investors understand that opinions sometimes rest on a weighing of competing facts; indeed, the presence of such facts is one reason why an issuer may frame a statement as an opinion, thus conveying uncertainty. See supra, at 6–7, 11. Suppose, for example, that in stating an opinion about legal compliance, the issuer did not disclose that a single junior attorney expressed doubts about a practice’s legal-ity, when six of his more senior colleagues gave a stamp of approval. That omission would not make the statement of opinion misleading, even if the minority position ulti-mately proved correct: A reasonable investor does not expect that every fact known to an issuer supports its opinion statement.[8] Moreover, whether an omission makes an expression of opinion misleading always depends on context. Registration statements as a class are formal documents, filed with the SEC as a legal prerequisite for selling securities to the public. Investors do not, and are right not to, expect opinions contained in those statements to reflect baseless, off-the-cuff judgments, of the kind that an individual might communicate in daily life. At the same time, an investor reads each statement within such a document, whether of fact or of opinion, in light of all its surrounding text, including hedges, disclaimers, and apparently conflicting information. And the investor takes into account the customs and practices of the relevant industry. So an omission that renders misleading a statement of opinion when viewed in a vacuum may not do so once that statement is considered, as is appropriate, in a broader frame. The reasonable investor understands a statement of opinion in its full context, and §11 creates liability only for the omission of material facts that cannot be squared with such a fair reading. These principles are not unique to §11: They inhere, too, in much common law respecting the tort of misrepresentation.[9] The Restatement of Torts, for example, recognizes that “[a] statement of opinion as to facts not disclosed and not otherwise known to the recipient may” in some circumstances reasonably “be interpreted by him as an implied statement” that the speaker “knows facts sufficient to justify him in forming” the opinion, or that he at least knows no facts “incompatible with [the] opinion.” Restatement (Second) of Torts §539, p. 85 (1976).[10] When that is so, the Restatement explains, liability may result from omission of facts—for example, the fact that the speaker failed to conduct any investigation—that rebut the recipient’s predictable inference. See id., Comment a, at 86; id., Comment b, at 87. Similarly, the leading treatise in the area explains that “it has been recognized very often that the expression of an opinion may carry with it an implied assertion, not only that the speaker knows no facts which would preclude such an opinion, but that he does know facts which justify it.” Prosser and Keeton §109, at 760. That is especially (and traditionally) the case, the treatise continues, where—as in a registration statement—a speaker “holds himself out or is understood as having special knowledge of the matter which is not available to the plaintiff.” Id., at 760–761 (footnote omitted); see Restatement (Second) of Torts §539, Comment b, at 86 (noting that omissions relating to an opinion’s basis are “particularly” likely to give rise to liability when the speaker has “special knowledge of facts unknown to the recipient”); Smith v. Land and House Property Corp., [1884] 28 Ch. D. 7, 15 (App. Cas.) (appeal taken from Eng.) (opinion of Bowen, L. J.) (When “the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best . . . impliedly states that [the speaker] knows facts which justify his opinion”).[11] And the purpose of §11 supports this understanding of how the omissions clause maps onto opinion statements. Congress adopted §11 to ensure that issuers “tell[ ] the whole truth” to investors. H. R. Rep. No. 85, 73d Cong., 1st Sess., 2 (1933) (quoting President Roosevelt’s message to Congress). For that reason, literal accuracy is not enough: An issuer must as well desist from misleading investors by saying one thing and holding back another. Omnicare would nullify that statutory requirement for all sentences starting with the phrases “we believe” or “we think.” But those magic words can preface nearly any conclusion, and the resulting statements, as we have shown, remain perfectly capable of misleading investors. See supra, at 11–12. Thus, Omnicare’s view would punch a hole in the statute for half-truths in the form of opinion statements. And the difficulty of showing that such statements are literally false—which requires proving an issuer did not believe them, see supra, at 7–8—would make that opening yet more consequential: Were Omni-care right, companies would have virtual carte blanche to assert opinions in registration statements free from worry about §11. That outcome would ill-fit Congress’s decision to establish a strict liability offense promoting “full and fair disclosure” of material information. Pinter, 486 U. S., at 646; see supra, at 1–2. Omnicare argues, in response, that applying §11’s omissions clause in the way we have described would have “adverse policy consequences.” Reply Brief 17 (capitalization omitted). According to Omnicare, any inquiry into the issuer’s basis for holding an opinion is “hopelessly amorphous,” threatening “unpredictable” and possibly “massive” liability. Id., at 2; Brief for Petitioners 34, 36. And because that is so, Omnicare claims, many issuers will choose not to disclose opinions at all, thus “depriving [investors] of potentially helpful information.” Reply Brief 19; see Tr. of Oral Arg. 59–61. But first, that claim is, just as Omnicare labels it, one of “policy”; and Congress gets to make policy, not the courts. The decision Congress made, for the reasons we have indicated, was to extend §11 liability to all statements rendered misleading by omission. In doing so, Congress no doubt made §11 less cut-and-dry than a law prohibiting only false factual statements. Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the reasonable person into the analysis, and asks what she would naturally understand a statement to convey beyond its literal meaning. And for expressions of opinion, that means considering the foundation she would expect an issuer to have before making the statement. See supra, at 11–12. All that, however, is a feature, not a bug, of the omissions provision. Moreover, Omnicare way overstates both the looseness of the inquiry Congress has mandated and the breadth of liability that approach threatens. As we have explained, an investor cannot state a claim by alleging only that an opinion was wrong; the complaint must as well call into question the issuer’s basis for offering the opinion. See supra, at 11–12. And to do so, the investor cannot just say that the issuer failed to reveal its basis. Section 11’s omissions clause, after all, is not a general disclosure requirement; it affords a cause of action only when an issuer’s failure to include a material fact has rendered a published statement misleading. To press such a claim, an investor must allege that kind of omission—and not merely by means of conclusory assertions. See Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”). To be specific: The investor must identify particular (and material) facts going to the basis for the issuer’s opinion—facts about the inquiry the issuer did or did not conduct or the knowledge it did or did not have—whose omission makes the opinion statement at issue misleading to a reasonable person reading the statement fairly and in context. See supra, at 11–14. That is no small task for an investor. Nor does the inquiry such a complaint triggers ask anything unusual of courts. Numerous legal rules hinge on what a reasonable person would think or expect. In requiring courts to view statements of opinion from an ordinary investor’s perspective, §11’s omissions clause demands nothing more complicated or unmanageable. Indeed, courts have for decades engaged in just that inquiry, with no apparent trouble, in applying the common law of misrepresentation. See supra, at 14–15. Finally, we see no reason to think that liability for misleading opinions will chill disclosures useful to investors. Nothing indicates that §11’s application to misleading factual assertions in registration statements has caused such a problem. And likewise, common-law doctrines of opinion liability have not, so far as anyone knows, deterred merchants in ordinary commercial transactions from asserting helpful opinions about their products. That absence of fallout is unsurprising. Sellers (whether of stock or other items) have strong economic incentives to . . . well, sell (i.e., hawk or peddle). Those market-based forces push back against any inclination to underdisclose. And to avoid exposure for omissions under §11, an issuer need only divulge an opinion’s basis, or else make clear the real tentativeness of its belief. Such ways of conveying opinions so that they do not mislead will keep valuable information flowing. And that is the only kind of information investors need. To the extent our decision today chills misleading opinions, that is all to the good: In enacting §11, Congress worked to ensure better, not just more, information. B Our analysis on this score counsels in favor of sending the case back to the lower courts for decision. Neither court below considered the Funds’ omissions theory with the right standard in mind—or indeed, even recognized the distinct statutory questions that theory raises. See supra, at 4–5. We therefore follow our ordinary practice of remanding for a determination of whether the Funds have stated a viable omissions claim (or, if not, whether they should have a chance to replead). In doing so, however, we reemphasize a few crucial points pertinent to the inquiry on remand. Initially, as we have said, the Funds cannot proceed without identifying one or more facts left out of Omnicare’s registration statement. See supra, at 17–18. The Funds’ recitation of the statutory language—that Omnicare “omitted to state facts necessary to make the statements made not misleading”—is not sufficient; neither is the Funds’ conclusory allegation that Omnicare lacked “reasonable grounds for the belief” it stated respecting legal compliance. App. 273–274. At oral argument, however, the Funds highlighted another, more specific allegation in their complaint: that an attorney had warned Omnicare that a particular contract “carrie[d] a heightened risk” of legal exposure under anti-kickback laws. Id., at 225 (emphasis omitted); see Tr. of Oral Arg. 42, 49; supra, at 4. On remand, the court must review the Funds’ complaint to determine whether it adequately alleged that Omnicare had omitted that (purported) fact, or any other like it, from the registration statement. And if so, the court must determine whether the omitted fact would have been material to a reasonable investor—i.e., whether “there is a substantial likelihood that a reasonable [investor] would consider it important.” TSC Industries, 426 U. S., at 449. Assuming the Funds clear those hurdles, the court must ask whether the alleged omission rendered Omnicare’s legal compliance opinions misleading in the way described earlier—i.e., because the excluded fact shows that Omnicare lacked the basis for making those statements that a reasonable investor would expect. See supra, at 11–12. Insofar as the omitted fact at issue is the attorney’s warning, that inquiry entails consideration of such matters as the attorney’s status and expertise and other legal information available to Omnicare at the time. See supra, at 13. Further, the analysis of whether Omnicare’s opinion is misleading must address the statement’s context. See supra, at 14. That means the court must take account of whatever facts Omnicare did provide about legal compliance, as well as any other hedges, disclaimers, or qualifications it included in its registration statement. The court should consider, for example, the information Omnicare offered that States had initiated enforcement actions against drug manufacturers for giving rebates to pharmacies, that the Federal Government had expressed concerns about the practice, and that the relevant laws “could “be interpreted in the future in a manner” that would harm Omnicare’s business. See App. 95–96, 136–137; supra, at 3. * * * With these instructions and for the reasons stated, we vacate the judgment below and remand the case for further proceedings. It is so ordered.Notes 1 In his concurrence, Justice Thomas contends that the lower courts’ erroneous conflation of these two questions should limit the scope of our review: We should say nothing about omissions, he maintains, because that issue was not pressed or passed on below. We disagree. Although the Funds could have written a clearer complaint, they raised a discrete omissions claim. See, e.g., App. 191 (“[T]he Company’s 2005 Registration Statement . . . omitted material information that was . . . necessary to make the Registration Statement not misleading”); id., at 273 (“The Registration Statement . . . omitted to state facts necessary to make the statements made not misleading, and failed to adequately disclose material facts as described above”). The lower courts chose not to address that claim separately, but understood that the complaint alleged not only misstatements but also omissions. See App. to Pet. for Cert. 38a (describing the Funds’ claims as relating to “misstatements/omissions” and dismissing the lot as “not actionable”); 719 F. 3d, at 501 (giving a single rationale for reversing the District Court’s dismissal of the Funds’ claims “for material misstatements and omissions”). And the omissions issue was the crux of the parties’ dispute before this Court. The question was fully briefed by both parties (plus the Solicitor General), and omissions played a starring role at oral argument. Neither in its briefs nor at argument did Omnicare ever object that the Funds’ omissions theory had been forfeited or was not properly before this Court. We therefore see no reason to ignore the issue. 2 Our decision in Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083 (1991) , qualifies this statement in one respect. There, the Court considered when corporate directors’ statements of opinion in a proxy solicitation give rise to liability under §14(a) of the Securities Exchange Act, 15 U. S. C. §78n(a), which bars conduct similar to that described in §11. In discussing that issue, the Court raised the hypothetical possibility that a director could think he was lying while actually (i.e., accidentally) telling the truth about the matter addressed in his opinion. See Virginia Bankshares, 501 U. S., at 1095–1096. That rare set of facts, the Court decided, would not lead to liability under §14(a). See ibid. The Court reasoned that such an inadvertently correct assessment is unlikely to cause anyone harm and that imposing liability merely for the “impurities” of a director’s “unclean heart” might provoke vexatious litigation. Id., at 1096 (quoting Stedman v. Storer, 308 F. Supp. 881, 887 (SDNY 1969)). We think the same is true (to the extent this scenario ever occurs in real life) under §11. So if our CEO did not believe that her company’s TVs had the highest resolution on the market, but (surprise!) they really did, §11 would not impose liability for her statement. 3 Section 11’s omissions clause also applies when an issuer fails to make mandated disclosures—those “required to be stated”—in a registration statement. §77k(a). But the Funds do not object to Omnicare’s filing on that score. 4 In a different argument that arrives at the same conclusion, Omnicare maintains that §11, by its terms, bars only those omissions that make statements of fact—not opinion—misleading. See Reply Brief 3–5. The language of the omissions clause, however, is not so limited. It asks whether an omitted fact is necessary to make “statements” in “any part of the registration statement” not misleading; unlike in §11’s first clause, here the word “statements” is unmodified, thus including both fact and opinion. In any event, Omnicare’s alternative interpretation succeeds merely in rephrasing the critical issue. Omnicare recognizes that every opinion statement is also a factual statement about the speaker’s own belief. See supra, at 7–8. On Omnicare’s view, the question thus becomes when, if ever, an omission can make a statement of that fact misleading to an ordinary investor. The following analysis applies just as well to that reformulation. 5 In some circumstances, however, reliance on advice from regulators or consistent industry practice might accord with a reasonable investor’s expectations. 6 The hypothetical used earlier could demonstrate the same points. Suppose the CEO, in claiming that her company’s TV had the highest resolution available on the market, had failed to review any of her competitors’ product specifications. Or suppose she had recently received information from industry analysts indicating that a new product had surpassed her company’s on this metric. The CEO may still honestly believe in her TV’s superiority. But under §11’s omissions provision, that subjective belief, in the absence of the expected inquiry or in the face of known contradictory evidence, would not insulate her from liability. 7 Omnicare contends at length that Virginia Bankshares forecloses this result, see Brief for Petitioners 16–21, relying on the following sentence: “A statement of belief may be open to objection . . . solely as a misstatement of the psychological fact of the speaker’s belief in what he says,” 501 U. S., at 1095. But Omnicare’s argument plucks that statement from its context and thereby transforms its meaning. Virginia Bankshares concerned an expression of opinion that the speaker did not honestly hold—i.e., one making an “untrue statement of fact” about the speaker’s own state of mind, §77k(a). See id., at 1090 (“[W]e interpret the jury verdict as finding that the . . . directors did not hold the beliefs or opinions expressed, and we confine our discussion to statements so made”). The Court held that such a statement gives rise to liability under §14(a) when it is also “false or misleading about its subject matter.” Id., at 1096. Having done so, the Court went on to consider the rare hypothetical case, described in this opinion’s second footnote, in which a speaker expresses an opinion that she does not actually hold, but that turns out to be right. See supra, at 8, n. 2. The sentence Omnicare cites did no more than introduce that hypothetical; it was a way of saying “someone might object to a statement—even when the opinion it expressed proved correct—solely on the ground that it was disbelieved.” And the Court then held, as noted above, that such an objection would fail. See ibid. The language thus provides no support for Omnicare’s argument here. 8 We note, too, that a reasonable investor generally considers the specificity of an opinion statement in making inferences about its basis. Compare two new statements from our ever-voluble CEO. In the first, she says: “I believe we have 1.3 million TVs in our warehouse.” In the second, she says: “I believe we have enough supply on hand to meet demand.” All else equal, a reasonable person would think that a more detailed investigation lay behind the former statement. 9 Section 11 is, of course, “not coextensive with common-law doctrines of fraud”; in particular, it establishes “a stringent standard of liability,” not dependent on proof of intent to defraud. Herman & MacLean v. Huddleston, 459 U. S. 375 –389 (1983); see supra, at 2; infra, at 15, n. 11. But we may still look to the common law for its insights into how a reasonable person understands statements of opinion. 10 The Restatement of Contracts, discussing misrepresentations that can void an agreement, says much the same: “[T]he recipient of an assertion of a person’s opinion as to facts not disclosed” may sometimes “properly interpret it as an assertion (a) that the facts known to that person are not incompatible with his opinion, or (b) that he knows facts sufficient to justify him in forming it.” Restatement (Second) of Contracts §168, p. 455 (1979). 11 In invoking these principles, we disagree with Justice Scalia’s common-law-based opinion in two crucial ways. First, we view the common law’s emphasis on special knowledge and expertise as supporting, rather than contradicting, our view of what issuers’ opinion statements fairly imply. That is because an issuer has special knowledge of its business—including the legal issues the company faces—not avail-able to an ordinary investor. Second, we think Justice Scalia’s reliance on the common law’s requirement of an intent to deceive is inconsistent with §11’s standard of liability. As we understand him, Justice Scalia would limit liability for omissions under §11 to cases in which a speaker “subjectively intend[s] the deception” arising from the omission, onthe ground that the common law did the same. Post, at 6 (opinion concurring in part and concurring in judgment) (emphasis deleted). But §11 discards the common law’s intent requirement, making omissions unlawful—regardless of the issuer’s state of mind—so long as they render statements misleading. See Herman & MacLean, 459 U. S., at 382 (emphasizing that §11 imposes liability “even for innocent” misstatements or omissions). The common law can help illuminate when an omission has that effect, but cannot change §11’s insistence on strict liability. See supra, at 14, n. 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 . SUPREME COURT OF THE UNITED STATES Syllabus Omnicare, Inc., et al. v. Laborers District Council Construction Industry Pension Fund et al. certiorari to the united states court of appeals for the sixth circuit No. 13–435. Argued November 3, 2014—Decided March 24, 2015 The Securities Act of 1933 requires that a company wishing to issue securities must first file a registration statement containing specified information about the issuing company and the securities offered. See 15 U. S. C. §§77g, 77aa. The registration statement may also include other representations of fact or opinion. To protect investors and promote compliance with these disclosure requirements, §11 of the Act creates two ways to hold issuers liable for a registration statement’s contents: A purchaser of securities may sue an issuer if the registration statement either “contain[s] an untrue statement of a material fact” or “omit[s] to state a material fact . . . necessary to make the statements therein not misleading.” §77k(a). In either case, the buyer need not prove that the issuer acted with any intent to deceive or defraud. Herman & MacLean v. Huddleston, 459 U. S. 375 –382. Petitioner Omnicare, a pharmacy services company, filed a registration statement in connection with a public offering of common stock. In addition to the required disclosures, the registration statement contained two statements expressing the company’s opinion that it was in compliance with federal and state laws. After the Federal Government filed suit against Omnicare for allegedly receiving kickbacks from pharmaceutical manufacturers, respondents, pension funds that purchased Omnicare stock (hereinafter Funds), sued Omnicare under §11. They claimed that Omnicare’s legal-compliance statements constituted “untrue statement[s] of . . . material fact” and that Omnicare “omitted to state [material] facts necessary” to make those statements not misleading. The District Court granted Omnicare’s motion to dismiss. Because the Funds had not alleged that Omnicare’s officers knew they were violating the law, the court found that the Funds had failed to state a §11 claim. The Sixth Circuit reversed. Acknowledging that the statements at issue expressed opinions, the court held that no showing of subjective disbelief was required. In the court’s view, the Funds’ allegations that Omnicare’s legal-compliance opinions were objectively false sufficed to support their claim. Held: 1. A statement of opinion does not constitute an “untrue statement of . . . fact” simply because the stated opinion ultimately proves incorrect. The Sixth Circuit’s contrary holding wrongly conflates facts and opinions. A statement of fact expresses certainty about a thing, whereas a statement of opinion conveys only an uncertain view as to that thing. Section 11 incorporates that distinction in its first clause by exposing issuers to liability only for “untrue statement[s] of . . . fact.” §77k(a) (emphasis added). Because a statement of opinion admits the possibility of error, such a statement remains true—and thus is not an “untrue statement of . . . fact”—even if the opinion turns out to have been wrong. But opinion statements are not wholly immune from liability under §11’s first clause. Every such statement explicitly affirms one fact: that the speaker actually holds the stated belief. A statement of opinion thus qualifies as an “untrue statement of . . . fact” if that fact is untrue—i.e., if the opinion expressed was not sincerely held. In addition, opinion statements can give rise to false-statement liability under §11 if they contain embedded statements of untrue facts. Here, however, Omnicare’s sincerity is not contested and the statements at issue are pure opinion statements. The Funds thus cannot establish liability under §11’s first clause. . 2. If a registration statement omits material facts about the issuer’s inquiry into, or knowledge concerning, a statement of opinion, and if those facts conflict with what a reasonable investor, reading the statement fairly and in context, would take from the statement itself, then §11’s omissions clause creates liability. . (a) For purposes of §11’s omissions clause, whether a statement is “misleading” is an objective inquiry that depends on a reasonable investor’s perspective. Cf. TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438 . Omnicare goes too far by claiming that no reasonable person, in any context, can understand a statement of opinion to convey anything more than the speaker’s own mindset. A reasonable investor may, depending on the circumstances, understand an opinion statement to convey facts about the speaker’s basis for holding that view. Specifically, an issuer’s statement of opinion may fairly imply facts about the inquiry the issuer conducted or the knowledge it had. And if the real facts are otherwise, but not provided, the opinion statement will mislead by omission. An opinion statement, however, is not misleading simply because the issuer knows, but fails to disclose, some fact cutting the other way. A reasonable investor does not expect that every fact known to an issuer supports its opinion statement. Moreover, whether an omission makes an expression of opinion misleading always depends on context. Reasonable investors understand opinion statements in light of the surrounding text, and §11 creates liability only for the omission of material facts that cannot be squared with a fair reading of the registration statement as a whole. Omnicare’s arguments to the contrary are unavailing. . (b) Because neither court below considered the Funds’ omissions theory under the right standard, this case is remanded for a determination of whether the Funds have stated a viable omissions claim. On remand, the court must review the Funds’ complaint to determine whether it adequately alleges that Omnicare omitted from the registration statement some specific fact that would have been material to a reasonable investor. If so, the court must decide whether the alleged omission rendered Omnicare’s opinion statements misleading in context. . 719 F. 3d 498, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Thomas, J., filed an opinion concurring in the judgment.

The Securities Act of 1933 (Act) protects investors by ensuring that companies issuing securities (known asuers) make a full and fair disclosure of information relevant to a public offering. Section 11 of the Act promotes compliance with these disclosure provisions by giving purchasers a right of action against an issuer or designated individuals (directors, partners, underwriters, and so forth) for material misstatements or omissions in registration statements. Petitioner is the nation's largest provider of pharmacy services for nursing homes, and its registration statement contained (along with all mandated disclosures) analysis of the effects of various federal and state laws on its business model, including its acceptance of rebates from pharmaceutical manufacturers. Respondents purchased stock in petitioner in the public offering, alleging that petitioner violated the Act by offering to the public statements about its legal compliance with the legal requirements. The Federal District Court granted petitioner a motion to dismiss the complaint on the ground that it failed to meet §11's strict liability standard, because it nowhere claimed that petitioner's officers knew they were violating the law. The Court of Appeals reversed, holding that the Funds had to allege only that the stated belief wasobjectively false, and did not need to contend that anyone at petitioner disbelieved the opinion at the time it was expressed. Held: 1. The two parts of §11 and the two theories in the Funds complaint that petitioner made "untrue statement[s] of... material fact" in offering its views on legal compliance are presented as presenting different issues. In resolving the first, when an opinion itself constitutes a factual misstatement, and in analyzing the second, when a statement may be rendered misleading by the omission of discrete factual representations, the court must ask whether the alleged omission rendered the statement of opinion misleading in the way described earlier. . (a) An opinion statement, however, is not necessarily misleading when an issuer knows, but fails to disclose, some fact cutting the other way. A sincere statement of pure opinion is not an untrue statement of material fact, regardless whether an investor can ultimately prove the belief wrong. That statement is not, as the Funds claim, an invitation to Monday morning quarterback an issuer's opinions. It is, in fact, one of policy, not the courts. Cf. Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083,; see id., Comment a, at 86; id., comment b, at 87. Moreover, whether an omission makes an opinion statement misleading always depends on context. A reasonable investor understands a statement of fact in its full context, and may not expect it to convey anything more than the speaker's own mindset. See, e.g., Restatement of Contracts §168, p. 455. Similarly, a reason-able person understands, and takes into account, the differ-ence of words like, for example, that the speaker said that her company had the highest resolution on the market, or that she at least knew no facts incompatible with the opinion. Thus, the investor cannot state a claim by alleging only that an opinion was wrong; the complaint must as well call into question the issuer's basis for offering the opinion, and to do so would subject the issuer to liability. In addition, the omissions clause affords a cause of action only when the issuer fails to include a material fact in a registration statement. To allege a conclusory statement, a reasonable investor must first identify the source of the statement, and then, in the context of the issuer, must identify the person to whom the statement is made. Here, the Funds cannot avail themselves of either the two sentences to which the Funds object are pure statements of opinion: To simplify their content only a bit, petitioner said in each sentence that it believed the opinion to be true, and the Funds do not contest that the opinion was honestly held. Nor can they avail themselves either of these ways of demonstrating liability: Under §11, liability for misleading opinions will follow (once again, assuming materiality) not only if the speaker did not hold the belief she professed but also if the supporting fact she supplied were untrue. And the Omissions clause, limited as it is to factual statements, does not allow investors to second-guess inherently subjective and uncertain assessments. Section 11 is not coextensive with common-law doctrines of fraud, and establishes a stringent standard of liability, not dependent on proof of intent to defraud. This Court may still look to the common law for its insights into how a reasonable person understands statements of fact. Pp. 468 U.S. 775-779. (b) While the Funds could have written a clearer complaint, they raised a discrete omissions claim. Although the complaint did not address that claim separately, the complaint alleged that petitioner was indeeditted to state a material factual fact, and that it was necessary to make the statements

2014_13-271

https://www.oyez.org/cases/2014/13-271

. In this case, a group of manufacturers, hospitals, and other institutions that buy natural gas directly from interstate pipelines sued the pipelines, claiming that they engaged in behavior that violated state antitrust laws. The pipelines’ behavior affected both federally regulated wholesale natural-gas prices and nonfederally regulated retail natural-gas prices. The question is whether the federal Natural Gas Act pre-empts these lawsuits. We have said that, in passing the Act, “Congress occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.” Schneidewind v. ANR Pipeline Co.,485 U. S. 293,305 (1988). Nevertheless, for the reasons given below, we conclude that the Act does not pre-empt the state-law antitrust suits at issue here.IA The Supremacy Clause provides that “the Laws of the United States” (as well as treaties and the Constitution itself ) “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Congress may consequently pre-empt, i.e., invalidate, a state law through federal legislation. It may do so through express language in a statute. But even where, as here, a statute does not refer expressly to pre-emption, Congress may implicitly pre-empt a state law, rule, or other state action. See Sprietsma v. Mercury Marine,537 U. S. 51,64 (2002). It may do so either through “field” pre-emption or “conflict” pre-emption. As to the former, Congress may have intended “to foreclose any state regulation in the area,” irrespective of whether state law is consistent or inconsistent with “federal standards.” Arizona v. United States, 567 U. S. ___, ___ (2012) (slip op., at 10) (emphasis added). In such situations, Congress has forbidden the State to take action in the field that the federal statute pre-empts. By contrast, conflict pre-emption exists where “compliance with both state and federal law is impossible,” or where “the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” California v. ARC America Corp.,490 U. S. 93,100,101 (1989). In either situation, federal law must prevail. No one here claims that any relevant federal statute expressly pre-empts state antitrust lawsuits. Nor have the parties argued at any length that these state suits conflict with federal law. Rather, the interstate pipeline companies (petitioners here) argue that Congress implic-itly “ ‘occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce.’ ” Brief for Petitioners 18 (quoting Schneidewind, supra, at 305 (emphasis added)). And they contend that the state antitrust claims advanced by their direct-sales customers (respondents here) fall within that field. The United States, supporting the pipelines, argues similarly. See Brief for United States as Amicus Curiae 15. Since the parties have argued this case almost exclusively in terms of field pre-emption, we consider only the field pre-emption question.B1 Federal regulation of the natural-gas industry began at a time when the industry was divided into three segments. See 1 Regulation of the Natural Gas Industry §1.01 (W. Mogel ed. 2008) (hereinafter Mogel); General Motors Corp. v. Tracy,519 U. S. 278,283 (1997). First, natural-gas producers sunk wells in large oil and gas fields (such as the Permian Basin in Texas and New Mexico). They gathered the gas, brought it to transportation points, and left it to interstate gas pipelines to transport the gas to distant markets. Second, interstate pipelines shipped the gas from the field to cities and towns across the Nation. Third, local gas distributors bought the gas from the interstate pipelines and resold it to business and residential customers within their localities. Originally, the States regulated all three segments of the industry. See 1 Mogel §1.03. But in the early 20th century, this Court held that the Commerce Clause forbids the States to regulate the second part of the business—i.e., the interstate shipment and sale of gas to local distributors for resale. See, e.g., Public Util. Comm’n of R. I. v. Attleboro Steam & Elec. Co.,273 U. S. 83–90 (1927); Missouri ex rel. Barrett v. Kansas Natural Gas Co.,265 U. S. 298–308 (1924). These holdings left a regula-tory gap. Congress enacted the Natural Gas Act,52Stat.821, to fill it. See Phillips Petroleum Co. v. Wisconsin,347 U. S. 672–684, n. 13 (1954) (citing H. R. Rep. No. 709, 75th Cong., 1st Sess., 1–2 (1937); S. Rep. No. 1162, 75th Cong., 1st Sess., 1–2 (1937)). The Act, in §5(a), gives rate-setting authority to the Federal Energy Regulatory Commission (FERC, formerly the Federal Power Commission (FPC)). That authority allows FERC to determine whether “any rate, charge, or classification . . . collected by any natural-gas company in connection with any transportation or sale of natural gas, subject to the jurisdiction of [FERC],” or “any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory, or preferential.”15 U. S. C. §717d(a) (emphasis added). As the italicized words make clear, §5(a) limits the scope of FERC’s authority to activities “in connection with any transportation or sale of natural gas, subject to the jurisdiction of the Commission.” Ibid. (emphasisadded). And the Act, in §1(b), limits FERC’s “jurisdiction” to (1) “the transportation of natural gas in interstate commerce,” (2) “the sale in interstate commerce of natural gas for resale,” and (3) “natural-gas companies engaged in such transportation or sale.” §717(b). The Act leaves regulation of other portions of the industry—such as production, local distribution facilities, and direct sales—to the States. See Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan.,489 U. S. 493,507 (1989) (Section 1(b) of the Act “expressly” provides that “States retain jurisdiction over intrastate transportation, local distribution, and distribution facilities, and over ‘the production or gathering of natural gas’ ”). To simplify our discussion, we shall describe the firms that engage in interstate transportation as “jurisdictional sellers” or “interstate pipelines” (though various brokers and others may also fall within the Act’s jurisdictional scope). Similarly, we shall refer to the sales over which FERC has jurisdiction as “jurisdictional sales” or “wholesale sales.”2 Until the 1970’s, natural-gas regulation roughly tracked the industry model we described above. Interstate pipelines would typically buy gas from field producers and resell it to local distribution companies for resale. See Tracy, supra, at 283. FERC (or FPC), acting under the authority of the Natural Gas Act, would set interstate pipeline wholesale rates using classical “cost-of-service” ratemaking methods. See Public Serv. Comm’n of N. Y. v. Mid-Louisiana Gas Co.,463 U. S. 319,328 (1983). That is, FERC would determine a pipeline’s revenue requirement by calculating the costs of providing its services, including operating and maintenance expenses, depreciation expenses, taxes, and a reasonable profit. See FERC, Cost-of-Service Rates Manual 6 (June 1999). FERC would then set wholesale rates at a level designed to meet the pipeline’s revenue requirement. Deregulation of the natural-gas industry, however, brought about changes in FERC’s approach. In the 1950’s, this Court had held that the Natural Gas Act required regulation of prices at the interstate pipelines’ buying end—i.e., the prices at which field producers sold natural gas to interstate pipelines. Phillips Petroleum Co., supra, at 682, 685. By the 1970’s, many in Congress thought that such efforts to regulate field prices had jeopardizednatural-gas supplies in an industry already dependent “on the caprice of nature.” FPC v. Hope Natural Gas Co.,320 U. S. 591,630 (1944) (opinion of Jackson, J.); see id., at 629 (recognizing that “the wealth of Midas and the wit of man cannot produce . . . a natural gas field”). Hoping to avoid future shortages, Congress enacted forms of field price deregulation designed to rely upon competition, rather than regulation, to keep field prices low. See, e.g., Natural Gas Policy Act of 1978,92Stat.3409, codified in part at15 U. S. C. §3301 et seq. (phasing out regulation of wellhead prices charged by producers of natural gas); Natural Gas Wellhead Decontrol Act of 1989,103Stat.157 (removing price controls on wellhead sales as of January 1993). FERC promulgated new regulations designed to further this process of deregulation. See, e.g., Regulation of Natural Gas Pipelines after Partial Wellhead Decontrol, 50 Fed. Reg. 42408 (1985) (allowing “open access” to pipelines so that consumers could pay to ship their own gas). Most important here, FERC adopted an approach that relied on the competitive marketplace, rather than classical regulatory rate-setting, as the main mechanism for keeping wholesale natural-gas rates at a reasonable level. Order No. 636, issued in 1992, allowed FERC to issue blanket certificates that permitted jurisdictional sellers (typically interstate pipelines) to charge market-based rates for gas, provided that FERC had first determined that the sellers lacked market power. See 57 Fed. Reg. 57957–57958 (1992); id., at 13270. After the issuance of this order, FERC’s oversight of the natural-gas market largely consisted of (1) ex ante examinations of jurisdictional sellers’ market power, and (2) the availability of a complaint process under §717d(a). See Brief for United States as Amicus Curiae 4. The new system also led many large gas consumers—such as industrial and commercial users—to buy their own gas directly from gas producers, and to arrange (and often pay separately) for transportation from the field to the place of consumption. See Tracy, 519 U. S., at 284. Insofar as interstate pipelines sold gas to such consumers, they sold it for direct consumption rather than resale.3 The free-market system for setting interstate pipeline rates turned out to be less than perfect. Interstate pipelines, distributing companies, and many of the customers who bought directly from the pipelines found that they had to rely on privately published price indices to determine appropriate prices for their natural-gas contracts. These indices listed the prices at which natural gas was being sold in different (presumably competitive) markets across the country. The information on which these in-dices were based was voluntarily reported by natural-gas traders. In 2003, FERC found that the indices were inaccurate, in part because much of the information that natural-gas traders reported had been false. See FERC, Final Report on Price Manipulation in Western Markets (Mar. 2003), App. 88–89. FERC found that false reporting had involved “inflating the volume of trades, omitting trades, and adjusting the price of trades.” Id., at 88. That is, sometimes those who reported information simply fabricated it. Other times, the information reported reflected “wash trades,” i.e., “prearranged pair[s] of trades of the same good between the same parties, involving no economic risk and no net change in beneficial ownership.” Id., at 215. FERC concluded that these “efforts to manipulate price indices compiled by trade publications” had helped raise “to extraordinary levels” the prices of both jurisdictional sales (that is, interstate pipeline sales for resale) and nonjurisdictional direct sales to ultimate consumers. Id., at 86, 85. After issuing its final report on price manipulation in western markets, FERC issued a Code of Conduct. That code amended all blanket certificates to prohibit jurisdictional sellers “from engaging in actions without a legitimate business purpose that manipulate or attempt to manipulate market conditions, including wash trades and collusion.” 68 Fed. Reg. 66324 (2003). The code also required jurisdictional companies, when they provided information to natural-gas index publishers, to “provide accurate and factual information, and not knowingly submit false or misleading information or omit material information to any such publisher.” Id., at 66337. At the same time, FERC issued a policy statement setting forth “minimum standards for creation and publication of any energy price index,” and “for reporting transaction data to index developers.” Price Discovery in Natural Gas and Elec. Markets, 104 FERC ¶61,121, pp. 61,407, 61,408 (2003). Finally, FERC, after finding that certain jurisdictional sellers had “engaged in wash trading . . . that resulted in the manipulation of [natural-gas] prices,” terminated those sellers’ blanket marketing certificates. Enron Power Marketing, Inc., 103 FERC ¶61,343, p. 62,303 (2003). Congress also took steps to address these problems. In particular, it passed the Energy Policy Act of 2005,119Stat.594, which gives FERC the authority to issue rules and regulations to prevent “any manipulative or deceptive device or contrivance” by “any entity . . . in connection with the purchase or sale of natural gas or the purchase or sale of transportation services subject to the jurisdiction of” FERC,15 U. S. C. §717c–1.C We now turn to the cases before us. Respondents, as we have said, bought large quantities of natural gas directly from interstate pipelines for their own consumption. They believe that they overpaid in these transactions due to the interstate pipelines’ manipulation of the natural-gas indices. Based on this belief, they filed state-law antitrust suits against petitioners in state and federal courts. See App. 244–246 (alleging violations of Wis. Stat. §§133.03, 133.14, 133.18); see also App. 430–433 (same); id., at 519–521 (same); id., at 362–364 (alleging violations of Kansas Restraint of Trade Act, Kan. Stat. Ann. §50–101 et seq.); App. 417–419 (alleging violations of Missouri Antitrust Law, Mo. Rev. Stat. §§416.011–416.161). The pipelines removed all the state cases to federal court, where they were consolidated and sent for pretrial proceedings to the Federal District Court for the District of Nevada. See28 U. S. C. §1407. The pipelines then moved for summary judgment on the ground that the Natural Gas Act pre-empted respondents’ state-law antitrust claims. The District Court granted their motion. It concluded that the pipelines were “jurisdictional sellers,” i.e., “natural gas companies engaged in” the “transportation of natural gas in interstate commerce.” Order in No. 03–cv–1431 (D Nev., July 18, 2011), pp. 4, 11. And it held that respondents’ claims, which were “aimed at” these sellers’ “alleged practices of false price reporting, wash trades, and anticompetitive collusive behavior” were pre-empted because “such practices,” not only affected nonjurisdictional direct-sale prices but also “directly affect[ed]” jurisdictional (i.e., wholesale) rates. Id., at 36–37. The Ninth Circuit reversed. It emphasized that the price-manipulation of which respondents complained affected not only jurisdictional (i.e., wholesale) sales, but also nonjurisdictional (i.e., retail) sales. The court construed the Natural Gas Act’s pre-emptive scope narrowly in light of Congress’ intent—manifested in §1(b) of the Act—to preserve for the States the authority to regulate nonjurisdictional sales. And it held that the Act did not pre-empt state-law claims aimed at obtaining damages for excessively high retail natural-gas prices stemming from interstate pipelines’ price manipulation, even if the manipulation raised wholesale rates as well. See In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F. 3d 716, 729–736 (2013). The pipelines sought certiorari. They asked us to resolve confusion in the lower courts as to whether the Natural Gas Act pre-empts retail customers’ state antitrust law challenges to practices that also affect wholesale rates. Compare id., at 729–736, with Leggett v. Duke Energy Corp., 308 S. W. 3d 843 (Tenn. 2010). We granted the petition.II Petitioners, supported by the United States, argue that their customers’ state antitrust lawsuits are within the field that the Natural Gas Act pre-empts. See Brief for Petitioners 18 (citing Schneidewind, 485 U. S., at 305); Brief for United States as Amicus Curiae 13 (same). They point out that respondents’ antitrust claims target anticompetitive activities that affected wholesale (as well as retail) rates. See Brief for Petitioners 2. They add that the Natural Gas Act expressly grants FERC authority to keep wholesale rates at reasonable levels. See ibid. (citing 15 U. S. C. §§717(b), 717d(a)). In exercising this authority, FERC has prohibited the very kind of anticompetitive conduct that the state actions attack. See Part I–B–3, supra. And, petitioners contend, letting these actions proceed will permit state antitrust courts to reach conclusions about that conduct that differ from those that FERC might reach or has already reached. Accordingly, petitioners argue, respondents’ state-law antitrust suits fall within the pre-empted field.A Petitioners’ arguments are forceful, but we cannot accept their conclusion. As we have repeatedly stressed, the Natural Gas Act “was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way.” Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind.,332 U. S. 507–518 (1947); see also Northwest Central, 489 U. S., at 511 (the “legislative history of the [Act] is replete with assurances that the Act ‘takes nothing from the State [regulatory] commissions’ ” (quoting 81 Cong. Rec. 6721 (1937))). Accordingly, where (as here) a state law can be applied to nonjurisdictional as well as jurisdictional sales, we must proceed cautiously, finding pre-emption only where detailed examination convinces us that a matter falls within the pre-empted field as defined by our precedents. See Panhandle Eastern, supra, at 516–518; Interstate Natural Gas Co. v. FPC,331 U. S. 682–693 (1947). Those precedents emphasize the importance of considering the target at which the state law aims in determining whether that law is pre-empted. For example, in Northern Natural Gas Co. v. State Corporation Comm’n of Kan.,372 U. S. 84 (1963), the Court said that it had “consistently recognized” that the “significant distinction” for purposes of pre-emption in the natural-gas context is the distinction between “measures aimed directly at interstate purchasers and wholesales for resale, and those aimed at” subjects left to the States to regulate. Id., at 94 (emphasis added). And, in Northwest Central, the Court found that the Natural Gas Act did not pre-empt a state regulation concerning the timing of gas production from a gas field within the State, even though the regulation might have affected the costs of and the prices of interstate wholesale sales, i.e., jurisdictional sales. 489 U. S., at 514. In reaching this conclusion, the Court explained that the state regulation aimed primarily at “protect[ing] producers’ . . . rights—a matter firmly on the States’ side of that dividing line.” Ibid. The Court contrasted this state regulation with the state orders at issue in Northern Natural, which “ ‘inva-lidly invade[d] the federal agency’s exclusive domain’ pre-cisely because” they were “ ‘unmistakably and unambiguously directed at purchasers.’ ” Id., at 513 (quoting Northern Natural, supra, at 92; emphasis added). Here, too, the lawsuits are directed at practices affecting retail rates–which are “firmly on the States’ side of that dividing line.” Petitioners argue that Schneidewind constitutes con-trary authority. In that case, the Court found pre-empted a state law that required public utilities, such as interstate pipelines crossing the State, to obtain state approval before issuing long-term securities. 485 U. S., at 306–309. But the Court there thought that the State’s securities regulation was aimed directly at interstate pipelines. It wrote that the state law was designed to keep “a natural gas company from raising its equity levels above a certain point” in order to keep the company’s revenue requirement low, thereby ensuring lower wholesale rates. Id., at 307–308. Indeed, the Court expressly said that the state law was pre-empted because it was “directed at . . . the control of rates and facilities of natural gas companies,” “precisely the things over which FERC has comprehensive author-ity.” Id., at 308 (emphasis added). The dissent rejects the notion that the proper test for purposes of pre-emption in the natural gas context is whether the challenged measures are “aimed directly at interstate purchasers and wholesales for resale” or not. Northern Natural, supra, at 94. It argues that this approach is “unprecedented,” and that the Court’s focus should be on “what the State seeks to regulate . . . , not why the State seeks to regulate it.” Post, at 6 (opinion of Scalia, J.). But the “target” to which our cases refer must mean more than just the physical activity that a State regulates. After all, a single physical action, such as reporting a price to a specialized journal, could be the subject of many different laws—including tax laws, disclosure laws, and others. To repeat the point we made above, no one could claim that FERC’s regulation of this physical activity for purposes of wholesale rates forecloses every other form of state regulation that affects those rates. Indeed, although the dissent argues that Schneidwind created a definitive test for pre-emption in the natural gas context that turns on whether “the matter on which the State asserts the right to act is in any way regulated by the Federal Act,” post, at 3 (quoting 485 U. S., at 310, n. 13), Schneidewind could not mean this statement as an absolute test. It goes on to explain that the Natural Gas Act does not pre-empt “traditional” state regulation, such as state blue sky laws (which, of course, raise wholesale—as well as retail—investment costs). Id., at 308, n. 11. Antitrust laws, like blue sky laws, are not aimed at natural-gas companies in particular, but rather all businesses in the marketplace. See ibid. They are far broader in their application than, for example, the regulations at issue in Northern Natural, which applied only to entities buying gas from fields within the State. See 372 U. S., at 85–86, n. 1; contra, post, at 5–6 (stating that Northern Natural concerned “background market conditions”). This broad applicability of state antitrust law supports a finding of no pre-emption here. Petitioners and the dissent argue that there is, or should be, a clear division between areas of state and federal authority in natural-gas regulation. See Brief for Petitioners 18; post, at 7. But that Platonic ideal does not describe the natural gas regulatory world. Suppose FERC, when setting wholesale rates in the former cost-of-service rate-making days, had denied cost recovery for pipelines’ failure to recycle. Would that fact deny States the power to enact and apply recycling laws? These state laws might well raise pipelines’ operating costs, and thus the costs of wholesale natural gas transportation. But in Northwest Central we said that “[t]o find field pre-emption of [state] regulation merely because purchasers’ costs and hence rates might be affected would be largely to nullify . . . §1(b).” 489 U. S., at 514. The dissent barely mentions the limitations on FERC’s powers in §1(b), but the enumeration of FERC’s powers in §5(a) is circumscribed by a reference back to the limitations in §1(b). See post, at 1–3. As we explained above, see Part I–B–1, supra, those limits are key to understanding the careful balance between federal and state regulation that Congress struck when it passed the Natural Gas Act. That Act “was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way.” Panhandle Eastern, 332 U. S., at 517–518. Contra, post, at 8. States have a “long history of” providing “common-law and statutory remedies against monopolies and unfair business practices.” ARC America, 490 U. S., at 101; see also Watson v. Buck,313 U. S. 387,404 (1941) (noting the States’ “long-recognized power to regulate combinations in restraint of trade”). Respondents’ state-law antitrust suits relied on this well established state power.B Petitioners point to two other cases that they believe support their position. The first is Mississippi Power & Light Co. v. Mississippi ex rel. Moore,487 U. S. 354 (1988). There, the Court held that the Federal Power Act—which gives FERC the authority to determine whether rates charged by public utilities in electric energy sales are “just and reasonable,”16 U. S. C. §824d(a)—pre-empted a state inquiry into the reasonableness of FERC-approved prices for the sale of nuclear power to wholesalers of electricity (which led to higher retail electricity rates). 487 U. S., at 373–377. Petitioners argue that this case shows that state regulation of similar sales here—i.e., by a pipeline to a direct consumer—must also be pre-empted. See Reply Brief 11–12. Mississippi Power, however, is best read as a conflict pre-emption case, not a field pre-emption case. See 487 U. S., at 377 (“[A] state agency’s ‘efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity’ ” (quoting Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co.,450 U. S. 311–319 (1981))). Regardless, the state inquiry in Mississippi Power was pre-empted because it was directed at jurisdictional sales in a way that respondents’ state antitrust lawsuits are not. Mississippi’s inquiry into the reasonableness of FERC-approved purchases was effectively an attempt to “regulate in areas where FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates.” 487 U. S., at 374. By contrast, respondents’ state antitrust lawsuits do not seek to challenge the reason-ableness of any rates expressly approved by FERC. Rather, they seek to challenge the background marketplace conditions that affected both jurisdictional and nonjurisdic-tional rates. Petitioners additionally point to FPC v. Louisiana Power & Light Co.,406 U. S. 621 (1972). In that case, the Court held that federal law gave FPC the authority to allocate natural gas during shortages by ordering interstate pipelines to curtail gas deliveries to all customers, including retail customers. This latter fact, the pipelines argue, shows that FERC has authority to regulate index manipulation insofar as that manipulation affects retail (as well as wholesale) sales. Brief for Petitioners 26. Accordingly, they contend that state laws that aim at this same subject are pre-empted. This argument, however, makes too much of too little. The Court’s finding of pre-emption in Louisiana Power rested on its belief that the state laws in question con-flicted with federal law. The Court concluded that “FPC has authority to effect orderly curtailment plans involving both direct sales and sales for resale,” 406 U. S., at 631, because otherwise there would be “unavoidable conflict between” state regulation of direct sales and the “uniform federal regulation” that the Natural Gas Act foresees, id., at 633–635. Conflict pre-emption may, of course, invalidate a state law even though field pre-emption does not. Because petitioners have not argued this case as a conflict pre-emption case, Louisiana Power does not offer them significant help.C To the extent any conflicts arise between state antitrust law proceedings and the federal rate-setting process, the doctrine of conflict pre-emption should prove sufficient to address them. But as we have noted, see Part I–A, supra, the parties have not argued conflict pre-emption. See also, e.g., Tr. of Oral Arg. 24 (Solicitor General agrees that he has not “analyzed this [case] under a conflict preemption regime”). We consequently leave conflict pre-emption questions for the lower courts to resolve in the firstinstance.D We note that petitioners and the Solicitor General have argued that we should defer to FERC’s determination that field pre-emption bars the respondents’ claims. See Brief for Petitioners 22 (citing Arlington v. FCC, 569 U. S. ___, ___–___ (2013) (slip op., at 10–14); Brief for United States as Amicus Curiae 32 (same). But they have not pointed to a specific FERC determination that state antitrust claims fall within the field pre-empted by the Natural Gas Act. Rather, they point only to the fact that FERC has promulgated detailed rules governing manipulation of price indices. Because there is no determination by FERC that its regulation pre-empts the field into which respondents’ state-law antitrust suits fall, we need not consider what legal effect such a determination might have. And we conclude that the detailed federal regulations here do not offset the other considerations that weigh against a finding of pre-emption in this context.* * * For these reasons, the judgment of the Court of Appeals for the Ninth 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 . SUPREME COURT OF THE UNITED STATES Syllabus ONEOK, INC., et al. v. LEARJET, INC., et al. certiorari to the united states court of appeals for the ninth circuit No. 13–271. Argued January 12, 2015—Decided April 21, 2015 Respondents, a group of manufacturers, hospitals, and other institutions that buy natural gas directly from interstate pipelines, sued petitioner interstate pipelines, claiming that the pipelines had engaged in behavior that violated state antitrust laws. In particular, respondents alleged that petitioners reported false information to the natural-gas indices on which respondents’ natural-gas contracts were based. The indices affected not only retail natural-gas prices, but also wholesale natural-gas prices. After removing the cases to federal court, the petitioner pipelines sought summary judgment on the ground that the Natural Gas Act pre-empted respondents’ state-law claims. That Act gives the Federal Energy Regulatory Commission (FERC) the authority to determine whether rates charged by natural-gas companies or practices affecting such rates are unreasonable. 15 U. S. C. §717d(a). But it also limits FERC’s jurisdiction to the transportation of natural gas in interstate commerce, the sale in interstate commerce of natural gas for resale, and natural-gas companies engaged in such transportation or sale. §717(b). The Act leaves regulation of other portions of the industry—such as retail sales—to the States. Ibid. The District Court granted petitioners’ motion for summary judgment, reasoning that because petitioners’ challenged practices directly affected wholesale as well as retail prices, they were pre-empted by the Act. The Ninth Circuit reversed. While acknowledging that the pipelines’ index manipulation increased wholesale prices as well as retail prices, it held that the state-law claims were not pre-empted because they were aimed at obtaining damages only for excessively high retail prices. Held: Respondents’ state-law antitrust claims are not within the field of matters pre-empted by the Natural Gas Act. . (a) The Act “was drawn with meticulous regard for the continued exercise of state power.” Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind., 332 U. S. 507 –518. Where, as here, a practice affects nonjurisdictional as well as jurisdictional sales, pre-emption can be found only where a detailed examination convincingly demonstrates that a matter falls within the pre-empted field as defined by this Court’s precedents. Those precedents emphasize the importance of considering the target at which the state-law claims aim. See, e.g., Northern Natural Gas Co. v. State Corporation Comm’n of Kan., 372 U. S. 84 ; Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493 . Here, respondents’ claims are aimed at practices affecting retail prices, a matter “firmly on the States’ side of [the] dividing line.” Id., at 514. Schneidewind v. ANR Pipeline Co., 485 U. S. 293 , is not to the contrary. That opinion explains that the Act does not pre-empt “traditional” state regulation, such as blue sky laws. Id., at 308, n. 11. Antitrust laws, like blue sky laws, are not aimed at natural-gas companies in particular, but rather all businesses in the marketplace. The broad applicability of state antitrust laws supports a finding of no pre-emption here. So, too, does the fact that States have long provided “common-law and statutory remedies against monopolies and unfair business practices,” California v. ARC America Corp., 490 U. S. 93 . As noted earlier, the Act circumscribes FERC’s powers and preserves traditional areas of state authority. §717(b). . (b) Neither Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 , nor FPC v. Louisiana Power & Light Co., 406 U. S. 621 , supports petitioners’ position. Mississippi Power is best read as a conflict pre-emption case, not a field pre-emption case. In any event, the state inquiry in Mississippi Power was pre-empted because it was directed at jurisdictional sales in a way that respondents’ state antitrust suits are not. Louisiana Power is also a conflict pre-emption case, and thus does not significantly help petitioners’ field pre-emption argument. . (c) Because the parties have not argued conflict pre-emption, questions involving conflicts between state antitrust proceedings and the federal rate-setting process are left for the lower courts to resolve in the first instance. . (d) While petitioners and the Government argue that this Court should defer to FERC’s determination that field pre-emption bars respondents’ claims, they fail to point to a specific FERC determination that state antitrust claims fall within the field pre-empted by the Natural Gas Act. Thus, this Court need not consider what legal effect such a determination might have. P. 16. 715 F. 3d 716, affirmed. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Thomas, J., joined as to all but Part I–A. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., joined.

The federal Natural Gas Act (Act) authorizes the Federal Energy Regulatory Commission (FERC), formerly the Federal Power Commission (FPC), to determine whether any rate, charge, or classification collected by a natural-gas company in connection with any transportation or sale of natural gas is unjust, unreasonable, unduly discriminatory, or preferential. In §5(a) of the Act, which limits the scope of FERC's authority to activities (1) (2) (the transportation of gas in interstate commerce, and (3) (natural-gas companies engaged in such transportation or sales), and (4) (5) (internal regulation), Congress has forbidden the State to take action in the field that the federal statute pre-empts. However, in §1(b), Congress may consequently preempt, i.e., invalidate, a state law through federal legislation. It may do so either through field pre-emption or conflicts of interest, depending on whether compliance with both state and federal law is impossible or where the state lawstands as an obstacle to the accomplishment and execution of Congress' full purposes and objectives. Here, the federal Act does not expressly preempt the state antitrust suits at issue here. Rather, the interstate pipeline companies argue that Congress implic-itly occupied the field of matters relating to wholesale sales and transportation of oil and natural gas, and that such suits do not fall within that field. Respondents, manufacturers, hospitals, and other institutions that buy natural gas directly from interstate pipelines sued the pipelines, claiming that they overpaid in these transactions due to the interstate pipelines' manipulation of the natural gas indices. The pipelines removed all the state cases to federal court, where they were consolidated and sent for pretrial proceedings to the Federal District Court for the District of Nevada, and the court granted their motion for summary judgment on the ground that the Act pre-ed respondents' state-law antitrust claims. The court held that the pipelines were jurisdictional sellers, or interstate pipelines, which had to rely on privately published price indices that listed the prices at which natural gas was being sold in different (presumably competitive) markets across the country. And it held that respondents' claims, which were aimed at these sellers' practices of false price reporting, wash trades, and anticompetitive collusive behavior, were pre-pre-empted because such practices not only affected nonjurisdicictional direct-sale prices but alsodirectly affected jurisdictional (i.i., wholesale) rates. The Court of Appeals reversed, holding that the price-manipulation of which respondents complained affected not only jurisdictional wholesale sales, but also nonfederally regulated retail sales. Held: 1. The federal Act is not preempted. Although the parties have argued this case almost exclusively in terms of field preemption, they have not directly argued the case as one. See, e.g., Tr. of Oral Arg. 24,; Brief for Petitioners 18 (citing Schneidewind, 485 U. S., at 305); Brief for United States as Amicus Curiae 13 (same)), and the Solicitor General has not pointed to a specific FERC determination that state antitrust claims fall within the field which the Act preempts. Rather, they point only to the fact that FERC has promulgated detailed rules governing manipulation of price indices, and thus it is unnecessary to consider what legal effect such a determination might have. . 2. Where (as here) a state statute can be applied to nonjursictional as well as jurisdictional sales, and where detailed examination convinces the lower courts that a matter falls within the preempted field as defined by this Court's precedents, finding that a state antitrust suit falls within that applicable field only when detailed examination demonstrates that the matter falls within the field that Congress has precluded, Louisiana Power & Light Co. v. State Corporation Comm'n of Kan.,; Interstate Natural Gas Co v. FPC,331 U.S. 682-693 (1947), FPC adopted an approach that relied on the competitive marketplace, rather than classical regulatory rate-setting, as the main mechanism for keeping wholesale natural gas rates at a reasonable level. Moreover, the broad applicability of state antitrust law supports a finding that there is, or should be, a clear division between areas of state authority and federal authority in natural gas regulation. This Court has a long history of providing common-law and statutory remedies against monopolies and unfair business practices, and has established a long tradition of providing such remedies. Cf. Northern Natural Gas, supra, at 283.. 3. Nor is there any merit to petitioners' argument that the Court should defer to FERC in its determination that field-emption bars respondents from their state antitrust lawsuits. Pp. 467 U. s. 716, 729-736. Petition

2014_13-1041

https://www.oyez.org/cases/2014/13-1041

. When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA or Act). See5 U. S. C. §553(b)(A). The United States Court of Appeals for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579 (1997), that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted. The question in these cases is whether the rule announced in Paralyzed Veterans is consistent with the APA. We hold that it is not.IA The APA establishes the procedures federal administrative agencies use for “rule making,” defined as the process of “formulating, amending, or repealing a rule.” §551(5). “Rule,” in turn, is defined broadly to include “statement[s] of general or particular applicability and future effect” that are designed to “implement, interpret, or prescribe law or policy.” §551(4). Section 4 of the APA,5 U. S. C. §553, prescribes a three-step procedure for so-called “notice-and-comment rulemaking.” First, the agency must issue a “[g]eneral notice of proposed rule making,” ordinarily by publication in the Federal Register. §553(b). Second, if “notice [is] required,” the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” §553(c). An agency must consider and respond to significant comments received during the period for public comment. See Citizens to Preserve Overton Park, Inc. v. Volpe,401 U. S. 402,416 (1971); Thompson v. Clark, 741 F. 2d 401, 408 (CADC 1984). Third, when the agency promulgates the final rule, it must include in the rule’s text “a concise general statement of [its] basis and purpose.” §553(c). Rules issued through the notice-and-comment process are often referred to as “legislative rules” because they have the “force and effect of law.” Chrysler Corp. v. Brown,441 U. S. 281–303 (1979) (internal quotation marks omitted). Not all “rules” must be issued through the notice-and-comment process. Section 4(b)(A) of the APA provides that, unless another statute states otherwise, the notice-and-comment requirement “does not apply” to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”5 U. S. C. §553(b)(A). The term “interpretative rule,” or “interpretive rule,”[1] is not further defined by the APA, and its precise meaning is the source of much scholarly and judicial debate. See generally Pierce, Distinguishing Legislative Rules From Interpretative Rules, 52 Admin. L. Rev. 547 (2000); Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893 (2004). We need not, and do not, wade into that debate here. For our purposes, it suffices to say that the critical feature of interpretive rules is that they are “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Shalala v. Guernsey Memorial Hospital,514 U. S. 87,99 (1995) (internal quotation marks omitted). The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Ibid.B These cases began as a dispute over efforts by the Department of Labor to determine whether mortgage-loan officers are covered by the Fair Labor Standards Act of 1938 (FLSA),52Stat.1060, as amended,29 U. S. C. §201 et seq. The FLSA “establishe[s] a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek” for many employees. Integ-rity Staffing Solutions, Inc. v. Busk, 574 U. S. ___, ___ (2014) (slip op., at 3). Certain classes of employees, however, are exempt from these provisions. Among these exempt individuals are those “employed in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman . . . .” §213(a)(1). The exemption for such employees is known as the “administrative” exemption. The FLSA grants the Secretary of Labor authority to “defin[e]” and “delimi[t]” the categories of exempt admin-istrative employees. Ibid. The Secretary’s current regu-lations regarding the administrative exemption were promulgated in 2004 through a notice-and-commentrulemaking. As relevant here, the 2004 regulations differed from the previous regulations in that they contained a new section providing several examples of exempt administrative employees. See 29 CFR §541.203. One of the examples is “[e]mployees in the financial services industry,” who, depending on the nature of their day-to-day work, “generally meet the duties requirements for the administrative exception.” §541.203(b). The financial services example ends with a caveat, noting that “an employee whose primary duty is selling financial products does not qualify for the administrative exemption.” Ibid. In 1999 and again in 2001, the Department’s Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption. See Opinion Letter, Loan Officers/Exempt Status, 6A LRR, Wages and Hours Manual 99:8351 (Feb. 16, 2001); Opinion Letter, Mortgage Loan Officers/Exempt Status, id., at 99:8249. (May 17, 1999). In other words, the Department concluded that the FLSA’s minimum wage and maximum hour requirements applied to mortgage-loan officers. When the Department promulgated its current FLSA regulations in 2004, respondent Mortgage Bankers Association (MBA), a national trade association representing real estate finance companies, requested a new opinion interpreting the revised regulations. In 2006, the Department issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations. See App. to Pet. for Cert. in No. 13–1041, pp. 70a–84a. Four years later, however, the Wage and Hour Division again altered its interpretation of the FLSA’s administrative exemption as it applied to mortgage-loan officers. Id., at 49a–69a. Reviewing the provisions of the 2004 regulations and judicial decisions addressing the administrative exemption, the Department’s 2010 Administrator’s Interpretation concluded that mortgage-loan officers “have a primary duty of making sales for their employers, and, therefore, do not qualify” for the administrative exemption. Id., at 49a, 69a. The Department accordingly withdrew its 2006 opinion letter, which it now viewed as relying on “misleading assumption[s] and selective and narrow analysis” of the exemption example in §541.203(b). Id., at 68a. Like the 1999, 2001, and 2006 opinion letters, the 2010 Administrator’s Interpretation was issued without notice or an opportunity for comment.C MBA filed a complaint in Federal District Court challenging the Administrator’s Interpretation. MBA contended that the document was inconsistent with the 2004 regulation it purported to interpret, and thus arbitrary and capricious in violation of §10 of the APA,5 U. S. C. §706. More pertinent to this case, MBA also argued that the Administrator’s Interpretation was procedurally in-valid in light of the D. C. Circuit’s decision in Paralyzed Veterans, 117 F. 3d 579. Under the Paralyzed Veterans doctrine, if “an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish” under the APA “without notice and comment.” Alaska Professional Hunters Assn., Inc. v. FAA, 177 F. 3d 1030, 1034 (CADC 1999). Three former mortgage-loan officers—Beverly Buck, Ryan Henry, and Jerome Nickols—subsequently intervened in thecase to defend the Administrator’s Interpretation.[2] The District Court granted summary judgment to the Department. Mortgage Bankers Assn. v. Solis, 864 F. Supp. 2d 193 (DC 2012). Though it accepted the parties’ characterization of the Administrator’s Interpretation as an interpretive rule, id., at 203, n. 7, the District Court determined that the Paralyzed Veterans doctrine was inapplicable because MBA had failed to establish its reliance on the contrary interpretation expressed in the Department’s 2006 opinion letter. The Administrator’s Interpretation, the District Court further determined, was fully supported by the text of the 2004 FLSA regulations. The court accordingly held that the 2010 interpretation was not arbitrary or capricious.[3] The D. C. Circuit reversed. Mortgage Bankers Assn. v. Harris, 720 F. 3d 966 (2013). Bound to the rule of Paralyzed Veterans by precedent, the Court of Appeals rejected the Government’s call to abandon the doctrine. 720 F. 3d., at 967, n. 1. In the court’s view, “[t]he only question” properly before it was whether the District Court had erred in requiring MBA to prove that it relied on the Department’s prior interpretation. Id., at 967. Explaining that reliance was not a required element of the Paralyzed Veterans doctrine, and noting the Department’s concession that a prior, conflicting interpretation of the 2004 regulations existed, the D. C. Circuit concluded that the 2010 Administrator’s Interpretation had to be vacated. We granted certiorari, 573 U. S. __ (2014), and now reverse.II The Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions, and it improperly imposes on agencies an obligation beyond the “maximum procedural requirements” specified in the APA, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,435 U. S. 519,524 (1978).A The text of the APA answers the question presented. Section 4 of the APA provides that “notice of proposed rule making shall be published in the Federal Register.”5 U. S. C. §553(b). When such notice is required by the APA, “the agency shall give interested persons an opportunity to participate in the rule making.” §553(c). But §4 further states that unless “notice or hearing is required by statute,” the Act’s notice-and-comment requirement “does not apply . . . to interpretative rules.” §553(b)(A). This exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans. Rather than examining the exemption for interpretive rules contained in §4(b)(A) of the APA, the D. C. Circuit in Paralyzed Veterans focused its attention on §1 of the Act. That section defines “rule making” to include not only the initial issuance of new rules, but also “repeal[s]” or “amend[ments]” of existing rules. See §551(5). Because notice-and-comment requirements may apply even to these later agency actions, the court reasoned, “allow[ing] an agency to make a fundamental change in its interpretation of a substantive regulation without notice and comment” would undermine the APA’s procedural framework. 117 F. 3d, at 586. This reading of the APA conflates the differing purposes of §§1 and 4 of the Act. Section 1 defines what a rule-making is. It does not, however, say what procedures an agency must use when it engages in rulemaking. That is the purpose of §4. And §4 specifically exempts interpretive rules from the notice-and-comment requirements that apply to legislative rules. So, the D. C. Circuit correctly read §1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance. See FCC v. Fox Television Stations, Inc.,556 U. S. 502,515 (2009) (the APA “make[s] no distinction . . . between initial agency action and subsequent agency action undoing or revising that action”). Where the court went wrong was in failing to apply that accurate understanding of §1 to the exemption for interpretive rules contained in §4: Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule.B The straightforward reading of the APA we now adopt harmonizes with longstanding principles of our administrative law jurisprudence. Time and again, we have reiterated that the APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” Fox Television Stations, Inc., 556 U. S., at 513. Beyond the APA’s minimum requirements, courts lack authority “to impose upon [an] agency its own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” Vermont Yankee, 435 U. S., at 549. To do otherwise would violate “the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.” Id., at 544. These foundational principles apply with equal force to the APA’s procedures for rulemaking. We explained in Vermont Yankee that §4 of the Act “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Id., at 524. “Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” Ibid. The Paralyzed Veterans doctrine creates just such a judge-made procedural right: the right to notice and an opportunity to comment when an agency changes its interpretation of one of the regulations it enforces. That requirement may be wise policy. Or it may not. Regardless, imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts. We trust that Congress weighed the costs and benefits of placing more rigorous procedural restrictions on the issuance of interpretive rules. See id., at 523 (when Congress enacted the APA, it “settled long-continued and hard-fought contentions, and enact[ed] a formula upon which opposing social and political forces have come to rest” (internal quotation marks omitted)). In the end, Congress decided to adopt standards that permit agencies to promulgate freely such rules—whether or not they are consistent with earlier interpretations. That the D. C. Circuit would have struck the balance differently does not permit that court or this one to overturn Congress’ contrary judgment. Cf. Law v. Siegel, 571 U. S. ___, ___ (2014) (slip op., at 11).III MBA offers several reasons why the Paralyzed Veterans doctrine should be upheld. They are not persuasive.A MBA begins its defense of the Paralyzed Veterans doctrine by attempting to bolster the D. C. Circuit’s reading of the APA. “Paralyzed Veterans,” MBA contends, “simply acknowledges the reality that where an agency significantly alters a prior, definitive interpretation of a regulation, it has effectively amended the regulation itself,” something that under the APA requires use of notice-and-comment procedures. Brief for Respondent 20–21. The act of “amending,” however, in both ordinary parlance and legal usage, has its own meaning separate and apart from the act of “interpreting.” Compare Black’s Law Dictionary 98 (10th ed. 2014) (defining “amend” as “[t]o change the wording of” or “formally alter . . . by striking out, inserting, or substituting words”), with id., at 943 (defining “interpret” as “[t]o ascertain the meaning and significance of thoughts expressed in words”). One would not normally say that a court “amends” a statute when it interprets its text. So too can an agency “interpret” a regulation without “effectively amend[ing]” the underlying source of law. MBA does not explain how, precisely, an interpretive rule changes the regulation it interprets, and its assertion is impossible to reconcile with the longstanding recognition that interpretive rules do not have the force and effect of law. See Chrysler Corp., 441 U. S., at 302, n. 31 (citing Attorney General’s Manual on the Administrative Procedure Act 30, n. 3 (1947)); Skidmore v. Swift & Co.,323 U. S. 134,140 (1944). MBA’s “interpretation-as-amendment” theory is particularly odd in light of the limitations of the Paralyzed Veterans doctrine. Recall that the rule of Paralyzed Veterans applies only when an agency has previously adopted an interpretation of its regulation. Yet in that initial interpretation as much as all that come after, the agency is giving a definite meaning to an ambiguous text—the very act MBA insists requires notice and comment. MBA is unable to say why its arguments regarding revised interpretations should not also extend to the agency’s first interpretation.[4] Next, MBA argues that the Paralyzed Veterans doctrine is more consistent with this Court’s “functional” approach to interpreting the APA. Relying on Christensen v. Harris County,529 U. S. 576 (2000), and Shalala v. Guernsey Memorial Hospital,514 U. S. 87, MBA contends that we have already recognized that an agency may not “avoid notice-and-comment procedures by cloaking its actions in the mantle of mere ‘interpretation.’ ” Brief for Respondent 23–24. Neither of the cases MBA cites supports its argument. Our decision in Christensen did not address a change in agency interpretation. Instead, we there refused to give deference to an agency’s interpretation of an unambiguous regulation, observing that to defer in such a case would allow the agency “to create de facto a new regulation.” 529 U. S., at 588. Put differently, Christensen held that the agency interpretation at issue was substantively invalid because it conflicted with the text of the regulation the agency purported to interpret. That holding is irrelevant to this suit and to the Paralyzed Veterans rule, which assesses whether an agency interpretation is procedurally invalid. As for Guernsey, that case is fully consistent with—indeed, confirms—what the text of the APA makes plain: “Interpretive rules do not require notice and comment.” 514 U. S., at 99. Sidestepping this inconvenient language, MBA instead quotes a portion of the Court’s opinion stating that “APA rulemaking would still be required if [an agency] adopted a new position inconsistent with . . . existing regulations.” Id., at 100. But the statement on which MBA relies is dictum. Worse, it is dictum taken out of context. The “regulations” to which the Court referred were two provisions of the Medicare reimbursement scheme. And it is apparent from the Court’s description of these regulations in Part II of the opinion that they were legislative rules, issued through the notice-and-comment process. See id., at 91–92 (noting that the disputed regulations were codified in the Code of Federal Regulations). Read properly, then, the cited passage from Guernsey merely means that “an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations.” Brief for Petitioners in No. 13–1052, p. 44.B In the main, MBA attempts to justify the Paralyzed Veterans doctrine on practical and policy grounds. MBA contends that the doctrine reinforces the APA’s goal of “procedural fairness” by preventing agencies from unilaterally and unexpectedly altering their interpretation of important regulations. Brief for Respondent 16. There may be times when an agency’s decision to issue an interpretive rule, rather than a legislative rule, is driven primarily by a desire to skirt notice-and-comment provisions. But regulated entities are not without recourse in such situations. Quite the opposite. The APA contains a variety of constraints on agency decisionmaking—the arbitrary and capricious standard being among the most notable. As we held in Fox Television Stations, and underscore again today, the APA requires an agency to provide more substantial justification when “its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary and capricious to ignore such matters.” 556 U. S., at 515 (citation omitted); see also id., at 535 (Kennedy, J., concurring in part and concurring in judgment). In addition, Congress is aware that agencies sometimes alter their views in ways that upset settled reliance interests. For that reason, Congress sometimes includes in the statutes it drafts safe-harbor provisions that shelter regulated entities from liability when they act in conformance with previous agency interpretations. The FLSA includes one such provision: As amended by the Portal-to-Portal Act of 1947,29 U. S. C. §251 et seq., the FLSA provides that “no employer shall be subject to any liability” for failing “to pay minimum wages or overtime compensation” if it demonstrates that the “act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation” of the Administrator of the Department’s Wage and Hour Division, even when the guidance is later “modified or rescinded.” §§259(a), (b)(1). These safe harbors will often protect parties from liability when an agency adopts an interpretation that conflicts with its previous position.[5]C MBA changes direction in the second half of its brief, contending that if the Court overturns the Paralyzed Veterans rule, the D. C. Circuit’s judgment should nonetheless be affirmed. That is so, MBA says, because the agency interpretation at issue—the 2010 Administrator’s Interpretation—should in fact be classified as a legislative rule. We will not address this argument. From the beginning, the parties litigated this suit on the understanding that the Administrator’s Interpretation was—as its name suggests—an interpretive rule. Indeed, if MBA did not think the Administrator’s Interpretation was an interpretive rule, then its decision to invoke the Paralyzed Veterans doctrine in attacking the rule is passing strange. After all, Paralyzed Veterans applied only to interpretive rules. Consequently, neither the District Court nor the D. C. Circuit considered MBA’s current claim that the Administrator’s Interpretation is actually a legislative rule. Beyond that, and more important still, MBA’s brief in opposition to certiorari did not dispute petitioners’ assertions—in their framing of the question presented and in the substance of their petitions—that the Administrator’s Interpretation is an interpretive rule. Thus, even assuming MBA did not waive the argument below, it has done so in this Court. See this Court’s Rule 15.2; Carcieri v. Salazar,555 U. S. 379–396 (2009).* * * For the foregoing reasons, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed.It is so ordered.Notes1 The latter is the more common phrasing today, and the one we use throughout this opinion.2 Buck, Henry, and Nickols are petitioners in No. 13–1052 and respondents in No. 13–1041.3 MBA did not challenge this aspect of the District Court’s decision on appeal.4 MBA alternatively suggests that interpretive rules have the force of law because an agency’s interpretation of its own regulations may be entitled to deference under Auer v. Robbins,519 U. S. 452 (1997), and Bowles v. Seminole Rock & Sand Co.,325 U. S. 410 (1945). Even in cases where an agency’s interpretation receives Auer deference, how-ever, it is the court that ultimately decides whether a given regulation means what the agency says. Moreover, Auer deference is not an inexorable command in all cases. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10) (Auer deference is inappropriate “when the agency’s interpretation is plainly erroneous or inconsistent with the regulation” or “when there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment” (internal quotation marks omitted)); Thomas Jefferson Univ. v. Shalala,512 U. S. 504,515 (1994) (“[A]n agency’s interpretation of a . . . regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view” (internal quotation marks omitted)).5 The United States acknowledged at argument that even in situations where a statute does not contain a safe-harbor provision similar to the one included in the FLSA, an agency’s ability to pursue enforcement actions against regulated entities for conduct in conformance with prior agency interpretations may be limited by principles of retroactiv-ity. See Tr. of Oral Arg. 44–45. We have no occasion to consider how such principles might apply 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 . SUPREME COURT OF THE UNITED STATES Syllabus PEREZ, SECRETARY OF LABOR, et al. v. MORTGAGE BANKERS ASSOCIATION et al. certiorari to the united states court of appeals for the district of columbia circuit No. 13–1041. Argued December 1, 2014—Decided March 9, 2015[1] The Administrative Procedure Act (APA) establishes the procedures federal administrative agencies use for “rule making,” defined as the process of “formulating, amending, or repealing a rule.” 5 U. S. C. §551(5). The APA distinguishes between two types of rules: So-called “legislative rules” are issued through notice-and-comment rulemaking, see §§553(b), (c), and have the “force and effect of law,” Chrysler Corp. v. Brown, 441 U. S. 281 –303. “Interpretive rules,” by contrast, are “issued . . . to advise the public of the agency’s construction of the statutes and rules which it administers,” Shalala v. Guernsey Memorial Hospital, 514 U. S. 87 , do not require notice-and-comment rulemaking, and “do not have the force and effect of law,” ibid. In 1999 and 2001, the Department of Labor’s Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption to overtime pay requirements under the Fair Labor Standards Act of 1938. In 2004, the Department issued new regulations regarding the exemption. Respondent Mortgage Bankers Association (MBA) requested a new interpretation of the revised regulations as they applied to mortgage-loan officers, and in 2006, the Wage and Hour Division issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations. In 2010, the Department again altered its interpretation of the administrative exemption. Without notice or an opportunity for comment, the Department withdrew the 2006 opinion letter and issued an Administrator’s Interpretation concluding that mortgage-loan officers do not qualify for the administrative exemption. MBA filed suit contending, as relevant here, that the Administrator’s Interpretation was procedurally invalid under the D. C. Circuit’s decision in Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579. The Paralyzed Veterans doctrine holds that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation. The District Court granted summary judgment to the Department, but the D. C. Circuit applied Paralyzed Veterans and reversed. Held: The Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions and improperly imposes on agencies an obligation beyond the APA’s maximum procedural requirements. . (a) The APA’s categorical exemption of interpretive rules from the notice-and-comment process is fatal to the Paralyzed Veterans doctrine. The D. C. Circuit’s reading of the APA conflates the differing purposes of §§1 and 4 of the Act. Section 1 requires agencies to use the same procedures when they amend or repeal a rule as they used to issue the rule, see 5 U. S. C. §551(5), but it does not say what procedures an agency must use when it engages in rulemaking. That is the purpose of §4. And §4 specifically exempts interpretive rules from notice-and-comment requirements. Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule. . (b) This straightforward reading of the APA harmonizes with longstanding principles of this Court’s administrative law jurisprudence, which has consistently held that the APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness,” FCC v. Fox Television Stations, Inc., 556 U. S. 502 . The APA’s rulemaking provisions are no exception: §4 establishes “the maximum procedural requirements” that courts may impose upon agencies engaged in rulemaking. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 . By mandating notice-and-comment procedures when an agency changes its interpretation of one of the regulations it enforces, Paralyzed Veterans creates a judge-made procedural right that is inconsistent with Congress’ standards. . (c) MBA’s reasons for upholding the Paralyzed Veterans doctrine are unpersuasive. . (1) MBA asserts that an agency interpretation of a regulation that significantly alters the agency’s prior interpretation effectively amends the underlying regulation. That assertion conflicts with the ordinary meaning of the words “amend” and “interpret,” and it is impossible to reconcile with the longstanding recognition that interpretive rules do not have the force and effect of law. MBA’s theory is particularly odd in light of the limitations of the Paralyzed Veterans doctrine, which applies only when an agency has previously adopted an interpretation of its regulation. MBA fails to explain why its argument regarding revised interpretations should not also extend to the agency’s first interpretation. Christensen v. Harris County, 529 U. S. 576 , and Shalala v. Guernsey Memorial Hospital, 514 U. S. 87 , distinguished. . (2) MBA also contends that the Paralyzed Veterans doctrine reinforces the APA’s goal of procedural fairness. But the APA already provides recourse to regulated entities from agency decisions that skirt notice-and-comment provisions by placing a variety of constraints on agency decisionmaking, e.g., the arbitrary and capricious standard. In addition, Congress may include safe-harbor provisions in legislation to shelter regulated entities from liability when they rely on previous agency interpretations. See, e.g., 29 U. S. C. §§259(a), (b)(1). . (3) MBA has waived its argument that the 2010 Administrator’s Interpretation should be classified as a legislative rule. From the beginning, this suit has been litigated on the understanding that the Administrator’s Interpretation is an interpretive rule. Neither the District Court nor the Court of Appeals addressed this argument below, and MBA did not raise it here in opposing certiorari. P. 14. 720 F. 3d 966, reversed. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined, and in which Alito, J., joined except for Part III–B. Alito, J., filed an opinion concurring in part and concurring in the judgment. Scalia, J., and Thomas, J., filed opinions concurring in the judgment.Notes 1 Together with No. 13–1052, Nickols et al. v. Mortgage Bankers Association, also on certiorari to the same court.

When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA). The APA establishes the procedures for such rulemaking. First, the agency must issue a notice of proposed rule making, ordinarily by publication in the Federal Register, and second, if notice is required, an agency must give interested persons an opportunity to participate in the rule making process. Finally, when the agency promulgates the final rule, it must include in its rule's text a concise general statement of its basis and purpose. When the Department promulgated its current FLSA regulations in 2004, respondent Mortgage Bankers Association (MBA), a national trade association representing real estate finance companies, requested a new opinion interpreting the revised regulations. Four years later, however, the Wage and Hour Division again altered its interpretation of the FLSA's administrative exemption as it applied to mortgage-loan officers, concluding that such officers had a primary duty of making sales for their employers, and that therefore they did not qualify for the administrative exemption. The Department accordingly withdrew its 2006 opinion letter, which it viewed as relying onmisleading assumption and selective and narrow analysis of the exemption example in §541.203(b)(A) of the APA, which provides that, unless notice or hearing is required by statute, the Act does not apply to interpretative rules. In addition, the D. C. Circuit in Paralyzed Veterans of Am., which challenged the Department of Labor (DOLE) interpretation as inconsistent with the 2004 regulation it purported to interpret, held that the 2010 interpretation was not arbitrary or capricious in violation of §10 of the Associated Press Act. Accordingly, the Court of Appeals reversed. Held: The 2010 Administrator's Interpretation, issued without notice or an opportunity for comment, is contrary to the clear text of the APA rulemaking provisions, and improperly imposes on agencies an obligation beyond the "maximum procedural requirements" specified in that provision. . (a) Rather than examining the exemption for interpretive rules contained in §4(b))(A), which defines rules to include not only the initial issuance of new rules, but alsorepeal[s] or amend[ments] of existing rules, the court focused its attention on §1 of the Act, which conflates the differing purposes of §§1 and 4. Section 1 defines what a rule-making is. It does not say what procedures an agency must use when it engages in rulemaking; that is the purpose of §4. And §4 specifically exempts interpretive rules from the notice andcomment requirements that apply to legislative rules. Pp. 568 U. S. 686-626. (b). Here, where the court went wrong in failing to apply that accurate understanding of §1 to the §4 interpretive exemption contained in the exemption, it erroneously concluded that the Government has in effect amended its rule, something it may not accomplish under the new APA. P.. (c) There is no merit to the argument that an agency that adopts an agency interpretation is unable to act on its own notice and comment when it interprets its own rule, since it must also act upon its own interpretive interpretation after the agency has revised its initial interpretation as much as it has interpreted the initial interpretation. This Court will protect parties from liability when an agency adopts a revised interpretation that conflicts with its previous interpretation.. (d) MBA, whose brief in opposition to certiorari did not dispute petitioners' assertions (in their framing of the question presented and in the substance of their petitions) that the Administrator's Interpretation is an interpretive rule, is entitled to deference under Auer v. Robbins,, and Bowles v. Seminole Rock & Sand Co.,325 U.S. 410 (1945), does not challenge this aspect of the District Court's decision on appeal. That court would have struck the balance differently does not permit that court or this one to overturn Congress' contrary judgment. See, e.g., Law v. Siegel,. . 720 F. 3d 966, reversed. Reported below: 730 F.2d 203 (CA 3rd Cir. 2012), vacated. CHIEF JUSTICE DOUGLAS, J., concurred in the judgment.

2014_13-502

https://www.oyez.org/cases/2014/13-502

. The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, §4.402 (2005).[1] The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is “Temporary Directional Signs Relating to a Qualifying Event,” loosely defined as signs directing the public to a meeting of a nonprofit group. §4.402(P). The Code imposes more stringent restrictions on these signs than it doeson signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is “Ideological Sign[s].” This category includes any “sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.” Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all “zoning districts” without time limits. §4.402(J). The second category is “Political Sign[s].” This includes any “temporary sign designed to influence the outcome of an election called by a public body.” Glossary 23.[2] The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and “rights-of-way.” §4.402(I).[3] These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid. The third category is “Temporary Directional Signs Relating to a Qualifying Event.” This includes any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ ” Glossary 25 (emphasis deleted). A “qualifying event” is defined as any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Ibid. The Code treats temporary directional signs even less favorably than political signs.[4] Temporary directional signs may be no larger than six square feet. §4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the “qualifying event” and no more than 1 hour afterward. Ibid. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church’s name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town’s Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church’s failure to include the date of the event on the signs. Town officials even confiscated one of the Church’s signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town’s Code compliance manager informed the Church that there would be “no leni-ency under the Code” and promised to punish any futureviolations. Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners’ motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code’s provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F. 3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the “ ‘kind of cursory examination’ ” that would be necessary for an officer to classify it as a temporary directional sign was “not akin to an officer synthesizing the expressive content of the sign.” Id., at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code’s distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech. On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code’s sign categories were content neutral. The court concluded that “the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs . . . are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign.” 707 F. 3d 1057, 1069 (CA9 2013). Relying on this Court’s decision in Hill v. Colorado, 530 U. S. 703 (2000) , the Court of Appeals concluded that the Sign Code is content neutral. 707 F. 3d, at 1071–1072. As the court explained, “Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed” and its “interests in regulat[ing] temporary signs are unrelated to the content of the sign.” Ibid. Accord-ingly, the court believed that the Code was “content-neutral as that term [has been] defined by the Supreme Court.” Id., at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id., at 1073–1076. We granted certiorari, 573 U. S. ___ (2014), and now reverse. II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U. S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972) . Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R. A. V. v. St. Paul, 505 U. S. 377, 395 (1992) ; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115, 118 (1991) . Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___, ___–___ (2011) (slip op., at 8–9); Carey v. Brown, 447 U. S. 455, 462 (1980) ; Mosley, supra, at 95. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Sorrell, supra, at ___ (slip op., at 8). Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or that were adopted by the government “because of disagreement with the message [the speech] conveys,” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) . Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town’s Sign Code is content based on its face. It defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other “qualifying event.” Glossary 25. It defines “Political Signs” on the basis of whether a sign’s message is “designed to influence the outcome of an election.” Id., at 24. And it defines “Ideological Signs” on the basis of whether a sign “communicat[es] a message or ideas” that do not fit within the Code’s other categories. Id., at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. C In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town’s Sign Code should be deemed content neutral. None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town “did not adopt its regulation of speech [based on] disagree[ment] with the message conveyed,” and its justifications for regulating temporary directional signs were “unrelated to the content of the sign.” 707 F. 3d, at 1071–1072. In its brief to this Court, the United States similarly contends that a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content—if those distinctions can be “ ‘justified without reference to the content of the regulated speech.’ ” Brief for United States as Amicus Curiae 20, 24 (quoting Ward, supra, at 791; emphasis deleted). But this analysis skips the crucial first step in thecontent-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 429 (1993) . We have thus made clear that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing the government “need adduce ‘no evidence of an improper censorial motive.’ ” Simon & Schuster, supra, at 117. Although “a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) . In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law’s justification or purpose. See, e.g., Sorrell, supra, at ___–___ (slip op., at 8–9) (statute was content based “on its face,” and there was also evidence of an impermissible legislative motive); United States v. Eichman, 496 U. S. 310, 315 (1990) (“Although the [statute] contains no ex-plicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is related to the suppression of free expression” (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984) (“The text of the ordinance is neutral,” and “there is not even a hint of bias or censorship in the City’s enactment or enforcement of this ordinance”); Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984) (requiring that a facially content-neutral ban on camping must be “justified without reference to the content of the regulated speech”); United States v. O’Brien, 391 U. S. 367, 375, 377 (1968) (noting that the statute “on its face deals with conduct having no connection with speech,” but examining whether the “the governmental interest is unrelated to the suppression of free expression”). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the United States misunderstand our decision in Ward as suggesting that a government’s purpose is relevant even when a law is content based on its face. That is incorrect. Ward had nothing to say about facially content-based restrictions because it involved a facially content-neutral ban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U. S., at 787, and n. 2. In that context, we looked to governmental motive, including whether the government had regulated speech “because of disagreement” with its message, and whether the regulation was “ ‘justified without reference to the content of the speech.’ ” Id., at 791. But Ward’s framework “applies only if a statute is content neutral.” Hill, 530 U. S., at 766 (Kennedy, J., dissenting). Its rules thus operate “to protect speech,” not “to restrict it.” Id., at 765. The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them. U. S. Const., Amdt. 1. “ ‘The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’ ” Hill, supra, at 743 (Scalia, J., dissenting). For instance, in NAACP v. Button, 371 U. S. 415 (1963) , the Court encountered a State’s attempt to use a statute prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id., at 438. Although Button predated our more recent formulations of strict scrutiny, the Court rightly rejected the State’s claim that its interest in the “regulation of professional conduct” rendered the statute consistent with the First Amendment, observing that “it is no answer . . . to say . . . that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression.” Id., at 438–439. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church’s substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly “rejected the argument that ‘discriminatory . . . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ ” Discovery Network, 507 U. S., at 429. We do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it “does not mention any idea or viewpoint, let alone single one out for differential treatment.” 587 F. 3d, at 977. It reasoned that, for the purpose of the Code provisions, “[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.” 707 F. 3d, at 1069. The Town seizes on this reasoning, insisting that “content based” is a term of art that “should be applied flexibly” with the goal of protecting “viewpoints and ideas from government censorship or favoritism.” Brief for Respondents 22. In the Town’s view, a sign regulation that “does not censor or favor particular viewpoints or ideas” cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is “endorsing or suppressing ‘ideas or viewpoints,’ ” id., at 27, and the provisions for political signs and ideological signs “are neutral as to particular ideas or viewpoints” within those categories. Id., at 37. This analysis conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints—or the regulation of speech based on “the specific motivating ideology or the opinion or perspective of the speaker”—is a “more blatant” and “egregious form of content discrimination.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995) . But it is well established that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 537 (1980) . Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid. For example, a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra, at 428. The Town’s Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code’s distinctions as turning on “ ‘the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.’ ” 707 F. 3d, at 1069. That analysis is mistaken on both factual and legal grounds. To start, the Sign Code’s distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to dis-play signs in support of a particular candidate, he could have made those signs far larger—and kept them up for far longer—than signs inviting people to attend hischurch services. If the Code’s distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 340 (2010) , we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference,” Turner, 512 U. S., at 658. Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be characterized as speaker based. Likewise, a content-based law that restricted the political speech of all corporations would not become content neutral just because it singled out corporations as a class of speakers. See Citizens United, supra, at 340–341. Characterizing a distinction as speaker based is only the beginning—not the end—of the inquiry. Nor do the Sign Code’s distinctions hinge on “whether and when an event is occurring.” The Code does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is “designed to influence the outcome of an election” (and thus “political”) or merely “communicating a message or ideas for noncommercial purposes” (and thus “ideological”). Glossary 24. That obvious content-based inquiry does not evade strict scrutiny review simply because an event (i.e., an election) is involved. And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. Supra, at 6. A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem “entirely reasonable” will sometimes be “struck down because of their content-based nature.” City of Ladue v. Gilleo, 512 U. S. 43, 60 (1994) (O’Connor, J., concurring). III Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, “ ‘which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,’ ” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 8) (quoting Citizens United, 558 U. S., at 340). Thus, it is the Town’s burden to demonstrate that the Code’s differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. See ibid. The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code’s distinctions fail as hopelessly underinclusive. Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” Discovery Network, 507 U. S., at 425, than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a “ ‘law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,’ ” Republican Party of Minn. v. White, 536 U. S. 765, 780 (2002) , the Sign Code fails strict scrutiny. IV Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “ ‘absolutist’ ” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny,” Brief for Respondents 34–35, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. See Clark, 468 U. S., at 295. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. See, e.g., §4.402(R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. See Taxpayers for Vincent, 466 U. S., at 817 (upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g., Solantic, LLC v. Neptune Beach, 410 F. 3d 1250, 1264–1269 (CA11 2005) (sign categories similar to the town of Gilbert’s were content based and subject to strict scru-tiny); Matthews v. Needham, 764 F. 2d 58, 59–60 (CA1 1985) (law banning political signs but not commercial signs was content based and subject to strict scrutiny). We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” City of Ladue, 512 U. S., at 48. At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored. * * * We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered.Notes 1 The Town’s Sign Code is available online at http://www.gilbertaz.gov/departments / development - service / planning - development / land -development-code (as visited June 16, 2015, and available in Clerk of Court’s case file). 2 A “Temporary Sign” is a “sign not permanently attached to the ground, a wall or a building, and not designed or intended for permanent display.” Glossary 25. 3 The Code defines “Right-of-Way” as a “strip of publicly owned land occupied by or planned for a street, utilities, landscaping, sidewalks, trails, and similar facilities.” Id., at 18. 4 The Sign Code has been amended twice during the pendency of this case. When litigation began in 2007, the Code defined the signs at issue as “Religious Assembly Temporary Direction Signs.” App. 75. The Code entirely prohibited placement of those signs in the public right-of-way, and it forbade posting them in any location for more than two hours before the religious assembly or more than one hour afterward. Id., at 75–76. In 2008, the Town redefined the category as “Temporary Directional Signs Related to a Qualifying Event,” and it expanded the time limit to 12 hours before and 1 hour after the “qualifying event.” Ibid. In 2011, the Town amended the Code to authorize placement of temporary directional signs in the public right-of-way. Id., at 89.

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 . SUPREME COURT OF THE UNITED STATES Syllabus REED et al. v. TOWN OF GILBERT, ARIZONA, et al. certiorari to the united states court of appeals for the ninth circuit No. 13–502. Argued January 12, 2015—Decided June 18, 2015 Gilbert, Arizona (Town), has a comprehensive code (Sign Code or Code) that prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including three relevant here. “Ideological Signs,” defined as signs “communicating a message or ideas” that do not fit in any other Sign Code category, may be up to 20 square feet and have no placement or time restrictions. “Political Signs,” defined as signs “designed to influence the outcome of an election,” may be up to 32 square feet and may only be displayed during an election season. “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event,” have even greater restrictions: No more than four of the signs, limited to six square feet, may be on a single property at any time, and signs may be displayed no more than 12 hours before the “qualifying event” and 1 hour after. Petitioners, Good News Community Church (Church) and its pastor, Clyde Reed, whose Sunday church services are held at various temporary locations in and near the Town, posted signs early each Saturday bearing the Church name and the time and location of the next service and did not remove the signs until around midday Sunday. The Church was cited for exceeding the time limits for displaying temporary directional signs and for failing to include an event date on the signs. Unable to reach an accommodation with the Town, petitioners filed suit, claiming that the Code abridged their freedom of speech. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed, ultimately concluding that the Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech. Held: The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. . (a) Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. E.g., R. A. V. v. St. Paul, 505 U. S. 377 . Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc., 564 U. S. ___, ___–___. And courts are required to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Id., at ___. Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny. The same is true for laws that, though facially content neutral, cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or were adopted by the government “because of disagreement with the message” conveyed. Ward v. Rock Against Racism, 491 U. S. 781 . . (b) The Sign Code is content based on its face. It defines the categories of temporary, political, and ideological signs on the basis of their messages and then subjects each category to different restrictions. The restrictions applied thus depend entirely on the sign’s communicative content. Because the Code, on its face, is a content-based regulation of speech, there is no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. Pp. 7. (c) None of the Ninth Circuit’s theories for its contrary holding is persuasive. Its conclusion that the Town’s regulation was not based on a disagreement with the message conveyed skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U. S. 410 . Thus, an innocuous justification cannot transform a facially content-based law into one that is content neutral. A court must evaluate each question—whether a law is content based on its face and whether the purpose and justification for the law are content based—before concluding that a law is content neutral. Ward does not require otherwise, for its framework applies only to a content-neutral statute. The Ninth Circuit’s conclusion that the Sign Code does not single out any idea or viewpoint for discrimination conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints is a “more blatant” and “egregious form of content discrimination,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , but “[t]he First Amendment’s hostility to content-based regulation [also] extends . . . to prohibition of public discussion of an entire topic,” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530 . The Sign Code, a paradigmatic example of content-based discrimination, singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. The Ninth Circuit also erred in concluding that the Sign Code was not content based because it made only speaker-based and event-based distinctions. The Code’s categories are not speaker-based—the restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. And even if the sign categories were speaker based, that would not automatically render the law content neutral. Rather, “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 . This same analysis applies to event-based distinctions. . (d) The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end. See Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___. Assuming that the Town has a compelling interest in preserving its aesthetic appeal and traffic safety, the Code’s distinctions are highly underinclusive. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town when other types of signs create the same problem. See Discovery Network, supra, at 425. Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs. . (e) This decision will not prevent governments from enacting effective sign laws. The Town has ample content-neutral options available to resolve problems with safety and aesthetics, including regulating size, building materials, lighting, moving parts, and portability. And the Town may be able to forbid postings on public property, so long as it does so in an evenhanded, content-neutral manner. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 . An ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—e.g., warning signs marking hazards on private property or signs directing traffic—might also survive strict scrutiny. . 707 F. 3d 1057, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Alito, and Sotomayor, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy and Sotomayor, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Kagan, J., filed an opinion concurring in the judgment, in which Ginsburg and Breyer, JJ., joined

The Gilbert, Ariz., Land Development Code (Sign Code) prohibits the display of outdoor signs anywhere within the Town without a permit, but exempts 23 categories of signs from that requirement. One of the categories is Temporary Directional Signs Relating to a Qualifying Event, loosely defined as signs directing the public to a meeting of a nonprofit group. The Code imposes more stringent restrictions on these signs than it doeson signs conveying other messages. Petitioners Good News Community Church (Church) and its pastor (petitioner) wish to advertise the time and location of their Sunday church services. The Church began placing temporary directional signs around the Town, frequently in the public right-of-way abutting the street. Church members would post the signs early and late on Saturday and Sunday, and would remove them on Sundays. On citations for violating the Code, the Town let the Church know that the signs had exceeded the limits of its limits, and that its efforts to reach compliance proved unsuccessful. Shortly thereafter, petitioners filed a complaint in Federal District Court, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied petitioners' motion for a preliminary injunction, and the Court of Appeals affirmed, holding that the Code's sign categories were content neutral. The court reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Code applied to it, the kind of cursory examination that would be necessary to classify it as a temporary directional sign was not akin to an officer synthesizing the expressive content of the sign. Relying on Hill v. Colorado, 530 U. S. 703 (2000), the court concluded that the sign categories are content neutral, since the distinctions between ideological signs and political signs are based on objective factors relevant to the sign's creation of the specific exemption from the permit requirement, and do not otherwise consider the sign substance. Held: The Code does not violate the First Amendment. . (a) Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This analysis skips the crucial first step in thecontent-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack ofanimus toward the ideas contained in the regulated speech. See, e.g., Sorrell v. IMS Health, Inc., 564 U.S. ___, ___ (2011) (slip op., at 8). P.. (b) The signs at issue in this case are far removed from those purposes. They are facially content based, and are neither justified by traditional safety concerns nor narrowly tailored to that end. Ward v. Rock Against Racism,, distinguished. Here, the sign Code treats ideological signs even less favorably than political signs, and allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. It cannot claim that placing strict limits on such signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. Moreover, the Code singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given favorable treatment. In any case, the fact that a distinction is speaker based does not automatically render the distinction content neutral because a speech regulation targets a sign because it conveys an idea about a specific event is not content based. Similarly, the Court misconstrued Ward as suggesting that a government's purpose is relevant even when a law is so content based that it survives strict scrutiny, since it is the burden of the Government to prove that the restriction furthers a compelling governmental interest and is narrowly tailored. See ibid., at 765. Pp. 707 F. 3d 1057, reversed and remanded. (c) The Court erred on both factual and legal grounds. First, the signs are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church's meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if the Town had decided to dis-play signs in support of a particular candidate, he could have made those signs far larger (and kept them up for far longer) than signs inviting people to attend hischurch services... 2. The Sign Code is not a content-based regulation. Its provisions can stand only if they survive strict scrutiny under strict scrutiny.

2014_14-185

https://www.oyez.org/cases/2014/14-185

. An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U. S. C. §1229a(c)(7)(A). If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. See Kucana v. Holder, 558 U. S. 233, 242, 253 (2010) . Notwithstanding that rule, the court below declined to take jurisdiction over such an appeal because the motion to reopen had been denied as untimely. We hold that was error. I The Immigration and Nationality Act (INA), 66Stat. 163, as amended, 8 U. S. C. §1101 et seq., and its implementing regulations set out the process for removing aliens from the country. An immigration judge (IJ) conducts the initial proceedings; if he orders removal, the alien has the opportunity to appeal that decision tothe Board of Immigration Appeals (BIA or Board). §§1229a(a)(1), (c)(5). “[E]very alien ordered removed” also “has a right to file one motion” with the IJ or Boardto “reopen his or her removal proceedings.” Dada v. Mukasey, 554 U. S. 1 –5 (2008); see §1229a(c)(7)(A). Subject to exceptions not relevant here, that motion to reopen “shall be filed within 90 days” of the final removal order. §1229a(c)(7)(C)(i). Finally, the BIA’s regulations provide that, separate and apart from acting on the alien’s motion, the BIA may reopen removal proceedings “on its own motion”—or, in Latin, sua sponte—at any time. 8 CFR §1003.2(a) (2015). Petitioner Noel Reyes Mata is a Mexican citizen who entered the United States unlawfully almost 15 years ago. In 2010, he was convicted of assault under the Texas Penal Code. The federal Department of Homeland Secu-rity (DHS) immediately initiated removal proceedings against him, and in August 2011 an IJ ordered him removed. See App. 6–13. Mata’s lawyer then filed a notice of appeal with the BIA, indicating that he would soon submit a written brief stating grounds for reversing the IJ’s decision. But the attorney never filed the brief, and the BIA dismissed the appeal in September 2012. See App. 4–5. More than a hundred days later, Mata (by then represented by new counsel) filed a motion with the Board to reopen his case. DHS opposed the motion, arguing in part that Mata had failed to file it, as the INA requires, within 90 days of the Board’s decision. Mata responded that the motion was “not time barred” because his first lawyer’s “ineffective assistance” counted as an “exceptional circumstance[ ]” excusing his lateness. Certified Administrative Record in No. 13–60253 (CA5, Aug. 2, 2013), p. 69. In addressing those arguments, the Board reaffirmed prior decisions holding that it had authority to equitably toll the 90-day period in certain cases involving ineffective representation. See App. to Pet. for Cert. 7; see also, e.g., In re Santa Celenia Diaz, 2009 WL 2981747 (BIA, Aug. 21, 2009). But the Board went on to determine that Mata was not entitled to equitable tolling because he could not show prejudice from his attorney’s deficient performance; accordingly, the Board found Mata’s motion untimely. See App. to Pet. for Cert. 7–8. And in closing, the Board decided as well that Mata’s case was not one “that would warrant reopening as an exercise of” its sua sponte authority. Id., at 9 (stating that “the power to reopen on our own motion is not meant to be used as a general cure for filing defects” (internal quotation marks omitted)). Mata petitioned the Court of Appeals for the Fifth Circuit to review the BIA’s denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to “address the meritsof Mata’s equitable-tolling . . . claim[ ].” Reyes Mata v. Holder, 558 Fed. Appx. 366, 367 (2014) (per curiam). It stated instead that “[i]n this circuit, an alien’s request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal proceeding sua sponte.” Ibid. And circuit precedent held that courts have no jurisdiction to review the BIA’s refusal to exercise its sua sponte power to reopen cases. See ibid. The Court of Appeals thus dismissed Mata’s appeal for lack of jurisdiction. Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding.[1] We granted certiorari to resolve this conflict. 574 U. S. ___ (2015). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiae to defend the judgment below.[2] We now reverse. II As we held in Kucana v. Holder, circuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding. See 558 U. S., at 242, 253. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U. S. C. §1252(a)(1); 28 U. S. C. §2342. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusingto reopen or reconsider such orders. See 8 U. S. C. §1252(b)(6) (“[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order”). Indeed, as we explained in Kucana, courts have reviewed those decisions for nearly a hundred years; and even as Congress curtailed other aspects of courts’ jurisdiction over BIA rulings, it left that authority in place. See 558 U. S., at242–251. Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien’s motion to re-open because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision. Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien’s statutorily authorized motion, states that it will not exercise its separate sua sponte authority to reopen the case. See supra, at 1–2. In Kucana, we declined to decide whether courts have jurisdiction to review the BIA’s use of that discretionary power. See 558 U. S., at 251, n. 18. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such authority. See, e.g., Enriquez-Alvarado v. Ashcroft, 371 F. 3d 246, 249–250 (CA5 2004); Tamenut v. Mukasey, 521 F. 3d 1000, 1003–1004 (CA8 2008) (en banc) (per curiam) (citing other decisions). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the Board’s ruling on the alien’s motion. That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien’s request). It follows, as the night the day, that the Court of Appeals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for timeliness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte. Nonetheless, the Fifth Circuit dismissed Mata’s appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata’s motion as something it was not: “an invitation for the BIA to exercise” its sua sponte authority. 558 Fed. Appx., at 367; supra, at 3. Amicus’s defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 14–35. Given that is so, amicus continues, the court acted permissibly in “recharacteriz[ing]” Mata’s pleadings. Id., at 36. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” Id., at 35, 38. And here (amicus concludes) that meant construing Mata’s request for equitable tolling as a request for sua sponte reopening—even though that caused the Fifth Circuit to lose its jurisdiction. But that conclusion is wrong even on the assumption—and it is only an assumption—that its core premise about equitable tolling is true.[3] If the INA precludes Mata from getting the relief he seeks, then the right course on appeal is to take jurisdiction over the case, explain why that is so, and affirm the BIA’s decision not to reopen. The jurisdictional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“[T]he absence of a valid . . . cause of action does not implicate subject-matter jurisdiction”). The Fifth Circuit thus retains jurisdiction even if Mata’s appeal lacks merit. And when a federal court has jurisdiction, it also has a “virtually unflagging obligation . . . to exercise” that authority. Colorado River Water Conservation Dist. v.United States, 424 U. S. 800, 817 (1976) . Accordingly,the Court of Appeals should have asserted jurisdiction over Mata’s appeal and addressed the equitable tolling question. Contrary to amicus’s view, the practice of recharacterizing pleadings so as to offer the possibility of relief cannot justify the Court of Appeals’ alternative approach. True enough (and a good thing too) that courts sometimes construe one kind of filing as another: If a litigant misbrands a motion, but could get relief under a different label, a court will often make the requisite change. See, e.g., 12 J. Moore, Moore’s Federal Practice, §59.11[4] (3 ed. 2015) (explaining how courts treat untimely Rule 59 motions as Rule 60 motions because the latter have no time limit). But that established practice does not entail sidestepping the judicial obligation to exercise jurisdiction. And it results in identifying a route to relief, not in rendering relief impossible. That makes all the difference between a court’s generously reading pleadings and a court’s construing away adjudicative authority. And if, as amicus argues, that construal rests on an underlying merits decision—that the INA precludes any equitable tolling—then the Court of Appeals has effectively insulated a circuit split from our review. Putting theFifth Circuit to the side, all appellate courts to have addressed the matter have held that the Board may sometimes equitably toll the time limit for an alien’s motion to reopen. See n. 1, supra. Assuming the Fifth Circuit thinks otherwise, that creates the kind of split of authority we typically think we need to resolve. See this Court’s Rule 10(a). But the Fifth Circuit’s practice of recharacterizing appeals like Mata’s as challenges to the Board’s sua sponte decisions and then declining to exercise jurisdiction over them prevents that split from coming to light. Of course, the Court of Appeals may reach whatever conclusion it thinks best as to the availability of equitable tolling; we express no opinion on that matter. See n. 3, supra. What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other. For the foregoing reasons, 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 See, e.g., Da Silva Neves v. Holder, 613 F. 3d 30, 33 (CA1 2010) (per curiam) (exercising jurisdiction over such a petition); Iavorski v. INS, 232 F. 3d 124, 129–134 (CA2 2000) (same); Borges v. Gonzales, 402 F. 3d 398, 406 (CA3 2005) (same); Kuusk v. Holder, 732 F. 3d 302, 305–306 (CA4 2013) (same); Barry v. Mukasey, 524 F. 3d 721, 724–725 (CA6 2008) (same); Pervaiz v. Gonzales, 405 F. 3d 488, 490 (CA7 2005) (same); Hernandez-Moran v. Gonzales, 408 F. 3d 496, 499–500 (CA8 2005) (same); Valeriano v. Gonzales, 474 F. 3d 669, 673 (CA9 2007) (same); Riley v. INS, 310 F. 3d 1253, 1257–1258 (CA10 2002) (same); Avila-Santoyo v. United States Atty. Gen., 713 F. 3d 1357, 1359, 1362–1364 (CA11 2013) (per curiam) (same). Except for Da Silva Neves, which did not resolve the issue, all those decisions also held, on the merits, that the INA allows equitable tolling in certain circumstances. See infra, at 7–8. 2 We appointed William R. Peterson to brief and argue the case, 574 U. S. ___ (2015), and he has ably discharged his responsibilities. 3 We express no opinion as to whether or when the INA allows the Board to equitably toll the 90-day period to file a motion to reopen. Moreover, we are not certain what the Fifth Circuit itself thinks about that question. Perhaps, as amicus asserts, the court believes the INA categorically precludes equitable tolling: It is hard to come up with any other reason why the court construes every argument for tolling as one for sua sponte relief. See Brief for Amicus Curiae by Invitation of the Court 2, 10, 14, n. 2. But the Fifth Circuit has stated that position in only a single sentence in a single unpublished opinion, which (according to the Circuit) has no precedential force. See Lin v. Mukasey, 286 Fed. Appx. 148, 150 (2008) (per curiam); Rule 47.5.4 (2015). And another unpublished decision cuts in the opposite direction, “hold[ing] that the doctrine of equitable tolling applies” when exceptional circumstances excuse an alien’s failure to meet the 90-day reopening deadline. See Torabi v. Gonzales, 165 Fed. Appx. 326, 331 (CA5 2006) (per curiam). So, in the end, it is hard to say.

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 . SUPREME COURT OF THE UNITED STATES Syllabus REYES MATA v. LYNCH, ATTORNEY GENERAL certiorari to the united states court of appeals for the fifth circuit No. 14–185. Argued April 29, 2015—Decided June 15, 2015 After petitioner Noel Reyes Mata, an unlawful resident alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed a notice of appeal with the Board of Immigration Appeals (BIA or Board), but never filed a brief, and the appeal was dismissed. Acting through different counsel, Mata filed a motion to reopen his removal proceedings, as authorized by statute. See 8 U. S. C. §1229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, see §1229a(c)(7)(C)(i), Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling of the time limit. But the BIA disagreed and dismissed the motion as untimely. The BIA also declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. See 8 CFR §1003.2(a). On appeal, the Fifth Circuit construed Mata’s equitable tolling claim as an invitation for the Board to exercise its regulatory authority to reopen the proceedings sua sponte, and—because circuit precedent forbids the court to review BIA decisions not to exercise that authority—dismissed Mata’s appeal for lack of jurisdiction. Held: The Fifth Circuit erred in declining to take jurisdiction over Mata’s appeal. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Kucana v. Holder, 558 U. S. 233 . Nothing about that jurisdiction changes where the Board rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit. That jurisdiction likewise remains unchanged if the BIA’s denial also contains a separate decision not to exercise its sua sponte authority. So even assuming the Fifth Circuit is correct that courts of appeals lack jurisdiction to review BIA decisions not to reopen cases sua sponte, that lack of jurisdiction does not affect jurisdiction over the decision on the alien’s motion to reopen. It thus follows that the Fifth Circuit had jurisdiction over this case. The Fifth Circuit’s contrary decision rested on its construing Mata’s motion as an invitation for the Board to exercise its sua sponte discretion. Court-appointed amicus asserts that the Fifth Circuit’s recharacterization was based on the premise that equitable tolling in Mata’s situation is categorically forbidden. In amicus’s view, the court’s construal was therefore an example of the ordinary practice of recharacterizing a doomed request as one for relief that may be available. But even if equitable tolling is prohibited, the Fifth Circuit’s action was not justified. If Mata is not entitled to relief on the merits, then the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. For a court retains jurisdiction even if a litigant’s request for relief lacks merit, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83 , and a federal court has a “virtually unflagging obligation,” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 , to assert jurisdiction where it has that authority. Nor can the established practice of recharacterizing pleadings so as to offer the possibility of relief justify an approach that, as here, renders relief impossible and sidesteps the judicial obligation to assert jurisdiction. . 558 Fed. Appx. 366, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion.

An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. If immigration officials deny that motion, a federal court of appeals has jurisdiction to consider a petition to review their decision. However, the Court of Appeals erred in declining to take jurisdiction over such an appeal because the motion had been denied as untimely. Applying Kucana v. Holder, 558 U. S. 233, 253 (CA5), which held that it had authority to equitably toll the 90-day period in certain cases involving ineffective representation, the Immigration and Nationality Act (INA) and its implementing regulations set out the process for removing aliens. The INA, in combination with a statute cross-referenced there, gives the courts of appeals jurisdiction to review "final order[s] of removal." 8 U.S. C. §1252(a)(1). The INS regulations provide that, separate and apart from acting on the alien's motion, the BIA may reopen removal proceedings on its own sua sponte at any time. Petitioner, a Mexican citizen who entered the United States unlawfully almost 15 years ago, was ordered removed by the federal Department of Homeland Secu-rity (DHS) after he was convicted of assault under the Texas Penal Code. In August 2011, an IJ ordered him removed, and his lawyer then filed a notice of appeal. But the attorney never filed a brief stating grounds for reversing the IJ decision. More than a hundred days later, petitioner (by then represented by new counsel) filed a motion with the Board to reopen the case. DHS opposed the motion, arguing in part that petitioner had failed to file it, as the INA requires, within 90 days of the Board's decision. Petitioner responded that the motion was not time barred because his first lawyer's incompetence counted as anexceptional circumstance excusing his lateness. Ultimately, the INS concluded that petitioner was not entitled to equitable tolling because he could not show prejudice from his attorney's deficient performance, and accordingly, the Board found that he was not. After the INS denied petitioner his proposed relief, he filed an appeal, but the court declined to reopen on the ground that he had filed it on his own motion. Responding to the INS objection, petitioner filed a petition for review in the Fifth Circuit, which declined to review the denial of his appeal. That court, however, stated that it did not review the appeal on the basis of ineffective assistance, but instead construed the appeal as an invitation to exercise its discretion to reopen an ineffective representation proceeding. Thus, the court dismissed petitioner's appeal for lack of jurisdiction. Held: 1. Circuit courts have jurisdiction when an alien appeals from the INS denial of a motion to reopen a removal proceeding... (a) Circuit courts lack jurisdiction over one matter, such as whether the INS denies the alien a motion for equitable tolled, because that matter does not affect their jurisdiction over another (the decision on petitioner’s request). Assuming arguendo that is right, it means only that judicial review ends after the court has evaluated the INS ruling on petitioner's motion. That court lacks jurisdiction over that matter, and that court follows the INS decision as the night the day, that court having jurisdiction over petitioner. Assuming, therefore, that the INS may sometimes equitably toll the time limit for an alien's request. This Court has jurisdiction over this case because, as authorized by the INS, petitioner made a motion, and the INS declined to grant him his proposed relief, thus conferring jurisdiction on an appellate court. But the INS did so for timeliness reasons, holding that petitioner filed his motion after 90 days elapsed, and not as a motion after that 90 days. Although the INS explained that he filed his motion after the 90 days, it gave no reason to reopen, and did not explain the reason for the INS denying the motion.. 2. The Fifth Circuit does not have jurisdiction over the appeal of petitioner, since it has ably discharged its responsibilities, and since the court appointed the amicus curiae to brief and argue the case, it should have asserted jurisdiction over it. Contrary to amicus' view, the practice of recharacterizing pleadings so as to offer the possibility of relief cannot justify the court of Appeals' alternative approach. If the INS precludes petitioner from getting the relief he seeks, then the right course on appeal is to take the case on appeal, explain why that is so, and affirm the INS's decision not to reopen. See, e.g., Colorado River Water Conservation Dist. v. United States,,. . 3. However, if the INS does not reopen the removal proceeding, then, as is the case here, the proper course for the courts to take on the case and affirm that decision is affirmatively to affirm it. Because when a federal

2014_13-9972

https://www.oyez.org/cases/2014/13-9972

. In Illinois v. Caballes,543 U. S. 405 (2005), this Court held that a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Id., at 407. The Court so recognized in Caballes, and we adhere to the line drawn in that decision.I Just after midnight on March 27, 2012, police officer Morgan Struble observed a Mercury Mountaineer veer slowly onto the shoulder of Nebraska State Highway 275 for one or two seconds and then jerk back onto the road. Nebraska law prohibits driving on highway shoulders, see Neb. Rev. Stat. §60–6,142 (2010), and on that basis, Struble pulled the Mountaineer over at 12:06 a.m. Struble is a K–9 officer with the Valley Police Department in Ne-braska, and his dog Floyd was in his patrol car that night. Two men were in the Mountaineer: the driver, Dennys Rodriguez, and a front-seat passenger, Scott Pollman. Struble approached the Mountaineer on the passenger’s side. After Rodriguez identified himself, Struble asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid a pothole. Struble then gathered Rodriguez’s license, registration, and proof of insurance, and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble answered that he was not. Rodriguez decided to wait in his own vehicle. After running a records check on Rodriguez, Struble returned to the Mountaineer. Struble asked passenger Pollman for his driver’s license and began to question him about where the two men were coming from and where they were going. Pollman replied that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Ne-braska. Struble returned again to his patrol car, where he completed a records check on Pollman, and called for a second officer. Struble then began writing a warning ticket for Rodriguez for driving on the shoulder of the road. Struble returned to Rodriguez’s vehicle a third time to issue the written warning. By 12:27 or 12:28 a.m., Struble had finished explaining the warning to Rodriguez, and had given back to Rodriguez and Pollman the documents obtained from them. As Struble later testified, at that point, Rodriguez and Pollman “had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[,] . . . took care of all the business.” App. 70. Nevertheless, Struble did not consider Rodriguez “free to leave.” Id., at 69–70. Although justification for the traffic stop was “out of the way,” id., at 70, Struble asked for permission to walk his dog around Rodriguez’s vehicle. Rodriguez said no. Struble then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car to wait for the second officer. Rodriguez complied. At 12:33 a.m., a deputy sheriff arrived. Struble retrieved his dog and led him twice around the Mountaineer. The dog alerted to the presence of drugs halfway through Struble’s second pass. All told, seven or eight minutes had elapsed from the time Struble issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was indicted in the United States District Court for the District of Nebraska on one count of possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U. S. C. §§841(a)(1) and (b)(1). He moved to suppress the evidence seized from his car on the ground, among others, that Struble had prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff. After receiving evidence, a Magistrate Judge recommended that the motion be denied. The Magistrate Judge found no probable cause to search the vehicle independent of the dog alert. App. 100 (apart from “information given by the dog,” “Officer Struble had [no]thing other than a rather large hunch”). He further found that no reasonable suspicion supported the detention once Struble issued the written warning. He concluded, however, that under Eighth Circuit precedent, extension of the stop by “seven to eight minutes” for the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights and was therefore permissible. The District Court adopted the Magistrate Judge’s factual findings and legal conclusions and denied Rodriguez’s motion to suppress. The court noted that, in the Eighth Circuit, “dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimis intrusions.” App. 114 (quoting United States v. Alexander, 448 F. 3d 1014, 1016 (CA8 2006)). The court thus agreed with the Magistrate Judge that the “7 to 10 minutes” added to the stop by the dog sniff “was not of constitu-tional significance.” App. 114. Impelled by that decision, Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Eighth Circuit affirmed. The “seven- or eight-minute delay” in this case, the opinion noted, resembled delays that the court had previously ranked as permissible. 741 F. 3d 905, 907 (2014). The Court of Appeals thus ruled that the delay here constituted an acceptable “de minimis intrusion on Rodriguez’s personal liberty.” Id., at 908. Given that ruling, the court declined to reach the question whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written warning. We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reason-able suspicion, in order to conduct a dog sniff. 573 U. S. ___ (2014). Compare, e.g., United States v. Morgan, 270 F. 3d 625, 632 (CA8 2001) (postcompletion delay of “well under ten minutes” permissible), with, e.g., State v. Baker, 2010 UT 18, ¶13, 229 P. 3d 650, 658 (2010) (“[W]ithout additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.”).II A seizure for a traffic violation justifies a police investigation of that violation. “[A] relatively brief encounter,” a routine traffic stop is “more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.” Knowles v. Iowa,525 U. S. 113,117 (1998) (quoting Berkemer v. McCarty,468 U. S. 420,439 (1984), in turn citing Terry v. Ohio,392 U. S. 1 (1968)). See also Arizona v. Johnson,555 U. S. 323,330 (2009). Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop, Caballes, 543 U. S., at 407, and attend to related safety concerns, infra, at 6–7. See also United States v. Sharpe,470 U. S. 675,685 (1985); Florida v. Royer,460 U. S. 491,500 (1983) (plurality opinion) (“The scope of the detention must be carefully tailored to its underlying justification.”). Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Ibid. See also Caballes, 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U. S., at 686 (in determining the reasonable duration of a stop, “it [is] appropriate to examine whether the police diligently pursued [the] investigation”). Our decisions in Caballes and Johnson heed these constraints. In both cases, we concluded that the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside detention. Johnson, 555 U. S., at 327–328 (questioning); Caballes, 543 U. S., at 406, 408 (dog sniff). In Caballes, however, we cautioned that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket. 543 U. S., at 407. And we repeated that admonition in Johnson: The seizure remains lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” 555 U. S., at 333. See also Muehler v. Mena,544 U. S. 93,101 (2005) (because unrelated inquiries did not “exten[d] the time [petitioner] was detained[,] . . . no additional Fourth Amendment justification . . . was required”). An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to Justice Alito’s suggestion, post, at 4, n. 2, he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individ-ual. But see post, at 1–2 (Alito, J., dissenting) (premising opinion on the dissent’s own finding of “reasonable suspicion,” although the District Court reached the opposite conclusion, and the Court of Appeals declined to consider the issue). Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Caballes, 543 U. S., at 408. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. See Delaware v. Prouse,440 U. S. 648–660 (1979). See also 4 W. LaFave, Search and Seizure §9.3(c), pp. 507–517 (5th ed. 2012). These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. See Prouse, 440 U. S., at 658–659; LaFave, Search and Seizure §9.3(c), at 516 (A “warrant check makes it possible to determine whether the apparent traffic violator is wanted for one or more previous traffic offenses.”). A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond,531 U. S. 32–41 (2000). See also Florida v. Jardines,569 U. S. 1, ___–___ (2013) (slip op., at 7–8). Candidly, the Government acknowledged at oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. See Tr. of Oral Arg. 33. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission. In advancing its de minimis rule, the Eighth Circuit relied heavily on our decision in Pennsylvania v. Mimms,434 U. S. 106 (1977) (per curiam). See United States v. $404,905.00 in U. S. Currency, 182 F. 3d 643, 649 (CA8 1999). In Mimms, we reasoned that the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. 434 U. S., at 110–111. See also Maryland v. Wilson,519 U. S. 408–415 (1997) (passengers may be required to exit vehicle stopped for traffic violation). The Eighth Circuit, echoed in Justice Thomas’s dissent, believed that the imposition here similarly could be offset by the Government’s “strong interest in interdicting the flow of illegal drugs along the nation’s highways.” $404,905.00 in U. S. Currency, 182 F. 3d, at 649; see post, at 9. Unlike a general interest in criminal enforcement, however, the government’s officer safety interest stems from the mission of the stop itself. Traffic stops are “especially fraught with danger to police officers,” Johnson, 555 U. S., at 330 (internal quotation marks omitted), so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. Cf. United States v. Holt, 264 F. 3d 1215, 1221–1222 (CA10 2001) (en banc) (recognizing officer safety justification for criminal record and outstanding warrant checks), abrogated on other grounds as recognized in United States v. Stewart, 473 F. 3d 1265, 1269 (CA10 2007). On-scene investigation into other crimes, however, detours from that mission. See supra, at 6–7. So too do safety precautions taken in order to facilitate such detours. But cf. post, at 2–3 (Alito, J., dissenting). Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular. The Government argues that an officer may “incremental[ly]” prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. Brief for United States 36–39. The Government’s argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation. See also post, at 2–5 (Thomas, J., dissenting) (embracing the Government’s argument). The reasonableness of a seizure, however, depends on what the police in fact do. See Knowles, 525 U. S., at 115–117. In this regard, the Government acknowledges that “an officer always has to be reasonably diligent.” Tr. of Oral Arg. 49. How could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” Caballes, 543 U. S., at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” that point is “unlawful.” Ibid. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice Alito supposes, post, at 2–4, but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6.III The Magistrate Judge found that detention for the dog sniff in this case was not independently supported by individualized suspicion, see App. 100, and the District Court adopted the Magistrate Judge’s findings, see id., at 112–113. The Court of Appeals, however, did not review that determination. But see post, at 1, 10–12 (Thomas, J., dissenting) (resolving the issue, nevermind that the Court of Appeals left it unaddressed); post, at 1–2 (Alito, J., dissenting) (upbraiding the Court for addressing the sole issue decided by the Court of Appeals and characterizing the Court’s answer as “unnecessary” because the Court, instead, should have decided an issue the Court of Appeals did not decide). The question whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic infraction investigation, therefore, remains open for Eighth Circuit consideration on remand.* * * For the reasons stated, the judgment of the United States Court of Appeals for the Eighth 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 . SUPREME COURT OF THE UNITED STATES Syllabus RODRIGUEZ v. UNITED STATES certiorari to the united states court of appeals for the eighth circuit No. 13–9972. Argued January 21, 2015—Decided April 21, 2015 Officer Struble, a K–9 officer, stopped petitioner Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After Struble attended to everything relating to the stop, including, inter alia, checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense, he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time Struble issued the written warning until the dog alerted. Rodriguez was indicted on federal drug charges. He moved to suppress the evidence seized from the vehicle on the ground, among others, that Struble had prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff. The Magistrate Judge recommended denial of the motion. He found no reasonable suspicion supporting detention once Struble issued the written warning. Under Eighth Circuit precedent, however, he concluded that prolonging the stop by “seven to eight minutes” for the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights and was for that reason permissible. The District Court then denied the motion to suppress. Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Eighth Circuit affirmed. Noting that the seven or eight minute delay was an acceptable “de minimis intrusion on Rodriguez’s personal liberty,” the court declined to reach the question whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written warning. Held: 1. Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures. A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U. S. 1 , than an arrest, see, e.g., Arizona v. Johnson, 555 U. S. 323 . Its tolerable duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop, Illinois v. Caballes, 543 U. S. 405 and attend to related safety concerns. Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, Johnson, 555 U. S., at 327–328 (questioning); Caballes, 543 U. S., at 406, 408 (dog sniff), but a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket, id., at 407. Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. See Delaware v. Prouse, 440 U. S. 648 –659. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission. In concluding that the de minimis intrusion here could be offset by the Government’s interest in stopping the flow of illegal drugs, the Eighth Circuit relied on Pennsylvania v. Mimms, 434 U. S. 106 . The Court reasoned in Mimms that the government’s “legitimate and weighty” interest in officer safety outweighed the “de minimis” additional intrusion of requiring a driver, lawfully stopped, to exit a vehicle, id., at 110–111. The officer-safety interest recognized in Mimms, however, stemmed from the danger to the officer associated with the traffic stop itself. On-scene investigation into other crimes, in contrast, detours from the officer’s traffic-control mission and therefore gains no support from Mimms. The Government’s argument that an officer who completes all traffic-related tasks expeditiously should earn extra time to pursue an unrelated criminal investigation is unpersuasive, for a traffic stop “prolonged beyond” the time in fact needed for the officer to complete his traffic-based inquiries is “unlawful,” Caballes, 543 U. S., at 407. The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop. . 2. The determination adopted by the District Court that detention for the dog sniff was not independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That question therefore remains open for consideration on remand. P. 9. 741 F. 3d 905, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Breyer, Sotomayor, and Kagan, JJ., joined. Kennedy, J., filed a dissenting opinion. Thomas, J., filed a dissenting opinion, in which Alito, J., joined, and in which Kennedy, J., joined as to all but Part III. Alito, J., filed a dissenting opinion.

A Nebraska statute prohibits driving on highway shoulders, and on that basis, a police officer pulled over a Mercury Mountaineer on the shoulder of a highway. Respondent Rodriguez was in the passenger-seat passenger-side vehicle. After Rodriguez identified himself, the officer asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid a pothole. The officer then asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Rodriguez answered that he was not. After running a records check on Rodriguez, the patrol officer asked for permission to walk his dog around Rodriguez's vehicle. Rodriguez said no, and the officer instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the car to wait for the second officer. Rodriguez complied. At 12:27 or 12:28 a.m., the officer explained the written warning to Rodriguez and gave back to him the documents obtained from them. At that point, Rodriguez and Pollman had all their documents back and a copy of the written notice, but the officer did not consider Rodriguez to be free to leave. Nevertheless, he asked the passenger to leave, and asked the officer to give him all the reason for the stop out of the way. Although justification for the traffic stop was to be given independent cause, the Magistrate found that no reasonable suspicion supported detention of the dog. He concluded that extension of the stop by 7 to 10 minutes for the dog sniff was only a de minimis intrusion on Rodriguez's Fourth Amendment rights, and was therefore permissible. Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Court of Appeals affirmed. Held: A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission of issuing a ticket for the violation. Illinois v. Caballes, 543 U. S. 405 (Caballes), supra. . (a) A seizure for a traffic violation justifies a police investigation of that violation. Pennsylvania v. Mimms, 434 U.S. 106 (per curiam), distinguished. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's seizure's mission to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of a stop, it may last no longer than is necessary to effectuate th[at purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are (or reasonably should have been)completed. Moreover, unlike a general interest in criminal enforcement, however, the government's officer safety interest stems from the stop itself. Traffic stops are fraught with danger, especially with police officers, who may negligibly take unnecessary precautions to complete their mission. Highway and officer safety are interests different in kind from the Government, whose endeavor to detect crime in general or drug trafficking in particular. Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms -- i.e., prolonging a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing traffic-related purposes, and ensuring that vehicles on the road are operated safely and responsibly -- could not be justified on the same basis. Furthermore, the reasonableness of a seizure depends on what the police in fact do. Since an officer always has to be reasonably diligent, how could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of time reasonably needed to complete the stop. Pp. 573 U. s. ___. (b) The critical question, then, is whether conducting the sniff longs, since conducting such a sniff adds time to the stop and thus concludes the investigation. See, e.g., State v. Baker, 664, 741 F. 3d 905 (CA8), vacated and remanded. 743 F.3d 906 (Eighth Circuit) (Alito, J., dissenting) (Repolving the issue, nevermind that the Court of Appeals left it unaddressed); post, at 1–2 (Alitin, J. dissenting), (upbraiding the Court for addressing the sole issue decided by it and characterizing the Court's answer as "unnecessary" because the Court, instead, should have decided an issue the Appeals did not decide). The question whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the Traffic infraction investigation remains open for consideration on rem

2014_13-975

https://www.oyez.org/cases/2014/13-975

. The Telecommunications Act of 1996 provides, in relevant part, that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”110Stat.151,47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.I In February 2010, petitioner T-Mobile South, LLC, applied to build a new, 108-foot-tall cell phone tower on 2.8 acres of vacant residential property in the city of Ros-well, Georgia (City). Roswell’s city ordinances requirethat any cell phone tower proposed for a residential zoning district must take the form of an “alternative tower structure”—an artificial tree, clock tower, steeple, or light pole—that, in the opinion of the city council (City Council or Council), is “compatible with the natural setting and surrounding structures” and that effectively camouflages the tower. Code of Ordinances §§21.2.2, 21.2.5(a); see App. 68, 75. In accordance with these provisions, petitioner’s application proposed a structure in the shape of an artificial tree or “monopine.” Id., at 42. The City’s Planning and Zoning Division reviewed petitioner’s application, along with a substantial number of letters and petitions opposing it, and ultimately issued a memorandum to the City Council concluding that the application met all of the requirements set out in the City’s ordinances. It recommended that the City Council approve the application on three conditions to which petitioner was prepared to agree. The City Council then held a 2-hour-long public hearing on April 12, 2010, to consider petitioner’s application. Petitioner arranged privately to have the hearing transcribed, and, as discussed below, the City subsequently issued detailed minutes summarizing the proceedings. At the hearing, after the Planning and Zoning Division presented its recommendation and after petitioner’s representatives made a presentation in support of the application, a number of residents raised concerns. Among these were concerns that the tower would lack aesthetic compatibility, that the technology was outdated and unnecessary, and that the tower would be too tall. Petitioner’s representatives responded by reiterating that it had met all of the ordinance’s requirements and by providing testimony from a property appraiser that placement of cell phone towers does not reduce property values. Members of the City Council then commented on the application. One member of the six-person Council was recused, see id., at 111 (hearing transcript); id., at 322 (meeting minutes), leaving five voting members. Member Igleheart said that other carriers had sufficient coverage in the area and that the City did not need to level the playing field for petitioner. Id., at 173–174 (hearing transcript). He also stated that his “[b]ottom line” was that he did not think it was “appropriate for residentially zoned properties to have the cell towers in their location.” Id., at 174 (hearing transcript); id., at 338 (meeting minutes). Member Dippolito found it difficult to believe that the tower would not negatively impact the area and doubted that it would be compatible with the natural setting. Id., at 175–176 (hearing transcript); id., at 339 (meeting minutes). Member Wynn expressed concerns about the lack of a backup generator for emergency services, id., at 172 (hearing transcript), and did not think the tower would be “compatible with this area,” id., at 176 (hearing transcript); id., at 339 (meeting minutes). Member Orlans said only that he was impressed with the information put together by both sides. Id., at 173 (hearing transcript); id., at 337 (meeting minutes). Finally, Member Price, the liaison to the Planning and Zoning Division, made a motion to deny the application. She said that the tower would be aesthetically incompatible with the natural setting, that it would be too tall, and that its proximity to other homes would adversely affect the neighbors and the resale value of their properties. Id., at 176–177 (hearing transcript); id., at 339–340 (meeting minutes). The motion was seconded, and then passed unanimously. Id., at 177 (hearing transcript); id., at 340 (meeting minutes). Two days later, on April 14, 2010, the Planning and Zoning Division sent a letter to petitioner that said in its entirety: “Please be advised the City of Roswell Mayor and City Council denied the request from T-Mobile for a 108’ mono-pine alternative tower structure during their April 12, 2010 hearing. The minutes from the aforementioned hearing may be obtained from the city clerk. Please contact Sue Creel or Betsy Branch at [phone number]. “If you have any additional questions, please contact me at [phone number].” Id., at 278.The detailed written minutes of the hearing, however, were not approved and published by the City until 26 days later, on May 10, 2010. See id., at 321–341 (meeting minutes).[1] On May 13, 2010, 3 days after the detailed minutes were published—and now 29 days after the City denied petitioner’s application—petitioner filed suit in Federal District Court. It alleged that the denial of the application was not supported by substantial evidence in the record, and would effectively prohibit the provision of wireless service in violation of the Telecommunications Act of1996 (Act). The parties filed cross-motions for summary judgment. The District Court granted petitioner’s motion for summary judgment, concluding that the City had violated the Act when it failed to issue a written decision that stated the reasons for denying petitioner’s application. The District Court interpreted the Act to require that a written denial letter or notice describe the reasons for the denial and that those reasons be sufficiently explained to allow a reviewing court to evaluate them against the written record. The Eleventh Circuit reversed. 731 F. 3d 1213 (2013). It explained that, in T-Mobile South, LLC v. Milton, 728 F. 3d 1274 (2013), which was decided after the District Court’s decision in this case, it had held that “to the extent that the decision must contain grounds or reasons or explanations, it is sufficient if those are contained in a different written document or documents that the applicant is given or has access to.” Id., at 1285. The Eleventh Circuit acknowledged that the Courts of Appeals had split on that question, and that it had departed from the majority rule. Compare Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F. 3d 51, 60 (CA1 2001) (requiring that a locality issue a written denial that itself contains a “sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons”); New Par v. Saginaw, 301 F. 3d 390, 395–396 (CA6 2002); MetroPCS, Inc. v. City and County of San Francisco, 400 F. 3d 715, 723 (CA9 2005), with AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F. 3d 423, 429 (CA4 1998) (holding that written minutes of a meeting and the word “denied” stamped on a letter describing the application weresufficient). Applying its rule to this case, the Eleventh Circuit found that the requirements of47 U. S. C. §332(c)(7)(B)(iii) were satisfied because petitioner had its own transcript as well as a written letter stating that the application had been denied and informing petitioner that it could obtain access to the minutes of the hearing. 731 F. 3d, at 1221. It did not consider when the City provided its written reasons to petitioner. We granted certiorari, 572 U. S. ___ (2014), and now reverse the judgment of the Eleventh Circuit.IIA The first question we answer is whether the statute requires localities to provide reasons when they deny applications to build cell phone towers. We answer that question in the affirmative. Our conclusion follows from the provisions of the Telecommunications Act. The Act generally preserves “the traditional authority of state and local governments to regulate the location, construction, and modification” of wireless communications facilities like cell phone towers, but imposes “specific limitations” on that authority. Rancho Palos Verdes v. Abrams,544 U. S. 113,115 (2005); see §332(c)(7)(B). One of those limitations is that any decision to deny a request to build a tower “shall be in writing and supported by substantial evidence contained in a written record.” §332(c)(7)(B)(iii). Another is that parties adversely affected by a locality’s decision may seek judicial review. §332(c)(7)(B)(v). In order to determine whether a locality’s denial was supported by substantial evidence, as Congress directed, courts must be able to identify the reason or reasons why the locality denied the application. See Rancho Palos Verdes, 544 U. S., at 128 (Breyer, J., joined by O’Connor, Souter, and Ginsburg, JJ., concurring) (observing that the Act “requires local zoning boards . . . [to] give reasons for [their] denials ‘in writing’ ”). The requirement that localities must provide reasons when they deny applications is further underscored by two of the other limitations on local authority set out in the Act. The Act provides that localities “shall not unreason-ably discriminate among providers of functionally equivalent services,” and may not regulate the construction of personal wireless service facilities “on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communications Commission’s] regulations concerning such emissions.” §§332(c)(7)(B)(i)(I), (iv).[2] Again, it would be considerably more difficult for a reviewing court to determine whether a locality had violated these substantive provisions if the locality were not obligated to state its reasons. This conclusion is not just commonsensical, but flows directly from Congress’ use of the term “substantial evidence.” The statutory phrase “substantial evidence” is a “term of art” in administrative law that describes how “an administrative record is to be judged by a reviewing court.” United States v. Carlo Bianchi & Co.,373 U. S. 709,715 (1963). There is no reason discernible from the text of the Act to think that Congress meant to use the phrase in a different way. See FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 6) (“[W]hen 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 was taken” (internal quotation marks omitted)). Indeed, for those who consider legislative history relevant, the Conference Report accompanying the Act confirmed as much when it noted that “[t]he phrase ‘substantial evidence contained in a written record’ is the traditional standard used for review of agency actions.” H. R. Conf. Rep. No. 104–458, p. 208 (1996). By employing the term “substantial evidence,” Congress thus invoked, among other things, our recognition that “the orderly functioning of the process of [substantial-evidence] review requires that the grounds upon which the administrative agency acted be clearly disclosed,” and that “courts cannot exercise their duty of [substantial-evidence] review unless they are advised of the considerations underlying the action under review.” SEC v. Chenery Corp.,318 U. S. 80,94 (1943); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.,463 U. S. 29,43 (1983) (explaining that an agency must “articulate a satisfactory explanation for its action” to enable substantial-evidence review); Beaumont, S. L. & W. R. Co. v. United States,282 U. S. 74,86 (1930) (“Complete statements by the [agency] showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions . . .”). In response, the City primarily argues that a reason-giving obligation would deprive it of local zoning author-ity. But Congress intended to place “specific limitations on the traditional authority of state and local governments” regarding cell phone tower siting applications. Rancho Palos Verdes, 544 U. S., at 115. One of those “limitations,” §332(c)(7)(B), necessarily implied by the Act’s “substantial evidence” requirement, is that local zoning authorities state their reasons when they deny applications. In short, the statutory text and structure, and the concepts that Congress imported into the statutory framework, all point clearly toward the conclusion that localities must provide reasons when they deny cell phone tower siting applications. We stress, however, that these reasons need not be elaborate or even sophisticated, but rather, as discussed below, simply clear enough to enable judicial review.B The second question we answer is whether these reasons must appear in the same writing that conveys the locality’s denial of an application. We answer that question in the negative. Like our conclusion that localities must provide reasons, our conclusion that the reasons need not appear in a de-nial letter follows from the statutory text. Other than providing that a locality’s reasons must be given in writing, nothing in that text imposes any requirement that the reasons be given in any particular form. The Act’s saving clause makes clear that, other than the enumerated limitations imposed on local governments by the statute itself, “nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” §332(c)(7)(A). Given this language, and the system of “cooperative federalism” on which the Act is premised, Rancho Palos Verdes, 544 U. S., at 128 (Breyer, J., concurring), we understand the enumerated limitations to set out an exclusive list. So while the text and structure of the Act render it inescapable that localities must provide reasons in writing when they deny applications, we can locate in the Act no command—either explicit or implicit—that localities must provide those reasons in a specific document. We therefore conclude that Congress imposed no specific requirement on that front, but instead permitted localities to comply with their obligation to give written reasons so long as the locality’s reasons are stated clearly enough to enable judicial review. Although the statute does not require a locality to provide its written reasons in any particular format, and although a locality may rely on detailed meeting minutes as it did here, we agree with the Solicitor General that “the local government may be better served by including a separate statement containing its reasons.” Brief for United States as Amicus Curiae 26; see also id., at 34. If the locality writes a short statement providing its reasons, the locality can likely avoid prolonging the litigation—and adding expense to the taxpayers, the companies, and the legal system—while the parties argue about exactly what the sometimes voluminous record means. Moreover, in that circumstance, the locality need not worry that, upon review of the record, a court will either find that it could not ascertain the locality’s reasons or mistakenly ascribe to the locality a rationale that was not in fact the reason for the locality’s denial. We hasten to add that a locality cannot stymie or burden the judicial review contemplated by the statute by delaying the release of its reasons for a substantial time after it conveys its written denial. The statute provides that an entity adversely affected by a locality’s decision may seek judicial review within 30 days of the decision. §332(c)(7)(B)(v). Because an entity may not be able to make a considered decision whether to seek judicial review without knowing the reasons for the denial of its application, and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.[3] This rule ought not to unduly burden localities given the range of ways in which localities can provide their reasons. Moreover, the denial itself needs only to be issued (or the application otherwise acted upon) “within a reasonable period of time.” §332(c)(7)(B)(ii). In an interpretation we have recently upheld, see Arlington v. FCC, 569 U. S. ___ (2013), the Federal Communications Commission (FCC) has generally interpreted this provision to allow localities 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications. In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(b), 24 FCC Rcd. 13994, 13995, ¶4 (2009). If a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.[4]III Petitioner offers four reasons why, in its view, our analysis in Part II–B is incorrect. Petitioner argues that the statute requires that a locality’s reasons appear in the writing conveying the denial itself, but none of petitioner’s reasons are persuasive. First, petitioner argues that the word “decision” in the statute—the thing that must be “in writing”—connotes a written document that itself provides all the reasons for a given judgment. See Brief for Petitioner 24 (quoting Black’s Law Dictionary 407 (6th ed. 1990) (a “decision” is a written document providing “ ‘the reasons given for [a] judgment’ ”)). But even petitioner concedes, with its preferred dictionary in hand, that the word “decision” can also mean “something short of a statement of reasons explaining a determination.” Brief for Petitioner 24 (citing Black’s Law Dictionary, at 407).[5] Second, petitioner claims that other provisions in the Act use the word “notify” when the Act means to impose only a requirement that a judgment be communicated.[6] Because the provision at issue here does not use the word “notify,” petitioner argues, it must contemplate something more than a judgment. This does not logically follow. For one thing, the statute at issue here does not use any verb at all to describe the conveying of information from a locality to an applicant; it just says that a denial “shall be in writing and supported by substantial evidence contained in a written record.” §332(c)(7)(B)(iii). But more to the point, “notify” is a verb the use—or nonuse—of which does not reveal what the thing to be notified of or about is. Third, petitioner contends that the “substantial evidence” requirement itself demands that localities identify their reasons in their written denials. See Brief for Petitioner 23. Certainly, as discussed above, the phrase “substantial evidence” requires localities to give reasons, but it says nothing on its own about the document in which those reasons must be stated or presented to a reviewing court. Finally, petitioner invokes the statutory requirement that any adversely affected person shall have their challenge heard by a court “on an expedited basis.” §332(c)(7)(B)(v). See Brief for Petitioner 14–15, 28. As long as the reasons are provided in a written record, however, and as long as they are provided in such a manner that is clear enough and prompt enough to enable judicial review, there is no reason to require that those reasons be provided in the written denial itself. We acknowledge that petitioner, along with those Courts of Appeals that have required a locality’s reasons to appear in its written denial itself, have offered plausible bases for a rule that would require as much. See, e.g., Todd, 244 F. 3d, at 60 (“A written record can create difficulties in determining the rationale behind a board’s decision . . .”). Congress could adopt such a rule if it were so inclined, but it did not do so in this statute. It is not our place to legislate another approach.IV Thus, we hold that the Act requires localities to provide reasons when they deny cell phone tower siting applications, but that the Act does not require localities to provide those reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. In this case, the City provided its reasons in writing and did so in the acceptable form of detailed minutes of the City Council meeting. The City, however, did not provide its written reasons essentially contemporaneously with its written denial. Instead, the City issued those detailed minutes 26 days after the date of the written denial and just 4 days before petitioner’s time to seek judicial review would have expired.[7] The City therefore did not comply with its statutory obligations. We do not consider questions regarding the applicability of principles of harmless error or questions of remedy, and leave those for the Eleventh Circuit to address on remand.* * * For the foregoing reasons, we reverse the judgment below and remand the case for further proceedings consistent with this opinion.It is so ordered.Notes1 Brief minutes had been adopted on April 19, but these only noted that the motion to deny the application had passed with five members in favor and one member recused. See Council Brief 041210, online at http:// roswell.legistar.com / LegislationDetail.aspx?ID=657578&GUID=08D5297C-0271-41F9-9DAA-E8E3DD6314BD&Options=&Search= (all In-ternet Materials as visited January 12, 2015, and available in Clerk of Court’s case file). According to the meeting calendar for the City Council’s May 10, 2010, meeting, it was on that day that the City Council approved detailed minutes of the April 12 meeting that in-cluded a recitation of each member’s statements during the hearing. See http :/ / roswell.legistar.com / MeetingDetail.aspx?ID = 101786&GUID = 63828B21-EB83-4485-B4EA-10EE65CF48CD&Options=info|&Search=.2 The last “limitation” listed in the Act provides that localities shall act on applications to construct personal wireless service facilities “within a reasonable period of time after the request is duly filed . . . taking into account the nature and scope of such request.” §332(c)(7)(B)(ii).3 The Chief Justice’s dissent rejects this particular requirement, and instead invents a process that turns judicial review on its head. Rather than give effect to a process that would permit an entity seeking to challenge a locality’s decision to see the locality’s written reasons before it files its suit—and the dissent agrees that the statute requires that a locality convey its reasons in writing, see post, at 5—the dissent would fashion a world in which a locality can wait until a lawsuit is commenced and a court orders it to state its reasons. The entity would thus be left to guess at what the locality’s written reasons will be, write a complaint that contains those hypotheses, and risk being sandbagged by the written reasons that the locality subsequently provides in litigation after the challenging entity has shown its cards. The reviewing court would then need to ensure that those reasons are not post hoc rationalizations, see Burlington Truck Lines, Inc. v. United States,371 U. S. 156,168 (1962), but the dissent offers no guidance as to how a reviewing court that has never seen near-contemporaneous reasons would conduct that inquiry.4 The City urges us to hold that the clock does not begin to run until after the reasons are given. We cannot so hold, however, without rewriting the statutory text. The Act provides that a lawsuit may be filed by “[a]ny person adversely affected by any final action or failure to act . . . within 30 days after such action or failure to act.”47 U. S. C. §332(c)(7)(B)(v). The relevant “final action” is the issuance of the written notice of denial, not the subsequent issuance of reasons explaining the denial. See Bennett v. Spear,520 U. S. 154–178 (1997) (agency action is “final” if it “mark[s] the consummation of the agency’s decisionmaking process” and determines “rights or obligations” or triggers “legal consequences” (internal quotation marks omitted)).5 One of petitioner’s amici argues that Congress has used the word “decision” in the context of other communications laws to mean something more than a judgment or verdict. See Brief for Chamber of Commerce of the United States of America (Chamber) et al. 9–13. But while it is true that a word used across “the same act” should be given the same meaning, see Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 10), the Chamber’s evidence is less persuasive because it arises out of entirely different “acts” and does not involve any term of art. By relying on other parts of Title 47 of the U. S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 172–173 (2012).6 For example, petitioner cites §11 (FCC must “notify the partiesconcerned” when it makes a “determination and order” regarding a rail-road or telegraph company’s failure to maintain and operate a telegraph line for public use) and §398(b)(5) (“Whenever the Secretary [of Commerce] makes a final determination . . . that a recipient” of federal funds has engaged in impermissible discrimination, the Secretary shall “notify the recipient in writing of such determination . . .”). Brief for Petitioner 24–25.7 Though petitioner arranged for a transcript of the meeting to be recorded on its own initiative and at its own expense, see App. 109–275, the fact that petitioner took steps to reduce oral statements made at the City Council meeting to writing cannot be said to satisfy the obligation that Congress placed on the City to state clearly its reasons, and to do so in a writing it provides or makes available.

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 t-mobile south, llc v. city of roswell, georgia certiorari to the united states court of appeals for the eleventh circuit No. 13–975. Argued November 10, 2014—Decided January 14, 2015 Respondent Roswell’s city council (Council) held a public hearing to consider an application by petitioner T-Mobile South, LLC, to build a cell phone tower on residential property. During the hearing, several Council members expressed concerns about the tower’s impact on the area. The hearing ended with the Council unanimously passing a motion to deny the application. Two days later, the City’s Planning and Zoning Division informed petitioner by letter that the application had been denied and that minutes from the hearing would be made available. The detailed minutes were published 26 days later. Petitioner filed suit, alleging that the Council’s denial was not supported by substantial evidence in the record. The District Court agreed, concluding that the City, by failing to issue a written decision stating its reasons for denying the application, had violated the Telecommunications Act of 1996, which provides that a locality’s denial “shall be in writing and supported by substantial evidence contained in a written record,” 47 U. S. C. §332(c)(7)(B)(iii). The Eleventh Circuit, following its precedent, found that the Act’s requirements were satisfied here because petitioner had received a denial letter and possessed a transcript of the hearing that it arranged to have recorded. Held: 1. Section 332(c)(7)(B)(iii) requires localities to provide reasons when they deny applications to build cell phone towers. This conclusion follows from the Act’s provisions, which both preserve and specifically limit traditional state and local government authority. It would be considerably difficult for a reviewing court to determine whether a locality’s denial was “supported by substantial evidence contained in a written record,” §332(c)(7)(B)(iii), or whether a locality had “unreasonably discriminate[d] among providers of functionally equivalent services,” §332(c)(7)(B)(i)(I), or regulated siting “on the basis of the environmental effects of radio frequency emissions,” §332(c)(7)(B)(iv), if localities were not obligated to state their reasons for denial. And nothing in the Act suggests that Congress meant to use the phrase “substantial evidence” as anything but an administrative law “term of art” that describes how “an administrative record is to be judged by a reviewing court.” United States v. Carlo Bianchi & Co., 373 U.S. 709, 715. . 2. Localities are not required to provide their reasons for denying siting applications in the denial notice itself, but may state those reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. . (a) Nothing in the Act’s text imposes a requirement that the reasons be given in any particular form, and the Act’s saving clause, §332(c)(7)(A), makes clear that the only limitations imposed on local governments are those enumerated in the statute. Localities comply with their obligation to give written reasons so long as those reasons are stated clearly enough to enable judicial review. Because an adversely affected entity must decide whether to seek judicial review within 30 days from the date of the denial, §332(c)(7)(B)(v), and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial. . (b) Petitioner’s contrary arguments are unavailing. The statute’s word “decision” does not connote a written document that itself provides all the reasons for a given judgment. The absence of the word “notify” in the provision at issue also does not signal an intention to require communication of more than a judgment. Nor does an obligation to provide reasons in the writing conveying the denial arise from the “substantial evidence” requirement itself or from the requirement of court review “on an expedited basis,” §332(c)(7)(B)(v). It is sufficient that a locality’s reasons be provided in a manner that is clear enough and prompt enough to enable judicial review. . 3. The City failed to comply with its statutory obligations under the Act. Although it issued its reasons in writing and did so in an acceptable form, it did not provide its written reasons essentially contemporaneously with its written denial when it issued detailed minutes 26 days after the date of the written denial and 4 days before expiration of petitioner’s time to seek judicial review. P. 14. 731 F.3d 1213, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Scalia, Kennedy, Breyer, Alito, and Kagan, JJ., joined. Alito, J., filed a concurring opinion. Roberts, C. J., filed a dissenting opinion in which Ginsburg, J., joined, and in which Thomas, J., joined as to Part I. Thomas, J., filed a dissenting opinion.

Petitioner applied to build a cell phone tower on 2.8 acres of vacant residential property in Ros-well, Georgia, pursuant to the city's ordinances requiring that any cell tower proposed for a residential zoning district must take the form of an artificial tree, clock tower, steeple, or light pole that, in the opinion of the city council (City Council or Council), is compatible with the natural setting and surrounding structures, and that effectively camouflages the tower. The City Planning and Zoning Division ultimately issued a memorandum to the City Council concluding that the application met all of the requirements set out in the ordinances, and recommending that the Council approve the application on three conditions to which petitioner was prepared to agree. The Council then held a 2-hour-long public hearing to consider the application. At the hearing, a number of residents raised concerns about the tower, including that it would lack aesthetic compatibility, would lack technology compatibility, be outdated and unnecessary, and would be too tall, and doubted that the tower would be compatible with a natural setting. Petitioner also expressed concerns about lack of a backup generator for emergency services, about the lack of access to generators, and about the possible proximity of its homes to its neighbors. The planning and zoning division denied the application, and the minutes of the hearing were not approved and published until 26 days later, when the City denied petitioner. Respondents then filed suit in Federal District Court, alleging that the denial of the application was not supported by substantial evidence in the record and would effectively prohibit the provision of wireless service in violation of the Telecommunications Act of1996 (Act). The parties filed cross-motions for summary judgment. The District Court granted summary judgment for petitioner. The Court of Appeals reversed, holding that the City had violated the Act when it failed to issue a written decision that stated the reasons for denying petitioner's application. Held: The Act requires localities to provide reasons when they deny applications to build cell phone towers. . (a) The Act generally preserves traditional local authority to regulate the construction and modification of cell phone facilities, but imposes limitations on local authority, like the limitations imposed on local governments by the Act itself. One limitation of local authority is that a locality may seek judicial review by a judicial order supported by a substantial evidence, and may be able to identify the reasons as supported by the reasons. In addition, a locality must provide reasons in writing when it denies applications, but that reason need not appear in the written denial letter or notice provided by the locality. Instead, the locality may appear in some other written record so long as the reasons are sufficiently clear and are made accessible to the applicant essentially contemporaneously with the denial. T-Mobile South, LLC v. Milton, 728 F. 3d 1274. Here, the City, however, did not provide its written reasons essentially contemporaneous with its written denial, but issued those detailed minutes 26 days after the date of the written denial and just 4 days before petitioner's time to seek judicial review would have expired. The Eleventh Circuit found that the requirements of47 U.S. C. §332(c)(7)(B)(iii) were satisfied because petitioner had its own transcript, as well as a written letter stating that application had been denied and informing petitioner that it could obtain access to the minutes. P.. (b) The statute does not require a locality to provide its reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in other written records issued essentially contemporaneously with the denied application. Such a locality cannot stymie or burden the judicial review contemplated by the statute by delaying the release of its reasons for a substantial time after it conveys their written denial; it can delay issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin. Although petitioner arranged for a transcript of the meeting to be recorded on its own initiative and at its own expense, the fact that petitioner took steps to reduce oral statements made at the Council meeting to reduce the number of such statements made to the Council Council was not enough to satisfy the statutory obligations. This Court will not address the applicability of principles of harmless error or questions of remedy, and leave those for the Eleventh Circuit to address on remand. See, e.g., Brief minutes had been adopted on April 19, but these only noted that the motion to deny the application had passed with five members in favor and one member recused. Though the meeting was held on a calendar that was available in the Clerk of the Council to file a calendar for the May 10, 2010, meeting, the council meeting itself recited the reasons that it had approved, and recited them in writing on May 13, 2010.

2014_13-854

https://www.oyez.org/cases/2014/13-854

. In Markman v. Westview Instruments, Inc.,517 U. S. 370 (1996), we explained that a patent claim is that “portion of the patent document that defines the scope of the patentee’s rights.” Id., at 372. We held that “the construction of a patent, including terms of art within its claim,” is not for a jury but “exclusively” for “the court” to determine. Ibid. That is so even where the construction of a term of art has “evidentiary underpinnings.” Id., at 390. Today’s case involves claim construction with “evidentiary underpinnings.” See Part III, infra. And, it requires us to determine what standard the Court of Appeals should use when it reviews a trial judge’s resolution of an underlying factual dispute. Should the Court of Appeals review the district court’s factfinding de novo as it would review a question of law? Or, should it review that factfinding as it would review a trial judge’s factfinding in other cases, namely by taking them as correct “unless clearly erroneous?” See Fed. Rule Civ. Proc. 52(a)(6). We hold that the appellate court must apply a “clear error,” not a de novo, standard of review.I The basic dispute in this case concerns the meaning of the words “molecular weight” as those words appear in a patent claim. The petitioners, Teva Pharmaceuticals (along with related firms), own the relevant patent. The patent covers a manufacturing method for Copaxone, a drug used to treat multiple sclerosis. The drug’s active ingredient, called “copolymer-1,” is made up of molecules of varying sizes. App. 1143a. And the relevant claim describes that ingredient as having “a molecular weight of 5 to 9 kilodaltons.” Id., at 1145a. The respondents, Sandoz, Inc. (and several other firms), tried to market a generic version of Copaxone. Teva sued Sandoz for patent infringement. 810 F. Supp. 2d 578, 581 (SDNY 2011). Sandoz defended the suit by arguing that the patent was invalid. Ibid. The Patent Act requires that a claim “particularly poin[t] out and distinctly clai[m] the subject matter which the applicant regards as his invention.”35 U. S. C. §112 ¶2 (2006 ed.); see Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___, n. 1 (2014) (slip op., at 3, n. 1)). The phrase “molecular weight of 5 to 9 kilodaltons,” said Sandoz, did not satisfy this requirement. The reason that the phrase is fatally indefinite, Sandoz argued, is that, in the context of this patent claim, the term “molecular weight” might mean any one of three different things. The phrase might refer (1) to molecular weight as calculated by the weight of the molecule that is most prevalent in the mix that makes up copolymer-1. (The scientific term for molecular weight so calculated is, we are told, “peak average molecular weight.”) The phrase might refer (2) to molecular weight as calculated by taking all the different-sized molecules in the mix that makes up copolymer-1 and calculating the average weight, i.e., adding up the weight of each molecule and dividing by the number of molecules. (The scientific term for molecular weight so calculated is, we are told, “number average molecular weight.”) Or, the phrase might refer (3) to molecular weight as calculated by taking all the different-sized molecules in the mix that makes up copolymer-1 and calculating their average weight while giving heavier molecules a weight-related bonus when doing so. (The scientific term for molecular weight so calculated, we are told, is “weight average molecular weight.”) See 723 F. 3d 1363, 1367 (CA Fed. 2013); App. 124a. In Sandoz’s view, since Teva’s patent claim does not say which method of calculation should be used, the claim’s phrase “molecular weight” is indefinite, and the claim fails to satisfy the critical patent law requirement. The District Court, after taking evidence from experts, concluded that the patent claim was sufficiently definite. Among other things, it found that in context a skilled artisan would understand that the term “molecular weight” referred to molecular weight as calculated by the first method, i.e., “peak average molecular weight.” 810 F. Supp. 2d, at 596; see Nautilus, supra, at ___ (slip op., at 12) (“[T]he definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application”). In part for this reason, the District Court held the patent valid. 810 F. Supp. 2d, at 596. On appeal, the Federal Circuit held to the contrary. It found that the term “molecular weight” was indefinite. And it consequently held the patent invalid. 723 F. 3d, at 1369. In reaching this conclusion, the Federal Circuit reviewed de novo all aspects of the District Court’s claim construction, including the District Court’s determination of subsidiary facts. Id., at 1369, 1373; see also Light-ing Ballast Control LLC v. Philips Electronics NorthAm. Corp., 744 F. 3d 1272, 1276–1277 (CA Fed. 2014) (en banc) (reaffirming de novo review of district court claim construction). Teva filed a petition for certiorari. And we granted that petition. The Federal Circuit reviews the claim construction decisions of federal district courts throughout the Nation, and we consequently believe it important to clarify the standard of review that it must apply when doing so.IIA Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals “must not . . . set aside” a district court’s “[f ]indings of fact” unless they are “clearly erroneous.” In our view, this rule and the standard it sets forth must apply when a court of appeals reviews a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim. We have made clear that the Rule sets forth a “clear command.” Anderson v. Bessemer City,470 U. S. 564,574 (1985). “It does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept a district court’s findings unless clearly erroneous.” Pullman-Standard v. Swint,456 U. S. 273,287 (1982). Accordingly, the Rule applies to both subsidiary and ultimate facts. Ibid. And we have said that, when reviewing the findings of a “ ‘district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ ” Anderson, supra, at 573 (quoting Zenith Radio Corp. v. Hazeltine Research, Inc.,395 U. S. 100,123 (1969)). Even if exceptions to the Rule were permissible, we cannot find any convincing ground for creating an exception to that Rule here. The Rules Advisory Committee pointed out that, in general, exceptions “would tend to undermine the legitimacy of the district courts . . . , multiply appeals . . . , and needlessly reallocate judicial author-ity.” Advisory Committee’s 1985 Note on subd. (a) of Fed. Rule Civ. Proc. 52, 28 U. S. C. App., pp. 908–909; see also Anderson, supra, at 574–575 (de novo review of fac-tual findings “would very likely contribute only negligibly” to accuracy “at a huge cost in diversion of judicialresources”). Our opinion in Markman neither created, nor argued for, an exception to Rule 52(a). The question presented in that case was a Seventh Amendment question: Should a jury or a judge construe patent claims? 517 U. S., at 372. We pointed out that history provides no clear answer. Id., at 388. The task primarily involves the construction of written instruments. Id., at 386, 388, 389. And that task is better matched to a judge’s skills. Id., at 388 (“The construction of written instruments is one of those things that judges often do and are likely to do better than jurors unburdened by training in exegesis”). We consequently held that claim construction falls “exclusively within the province of the court,” not that of the jury. Id., at 372. When describing claim construction we concluded that it was proper to treat the ultimate question of the proper construction of the patent as a question of law in the way that we treat document construction as a question of law. Id., at 388–391. But this does not imply an exception to Rule 52(a) for underlying factual disputes. We used the term “question of law” while pointing out that a judge, in construing a patent claim, is engaged in much the same task as the judge would be in construing other written instruments, such as deeds, contracts, or tariffs. Id., at 384, 386, 388, 389; see also Motion Picture Patents Co. v. Universal Film Mfg. Co.,243 U. S. 502,510 (1917) (patent claims are “aptly likened to the description in a deed, which sets the bounds to the grant which it contains”); Goodyear Dental Vulcanite Co. v. Davis,102 U. S. 222,227 (1880) (analogizing patent construction to the construction of other written instruments like contracts). Construction of written instruments often presents a “question solely of law,” at least when the words in those instruments are “used in their ordinary meaning.” Great Northern R. Co. v. Merchants Elevator Co., 259 U. S. 285, 291 (1922). But sometimes, say when a written instrument uses “technical words or phrases not commonly understood,” id., at 292, those words may give rise to a factual dispute. If so, extrinsic evidence may help to “establish a usage of trade or locality.” Ibid. And in that circumstance, the “determination of the matter of fact” will “preced[e]” the “function of construction.” Ibid.; see also 12 R. Lord, Williston on Contracts §§34:1, p. 2, 34:19, p. 174 (4th ed. 2012) (In contract interpretation, the existence of a “usage”—a “practice or method” in the relevant industry—“is a question of fact” (internal quotation marks omitted)). This factual determination, like all other factual determinations, must be reviewed for clear error. See Pullman-Standard, supra at 287 (The Rule does not “exclude certain categories of factual findings” and applies to both “subsidiary” and “ultimate” facts (internal quotation marks omitted)). Accordingly, when we held in Markman that the ultimate question of claim construction is for the judge and not the jury, we did not create an exception from the ordinary rule governing appellate review of factual matters. Markman no more creates an exception to Rule 52(a) than would a holding that judges, not juries, determine equit-able claims, such as requests for injunctions. A conclusion that an issue is for the judge does not indicate that Rule 52(a) is inapplicable. See Fed. Rule Civ. Proc. 52 (setting the standard of review for “[Factual] Findings and Conclusions by the Court” (emphasis added)). While we held in Markman that the ultimate issue of the proper construction of a claim should be treated as a question of law, we also recognized that in patent construction, subsidiary factfinding is sometimes necessary. Indeed, we referred to claim construction as a practice with “evidentiary underpinnings,” a practice that “falls somewhere between a pristine legal standard and a simple historical fact.” 517 U. S., at 378, 388, 390. We added that sometimes courts may have to make “credibility judgments” about witnesses. Id., at 389. In other words, we recognized that courts may have to resolve subsidiary factual disputes. And, as explained above, the Rule requires appellate courts to review all such subsidiary factual findings under the “clearly erroneous” standard. Precedent further supports application of the “clearly erroneous” standard. Before the creation of the Federal Circuit, the Second Circuit explained that in claim construction, the subsidiary “question . . . of how the art un-derstood the term . . . was plainly a question of fact; and unless the [district court’s] finding was ‘clearly erroneous,’ we are to take” it “as controlling.” Harries v. Air King Products, Co., 183 F. 2d 158, 164 (CA2 1950) (L. Hand, C. J.). We have said the same as to subsidiary factual findings concerning other patent law inquiries, including “obviousness.” Dennison Mfg. Co. v. Panduit Corp.,475 U. S. 809,811 (1986) (per curiam) (“subsidiary determinations of the District Court” subject to Rule 52(a)’s clear error standard). Finally, practical considerations favor clear error review. We have previously pointed out that clear error review is “particularly” important where patent law is at issue because patent law is “a field where so much depends upon familiarity with specific scientific problems and principles not usually contained in the general storehouse of knowledge and experience.” Graver Tank & Mfg. Co. v. Linde Air Products Co.,339 U. S. 605,610 (1950). A district court judge who has presided over, and listened to, the entirety of a proceeding has a comparatively greater opportunity to gain that familiarity than an appeals court judge who must read a written transcript or perhaps just those portions to which the parties have referred. Cf. Lighting Ballast, 744 F. 3d, at 1311 (O’Malley, J., dissenting) (Federal Circuit judges “lack the tools that district courts have available to resolve factual disputes fairly and accurately,” such as questioning the experts, examining the invention in operation, or appointing a court-appointed expert); Anderson, 470 U. S., at 574 (“The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise”).B Sandoz argues that claim construction mostly consists of construing a set of written documents that do not give rise to subsidiary factual disputes. Tr. of Oral Arg. 39. It adds that separating “factual” from “legal” questions is often difficult. And Sandoz, like the Federal Circuit itself, argues that it is simpler for that appellate court to review the entirety of the district court’s claim construction de novo rather than to apply two separate standards. Id., at 38; see also Lighting Ballast, supra, at 1284 (criticizing clear error review in part because of the purportedly difficult task of “disentangling” fact from law). But even were we free to ignore the Federal Rule (which we are not), we would not find this argument convincing. Courts of appeals have long found it possible to separate factual from legal matters. See, e.g., First Options of Chicago, Inc. v. Kaplan,514 U. S. 938–948 (1995) (review of factual findings for clear error and legal conclusions de novo is the “ordinary” standard for courts of appeals). At the same time, the Federal Circuit’s efforts to treat factual findings and legal conclusions similarly have brought with them their own complexities. See e.g., Cybor Corp. v. FAS Technologies, Inc., 138 F. 3d 1448, 1454 (CA Fed. 1998) (en banc) (claim construction does not involve “factual evidentiary findings” (citation and internal quotation marks omitted)); Lighting Ballast, supra, at 1284 (claim construction has “arguably factual aspects”); Dow Jones & Co. v. Ablaise Ltd., 606 F. 3d 1338, 1344–1345 (CA Fed. 2010) (“[T]his court,” while reviewing claim construction without deference, “takes into account the views of the trial judge”); Nazomi Communications Inc., v. Arm Holdings, PLC, 403 F. 3d 1364, 1371 (CA Fed. 2005) (“[C]ommon sense dictates that the trial judge’s view will carry weight” (citation and internal quotation marks omitted)); Lightning Ballast, supra, at 1294 (Lourie, J., concurring) (we should “rarely” overturn district court’s true subsidiary factfinding; “we should, and do, give proper informal deference to the work of judges of a subordinate tribunal”); Cybor, supra, at 1480 (opinion of Newman, J.) (“By continuing the fiction that there are no facts to be found in claim interpretations, we confound rather than ease the litigation process”); see also Anderson, supra, at 575 (the parties “have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much”); Brief for Peter S. Menell et al. as Amici Curiae 5 (Federal Circuit overturns district court claim construction at unusually high rate). Finally, the Circuit feared that “clear error” review would bring about less uniformity. Lighting Ballast, supra, at 1280. Neither the Circuit nor Sandoz, however, has shown that (or explained why) divergent claim construction stemming from divergent findings of fact (on subsidiary matters) should occur more than occasionally. After all, the Federal Circuit will continue to review de novo the district court’s ultimate interpretation of the patent claims. And the attorneys will no doubt bring cases construing the same claim to the attention of the trial judge; those prior cases will sometimes be binding because of issue preclusion, see Markman, 517 U. S., at 391, and sometimes will serve as persuasive authority. Moreover, it is always possible to consolidate for discovery different cases that involve construction of the same claims. And, as we said in Markman, subsidiary factfinding is unlikely to loom large in the universe of litigated claim construction. Id., at 389–390.C The dissent argues that claim construction does not involve any “factfinding,” or, if it does, claim construction factfinding is akin to the factfinding that underlies our interpretation of statutes. Post, at 1, 5–7 (opinion of Thomas, J.). Its first, broader contention runs contrary to our recognition in Markman that claim construction has “evidentiary underpinnings” and that courts construing patent claims must sometimes make “credibility judgments” about witnesses. 517 U. S., at 389–390. Indeed, as discussed in Part III, infra, this case provides a perfect example of the factfinding that sometimes underlies claim construction: The parties here presented the District Court with competing fact-related claims by different experts, and the District Court resolved the issues of fact that divided those experts. The dissent’s contention also runs contrary to Sandoz’s concession at oral argument that claim construction will sometimes require subsidiary factfinding. Tr. of Oral Arg. 33–34, 38–40. It is in tension with our interpretation of related areas of patent law, such as the interpretation of “obviousness,” which we have said involves subsidiary factfinding subject to Rule 52(a)’s clear error review. See Dennison, 475 U. S., at 811. And it fights the question presented in this case, which assumes the existence of such factfinding. See Pet. for Cert. i (whether “a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, . . . or only for clear error”). Neither do we find factfinding in this context sufficiently similar to the factfinding that underlies statutory interpretation. Statutes, in general, address themselves to the general public; patent claims concern a small portion of that public. Statutes typically (though not always) rest upon congressional consideration of general facts related to a reasonably broad set of social circumstances; patents typically (though not always) rest upon consideration by a few private parties, experts, and administrators of more narrowly circumscribed facts related to specific technical matters. The public, and often an adversarial public, typically considers and discusses the relevant general facts before Congress enacts a statute; only private parties, experts, and administrators likely consider the relevant technical facts before the award of a patent. Given these differences, it is not surprising that this Court has never previously compared patent claim construction in any here relevant way to statutory construction. As discussed supra, at 5, however, the Court has repeatedly compared patent claim construction to the construction of other written instruments such as deeds and contracts. See, e.g., Markman, supra, at 384, 386, 388, 389; Motion Picture Patent Co., 243 U. S., at 510; Goodyear, 102 U. S., at 227.D Now that we have set forth why the Federal Circuit must apply clear error review when reviewing subsidiary factfinding in patent claim construction, it is necessary to explain how the rule must be applied in that context. We recognize that a district court’s construction of a patent claim, like a district court’s interpretation of a written instrument, often requires the judge only to examine and to construe the document’s words without requiring the judge to resolve any underlying factual disputes. As all parties agree, when the district court reviews only evidence intrinsic to the patent (the patent claims and specifications, along with the patent’s prosecution history), the judge’s determination will amount solely to a determination of law, and the Court of Appeals will review that construction de novo. See Brief for Petitioners 27, Re-ply Brief 16; Brief for Respondents 43; see also Brief for United States as Amicus Curiae 12–13. In some cases, however, the district court will need to look beyond the patent’s intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871) (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”). In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the “evidentiary underpinnings” of claim construction that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal. For example, if a district court resolves a dispute between experts and makes a factual finding that, in general, a certain term of art had a particular meaning to a person of ordinary skill in the art at the time of the invention, the district court must then conduct a legal analysis: whether a skilled artisan would ascribe that same meaning to that term in the context of the specific patent claim under review. That is because “[e]xperts may be examined to explain terms of art, and the state of the art, at any given time,” but they cannot be used to prove “the proper or legal construction of any instrument of writing.” Winans v. New York & Erie R. Co., 21 How. 88, 100–101 (1859); see also Markman, supra, at 388 (“ ‘Where technical terms are used, or where the qualities of substances . . . or any similar data necessary to the comprehension of the language of the patent are unknown to the judge, the testimony of witnesses may be received upon these subjects, and any other means of information be employed. But in the actual interpretation of the patent the court proceeds upon its own responsibility, as an arbiter of the law, giving to the patent its true and final character and force’ ” (quoting 2 W. Robinson, Law of Patents §732, pp. 482–483 (1890); emphasis in original)). Accordingly, the question we have answered here concerns review of the district court’s resolution of a subsidiary factual dispute that helps that court determine the proper interpretation of the written patent claim. The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them. This ultimate interpretation is a legal conclusion. The appellate court can still review the district court’s ultimate construction of the claim de novo. But, to overturn the judge’s resolution of an underlying factual dispute, the Court of Appeals must find that the judge, in respect to those factual findings, has made a clear error. Fed. Rule Civ. Proc. 52(a)(6). In some instances, a factual finding will play only a small role in a judge’s ultimate legal conclusion about the meaning of the patent term. But in some instances, a factual finding may be close to dispositive of the ultimate legal question of the proper meaning of the term in the context of the patent. Nonetheless, the ultimate question of construction will remain a legal question. Simply because a factual finding may be nearly dispositive does not render the subsidiary question a legal one. “[A]n issue does not lose its factual character merely because its resolution is dispositive of the ultimate” legal question. Miller v. Fenton,474 U. S. 104,113 (1985). It is analogous to a judge (sitting without a jury) deciding whether a defendant gave a confession voluntarily. The answer to the legal question about the voluntariness of the confes-sion may turn upon the answer to a subsidiary factual question, say “whether in fact the police engaged in the intimidation tactics alleged by the defendant.” Id., at 112. An appellate court will review the trial judge’s factual determination about the alleged intimidation deferentially (though, after reviewing the factual findings, it will review a judge’s ultimate determination of voluntariness de novo). See id., at 112–118. An appellate court similarly should review for clear error those factual findings that underlie a district court’s claim construction.III We can illustrate our holding by considering an instance in which Teva, with the support of the Solicitor General, argues that the Federal Circuit wrongly reviewed the District Court’s factual finding de novo. See Brief for Petitioners 54–56; Brief for United States as Amicus Curiae 31–32. Recall that Teva’s patent claim specifies an active ingredient with a “molecular weight of about 5 to 9 kilodaltons.” Recall Sandoz’s basic argument, namely that the term “molecular weight” is indefinite or ambiguous. The term might refer to the weight of the most numerous molecule, it might refer to weight as calculated by the average weight of all molecules, or it might refer to weight as calculated by an average in which heavier molecules count for more. The claim, Sandoz argues, does not tell us which way we should calculate weight. See Part I, supra. To illustrate, imagine we have a sample of copolymer-1 (the active ingredient) made up of 10 molecules: 4 weigh 6 kilodaltons each, 3 weigh 8 kilodaltons each, and 3 weigh 9 kilodaltons each. Using the first method of calculation, the “molecular weight” would be 6 kilodaltons, the weight of the most prevalent molecule. Using the second method, the molecular weight would be 7.5 (total weight, 75, di-vided by the number of molecules, 10). Using the third method, the molecular weight would be more than 8, depend-ing upon how much extra weight we gave to the heavier molecules. Teva argued in the District Court that the term “molecular weight” in the patent meant molecular weight calculated in the first way (the weight of the most prevalent molecule, or peak average molecular weight). Sandoz, however, argued that figure 1 of the patent showed that Teva could not be right. 810 F. Supp. 2d, at 590. (We have set forth figure 1 in the Appendix, infra). That figure, said Sandoz, helped to show that the patent term did not refer to the first method of calculation. Figure 1 shows how the weights of a sample’s molecules were distributed in three different samples. The curves indicate the number of molecules of each weight that were present in each of the three. For example, the figure’s legend says that the first sample’s “molecular weight” is 7.7. According to Teva, that should mean that molecules weighing 7.7 kilodaltons were the most prevalent molecules in the sample. But, look at the curve, said Sandoz. It shows that the most prevalent molecule weighed, not 7.7 kilodaltons, but slightly less than 7.7 (about 6.8) kilodaltons. See App. 138a–139a. After all, the peak of the first molecular weight distribution curve (the solid curve in the figure) is not at precisely 7.7 kilodaltons, but at a point just before 7.7. Thus, argued Sandoz, the figure shows that the patent claim term “molecular weight” did not mean molecular weight calculated by the first method. It must mean something else. It is indefinite. 810 F. Supp. 2d, at 590. The District Court did not accept Sandoz’s argument. Teva’s expert testified that a skilled artisan would understand that converting data from a chromatogram to molecular weight distribution curves like those in figure 1 would cause the peak on each curve to shift slightly; this could explain the difference between the value indicated by the peak of the curve (about 6.8) and the value in the figure’s legend (7.7). App. 138a–139a. Sandoz’s expert testified that no such shift would occur. App. 375a–376a. The District Court credited Teva’s expert’s account, thereby rejecting Sandoz’s expert’s explanation. 810 F. Supp. 2d, at 589; Brief for Respondents 61. The District Court’s finding about this matter was a factual finding—about how a skilled artisan would understand the way in which a curve created from chromatogram data reflects molecular weights. Based on that factual finding, the District Court reached the legal conclusion that figure 1 did not undermine Teva’s argument that molecular weight referred to the first method of calculation (peak average molecular weight). 810 F. Supp. 2d, at 590–591. When the Federal Circuit reviewed the District Court’s decision, it recognized that the peak of the curve did not match the 7.7 kilodaltons listed in the legend of figure 1. 723 F. 3d, at 1369. But the Federal Circuit did not accept Teva’s expert’s explanation as to how a skilled artisan would expect the peaks of the curves to shift. And it failed to accept that explanation without finding that the District Court’s contrary determination was “clearly erroneous.” See ibid. The Federal Circuit should have accepted the District Court’s finding unless it was “clearly erroneous.” Our holding today makes clear that, in failing to do so, the Federal Circuit was wrong. Teva claims that there are two additional instances in which the Federal Circuit rejected the District Court’s factual findings without concluding that they were clearly erroneous. We leave these matters for the Federal Circuit to consider on remand in light of today’s opinion. We vacate the Federal Circuit’s judgment, and we remand the case for further proceedings consistent with this opinion.It is so ordered.APPENDIXFIG. 1 (with minor additions to emphasize that the peak of the solid curve does not correspond precisely to 7.7kDa)

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 teva pharmaceuticals usa, inc., et al. v. sandoz, inc., et al. certiorari to the united states court of appeals for the federal circuit No. 13–854. Argued October 15, 2014—Decided January 20, 2015 Petitioners, Teva Pharmaceuticals (and related firms), own a patent that covers a manufacturing method for the multiple sclerosis drug Copaxone. When respondents, Sandoz, Inc. (and other firms), tried to market a generic version of the drug, Teva sued them for patent infringement. Sandoz countered that the patent was invalid. Specifically, Sandoz argued that the claim that Copaxone’s active ingredient had “a molecular weight of 5 to 9 kilodaltons” was fatally indefinite, see 35 U. S. C. §112 ¶2, because it did not state which of three methods of calculation—the weight of the most prevalent molecule, the weight as calculated by the average weight of all molecules, or weight as calculated by an average in which heavier molecules count for more—was used to determine that weight. After considering conflicting expert evidence, the District Court concluded that the patent claim was sufficiently definite and the patent was thus valid. As relevant here, it found that in context a skilled artisan would understand that the term “molecular weight” referred to molecular weight as calculated by the first method. In finding the “molecular weight” term indefinite and the patent invalid on appeal, the Federal Circuit reviewed de novo all aspects of the District Court’s claim construction, including the District Court’s determination of subsidiary facts. Held: When reviewing a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a “clear error,” not a de novo, standard of review. . (a) Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals “must not . . . set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” It sets out a “clear command,” Anderson v. Bessemer City, 470 U.S. 564, 574, and “does not make exceptions or . . . exclude certain categories of factual findings” from the court of appeals’ obligation, Pullman-Standard v. Swint, 456 U.S. 273, 287. The Rule thus applies to both subsidiary and ultimate facts. Ibid. And the function of an appeals court reviewing the findings of a “ ‘district court sitting without a jury . . . is not to decide factual issues de novo.’ ” Anderson, supra, at 573. Even if exceptions to the Rule were permissible, there is no convincing ground for creating an exception here. Markman v. Westview Instruments, Inc., 517 U.S. 370, neither created, nor argued for, such an exception. There, the Court held that the ultimate question of claim construction is for the judge, not the jury, id., at 372, but it did not thereby create an exception from the ordinary rule governing appellate review of factual matters. Instead, the Court pointed out that a judge, in construing a patent claim, is engaged in much the same task as the judge would be in construing other written instruments, such as deeds, contracts, or tariffs. Id., at 384, 386, 388, 389. Construction of written instruments often presents a “question solely of law,” at least when the words in those instruments are “used in their ordinary meaning.” Great Northern R. Co. v. Merchants Elevator Co., 259 U.S. 285, 291. But if a written instrument uses “technical words or phrases not commonly understood,” id., at 292, those words may give rise to a factual dispute. If so, extrinsic evidence may help to “establish a usage of trade or locality.” Ibid. And in that circumstance, the “determination of the matter of fact” will “preced[e]” the “function of construction.” Ibid. The Markman Court also recognized that courts will sometimes have to resolve subsidiary factual disputes in patent construction; Rule 52 requires appellate courts to review such disputes under the “clearly erroneous” standard. Application of this standard is further supported by precedent and by practical considerations. Clear error review is “particularly” important in patent cases because a district court judge who has presided over, and listened to, the entire proceeding has a comparatively greater opportunity to gain the necessary “familiarity with specific scientific problems and principles,” Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 610, than an appeals court judge who must read a written transcript or perhaps just those portions referenced by the parties. . (b) Arguments to the contrary are unavailing. Sandoz claims that separating “factual” from “legal” questions may be difficult and, like the Federal Circuit, posits that it is simpler for the appellate court to review the entirety of the district court’s claim construction de novo than to apply two separate standards. But courts of appeals have long been able to separate factual from legal matters, see, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947–948, and the Federal Circuit’s efforts to treat factual findings and legal conclusions similarly have brought with them their own complexities. As for Sandoz’s argument that “clear error” review will bring about less uniformity, neither the Circuit nor Sandoz has shown that divergent claim construction stemming from divergent findings of fact on subsidiary matters should occur more than occasionally. . (c) This leaves the question of how the clear error standard should be applied when reviewing subsidiary factfinding in patent claim construction. When the district court reviews only evidence intrinsic to the patent, the judge’s determination is solely a determination of law, and the court of appeals will review that construction de novo. However, where the district court needs to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period, and where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about the extrinsic evidence. The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them. The ultimate construction of the claim is a legal conclusion that the appellate court can review de novo. But to overturn the judge’s resolution of an underlying factual dispute, the appellate court must find that the judge, in respect to those factual findings, has made a clear error. . (d) Here, for example, the District Court made a factual finding, crediting Teva’s expert’s account, and thereby rejecting Sandoz’s expert’s contrary explanation, about how a skilled artisan would understand the way in which a curve created from chromatogram data reflects molecular weights. Based on that factual finding, the District Court reached the legal conclusion that figure 1 did not undermine Teva’s argument that molecular weight referred to the first method of calculating molecular weight. When the Federal Circuit reviewed the District Court’s decision, it did not accept Teva’s expert’s explanation, and it failed to accept that explanation without finding that the District Court’s contrary determination was “clearly erroneous.” The Federal Circuit erred in failing to review this factual finding only for clear error. Teva asserts that there are two additional instances in which the Federal Circuit rejected the District Court’s factual findings without concluding that they were clearly erroneous; those matters are left for the Federal Circuit to consider on remand. . 723 F.3d 1363, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Respondent Sandoz, Inc. (Sandoz), a manufacturer of a drug used to treat multiple sclerosis, filed a patent infringement suit in Federal District Court against respondents, Teva Pharmaceuticals and related firms, alleging that the words "molecular weight" in the relevant patent claim were fatally indefinite, since the phrase might refer (1) to molecular weight as calculated by taking all the different-sized molecules in the mix that makes up copolymer-1 and calculating the average weight, i.e., adding up the weight of each molecule and dividing by the number of molecules, while giving their average weight a bonus bonus when doing so. The District Court held the patent valid, but the Federal Circuit held to the contrary, finding that the term was indefinite, and consequently holding the patent invalid. Held: The appellate court must apply a clear error, not a de novo, standard of review when it reviews a district court resolution of subsidiary factual matters made in the course of its construction of a patent claim. . (a) The Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals must not set aside a district court's (f)indings of fact unless they are clearly erroneous. Accordingly, this Rule applies to both subsidiary and ultimate facts. See, e.g., Anderson v. Bessemer City,470 U. S. 564,574; Pullman-Standard v. Swint,. Accordingly, it applies to the Rule as it would review a trial judge's factfinding in other cases, namely by taking them as correct "unless clearly erroneous...." See Fed. Rule Civ. Proc. 52. Pp. 482. (b) There is no merit to Sandoz's argument that claim construction mostly consists of construing a set of written documents that do not give rise to subsidiary factual disputes, since extrinsic evidence may help establish a usage of trade or locality, and in that circumstance, the determination of the matter of fact must be reviewed for clear error. The Rule does not make exceptions or purport to exclude certain categories of factual findings from the obligation of a court of appeals to accept district court findings unless clearly erroneous, since a conclusion that an issue is for the judge does not indicate that the Rule is inapplicable. Even if an exception to that Rule were permissible, there is no convincing ground for creating an exception here. Such an exception would tend to undermine the legitimacy of the district courts, multiply appeals, and needlessly reallocate judicial author-ity. Moreover, the rule requires appellate courts to review all such subsidiary factual findings under the so-called "clearly erroneous" standard. And Precedent further supports application of the rule, which would allow courts to overturn district court factual findings, see id., at 112. In addition, to overturn the District Court resolution of an underlying factual dispute, the Court of Appeals must find that the judge, in respect to the factual findings in question, has made a clear error. 810 F. Supp. 2d 578, affirmed. 23 F. 3d, reversed and remanded. THE FUTURE COURT OF APPEALS, J., filed a petition for certiorari, and granted that petition.

2014_13-1371

https://www.oyez.org/cases/2014/13-1371

. The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas—that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liability. In contrast to a disparate-treatment case, where a “plaintiff must establish that the defendant had a discriminatory intent or motive,” a plaintiff bringing a disparate-impact claim challenges practices that have a “disproportionately adverse effect on minorities” and are otherwise unjustified by a legitimate rationale. Ricci v. DeStefano, 557 U. S. 557, 577 (2009) (internal quotation marks omitted). The question presented for the Court’s determination is whether disparate-impact claims are cognizable under the Fair Housing Act (or FHA), 82Stat. 81, as amended, 42 U. S. C. §3601 et seq. I A Before turning to the question presented, it is necessary to discuss a different federal statute that gives rise to this dispute. The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. 26 U. S. C. §42. Congress has directed States to develop plans identifying selection criteria for distributing the credits. §42(m)(1). Those plans must include certain criteria, such as public housing waiting lists, §42(m)(1)(C), as well as certain preferences, including that low-income housing units “contribut[e] to a concerted community revitalization plan” and be built in census tracts populated predominantly by low-income residents. §§42(m)(1)(B)(ii)(III), 42(d)(5)(ii)(I). Federal law thus favors the distribution of these tax credits for the development of housing units in low-income areas. In the State of Texas these federal credits are distrib-uted by the Texas Department of Housing and Community Affairs (Department). Under Texas law, a developer’s application for the tax credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants. Tex. Govt. Code Ann. §§2306.6710(a)–(b) (West 2008). The Texas Attorney General has interpreted state law to permit the consideration of additional criteria, such as whether the housing units will be built in a neighborhood with good schools. Those criteria cannot be awarded more points than statutorily mandated criteria. Tex. Op. Atty. Gen. No. GA–0208, pp. 2–6 (2004), 2004 WL 1434796, *4–*6. The Inclusive Communities Project, Inc. (ICP), is a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing. In 2008, the ICP brought this suit against the Department and its officers in the United States District Court for the Northern District of Texas. As relevant here, it brought a disparate-impact claim under §§804(a) and 805(a) of the FHA. The ICP alleged the Department has caused continued segregated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. The ICP contended that the Department must modify its selection criteria in order to encourage the construction of low-income housing in suburban communities. The District Court concluded that the ICP had established a prima facie case of disparate impact. It relied on two pieces of statistical evidence. First, it found “from 1999–2008, [the Department] approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Caucasian areas, but only approved 37.4% of proposed non-elderly units in 90% to 100% Caucasian areas.” 749 F. Supp. 2d 486, 499 (ND Tex. 2010) (footnote omitted). Second, it found “92.29% of [low-income housing tax credit] units in the city of Dallas were located in census tracts with less than 50% Caucasian residents.” Ibid. The District Court then placed the burden on the Department to rebut the ICP’s prima facie showing of disparate impact. 860 F. Supp. 2d 312, 322–323 (2012). After assuming the Department’s proffered interests were legitimate, id., at 326, the District Court held that a defendant—here the Department—must prove “that there are no other less discriminatory alternatives to advancing their proffered interests,” ibid. Because, in its view, the Department “failed to meet [its] burden of proving that there are no less discriminatory alternatives,” the District Court ruled for the ICP. Id., at 331. The District Court’s remedial order required the addition of new selection criteria for the tax credits. For instance, it awarded points for units built in neighborhoods with good schools and disqualified sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills. See 2012 WL 3201401 (Aug. 7, 2012). The remedial order contained no explicit racial targets or quotas. While the Department’s appeal was pending, the Secretary of Housing and Urban Development (HUD) issued a regulation interpreting the FHA to encompass disparate-impact liability. See Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (2013). The regulation also established a burden-shifting framework for adjudicating disparate-impact claims. Under the regulation, a plaintiff first must make a prima facie showing of disparate impact. That is, the plaintiff “has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.” 24 CFR §100.500(c)(1) (2014). If a statistical discrepancy is caused by factors other than the defendant’s policy, a plaintiff cannot establish a prima facie case, and there is no liability. After a plaintiff does establish a prima facie showing of disparate impact, the burden shifts to the defendant to “prov[e] that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.” §100.500(c)(2). HUD has clarified that this step of the analysis “is analogous to the Title VII requirement that an employer’s interest in an employment practice with a disparate impact be job related.” 78 Fed. Reg. 11470. Once a defendant has satisfied its burden at step two, a plaintiff may “prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.” §100.500(c)(3). The Court of Appeals for the Fifth Circuit held, consistent with its precedent, that disparate-impact claims are cognizable under the FHA. 747 F. 3d 275, 280 (2014). On the merits, however, the Court of Appeals reversed and remanded. Relying on HUD’s regulation, the Court of Appeals held that it was improper for the District Court to have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating low-income housing tax credits. Id., at 282–283. In a concurring opinion, Judge Jones stated that on remand the District Court should reexamine whether the ICP had made out a prima facie case of disparate impact. She suggested the District Court incorrectly relied on bare statistical evidence without engaging in any analysis about causation. She further observed that, if the fed-eral law providing for the distribution of low-income housing tax credits ties the Department’s hands to such an extent that it lacks a meaningful choice, then there is no disparate-impact liability. See id., at 283–284 (specially concurring opinion). The Department filed a petition for a writ of certiorari on the question whether disparate-impact claims are cognizable under the FHA. The question was one of first impression, see Huntington v. Huntington Branch, NAACP, 488 U. S. 15 (1988) (per curiam), and certiorari followed, 573 U. S. ___ (2014). It is now appropriate to provide a brief history of the FHA’s enactment and its later amendment. B De jure residential segregation by race was declared unconstitutional almost a century ago, Buchanan v. Warley, 245 U. S. 60 (1917) , but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities, see Shelley v. Krae-mer, 334 U. S. 1 (1948) ; steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas. See, e.g., M. Klarman, Unfinished Business: Racial Equality in American History 140–141 (2007); Brief for Housing Scholars as Amici Curiae 22–23. By the 1960’s, these policies, practices, and prejudices had created many predominantly black inner cities surrounded by mostly white suburbs. See K. Clark, Dark Ghetto: Dilemmas of Social Power 11, 21–26 (1965). The mid-1960’s was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission. Exec. Order No. 11365, 3 CFR 674 (1966–1970 Comp.). After extensive factfinding the Commission identified residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of the social unrest. See Report of the National Advisory Commission on Civil Disorders 91 (1968) (Kerner Commission Report). The Commission found that “[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight.” Id., at 13. The Commission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. Ibid. The Commission concluded that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Id., at 1. To reverse “[t]his deepening racial division,” ibid., it recommended enactment of “a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of any housing . . . on the basis of race, creed, color, or national origin.” Id., at 263. In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968, §804, 82Stat. 83. Then, in 1988, Congress amended the FHA. Among other provisions, it created certain exemptions from liability and added “familial status” as a protected characteristic. See Fair Housing Amendments Act of 1988, 102Stat. 1619. II The issue here is whether, under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Before turning to the FHA, however, it is necessary to consider two other antidiscrimination statutes that preceded it. The first relevant statute is §703(a) of Title VII of the Civil Rights Act of 1964, 78Stat. 255. The Court addressed the concept of disparate impact under this statute in Griggs v. Duke Power Co., 401 U. S. 424 (1971) . There, the employer had a policy requiring its manual laborers to possess a high school diploma and to obtain satisfactory scores on two intelligence tests. The Court of Appeals held the employer had not adopted these job requirements for a racially discriminatory purpose, and the plaintiffs did not challenge that holding in this Court. Instead, the plaintiffs argued §703(a)(2) covers the discriminatory effect of a practice as well as the motivation behind the practice. Section 703(a), as amended, provides as follows: “It shall be an unlawful employer practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a). The Court did not quote or cite the full statute, but rather relied solely on §703(a)(2). Griggs, 401 U. S., at 426, n. 1. In interpreting §703(a)(2), the Court reasoned that disparate-impact liability furthered the purpose and design of the statute. The Court explained that, in §703(a)(2), Congress “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id., at 431. For that reason, as the Court noted, “Congress directed the thrust of [§703(a)(2)] to the consequences of employment practices, not simply the motivation.” Id., at 432. In light of the statute’s goal of achieving “equality of employment opportunities and remov[ing] barriers that have operated in the past” to favor some races over others, the Court held §703(a)(2) of Title VII must be interpreted to allow disparate-impact claims. Id., at 429–430. The Court put important limits on its holding: namely, not all employment practices causing a disparate impact impose liability under §703(a)(2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims. Id., at 431. This rule provides, for example, that in a disparate-impact case, §703(a)(2) does not prohibit hiring criteria with a “manifest relationship” to job performance. Id., at 432; see also Ricci, 557 U. S., at 587–589 (emphasizing the importance of the business necessity defense to disparate-impact liability). On the facts before it, the Court in Griggs found a violation of Title VII because the employer could not establish that high school diplomas and general intelligence tests were related to the job performance of its manual laborers. See 401 U. S., at 431–432. The second relevant statute that bears on the proper interpretation of the FHA is the Age Discrimination in Employment Act of 1967 (ADEA), 81Stat. 602 et seq., as amended. Section 4(a) of the ADEA provides: “It shall be unlawful for an employer— “(1) 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; “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or “(3) to reduce the wage rate of any employee in order to comply with this chapter.” 29 U. S. C. §623(a). The Court first addressed whether this provision allows disparate-impact claims in Smith v. City of Jackson, 544 U. S. 228 (2005) . There, a group of older employees challenged their employer’s decision to give proportionately greater raises to employees with less than five years of experience. Explaining that Griggs “represented the better reading of [Title VII’s] statutory text,” 544 U. S., at 235, a plurality of the Court concluded that the same reasoning pertained to §4(a)(2) of the ADEA. The Smith plurality emphasized that both §703(a)(2) of Title VII and §4(a)(2) of the ADEA contain language “prohibit[ing] such actions that ‘deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s’ race or age.” 544 U. S., at 235. As the plurality observed, the text of these provisions “focuses on the effects of the action on the employee rather than the motivation for the action of the employer” and therefore compels recognition of disparate-impact liability. Id., at 236. In a separate opinion, Justice Scalia found the ADEA’s text ambiguous and thus deferred under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) , to an Equal Employment Opportunity Commission regulation interpreting the ADEA to imposedisparate-impact liability, see 544 U. S., at 243–247 (opinion concurring in part and concurring in judgment). Together, Griggs holds and the plurality in Smith instructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court. Turning to the FHA, the ICP relies on two provisions. Section 804(a) provides that it shall be unlawful: “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale orrental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U. S. C. §3604(a). Here, the phrase “otherwise make unavailable” is of central importance to the analysis that follows. Section 805(a), in turn, provides: “It shall be unlawful for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.” §3605(a). Applied here, the logic of Griggs and Smith provides strong support for the conclusion that the FHA encompasses disparate-impact claims. Congress’ use of the phrase “otherwise make unavailable” refers to the consequences of an action rather than the actor’s intent. See United States v. Giles, 300 U. S. 41, 48 (1937) (explaining that the “word ‘make’ has many meanings, among them ‘[t]o cause to exist, appear or occur’ ” (quoting Webster’s New International Dictionary 1485 (2d ed. 1934))). This results-oriented language counsels in favor of recognizing disparate-impact liability. See Smith, supra, at 236. The Court has construed statutory language similar to §805(a) to include disparate-impact liability. See, e.g., Board of Ed. of City School Dist. of New York v. Harris, 444 U. S. 130 –141 (1979) (holding the term “discriminat[e]” encompassed disparate-impact liability in the context of a statute’s text, history, purpose, and structure). A comparison to the antidiscrimination statutes examined in Griggs and Smith is useful. Title VII’s and the ADEA’s “otherwise adversely affect” language is equivalent in function and purpose to the FHA’s “otherwise make unavailable” language. In these three statutes the operative text looks to results. The relevant statutory phrases, moreover, play an identical role in the structure common to all three statutes: Located at the end of lengthy sentences that begin with prohibitions on disparate treatment, they serve as catchall phrases looking to consequences, not intent. And all three statutes use the word “otherwise” to introduce the results-oriented phrase. “Otherwise” means “in a different way or manner,” thus signaling a shift in emphasis from an actor’s intent to the consequences of his actions. Webster’s Third New International Dictionary 1598 (1971). This similarity in text and structure is all the more compelling given that Congress passed the FHA in 1968—only four years after passing Title VII and only four months after enacting the ADEA. It is true that Congress did not reiterate Title VII’s exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to “refuse to sell[,] . . . or otherwise [adversely affect], a dwelling to any person” because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended. Congress thus chose words that serve the same purpose and bear the same basic meaning but are consistent with the structure and objectives of the FHA. Emphasizing that the FHA uses the phrase “because of race,” the Department argues this language forecloses disparate-impact liability since “[a]n action is not taken ‘because of race’ unless race is a reason for the action.” Brief for Petitioners 26. Griggs and Smith, however, dispose of this argument. Both Title VII and the ADEA contain identical “because of” language, see 42 U. S. C. §2000e–2(a)(2); 29 U. S. C. §623(a)(2), and the Courtnonetheless held those statutes impose disparate-impact liability. In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims. See Huntington Branch, NAACP v.Huntington, 844 F. 2d 926, 935–936 (CA2 1988); Resident Advisory Bd. v. Rizzo, 564 F. 2d 126, 146 (CA3 1977); Smith v. Clarkton, 682 F. 2d 1055, 1065 (CA4 1982); Hanson v. Veterans Administration, 800 F. 2d 1381, 1386 (CA5 1986); Arthur v. Toledo, 782 F. 2d 565, 574–575 (CA6 1986); Metropolitan Housing Development Corp. v. Arlington Heights, 558 F. 2d 1283, 1290 (CA7 1977); United States v. Black Jack, 508 F. 2d 1179, 1184–1185 (CA8 1974); Halet v. Wend Investment Co., 672 F. 2d 1305, 1311 (CA9 1982); United States v. Marengo Cty. Comm’n, 731 F. 2d 1546, 1559, n. 20 (CA11 1984). When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statutory text. See H. R. Rep. No. 100–711, p. 21, n. 52 (1988) (H. R. Rep.) (discussing suits premised on disparate-impact claims and related judicial precedent); 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning disparate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed, Congress rejected a proposed amendment that would have eliminated disparate-impact liability for certain zoning decisions. See H. R. Rep., at 89–93. Against this background understanding in the legal and regulatory system, Congress’ decision in 1988 to amend the FHA while still adhering to the operative language in §§804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. “If a word or phrase has been . . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating the wording is presumed to carry forward that interpretation.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also Forest Grove School Dist. v. T. A., 557 U. S. 230, 244, n. 11 (2009) (“When Congress amended [the Act] without altering the text of [the relevant provision], it implicitly adopted [this Court’s] construction of the statute”); Manhattan Properties, Inc. v. Irving Trust Co., 291 U. S. 320, 336 (1934) (explaining, where the Courts of Appeals had reached a consensus interpretation of the Bankruptcy Act and Congress had amended the Act without changing the relevant provision, “[t]his is persua-sive that the construction adopted by the [lower federal] courts has been acceptable to the legislative arm of the government”). Further and convincing confirmation of Congress’ understanding that disparate-impact liability exists under the FHA is revealed by the substance of the 1988 amendments. The amendments included three exemptions from liability that assume the existence of disparate-impact claims. The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968. The relevant 1988 amendments were as follows. First, Congress added a clarifying provision: “Nothing in [the FHA] prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status.” 42 U. S. C. §3605(c). Second, Congress provided: “Nothing in [the FHA] prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance.” §3607(b)(4). And finally, Congress specified: “Nothing in [the FHA] limits the applicability of any reasonable . . . restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” §3607(b)(1). The exemptions embodied in these amendments would be superfluous if Congress had assumed that disparate-impact liability did not exist under the FHA. See Gustafson v. Alloyd Co., 513 U. S. 561, 574 (1995) (“[T]he Court will avoid a reading which renders some words altogether redundant”). Indeed, none of these amendments would make sense if the FHA encompassed only disparate-treatment claims. If that were the sole ground for liability, the amendments merely restate black-letter law. If an actor makes a decision based on reasons other than a protected category, there is no disparate-treatment liability. See, e.g., Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981) . But the amendments do constrain disparate-impact liability. For instance, certain criminal convictions are correlated with sex and race. See, e.g., Kimbrough v. United States, 552 U. S. 85, 98 (2007) (discussing the racial disparity in convictions for crack cocaine offenses). By adding an exemption from liability for exclusionary practices aimed at individuals with drug convictions, Congress ensured disparate-impact liability would not lie if a landlord excluded tenants with such convictions. The same is true of the provision allowing for reasonable restrictions on occupancy. And the exemption from liability for real-estate appraisers is in the same section as §805(a)’s prohibition of discriminatory practices in real-estate transactions, thus indicating Congress’ recognition that disparate-impact liability arose under §805(a). In short, the 1988 amendments signal that Congress ratified disparate-impact liability. A comparison to Smith’s discussion of the ADEA further demonstrates why the Department’s interpretation would render the 1988 amendments superfluous. Under the ADEA’s reasonable-factor-other-than-age (RFOA) provision, an employer is permitted to take an otherwise prohibited action where “the differentiation is based on reasonable factors other than age.” 29 U. S. C. §623(f )(1). In other words, if an employer makes a decision based on a reasonable factor other than age, it cannot be said to have made a decision on the basis of an employee’s age. According to the Smith plurality, the RFOA provision “plays its principal role” “in cases involving disparate-impact claims” “by precluding liability if the adverse impact was attributable to a nonage factor that was ‘reasonable.’ ” 544 U. S., at 239. The plurality thus reasoned that the RFOA provision would be “simply unnecessary to avoid liability under the ADEA” if liability were limited to disparate-treatment claims. Id., at 238. A similar logic applies here. If a real-estate appraiser took into account a neighborhood’s schools, one could not say the appraiser acted because of race. And by embedding 42 U. S. C. §3605(c)’s exemption in the statutory text, Congress ensured that disparate-impact liability would not be allowed either. Indeed, the inference of disparate-impact liability is even stronger here than it was in Smith. As originally enacted, the ADEA included the RFOA provision, see §4(f)(1), 81Stat. 603, whereas here Congress added the relevant exemptions in the 1988 amendments against the backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact liability. Recognition of disparate-impact claims is consistent with the FHA’s central purpose. See Smith, supra, at 235 (plurality opinion); Griggs, 401 U. S., at 432. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation’s economy. See 42 U. S. C. §3601 (“It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States”); H. R. Rep., at 15 (explaining the FHA “provides a clear national policy against discrimination in housing”). These unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington, 488 U. S., at 16–18 (invalidating zoning law preventing construction of multifamily rental units); Black Jack, 508 F. 2d, at 1182–1188 (invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St. Bernard Parish, 641 F. Supp. 2d 563, 569, 577–578 (ED La. 2009) (invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only “ ‘blood relative[s]’ ” in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52–53 (discussing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA’s objectives and to protect their prop-erty rights by stopping municipalities from enforcing arbi-trary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g., Huntington, supra, at 18. Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping. But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance,if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation. Unlike the heartland of disparate-impact suits targeting artificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicsh-naydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 360–363 (2013) (noting the rarity of this type of claim). This case, on remand, may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low-income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See 78 Fed. Reg. 11470 (explaining that HUD did not use the phrase “business necessity” because that “phrase may not be easily understood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, busi-nesses, nonprofit organizations, and public entities”). As the Court explained in Ricci, an entity “could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with business necessity.” 557 U. S., at 587. Just as an employer may maintain a workplace requirement that causes a disparate impact if that requirement is a “reasonable measure[ment] of job performance,” Griggs, supra, at 436, so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a community’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities. As HUD itself recognized in its recent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighborhoods with any particular characteristic.” 78 Fed. Reg. 11476. In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that “[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact” and thus protects defendants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 653 (1989) , superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental or private entities to use “numerical quotas,” and serious constitutional questions then could arise. 490 U. S., at 653. The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa. If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas—a circumstance that itself raises serious constitutional concerns. Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all. It may also be difficult to establish causation because of the multiple factors that go into investment decisions about where to construct or renovate housing units. And as Judge Jones observed below, if the ICP cannot show a causal connection between the Department’s policy and a disparate impact—for instance, because federal law substantially limits the Department’s discretion—that should resultin dismissal of this case. 747 F. 3d, at 283–284 (specially concurring opinion). The FHA imposes a command with respect to disparate-impact liability. Here, that command goes to a state entity. In other cases, the command will go to a private person or entity. Governmental or private policies are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U. S., at 431. Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision. The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system. And as to governmental entities, they must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes. The Department’s amici, in addition to the well-stated principal dissenting opinion in this case, see post, at 1–2, 29–30 (opinion of Alito, J.), call attention to the decision by the Court of Appeals for the Eighth Circuit in Gallagher v. Magner, 619 F. 3d 823 (2010). Although the Court is reluctant to approve or disapprove a case that is not pending, it should be noted that Magner was decided without the cautionary standards announced in this opinion and, in all events, the case was settled by the parties before an ultimate determination of disparate-impact liability. Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely “remov[ing] . . . artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U. S., at 431. And that, in turn, would set our Nation back in its quest to reduce the salience of race in our social and economic system. It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate onthe elimination of the offending practice that “arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].” Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J. A. Croson Co., 488 U. S. 469, 510 (1989) (plurality opinion) (“[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions. While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 789 (2007) (Kennedy, J., concurring in part and concurring in judgment) (“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” Ricci, 557 U. S., at 585, it likewise does not impugn housing authorities’ race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset. The Court holds that disparate-impact claims are cognizable under the Fair Housing Act upon considering its results-oriented language, the Court’s interpretation of similar language in Title VII and the ADEA, Congress’ ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose. III In light of the longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congressional reaffirmation of that result, residents and policymakers have come to rely on the availability of disparate-impact claims. See Brief for Massachusetts et al. as Amici Curiae 2 (“Without disparate impact claims, States and others will be left with fewer crucial tools to combat the kinds of systemic discrimination that the FHA was intended to address”). Indeed, many of our Nation’s largest cities—entities that are potential defendants in disparate-impact suits—have submitted an amicus brief in this case supporting disparate-impact liability under the FHA. See Brief for City of San Francisco et al. as Amici Curiae 3–6. The existence of disparate-impact liability in the substantial majority of the Courts of Appeals for the last several decades “has not given rise to . . . dire consequences.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 21). Much progress remains to be made in our Nation’s continuing struggle against racial isolation. In striving to achieve our “historic commitment to creating an integrated society,” Parents Involved, supra, at 797 (Kennedy, J., concurring in part and concurring in judgment), we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and un-equal.” Kerner Commission Report 1. The Court acknowl-edges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society. The judgment of the Court of Appeals for the Fifth Circuit is affirmed, 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 . SUPREME COURT OF THE UNITED STATES Syllabus TEXAS DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS et al. v. INCLUSIVE COMMUNITIES PROJECT, INC., et al. certiorari to the united states court of appeals for the fifth circuit No. 13–1371. Argued January 21, 2015—Decided June 25, 2015 The Federal Government provides low-income housing tax credits that are distributed to developers by designated state agencies. In Texas, the Department of Housing and Community Affairs (Department) distributes the credits. The Inclusive Communities Project, Inc. (ICP), a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing, brought a disparate-impact claim under §§804(a) and 805(a) of the Fair Housing Act (FHA), alleging that the Department and its officers had caused continued segregated housing patterns by allocating too many tax credits to housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. Relying on statistical evidence, the District Court concluded that the ICP had established a prima facie showing of disparate impact. After assuming the Department’s proffered non-discriminatory interests were valid, it found that the Department failed to meet its burden to show that there were no less discriminatory alternatives for allocating the tax credits. While the Department’s appeal was pending, the Secretary of Housing and Urban Development issued a regulation interpreting the FHA to encompass disparate-impact liability and establishing a burden-shifting framework for adjudicating such claims. The Fifth Circuit held that disparate-impact claims are cognizable under the FHA, but reversed and remanded on the merits, concluding that, in light of the new regulation, the District Court had improperly required the Department to prove less discriminatory alternatives. The FHA was adopted shortly after the assassination of Dr. Martin Luther King, Jr. Recognizing that persistent racial segregation had left predominantly black inner cities surrounded by mostly white suburbs, the Act addresses the denial of housing opportunities on the basis of “race, color, religion, or national origin.” In 1988, Congress amended the FHA, and, as relevant here, created certain exemptions from liability. Held: Disparate-impact claims are cognizable under the Fair Housing Act. . (a) Two antidiscrimination statutes that preceded the FHA are relevant to its interpretation. Both §703(a)(2) of Title VII of the Civil Rights Act of 1964 and §4(a)(2) of the Age Discrimination in Employment Act of 1967 (ADEA) authorize disparate-impact claims. Under Griggs v. Duke Power Co., 401 U. S. 424 , and Smith v. City of Jackson, 544 U. S. 228 , the cases announcing the rule for Title VII and for the ADEA, respectively, antidiscrimination laws should be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. Disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain the free-enterprise system. Before rejecting a business justification—or a governmental entity’s analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci v. DeStefano, 557 U. S. 557 . These cases provide essential background and instruction in the case at issue. . (b) Under the FHA it is unlawful to “refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to a person because of race” or other protected characteristic, §804(a), or “to discriminate against any person in” making certain real-estate transactions “because of race” or other protected characteristic, §805(a). The logic of Griggs and Smith provides strong support for the conclusion that the FHA encompasses disparate-impact claims. The results-oriented phrase “otherwise make unavailable” refers to the consequences of an action rather than the actor’s intent. See United States v. Giles, 300 U. S. 41 . And this phrase is equivalent in function and purpose to Title VII’s and the ADEA’s “otherwise adversely affect” language. In all three statutes the operative text looks to results and plays an identical role: as a catchall phrase, located at the end of a lengthy sentence that begins with prohibitions on disparate treatment. The introductory word “otherwise” also signals a shift in emphasis from an actor’s intent to the consequences of his actions. This similarity in text and structure is even more compelling because Congress passed the FHA only four years after Title VII and four months after the ADEA. Although the FHA does not reiterate Title VII’s exact language, Congress chose words that serve the same purpose and bear the same basic meaning but are consistent with the FHA’s structure and objectives. The FHA contains the phrase “because of race,” but Title VII and the ADEA also contain that wording and this Court nonetheless held that those statutes impose disparate-impact liability. The 1988 amendments signal that Congress ratified such liability. Congress knew that all nine Courts of Appeals to have addressed the question had concluded the FHA encompassed disparate-impact claims, and three exemptions from liability in the 1988 amendments would have been superfluous had Congress assumed that disparate-impact liability did not exist under the FHA. Recognition of disparate-impact claims is also consistent with the central purpose of the FHA, which, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of the Nation’s economy. Suits targeting unlawful zoning laws and other housing restrictions that unfairly exclude minorities from certain neighborhoods without sufficient justification are at the heartland of disparate-impact liability. See, e.g., Huntington v. Huntington Branch, NAACP, 488 U. S. 15 –18. Recognition of disparate-impact liability under the FHA plays an important role in uncovering discriminatory intent: it permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. But disparate-impact liability has always been properly limited in key respects to avoid serious constitutional questions that might arise under the FHA, e.g., if such liability were imposed based solely on a showing of a statistical disparity. Here, the underlying dispute involves a novel theory of liability that may, on remand, be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in allocating tax credits for low-income housing. An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest their policies serve, an analysis that is analogous to Title VII’s business necessity standard. It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in the Nation’s cities merely because some other priority might seem preferable. A disparate-impact claim relying on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement is important in ensuring that defendants do not resort to the use of racial quotas. Courts must therefore examine with care whether a plaintiff has made out a prima facie showing of disparate impact, and prompt resolution of these cases is important. Policies, whether governmental or private, are not contrary to the disparate-impact requirement unless they are “artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U. S., at 431. Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision. These limitations are also necessary to protect defendants against abusive disparate-impact claims. And when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets or quotas might raise difficult constitutional questions. While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, race may be considered in certain circumstances and in a proper fashion. This Court does not impugn local housing authorities’ race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. These authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset. . 747 F. 3d 275, affirmed and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. Title VII of the Civil Rights Act of 1964 (CRA) provides that, "[t]he shall be an unlawful employer practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise 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; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities... or otherwise adversely affect his status as an employee...." The Inclusive Communities Project, Inc. (ICP), a Texas-based nonprofit corporation, brought suit against the Department and its officers in Federal District Court, alleging that the Department has caused continued segregated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. The District Court concluded that the ICP had established a prima facie case of disparate impact, relying on two pieces of statistical evidence: (1) that, from 1999 to 2008, the Department approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Caucasian areas, but only 37.4% of such units in 90% to 100% Caucasians. After the Department appealed, the Secretary of Housing and Urban Development (HUD) issued a regulation interpreting the Federal Housing Act to encompass disparate-impact liability. The regulation established a burden-shifting framework for adjudicating claims. Under the regulation, a plaintiff first must make a primae facie showing of disparate impact, and then the burden shifts to the defendant toprov[e] that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests. Once a defendant has satisfied its burden at step two, the plaintiff may then apply for the tax credit under Texas law to a developer whose application for the credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants. The Court of Appeals reversed and remanded, holding that it was improper for the District Court to have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating the credits. Held: The disparate impact claims are cognizable under the Fair Housing Act (FHA). . (a) Under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Although Title VII and the ADEA contain identical language, the relevant 1988 amendments included three exemptions from liability that assume the existence of such claims. Griggs v. Duke Power Co., 401 U. S. 424, distinguished; Smith v. City of Jackson, 544 U.S. 228, distinguished. P.. (b) The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, it aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation. Congress has always been aware of this unanimous precedent, and with that understanding, made a considered judgment to retain the relevant statutory text. Moreover, Congress' decision in 1988 to amend the FH while still adhering to the operative language in §§804(a), 805, and (c)(3) of Title VII is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals. . (c) The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact as it had been enacted in 1968, and thus precluded disparate impact liability as a whole.. 747 F. 3d 275 (CA5) (CA 5th Cir. 2014), affirmed in part and reversed in part. Jurisdiction is cognizable on the basis of its results-oriented language, its rationale, and its statutory purpose. See, e.g., Griggs, supra, at 436. There is no merit to the argument that the language of the 1988 amendments forecloses disparate impact because it refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose, and that, in turn, would set the Nation back in its quest to reduce the salience of race in our social and economic system. Nor is there any merit to such an argument, since the amendments do not mandate that affordable housing be located in neighborhoods with any particular characteristic, and since, in fact, many of the Nation's largest cities have submitted an amicus brief in this case supporting such a claim. However, even when courts do find liability under a disparate theory, their remedial orders must be consistent with the

2014_13-550

https://www.oyez.org/cases/2014/13-550

. Under the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829 et seq., as amended, a breach of fiduciary duty complaint is timely if filed no more than six years after “the date of the last action which constituted a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation.” 29 U. S. C. §1113. The question before us concerns application of this provision to the timeliness of a fiduciary duty complaint. It requires us to consider whether a fiduciary’s allegedly imprudent retention of an investment is an “action” or “omission” that triggers the running of the 6-year limitations period. In 2007, several individual beneficiaries of the Edison 401(k) Savings Plan (Plan) filed a lawsuit on behalf of the Plan and all similarly situated beneficiaries (collectively, petitioners) against Edison International and others (collectively, respondents). Petitioners sought to recover damages for alleged losses suffered by the Plan, in addition to injunctive and other equitable relief based on al-leged breaches of respondents’ fiduciary duties. The Plan is a defined-contribution plan, meaning that participants’ retirement benefits are limited to the value of their own individual investment accounts, which is determined by the market performance of employee and employer contributions, less expenses. Expenses, such as management or administrative fees, can sometimes significantly reduce the value of an account in a defined-contribution plan. As relevant here, petitioners argued that respondents violated their fiduciary duties with respect to three mu-tual funds added to the Plan in 1999 and three mutual funds added to the Plan in 2002. Petitioners argued that respondents acted imprudently by offering six higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available (the lower price reflects lower administrative costs). Specifically, petitioners claimed that a large institutional investor with billions of dollars, like the Plan, can obtain materially identical lower priced institutional-class mutual funds that are not available to a retail investor. Petitioners asked, how could respondents have acted prudently in offering the six higher priced retail-class mutual funds when respondents could have offered them effectively the same six mutual funds at the lower price offered to institutional investors like the Plan? As to the three funds added to the Plan in 2002, the District Court agreed. It wrote that respondents had “not offered any credible explanation” for offering retail-class, i.e., higher priced mutual funds that “cost the Plan participants wholly unnecessary [administrative] fees,” and it concluded that, with respect to those mutual funds, respondents had failed to exercise “the care, skill, prudence and diligence under the circumstances” that ERISA demands of fiduciaries. No. CV 07–5359 (CD Cal., July 8, 2010), App. to Pet. for Cert. 65, 130, 142, 109. As to the three funds added to the Plan in 1999, how-ever, the District Court held that petitioners’ claims were untimely because, unlike the other contested mutual funds, these mutual funds were included in the Plan more than six years before the complaint was filed in 2007. 639 F. Supp. 2d 1074, 1119–1120 (CD Cal. 2009). As a result, the 6-year statutory period had run. The District Court allowed petitioners to argue that, despite the 1999 selection of the three mutual funds, their complaint was nevertheless timely because these funds underwent significant changes within the 6-year statutory period that should have prompted respondents to undertake a full due-diligence review and convert the higher priced retail-class mutual funds to lower priced institutional-class mutual funds. App. to Pet. for Cert. 142–150. The District Court concluded, however, that petitioners had not met their burden of showing that a prudent fiduciary would have undertaken a full due-diligence review of these funds as a result of the alleged changed circumstances. According to the District Court, the circumstances had not changed enough to place respondents under an obligation to review the mutual funds and to convert them to lower priced institutional-class mutual funds. Ibid. The Ninth Circuit affirmed the District Court as to the six mutual funds. 729 F. 3d 1110 (2013). With respect to the three mutual funds added in 1999, the Ninth Circuit held that petitioners’ claims were untimely because petitioners had not established a change in circumstances that might trigger an obligation to review and to change investments within the 6-year statutory period. Petitioners filed a petition for certiorari asking us to review this latter holding. We agreed to do so. Section 1113 reads, in relevant part, that “[n]o action may be commenced with respect to a fiduciary’s breach of any responsibility, duty, or obligation” after the earlier of “six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation.” Both clauses of that provision require only a “breach or violation” to start the 6-year period. Petitioners contend that respondents breached the duty of prudence by offering higher priced retail-class mutual funds when the same investments were available as lower priced institutional-class mutual funds. The Ninth Circuit, without considering the role of the fiduciary’s duty of prudence under trust law, rejected petitioners’ claims as untimely under §1113 on the basis that respondents had selected the three mutual funds more than six years before petitioners brought this action. The Ninth Circuit correctly asked whether the “last action which constituted a part of the breach or violation” of respondents’ duty of prudence occurred within the relevant 6-year period. It focused, however, upon the act of “designating an investment for inclusion” to start the 6-year period. 729 F. 3d, at 1119. The Ninth Circuit stated that “[c]haracterizing the mere continued offering of a plan option, without more, as a subsequent breach would render” the statute meaningless and could even expose present fiduciaries to liability for decisions made decades ago. Id., at 1120. But the Ninth Circuit jumped from this observation to the conclusion that only a significant change in circumstances could engender a new breach of a fiduciary duty, stating that the District Court was “entirely correct” to have entertained the “possibility” that “sig-nificant changes” occurring “within the limitations period” might require “ ‘a full due diligence review of the funds,’ ” equivalent to the diligence review that respondents conduct when adding new funds to the Plan. Ibid. We believe the Ninth Circuit erred by applying a statu-tory bar to a claim of a “breach or violation” of a fiduciary duty without considering the nature of the fiduciary duty. The Ninth Circuit did not recognize that under trust law a fiduciary is required to conduct a regular review of its investment with the nature and timing of the review contingent on the circumstances. Of course, after the Ninth Circuit considers trust-law principles, it is possible that it will conclude that respondents did indeed conduct the sort of review that a prudent fiduciary would have conducted absent a significant change in circumstances. An ERISA fiduciary must discharge his responsibility “with the care, skill, prudence, and diligence” that a prudent person “acting in a like capacity and familiar with such matters” would use. §1104(a)(1); see also Fifth Third Bancorp v. Dudenhoeffer, 573 U. S. ___ (2014). We have often noted that an ERISA fiduciary’s duty is “derived from the common law of trusts.” Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985) . In determining the contours of an ERISA fiduciary’s duty, courts often must look to the law of trusts. We are aware of no reason why the Ninth Circuit should not do so here. Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset. The Bogert treatise states that “[t]he trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely.” A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees §684, pp. 145–146 (3d ed. 2009) (Bogert 3d). Rather, the trustee must “systematic[ally] conside[r] all the investments of the trust at regular intervals” to ensure that they are appropriate. Bogert 3d §684, at 147–148; see also In re Stark’s Estate, 15 N. Y. S. 729, 731 (Surr. Ct. 1891) (stating that a trustee must “exercis[e] a reasonable degree of diligence in looking after the security after the investment had been made”); Johns v. Herbert, 2 App. D. C. 485, 499 (1894) (holding trustee liable for failure to discharge his “duty to watch the investment with reasonable care and diligence”). The Restatement (Third) of Trusts states the following: “[A] trustee’s duties apply not only in making investments but also in monitoring and reviewing investments, which is to be done in a manner that isreasonable and appropriate to the particular investments, courses of action, and strategies involved.” §90, Comment b, p. 295 (2007). The Uniform Prudent Investor Act confirms that “[m]anaging embraces monitoring” and that a trustee has “continuing responsibility for oversight of the suitability of the investments already made.” §2, Comment, 7B U. L. A. 21 (1995) (internal quotation marks omitted). Scott on Trusts implies as much by stating that, “[w]hen the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time.” 4 A. Scott, W. Fratcher, & M. Ascher, Scott and Ascher on Trusts §19.3.1, p. 1439 (5th ed. 2007). Bogert says the same. Bogert 3d §685, at 156–157 (explaining that if an investment is determined to be imprudent, the trustee “must dispose of it within a reasonable time”); see, e.g., State Street Trust Co. v. DeKalb, 259 Mass. 578, 583, 157 N. E. 334, 336 (1927) (trustee was required to take action to “protect the rights of the beneficiaries” when the value of trust assets declined). In short, under trust law, a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones. A plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely. The Ninth Circuit erred by applying a 6-year statutory bar based solely on the initial selection of the three funds without considering the contours of the alleged breach of fiduciary duty. The parties now agree that the duty of prudence involves a continuing duty to monitor investments and remove imprudent ones under trust law. Brief for Petitioners 24 (“Trust law imposes a duty to examine the prudence of existing investments periodically and to remove imprudent investments”); Brief for Respondents 3 (“All agree that a fiduciary has an ongoing duty to monitor trust investments to ensure that they remain prudent”); Brief for United States as Amicus Curiae 7 (“The duty of prudence under ERISA, as under trust law, requires plan fiduciaries with investment responsibility to examine periodically the prudence of existing investments and to remove imprudent investments within a reasonable period of time”). The parties disagree, however, with respect to the scope of that responsibility. Did it require a review of the contested mutual funds here, and if so, just what kind of review did it require? A fiduciary must discharge his responsibilities “with the care, skill, prudence, and diligence” that a prudent person “acting in a like capacity and familiar with such matters” would use. §1104(a)(1). We express no view on the scope of respondents’ fiduciary duty in this case. We remand for the Ninth Circuit to consider petitioners’ claims that respondents breached their duties within the relevant 6-year period under §1113, recognizing the importance of analogous trust law. A final point: Respondents argue that petitioners did not raise the claim below that respondents committed new breaches of the duty of prudence by failing to monitor their investments and remove imprudent ones absent a significant change in circumstances. We leave any questions of forfeiture for the Ninth Circuit on remand. The Ninth Circuit’s judgment is vacated, and the case isremanded 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 . SUPREME COURT OF THE UNITED STATES Syllabus TIBBLE et al. v. EDISON INTERNATIONAL et al. certiorari to the united states court of appeals for the ninth circuit No. 13–550. Argued February 24, 2015—Decided May 18, 2015 In 2007, petitioners, beneficiaries of the Edison 401(k) Savings Plan (Plan), sued Plan fiduciaries, respondents Edison International and others, to recover damages for alleged losses suffered by the Plan from alleged breaches of respondents’ fiduciary duties. As relevant here, petitioners argued that respondents violated their fiduciary duties with respect to three mutual funds added to the Plan in 1999 and three mutual funds added to the Plan in 2002. Petitioners argued that respondents acted imprudently by offering six higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available. Because ERISA requires a breach of fiduciary duty complaint to be filed no more than six years after “the date of the last action which constitutes a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation,” 29 U. S. C. §1113, the District Court held that petitioners’ complaint as to the 1999 funds was untimely because they were included in the Plan more than six years before the complaint was filed, and the circumstances had not changed enough within the 6-year statutory period to place respondents under an obligation to review the mutual funds and to convert them to lower priced institutional-class funds. The Ninth Circuit affirmed, concluding that petitioners had not established a change in circumstances that might trigger an obligation to conduct a full due diligence review of the 1999 funds within the 6-year statutory period. Held: The Ninth Circuit erred by applying §1113’s statutory bar to a breach of fiduciary duty claim based on the initial selection of the investments without considering the contours of the alleged breach of fiduciary duty. ERISA’s fiduciary duty is “derived from the common law of trusts,” Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559 , which provides that a trustee has a continuing duty—separate and apart from the duty to exercise prudence in selecting investments at the outset—to monitor, and remove imprudent, trust investments. So long as a plaintiff’s claim alleging breach of the continuing duty of prudence occurred within six years of suit, the claim is timely. This Court expresses no view on the scope of respondents’ fiduciary duty in this case, e.g., whether a review of the contested mutual funds is required, and, if so, just what kind of review. A fiduciary must discharge his responsibilities “with the care, skill, prudence, and diligence” that a prudent person “acting in a like capacity and familiar with such matters” would use. §1104(a)(1). The case is remanded for the Ninth Circuit to consider petitioners’ claims that respondents breached their duties within the relevant 6-year statutory period under §1113, recognizing the importance of analogous trust law. . 729 F. 3d 1110, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.

Under the Employee Retirement Income Security Act of 1974 (ERISA), a breach of fiduciary duty complaint is timely if filed no more than six years after "the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the [fuciary] could have cured the breach...," 29 U. S. C. §1113. Petitioners, individual beneficiaries of the Edison 401(k) Savings Plan (Plan), filed a lawsuit on behalf of the Plan and all similarly situated beneficiaries (collectively, petitioners) against Edison, certain of its creditors, including respondents. Petitioners sought to recover damages for alleged losses suffered by the Plan, in addition to injunctive and other equitable relief based on al-leged breaches of respondents. The District Court agreed, holding that petitioners' claims were untimely because, unlike the other contested mutual funds, these mutual funds were included in the Plan more than 6 years before the complaint was filed in 2007. As a result, the 6-year statutory period had run. However, the court allowed petitioners to argue that, despite the 1999 selection of the three funds, their complaint was nevertheless timely because these funds underwent significant changes within the statutory period that should have prompted respondents to undertake a full due-diligence review and convert the higher priced retail-class funds to lower priced institutional-class mutual funds. But the court concluded, however, that they had not met their burden of showing that a prudent fiduciar would have undertaken a full review of the circumstances as a result of the alleged breach of the duty of prudence. Accordingly, it affirmed the District Court, and the Court of Appeals affirmed. Held: The judgment is vacated and the case is remanded to the Ninth Circuit to consider petitioners claims that respondents breached their fiduciaries' duties within the relevant six-year period. . (a) Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee's duty to exercise prudence in selecting investments at the outset. A trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely. Rather, he must consideally ensure that all investments are appropriate after regular intervals of security after the investment has been made, after a reasonable degree of security had been made. See, e.g., Stark & Johns v. Johns, 499 N.C. 485, 499 C. 518, 499 S.W.2d 499 (C.J.), which confirms that a trustee is liable for the trustee to discharge his duty to watch the investment with reasonable care and diligence. Moreover, the Uniform Prudent Investor Act confirms that an ERISA trustee has continuing responsibility for oversight of the suitability of the investments already made, and is ordinarily under a duty to dispose of them within a reasonable time. Thus, a plaintiff may allege that a fiduciario breached the duty of prudence by failing to properly monitor investments, and that such a claim is timely. Here, the courts relied on the law of trusts. They applied a statu-tory bar to a claim of a "breach or violation" of a fiducary duty without considering the nature of that duty. In determining the contours of the asserted breach of a duty, courts often must look to trust law. This Court is aware of no reason why the Court should not do so here. Under trust, the trustee has an ongoing duty of monitoring trust investments, but this continuing duty is separate and separate from his duty under ERISA. Rather, rather than assuming that the investments will remain indefinitely, the trust trustees must ensure that they are considually appropriate, after regular security intervals have been made after adequate security has been secured, after security has had been reexamined, after reasonable security intervals having been made; after the trustee had been looking after the security after security, after he had made the investment, after the proper security had had been secured; after a prudent person acting in a like capacity and familiar with such matters would use the appropriate security intervals. Nor can a trustee be held liable for looking after security after a security review after a proper security re-examining the investment after security is made; or, after careful re-examination after a 3-year limitation period, for the benefit of the trustee. Finally, the Court must discharge his responsibilities "with the care, skill, prudence, and diligence [that a prudent] personacting in a Like capacity [has] used...." Cf. Bogert, Gertrude Hess, and Hess. A Bogert treatise states that: (b) Rather than the trustee, rather, the

2014_13-1080

https://www.oyez.org/cases/2014/13-1080

. In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue metrics and standards that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members freight services, respondent the Association of American Railroads filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity. Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of respondent s claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards. Having granted the petition for writ of certiorari, 573 U. S. ___ (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak s actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards including questions implicating the Constitution s structural separation of powers and the Appointments Clause, U. S. Const., Art. II, 2, cl. 2 may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded. I A Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation s railroads. See Lebron v. National Railroad Passenger Corporation, 513 U. S. 374 384 (1995); National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451 457 (1985); see also Rail Passenger Service Act of 1970, 84Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U. S. C. 561, 562 (1970 ed.). The Surface Transportation Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U. S. C. 24308(a) (2012 ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See 24308(c). The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards: Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services. Id., at 4916. Section 207(d) of the PRIIA further provides: If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration. Id., at 4917. The PRIIA specifies that the metrics and standards created under 207(a) are to be used for a variety of purposes. Section 207(b) requires the FRA to publish a quarterly report on the performance and service quality of intercity passenger train operations addressing the specific elements to be measured by the metrics and standards. Id., at 4916 4917. Section 207(c) provides that, [t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements. Id., at 4917. And 222(a) obliges Amtrak, within one year after the metrics and standards are established, to develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [ 207(a)]. Id., at 4932. Under 213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, [i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters, the STB may initiate an investigation to determine whether and to what extent delays . . . are due to causes that could reasonably be addressed . . . by Amtrak or other intercity passenger rail operators. Id., at 4925 4926. While conducting an investigation under 213(a), the STB has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays and shall obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train. Id., at 4926. Following an investigation, the STB may award damages if it determines that delays or failures to achieve minimum standards . . . are attributable to a rail carrier s failure to provide preference to Amtrak over freight transportation. Ibid. The STB is further empowered to order the host rail carrier to remit damages to Amtrak or to an entity for which Amtrak operates intercity passenger rail service. Ibid. B In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75 76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id., at 129 144. The metrics and standards address, among other matters, Amtrak s financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities. Of most importance for this case, the metrics and standards also address Amtrak s on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id., at 133 135. With respect to host-responsible delays that is to say, delays attributed to the railroads along which Amtrak trains travel the metrics and standards provide that [d]elays must not be more than 900 minutes per 10,000 Train-Miles. Id., at 138. Amtrak conductors determine responsibility for particular delays. Ibid., n. 23. In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that 207 violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate. Id., at 176 177, Complaint 51. Respondent also asserted that 207 violates the Fifth Amendment Due Process Clause by [v]esting the coercive power of the government in Amtrak, an interested private part[y]. Id., at 177, 53 54. In its prayer for relief respondent sought, among other remedies, a declaration of 207 s unconstitutionality and invalidation of the metrics and standards. Id., at 177. The District Court granted summary judgment to petitioners on both claims. See 865 F. Supp. 2d 22 (DC 2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent s nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that 207 is constitutional. See id., at 35. The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning in central part that because Amtrak is a private corporation with respect to Congress s power to delegate . . . authority, it cannot constitutionally be granted the regulatory power prescribed in 207. 721 F. 3d 666, 677 (2013). The Court of Appeals did not reach respondent s due process claim. See ibid. II In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards authority it described as regulatory power, ibid. the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court s analysis treated as controlling Congress statutory command that Amtrak is not a department, agency, or instrumentality of the United States Government. Id., at 675 (quoting 49 U. S. C. 24301(a)(3)). The Court of Appeals also relied on Congress pronouncement that Amtrak shall be operated and managed as a for-profit corporation. 721 F. 3d, at 675 (quoting 24301(a)(2)); see also id., at 677 ( Though the federal government s involvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak s status for purposes of congressional delegations, these declarations are dispositive ). Proceeding from this premise, the Court of Appeals concluded it was impermissible for Congress to delegate regulatory authority to a private entity. Id., at 670; see also ibid. (holding Carter v. Carter Coal Co., 298 U. S. 238 (1936) , prohibits any such delegation of authority). That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F. 3d 488, 491 492 (CADC 2004) (Roberts, J.), are not dispositive of Amtrak s status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak s status under the Constitution reveals the Court of Appeals premise was flawed. It is appropriate to begin the analysis with Amtrak s ownership and corporate structure. The Secretary of Transportation holds all of Amtrak s preferred stock and most of its common stock. Amtrak s Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members areappointed by the President and confirmed by the Senate. 49 U. S. C. 24302(a)(1). These eight Board members,in turn, select Amtrak s president. 24302(a)(1)(B); 24303(a). Amtrak s Board members are subject to salary limits set by Congress, 24303(b); and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003). Under further statutory provisions, Amtrak s Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual s prior experience in the transportation industry, 24302(a)(1)(C), and has provided that not more than five of the seven appointed Board members be from the same political party, 24302(a)(3). In selecting Amtrak s Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to provide adequate and balanced representation of the major geographic regions of the United States served by Amtrak. 24302(a)(2). In addition to controlling Amtrak s stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak s priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. 24315. The Freedom of Information Act applies to Amtrak in any year in which it receives a federal subsidy, 5 U. S. C. 552, which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a designated Federal entity, 5 U. S. C. App. 8G(a)(2), p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak s budget, routes, and prices. See, e.g., Hearing on Reviewing Alternatives to Amtrak s Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, 113th Cong., 1st Sess., 5 (2013) (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak s Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (statement of Joseph H. Boardman, president and chief executive officer, Amtrak). It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must provide efficient and effective intercity passenger rail mobility, 49 U. S. C. 24101(b); minimize Government subsidies, 24101(d); provide reduced fares to the disabled and elderly, 24307(a); and ensure mobility in times of national disaster, 24101(c)(9). In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak s day-to-day operations. Amtrak must maintain a route between Louisiana and Florida. 24101(c)(6). When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. 24902(b). And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manufactured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. 24305(f). Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46. Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is understood by the Executive to be removable by the President at will. Amtrak was created by the Government, is controlled by the Government, and operates for the Government s benefit. Thus, in its joint issuance of the metrics and standards with the FRA, Amtrak acted as a governmental entity for purposes of the Constitution s separation of powers provisions. And that exercise of governmental power must be consistent with the design and requirements of the Constitution, including those provisions relating to the separation of powers. Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak shall be operated and managed as a for profit corporation and is not a department, agency, or instrumentality of the United States Government. 24301(a)(2) (3). In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by 207(a). On that point this Court s decision in Lebron v. National Railroad Passenger Corp., 513 U. S. 374 (1995) , provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City s Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that its charter s disclaimer of agency status prevent[ed] it from being considered a Government entity. Id., at 392. The Court rejected this contention, holding it is not for Congress to make the final determination of Amtrak s status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions. Ibid. To hold otherwise would allow the Government to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form. Id., at 397. Noting that Amtrak is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees, id., at 398, and that the Government exerts its control over Amtrak not as a creditor but as a policymaker, the Court held Amtrak is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution. Id., at 394, 399. Lebron teaches that, for purposes of Amtrak s status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress disclaimer of Amtrak s governmental status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak s joint authority to issue the metrics and standards. But [t]he structural principles secured by the separation of powers protect the individual as well. Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 10). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case. III Because the Court of Appeals decision was based on the flawed premise that Amtrak should be treated as a private entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak s president, who is appointed not by the President . . . but by the other eight Board Members, call[s] into question Amtrak s structure under the Appointments Clause, Brief for Respondent 42; that 207(d) s arbitrator provision is a plain violation of the nondelegation principle and the Appointments Clause requiring invalidation of 207(a), id., at 26; and that Congress violated the Due Process Clause by giv[ing] a federally chartered, nominally private, for-profit corporation regulatory authority over its own industry, id., at 43. Petitioners, in turn, contend that the metrics and standards do not reflect the exercise of rulemaking authority or permit Amtrak to regulate other private entities, and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because [o]urs is a court of final review and not first view, Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 12) (internal quotation marks omitted), those issues to the extent they are properly before the Court of Appeals should be addressed in the first instance on remand. The judgment of the Court of Appeals for the District of Columbia 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 . SUPREME COURT OF THE UNITED STATES Syllabus FONT department of transportation FONT et al. v. FONT association of american railroads FONT certiorari to the united states court of appeals for the district of columbia circuit No. 13–1080. Argued December 8, 2014—Decided March 9, 2015 In 1970, Congress created the National Railroad Passenger Corporation (Amtrak). Congress has given Amtrak priority to use track systems owned by the freight railroads for passenger rail travel, at rates agreed to by the parties or, in case of a dispute, set by the Surface Transportation Board. And in 2008, Congress gave Amtrak and the Federal Railroad Administration (FRA) joint authority to issue “metrics and standards” addressing the performance and scheduling of passenger railroad services, see §207(a), 122Stat. 4907, including Amtrak’s on-time performance and train delays caused by host railroads. Respondent, the Association of American Railroads, sued petitioners—the Department of Transportation, the FRA, and two officials—claiming that the metrics and standards must be invalidated because it is unconstitutional for Congress to allow and direct a private entity like Amtrak to exercise joint authority in their issuance. Its argument rested on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected respondent’s claims, but the District of Columbia Circuit reversed as to the separation of powers claim, reasoning in central part that Amtrak is a private corporation and thus cannot constitutionally be granted regulatory power under §207. Held: For purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. . (a) In concluding otherwise, the Court of Appeals relied on the statutory command that Amtrak “is not a department, agency, or instrumentality of the United States Government,” 49 U. S. C. §24301(a)(3), and the pronouncement that Amtrak “shall be operated and managed as a for profit corporation,” §24301(a)(2). But congressional pronouncements are not dispositive of Amtrak’s status as a governmental entity for purposes of separation of powers analysis under the Constitution, and an independent inquiry reveals the Court of Appeals’ premise that Amtrak is a private entity was flawed. As Amtrak’s ownership and corporate structure show, the political branches control most of Amtrak’s stock and its Board of Directors, most of whom are appointed by the President, §24302(a)(1), confirmed by the Senate, ibid., and understood by the Executive Branch to be removable by the President at will. The political branches also exercise substantial, statutorily mandated supervision over Amtrak’s priorities and operations. See, e.g., §24315. Also of significance, Amtrak is required by statute to pursue broad public objectives, see, e.g., §§24101(b), 24307(a); certain aspects of Amtrak’s day-to-day operations are mandated by Congress, see, e.g., §§24101(c)(6), 24902(b); and Amtrak has been dependent on federal financial support during every year of its existence. Given the combination of these unique features and Amtrak’s significant ties to the Government, Amtrak is not an autonomous private enterprise. Amtrak was created by the Government, is controlled by the Government, and operates for the Government’s benefit. Thus, in jointly issuing the metrics and standards with the FRA, Amtrak acted as a governmental entity for separation of powers purposes. And that exercise of governmental power must be consistent with the Constitution, including those provisions relating to the separation of powers. . (b) Respondent’s reliance on congressional statements about Amtrak’s status is misplaced. Lebron v. National Railroad Passenger Corp., 513 U. S. 374 , teaches that, for purposes of Amtrak’s status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress’ disclaimer of Amtrak’s governmental status. Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor, for the political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. . (c) The Court of Appeals may address in the first instance any properly preserved issues respecting the lawfulness of the metrics and standards that may remain in this case, including questions implicating the Constitution’s structural separation of powers and the Appointments Clause. . 721 F. 3d 666, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment.

In 1970, Congress created the National Railroad Passenger Corporation (Amtrak), most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue metrics and standards that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standard have substantial and adverse effects upon its members freight services, respondent Association of American Railroads filed suit in Federal District Court to challenge their validity. The District Court rejected respondent's claims, and the Court of Appeals reversed, holding that, for purposes of this dispute, Amtrak is a governmental entity and that Congress violated nondelegation principles in granting joint authority. Held: 1. For purposes of determining the validity of the monitoring and performance of Amtrak, Amtrak, a corporation established and authorized by a detailed federal statute enacted for no less a purpose than to preserve passenger services and routes on the Nation's railroads, held: (1) The Secretary of Transportation holds all of Amtrak s preferred stock and most of its common stock; Amtrak Board members are appointed by the President and confirmed by the Senate and are understood by the Executive to be removable at will; Amtrak conductors determine responsibility for particular delays; Amtrak is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees; and the Government exerts control over Amtrak not as a creditor but as a policymaker. . (2) Treating Amtrak as governmental is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, impose substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget, routes, and prices. Accordingly, the Court holds that Amtrak is not a private entity for the purposes of separation of powers analysis under the Constitution, and that, in determining whether Amtrak must be deemed private or governmental, Congress must exercise sufficient control over the promulgation and enforcement of the standards so that 207 is constitutional. Because the issues presented here are not presented to the arbitrator, but are for the first instance on remand, those issues to the extent that they are properly before the Court of Appeals should be addressed in the first instance. P.. 721 F. 3d 666, vacated and remanded. THE CHIEF JUSTICE, in his opinion, concluded that Congress did not delegate regulatory authority to a private, for-profit corporation. That conclusion was erroneous, since Congressional pronouncements, though instructive as to matters within Congress authority to address, are not dispositive of Amtrak status as a governmental entity for purposes of the Constitution separation powers provisions, and since an independent inquiry into Amtrak s status under that provision reveals that Congress erred in holding that Amtrak cannot exercise the joint authority entrusted to it and the FRA by 207(a). Lebron v.National Railroad Passenger Corp., 513 U. S. 374, -- which held Amtrak an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution -- and Bond v. United States, 564 U.S. ___, ___ (2011) -- both involved First Amendment questions, and which involved a First Amendment question -- are dispositive. Moreover, Congress has both designated Amtrak a private corporation and instructed that it be managed so as to maximize profit. Congress has also designated it a for profit corporation, which is extensively supervised and substantially funded by the political branches. A majority of its Board is appointed, confirmed, and is understood by the Executive at will. Amtrak is also dependent on federal financial support, and has received more than $41 billion in federal subsidies since its first 43 years of operation. Given these unique features and its significant ties to the Government, Amtrak's priorities, operations, and decisions are extensively supervised, substantially funded, supervised, and substantially financed by the Political branches, a majority of the Board being appointed by President and Senate and being understood by him at will, and are removable by him. Under further statutory provisions, Amtrak members must possess certain qualifications, and must be not more than five of the seven appointed members be from the same political party. In selecting Amtrak members, moreover, the President must consult with congressional leaders in both Houses of Congress in order to provide adequate and balanced representation of the major geographic regions of the country served by Amtrak. Trainers must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak's budget and prices, and conducts frequent hearings. Petitioners contend that, since Congress has giv[ed Amtrak a federally chartered, nominally private, corporation regulatory

2014_13-1074

https://www.oyez.org/cases/2014/13-1074

. The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be for-ever barred” unless it is presented to the “appropriate Fed-eral agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim.28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.I In the first case, respondent Kwai Fun Wong asserts that the Immigration and Naturalization Service (INS) falsely imprisoned her for five days in 1999. As the FTCA requires, Wong first presented that claim to the INS within two years of the alleged unlawful action. See §2401(b); §2675(a). The INS denied the administrative complaint on December 3, 2001. Under the Act, that gave Wong six months, until June 3, 2002, to bring her tort claim in federal court. See §2401(b). Several months prior to the INS’s decision, Wong had filed suit in federal district court asserting various non-FTCA claims against the Government arising out of the same alleged misconduct. Anticipating the INS’s ruling, Wong moved in mid-November 2001 to amend the complaint in that suit by adding her tort claim. On April 5, 2002, a Magistrate Judge recommended granting Wong leave to amend. But the District Court did not finally adopt that proposal until June 25—three weeks after the FTCA’s 6-month deadline. The Government moved to dismiss the tort claim on the ground that it was filed late. The District Court at first rejected the motion. It recognized that Wong had managed to add her FTCA claim only after §2401(b)’s 6-month time period had expired. But the court equitably tolled that period for all the time between the Magistrate Judge’s recommendation and its own order allowing amendment, thus bringing Wong’s FTCA claim within the statutory deadline. Several years later, the Government moved for reconsideration of that ruling based on an intervening Ninth Circuit decision. This time, the District Court dismissed Wong’s claim, reasoning that §2401(b)’s 6-month time bar was jurisdictional and therefore not subject to equitable tolling. On appeal, the Ninth Circuit agreed to hear the case en banc to address an intra-circuit conflict on the issue. The en banc court held that the 6-month limit is not jurisdictional and that equitable tolling is available. Kwai Fun Wong v. Beebe, 732 F. 3d 1030 (2013). It then confirmed the District Court’s prior ruling that the circumstances here justify tolling because Wong “exercis[ed] due diligence” in attempting to amend her complaint before the statutory deadline. Id., at 1052. The second case before us arises from a deadly highway accident. Andrew Booth was killed in 2005 when a car in which he was riding crossed through a cable median barrier and crashed into oncoming traffic. The following year, respondent Marlene June, acting on behalf of Booth’s young son, filed a wrongful death action alleging that the State of Arizona and its contractor had negligently constructed and maintained the median barrier. Years into that state-court litigation, June contends, she discovered that the Federal Highway Administration (FHWA) had approved installation of the barrier knowing it had not been properly crash tested. Relying on that new information, June presented a tort claim to the FHWA in 2010, more than five years after the accident. The FHWA denied the claim, and June promptly filed this action in federal district court. The court dismissed the suit because June had failed to submit her claim to the FHWA within two years of the collision. The FTCA’s 2-year bar, the court ruled, is jurisdictional and therefore not subject to equitable tolling; accordingly, the court did not consider June’s contention that tolling was proper because the Government had concealed its failure to require crash testing. On appeal, the Ninth Circuit reversed in light of its recent decision in Wong, thus holding that §2401(b)’s 2-year deadline, like its 6-month counterpart, is not jurisdictional and may be tolled. 550 Fed. Appx. 505 (2013). We granted certiorari in both cases, 573 U. S. ___ (2014), to resolve a circuit split about whether courts may equitably toll §2401(b)’s two time limits. Compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability Litigation, 646 F. 3d 185, 190–191 (CA5 2011) (per curiam) (tolling not available), with Arteaga v. United States, 711 F. 3d 828, 832–833 (CA7 2013) (tolling allowed).[1] We now affirm the Court of Appeals’ rulings.II Irwin v. Department of Veterans Affairs,498 U. S. 89,95 (1990), sets out the framework for deciding “the applicability of equitable tolling in suits against the Government.” In Irwin, we recognized that time bars in suits between private parties are presumptively subject to equitable tolling. See id., at 95–96. That means a court usually may pause the running of a limitations statute in private litigation when a party “has pursued his rights diligently but some extraordinary circumstance” prevents him from meeting a deadline. Lozano v. Montoya Alvarez,572 U. S. 1, ___ (2014) (slip op., at 7). We held in Irwin that “the same rebuttable presumption of equitable tolling” should also apply to suits brought against the United States under a statute waiving sovereign immunity. 498 U. S., at 95–96. Our old “ad hoc,” law-by-law approach to determining the availability of tolling in those suits, we reasoned, had produced inconsistency and “unpredictability” without the offsetting virtue of enhanced “fidelity to the intent of Congress.” Id., at 95. Adopting the “general rule” used in private litigation, we stated, would “amount[ ] to little, if any, broadening” of a statutory waiver of immunity. Ibid. Accordingly, we thought such a presumption “likely to be a realistic assessment of legislative intent as well as a practically useful” rule of interpretation. Ibid. A rebuttable presumption, of course, may be rebutted, so Irwin does not end the matter. When enacting a time bar for a suit against the Government (as for one against a private party), Congress may reverse the usual rule if it chooses. See id., at 96. The Government may therefore attempt to establish, through evidence relating to a particular statute of limitations, that Congress opted to forbid equitable tolling. One way to meet that burden—and the way the Government pursues here—is to show that Congress made the time bar at issue jurisdictional.[2] When that is so, a litigant’s failure to comply with the bar deprives a court of all authority to hear a case. Hence, a court must enforce the limitation even if the other party has waived any timeliness objection. See Gonzalez v. Thaler, 565 U. S. ___, ___–___ (2012) (slip op., at 5–6). And, more crucially here, a court must do so even if equitable considerations would support extending the prescribed time period. See John R. Sand & Gravel Co. v. United States,552 U. S. 130–134 (2008).[3] Given those harsh consequences, the Government must clear a high bar to establish that a statute of limitations is jurisdictional. In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court’s power only if Congress has “clearly state[d]” as much. Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 6) (quoting Arbaugh v. Y & H Corp.,546 U. S. 500,515 (2006)); see Gonzalez, 565 U. S., at ___–___ (slip op., at 6–7). “[A]bsent such a clear statement, . . . ‘courts should treat the restriction as nonjurisdictional.’ ” Auburn Regional, 568 U. S., at ___–___ (slip op., at 6–7) (quoting Arbaugh, 546 U. S., at 516). That does not mean “Congress must incant magic words.” Auburn Regional, 568 U. S., at ___ (slip op., at 7). But traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences. And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional. See, e.g., id., at ___ (slip op., at 8) (noting the rarity of jurisdictional time limits). Time and again, we have described filing deadlines as “quintessential claim-processing rules,” which “seek to promote the orderly progress of litigation,” but do not deprive a court of authority to hear a case. Henderson v. Shinseki,562 U. S. 428,435 (2011); see Auburn Regional, 568 U. S., at ___ (slip op., at 8); Scarborough v. Principi,541 U. S. 401,413 (2004). That is so, contrary to the dissent’s suggestion, see post, at 4, 10–11, even when the time limit is important (most are) and even when it is framed in mandatory terms (again, most are); indeed, that is so “however emphatic[ally]” expressed those terms may be, Henderson, 562 U. S., at 439 (quoting Union Pacific R. Co. v. Locomotive Engineers,558 U. S. 67,81 (2009)). Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. In enacting the FTCA, Congress did nothing of that kind. It provided no clear statement indicating that §2401(b) is the rare statute of limitations that can deprive a court of jurisdiction. Neither the text nor the context nor the legislative history indicates (much less does so plainly) that Congress meant to enact something other than a standard time bar. Most important, §2401(b)’s text speaks only to a claim’s timeliness, not to a court’s power. It states that “[a] tort claim against the United States shall be forever barred unless it is presented [to the agency] within two years . . . or unless action is begun within six months” of the agency’s denial of the claim. That is mundane statute-of-limitations language, saying only what every time bar,by definition, must: that after a certain time a claimis barred. See infra, at 11, n. 7 (citing many similarly worded limitations statutes). The language is mandatory—“shall” be barred—but (as just noted) that is true of most such statutes, and we have consistently found it of no consequence. See, e.g., Gonzalez, 565 U. S., at ___–___ (slip op., at 10–11). Too, the language might be viewed as emphatic—“forever” barred—but (again) we have often held that not to matter. See, e.g., Henderson, 562 U. S., at 439; Union Pacific, 558 U. S., at 81. What matters instead is that §2401(b) “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Arbaugh, 546 U. S., at 515 (quoting Zipes v. Trans World Airlines, Inc.,455 U. S. 385,394 (1982)). It does not define a federal court’s jurisdiction over tort claims generally, address its authority to hear untimely suits, or in any way cabin its usual equitable powers. Section 2401(b), in short, “reads like an ordinary, run-of-the-mill statute of limitations,” spelling out a litigant’s filing obligations without restricting a court’s authority. Holland v. Flor-ida,560 U. S. 631,647 (2010).[4] Statutory context confirms that reading. This Court has often explained that Congress’s separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional. See Henderson, 562 U. S., at 439–440; Reed Elsevier, Inc. v. Muchnick,559 U. S. 154–165 (2010); Arbaugh, 546 U. S., at 515; Zipes, 455 U. S., at 393–394. So too here. Whereas §2401(b) houses the FTCA’s time limitations, a different section of Title 28 confers power on federal district courts to hear FTCA claims. See §1346(b)(1) (“district courts . . . shall have exclusive jurisdiction” over tort claims against the United States). Nothing conditions the jurisdictional grant on the limitations periods, or otherwise links those separate provisions. Treating §2401(b)’s time bars as jurisdictional would thus disregard the structural divide built into the statute. Finally, even assuming legislative history alone could provide a clear statement (which we doubt), none does so here. The report accompanying the FTCA did not discuss whether §2401(b)’s time limits are jurisdictional. See S. Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946). And in amending §2401(b) four times after its enactment, Congress declined again (four times over) to say anything specific about whether the statute of limitations imposes a jurisdictional bar. Congress thus failed to provide anything like the clear statement this Court has demanded before deeming a statute of limitations to curtail a court’s power. And so we wind up back where we started, with Irwin’s “general rule” that equitable tolling is available in suits against the Government. 498 U. S., at 95. The justification the Government offers for departing from that principle fails: Section 2401(b) is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds.III The Government balks at that straightforward analysis, claiming that it overlooks two reasons for thinking §2401(b) jurisdictional. But neither of those reasons is persuasive. Indeed, our precedents in this area foreclose them both.A The Government principally contends that §2401(b) is jurisdictional because it includes the same language as the statute of limitations governing contract (and some other non-tort) suits brought against the United States under the Tucker Act. See §2501.[5] That statute long provided that such suits “shall be forever barred” if not filed within six years. Act of Mar. 3, 1863, §10,12Stat.767; see Act of Mar. 3, 1911, §156,36Stat.1139.[6] And this Court repeatedly held that 6-year limit to be jurisdictional and thus not subject to equitable tolling. See Kendall v. United States,107 U. S. 123–126 (1883); Finn v. United States,123 U. S. 227,232 (1887); Soriano v. United States,352 U. S. 270–274 (1957). When Congress drafted the FTCA’s time bar, it used the same “shall be forever barred” language (though selecting a shorter limitations period). “In these circumstances,” the Government maintains, “the only reasonable conclusion is that Congress intended the FTCA’s identically worded time limit to be a jurisdictional bar.” Brief for United States in Wong 21–22. According to the Government, Congress wanted the FTCA to serve as “a tort-law analogue to the Tucker Act” and incorporated the words “shall be forever barred” to similarly preclude equitable tolling. Reply Brief in Wong 4. (The dissent relies heavily on the same argument. See post, at 4–8.) But the Government takes too much from Congress’s use in §2401(b) of an utterly unremarkable phrase. The “shall be forever barred” formulation was a commonplace in federal limitations statutes for many decades surrounding Congress’s enactment of the FTCA.[7] And neither this Court nor any other has accorded those words talismanic power to render time bars jurisdictional. To the contrary, we have construed the very same “shall be forever barred” language in15 U. S. C. §15b, the Clayton Act’s statute of limitations, to be subject to tolling; nothing in that provision, we found, “restrict[s] the power of the federal courts” to extend a limitations period when circumstances warrant. American Pipe & Constr. Co. v. Utah,414 U. S. 538,559 (1974); see Hardin v. City Title & Escrow Co., 797 F. 2d 1037, 1040 (CADC 1986) (calling §15(b) “a good example of a non-jurisdictional time limitation” based on its text and separation from the Clayton Act’s jurisdic-tional provisions).[8] As the Government itself has previously acknowledged, referring to the “shall be forever barred” locution: “[T]hat type of language has more to do with the legal rhetoric at the time the statute was passed” than with anything else, and should not “make[ ] a difference” to the jurisdictional analysis. Tr. of Oral Arg. in Irwin, O. T. 1990, No. 89–5867, p. 30. Or, put just a bit differ-ently: Congress’s inclusion of a phrase endemic to limitations statutes of that era, at least some of which allow tolling, cannot provide the requisite clear statement that a time bar curtails a court’s authority. Indeed, in two decisions directly addressing the Tucker Act’s statute of limitations, this Court dismissed the idea that the language the Government relies on here has jurisdictional significance. Twice we described the words in that provision as not meaningfully different from those in a nonjurisdictional statute of limitations. And twice we made clear that the jurisdictional status of the Tucker Act’s time bar has precious little to do with its phrasing. We first did so in Irwin. Using our newly minted presumption, see supra, at 4–5, we decided there that the limitations period governing Title VII suits against the Government,42 U. S. C. §2000e–16(c) (1988 ed.), allowed equitable tolling. In reaching that conclusion, we compared §2000e–16(c)’s text (then stating that an employee “may file a civil action” within 30 days of an agency’s denial of her claim) with the language of the Tucker Act’s time bar. We noted that we had formerly held the Tucker Act’s limitations statute to “jurisdictionally bar[ ]” late claims, and we acknowledged the possibility of justifying that different treatment by characterizing its “language [as] more stringent than” §2000e–16(c)’s. Irwin, 498 U. S., at 94–95. But we rejected that reasoning, instead finding that the two formulations were materially alike. “[W]e are not persuaded,” we stated, “that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling.” Id., at 95. Leaving for another day the question of what did account for the jurisdictional status of the Tucker Act’s time bar, the Court thus ruled out reliance on its language. In other words, on the core question the Government raises here—whether the phrase “shall be forever barred,” as used in both the Tucker Act and the FTCA, manifests a congressional decision to preclude tolling—Irwin said no. More recently, John R. Sand reaffirmed that conclusion, even as it refused to overturn our century-old view that the Tucker Act’s time bar is jurisdictional. No less than three times, John R. Sand approvingly repeated Irwin’s statement that the textual differences between the Tucker Act’s time bar and §2000e–16(c) were insignificant—i.e., that the language of the two provisions could not explain why the former was jurisdictional and the latter not. See 552 U. S., at 137, 139 (calling the provisions “linguistically similar,” “similar . . . in language,” and “similarly worded”). But if that were so, John R. Sand asked, why not hold that the Tucker Act’s time limit, like §2000e–16(c), is nonjurisdictional? The answer came down to two words: stare decisis. The Tucker Act’s bar was different because it had been the subject of “a definitive earlier interpretation.” Id., at 138; see id., at 137; supra, at 10. And for that reason alone, John R. Sand left in place our prior construction of the Tucker Act’s time limit. See 552 U. S., at 139 (observing, in Justice Brandeis’s words, that “it is more important that” the rule “be settled than that it be settled right” (quoting Burnet v. Coronado Oil & Gas Co.,285 U. S. 393,406 (1932) (dissenting opinion))). What is special about the Tucker Act’s deadline, John R. Sand recognized, comes merely from this Court’s prior rulings, not from Congress’s choice of wording. The Government thus cannot show that the phrase “shall be forever barred” in §2401(b) plainly signifies a jurisdictional statute, as our decisions require. See supra, at 6–7. Unlike in John R. Sand, here stare decisis plays no role: We have not previously considered whether §2401(b) restricts a court’s authority. What we have done is to say, again and again, that the core language in that provision has no jurisdictional significance. It is materi-ally indistinguishable from the language in one nonjurisdic-tional time bar (i.e., §2000e–16(c)). See Irwin, 498 U. S., at 95; John R. Sand, 552 U. S., at 137, 139. And it is identical to the language in another (i.e., 15 U. S. C. §15b). See American Pipe, 414 U. S., at 559. Yes, we have held that the Tucker Act’s time bar, which includes those same words, constrains a court’s power to hear late claims. But as we explained in Irwin, that is not because the phrase itself “manifest[s] a . . . congressional intent with respect to the availability of equitable tolling.” 498 U. S., at 95. The words on which the Government pins its hopes are just the words of a limitations statute of a particular era. And nothing else supports the Government’s claim that Congress, when enacting the FTCA, wanted to incorporate this Court’s view of the Tucker Act’s time bar—much less that Congress expressed that purported intent with the needed clear statement.B The Government next contends that at the time of the FTCA’s enactment, Congress thought that every limitations statute applying to suits against the United States, however framed or worded, cut off a court’s jurisdiction over untimely claims. On that view, the particular language of those statutes makes no difference. All that matters is that such time limits function as conditions on the Government’s waiver of sovereign immunity. In that era—indeed, up until Irwin was decided—those conditions were generally supposed to be “strictly observed.” Soriano, 352 U. S., at 276. That meant, the Government urges, that all time limits on actions against the United States “carr[ied] jurisdictional consequences.” Brief for United States in Wong 34. Accordingly, the Government concludes, Congress “would have expected courts to apply [§2401(b)] as a jurisdictional requirement—just as conditions on waivers of sovereign immunity had always been applied.” Id., at 32. Irwin, however, forecloses that argument. After all, Irwin also considered a pre-Irwin time bar attached to a waiver of sovereign immunity. The Government argued there—anticipating its claim here—that because §2000e–16(c)’s statute of limitations conditioned such a waiver, it must be jurisdictional and not subject to equitable tolling. See Brief for Respondents 6, 10, 14, 19, and Tr. of Oral Arg. 31–37, in Irwin, O. T. 1990, No. 89–5867. But Irwin disagreed, applying the opposite presumption to a time limit passed two decades earlier. See 498 U. S., at 94–96; supra, at 4–5. Justice White protested, much as the Government does now, that at the time of §2000e–16(c)’s enactment, limitations statutes for suits against the Government were “strictly observed” and not amenable to tolling. 498 U. S., at 97 (opinion concurring in part and concurring in judgment) (quoting Soriano, 352 U. S., at 276); see 498 U. S., at 99, n. 2. How could an earlier Congress, Justice White asked, have “had in mind the Court’s present departure from that longstanding rule”? Ibid.; see post, at 9 (asking a variant of the same question). But the Irwin Court was undeterred. The Court noted that it had not applied the former rule so consistently as Justice White suggested. See 498 U. S., at 94. And the Court doubted that the former approach so well reflected congressional intent: On the contrary, because equitable tolling “amounts to little, if any, broadening of the congressional waiver,” we thought that a rule generally allowing tolling is the more “realistic assessment of legislative intent.” Id., at 95; see supra, at 4–5. For those reasons, the Court declined to count time bars as jurisdictional merely because they condition waivers of immunity—even if Congress enacted the deadline when the Court interpreted limitations statutes differently. In the years since, this Court has repeatedly followed Irwin’s lead. We have applied Irwin to pre-Irwin statutes, just as we have to statutes that followed in that decision’s wake. See Scarborough, 541 U. S., at 420–422; Franconia Associates v. United States,536 U. S. 129,145 (2002). To be sure, Irwin’s presumption is rebuttable. But the rebuttal cannot rely on what Irwin itself deemed irrelevant—that Congress passed the statute in an earlier era, when this Court often attached jurisdictional consequence to conditions on waivers of sovereign immunity. Rather, the rebuttal must identify something distinctive about the time limit at issue, whether enacted then or later—a reason for thinking Congress wanted that limitations statute (not all statutes passed in an earlier day) to curtail a court’s jurisdiction. On the Government’s contrary view, Irwin would effectively become only a prospective decision. Nothing could be less consonant with Irwin’s ambition to adopt a “general rule to govern the applicability of equit-able tolling in suits against the Government.” 498 U. S., at 95. And the Government’s claim is peculiarly inapt as applied to §2401(b) because all that is special about the FTCA cuts in favor of allowing equitable tolling. As compared to other waivers of immunity (prominently including the Tucker Act), the FTCA treats the United States more like a commoner than like the Crown. The FTCA’s jurisdictional provision states that courts may hear suits “under circumstances where the United States, if a private person, would be liable to the claimant.”28 U. S. C. §1346(b). And when defining substantive liability for torts, the Act reiterates that the United States is accountable “in the same manner and to the same extent as a private individual.” §2674. In keeping with those provisions, this Court has often rejected the Government’s calls to cabin the FTCA on the ground that it waives sovereign immunity—and indeed, the Court did so in the years immediately after the Act’s passage, even as it was construing other waivers of immunity narrowly. See, e.g., United States v. Aetna Casualty & Surety Co.,338 U. S. 366,383 (1949); Indian Towing Co. v. United States,350 U. S. 61,65 (1955); Rayonier Inc. v. United States,352 U. S. 315–320 (1957). There is no reason to do differently here. As Irwin recognized, treating the Government like a private person means (among other things) permitting equitable tolling. See 498 U. S., at 95–96. So in stressing the Government’s equivalence to a private party, the FTCA goes further than the typical statute waiving sovereign immunity to indicate that its time bar allows a court to hear late claims.IV Our precedents make this a clear-cut case. Irwin requires an affirmative indication from Congress that it intends to preclude equitable tolling in a suit against the Government. See 498 U. S., at 95–96. Congress can provide that signal by making a statute of limitations jurisdictional. But that requires its own plain statement; otherwise, we treat a time bar as a mere claims-processing rule. See Auburn Regional, 568 U. S., at ___, ___ (slip op., at 6, 8). Congress has supplied no such statement here. As this Court has repeatedly stated, nothing about §2401(b)’s core language is special; “shall be forever barred” is an ordinary (albeit old-fashioned) way of setting a deadline, which does not preclude tolling when circumstances warrant. See Irwin, 498 U. S., at 95–96; John R. Sand, 552 U. S., at 137, 139; American Pipe, 414 U. S., at 558–559. And it makes no difference that a time bar conditions a waiver of sovereign immunity, even if Congress enacted the measure when different interpretive conventions applied; that is the very point of this Court’s decision to treat time bars in suits against the Government, whenever passed, the same as in litigation between private parties. See Irwin, 498 U. S., at 95–96; Scarborough, 541 U. S., at 420–422; Franconia, 536 U. S., at 145. Accordingly, we hold that the FTCA’s time bars are nonjurisdictional and subject to equitable tolling. We affirm the judgments of the U. S. Court of Appeals for the Ninth Circuit and remand the cases for further proceedings consistent with this opinion. On remand in June, it is for the District Court to decide whether, on the facts of her case, June is entitled to equitable tolling.It is so ordered.Notes1 Although we did not consolidate these cases, we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines. See, e.g., Brief for United States in June 15 (“Nothing in the text or relevant legislative history . . . suggests that the respective time bars should be interpreted differently with respect to whether they are jurisdictional or subject to equitable tolling”).2 The Government notes, and we agree, that Congress may preclude equitable tolling of even a nonjurisdictional statute of limitations. See Brief for United States in Wong 20; Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___–___ (2013) (slip op., at 6–8, 10–11) (finding a nonjurisdictional time limit not amenable to tolling). And the Government contends in passing that even if §2401(b) is nonjurisdictional, it prohibits equitable tolling. See Brief for United States in Wong 20. But the Government makes no independent arguments in support of that position; instead, it relies (and even then implicitly) on the same indicia of congressional intent that, in its view, show that §2401(b)’s time limits are jurisdictional. See infra, at 9–10, 14–15. In addressing the Government’s predominant, jurisdictional claim, we therefore also deal with its subsidiary one.3 The dissent takes issue with the sequence in which we decide the jurisdictional question, contending that we must do so prior to mentioning Irwin’s presumption. See post, at 11–12 (opinion of Alito, J.). We do not understand the point—or more precisely, why the dissent thinks the ordering matters. When Congress makes a time bar in a suit against the Government jurisdictional, one could say (as the dissent does) that Irwin does not apply, or one could say (as we do) that Irwin’s presumption is conclusively rebutted. The bottom line is the same: Tolling is not available. We frame the inquiry as we do in part because that is how the Government presented the issue. See Brief for United States in Wong 19 (“One way to show that [Irwin’s presumption is rebutted] is to establish that the statutory time limit is a ‘jurisdictional’ restriction”). And we think that choice makes especially good sense in these cases because various aspects of Irwin’s reasoning are central to considering the parties’ positions on whether §2401(b) is jurisdictional. See infra, at 12–17.4 The dissent argues that nonjurisdictional time limits typically mention claimants, whereas §2401(b) does not. See post, at 10. But none of our precedents have either said or suggested that such a difference matters—that, for example, a statute barring a “tort claim” is jurisdictional, but one barring a “person’s tort claim” is not. See, e.g., Zipes, 455 U. S., at 394, and n. 10 (concluding that a time limit did “not speak in jurisdictional terms” even though it did not refer to a claimant). Rather, in case after case, we have emphasized another distinction—that jurisdictional statutes speak about jurisdiction, or more generally phrased, about a court’s powers. See Auburn Regional, 568 U. S., at ___ (slip op., at 7); Reed Elsevier, Inc. v. Muchnick,559 U. S. 154–161 (2010); Arbaugh, 546 U. S., at 515.5 The Tucker Act of 1887, ch. 359,24Stat.505, enlarged the Court of Claims’ jurisdiction over contract and other non-tort actions against the Government. The statute of limitations applying to such suits pre-dated the Tucker Act by more than two decades.6 During a recodification occurring in 1948 (two years after passage of the FTCA), Congress omitted the word “forever” from the Tucker Act’s statute of limitations; since then, it has provided simply that untimely claims “shall be barred.”28 U. S. C. §2501; see §2501,62Stat.976. No party contends that change makes any difference to the resolution of these cases.7 See, e.g., §6 of the Portal-to-Portal Act of 1947,61Stat.87,29 U. S. C. §255 (1952 ed.); §3 of the Automobile Dealers’ Day in Court Act,70Stat.1125,15 U. S. C. §1223 (1958 ed.); §111(b) of the National Traffic and Motor Vehicle Safety Act of 1966,80Stat.725,15 U. S. C. §1400(b) (1970 ed.); §7(e) of the Age Discrimination in Employment Act of 1967 (ADEA),81Stat.605,29 U. S. C. §626(e) (1970 ed.); §6(c) of the Agricultural Fair Practices Act of 1967,82Stat.95,7 U. S. C. §2305(c) (1970 ed.); §613(b) of the National Manufactured Housing Construction and Safety Standards Act of 1974,88Stat.707,42 U. S. C. §5412(b) (1976 ed.).8 Even before this Court’s decision in American Pipe, Courts of Appeals had unanimously construed the Clayton Act’s statute of limitations to allow equitable tolling. See General Elec. Co. v. San Antonio, 334 F. 2d 480, 484–485 (CA5 1964) (joining six other Circuits in reaching that conclusion). Similarly, every Court of Appeals to have considered the issue has found that §6 of the Portal-to-Portal Act, which contains the same “shall be forever barred” phrase, permits hearing late claims. See, e.g., Hodgson v. Humphries, 454 F. 2d 1279, 1283–1284 (CA10 1972); Ott v. Midland-Ross Corp., 523 F. 2d 1367, 1370 (CA6 1975); Partlow v. Jewish Orphans’ Home of Southern Cal., Inc., 645 F. 2d 757, 760–761 (CA9 1981), abrogated on other grounds by Hoffmann-La Roche Inc. v. Sperling,493 U. S. 165 (1989). And so too Courts of Appeals unanimously found that the ADEA’s longtime (though not current) time bar containing that language was subject to tolling. See, e.g., Vance v. Whirlpool Corp., 707 F. 2d 483, 489 (CA4 1983); Callowhill v. Allen-Sherman-Hoff Co., 832 F. 2d 269, 273–274 (CA3 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 . SUPREME COURT OF THE UNITED STATES Syllabus united states v. kwai fun wong certiorari to the united states court of appeals for the ninth circuit No. 13-1074. Argued December 10, 2014—Decided April 22, 2015[1] The Federal Tort Claims Act (FTCA) provides that a tort claim against the United States “shall be forever barred” unless the claimant meets two deadlines. First, a claim must be presented to the appropriate federal agency for administrative review “within two years after [the] claim accrues.” 28 U. S. C. §2401(b). Second, if the agency denies the claim, the claimant may file suit in federal court “within six months” of the agency’s denial. Ibid. Kwai Fun Wong and Marlene June, respondents in Nos. 13–1074 and 13-1075, respectively, each missed one of those deadlines. Wong failed to file her FTCA claim in federal court within 6 months, but argued that that was only because the District Court had not permitted her to file that claim until after the period expired. June failed to present her FTCA claim to a federal agency within 2 years, but argued that her untimely filing should be excused because the Government had, in her view, concealed facts vital to her claim. In each case, the District Court dismissed the FTCA claim for failure to satisfy §2401(b)’s time bars, holding that, despite any justification for delay, those time bars are jurisdictional and not subject to equitable tolling. The Ninth Circuit reversed in both cases, concluding that §2401(b)’s time bars may be equitably tolled. Held: Section 2401(b)’s time limits are subject to equitable tolling. . (a) Irwin v. Department of Veterans Affairs, 498 U. S. 89 , provides the framework for deciding the applicability of equitable tolling to statutes of limitations on suits against the Government. There, the Court adopted a “rebuttable presumption” that such time bars may be equitably tolled. Id., at 95. Irwin’s presumption may, of course, be rebutted. One way to do so—pursued by the Government here—is to demonstrate that the statute of limitations at issue is jurisdictional; if so, the statute cannot be equitably tolled. But this Court will not conclude that a time bar is jurisdictional unless Congress provides a “clear statement” to that effect. Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___. And in applying that clear statement rule, this Court has said that most time bars, even if mandatory and emphatic, are nonjurisdictional. See id., at ___. Congress thus must do something special to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. . (b) Congress did no such thing in enacting §2401(b). The text of that provision speaks only to a claim’s timeliness; it does not refer to the jurisdiction of the district courts or address those courts’ authority to hear untimely suits. See Arbaugh v. Y & H Corp., 546 U. S. 500 . Instead, it “reads like an ordinary, run-of-the-mill statute of limitations.” Holland v. Florida, 560 U. S. 631 . Statutory context confirms that reading. Congress’s separation of a filing deadline from a jurisdictional grant often indicates that the deadline is not jurisdictional, and here the FTCA’s jurisdictional grant appears not in §2401(b) but in another section of Title 28, §1346(b)(1). That jurisdictional grant is not expressly conditioned on compliance with §2401(b)’s limitations periods. Finally, assuming it could provide the clear statement that this Court’s cases require, §2401(b)’s legislative history does not clearly demonstrate that Congress intended the provision to impose a jurisdictional bar. . (c) The Government’s two principal arguments for treating §2401(b) as jurisdictional are unpersuasive and foreclosed by this Court’s precedents. . (1) The Government first points out that §2401(b) includes the same “shall be forever barred” language as the statute of limitations governing Tucker Act claims, which this Court has held to be jurisdictional. See, e.g., Kendall v. United States, 107 U. S. 123 –126. But that phrase was a commonplace in statutes of limitations enacted around the time of the FTCA, and it does not carry talismanic jurisdictional significance. Indeed, this Court has construed the same language to be subject to tolling in the Clayton Act’s statute of limitations. See American Pipe & Constr. Co. v. Utah, 414 U. S. 538 . And in two decisions addressing the Tucker Act’s statute of limitations, the Court has dismissed the idea that that language is jurisdictionally significant. See Irwin, 498 U. S., at 95; John R. Sand & Gravel Co. v. United States, 552 U. S. 130 . The “shall be forever barred” phrase is thus nothing more than an ordinary way to set a statutory deadline. . (2) The Government next argues that §2401(b) is jurisdictional because it is a condition on the FTCA’s waiver of sovereign immunity. But that argument is foreclosed by Irwin, which considered an identical objection but concluded that even time limits that condition a waiver of immunity may be equitably tolled. See 498 U. S., at 95–96. The Government’s invocation of sovereign immunity principles is also peculiarly inapt here. Unlike other waivers of sovereign immunity, the FTCA treats the Government much like a private party, and the Court has accordingly declined to construe the Act narrowly merely because it waives the Government’s immunity from suit. There is no reason to do differently here. . No. 13-1074, 732 F. 3d 1030, and No. 13-1075, 550 Fed. Appx. 505, affirmed and remanded. Kagan, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined. Notes 1 Together with No. 13-1075, United States v. June, Conservator, also on certiorari to the same court.

The Federal Tort Claims Act (FTCA or Act) requires that a tort claim against the United States "shall be for-ever barred" unless it is presented to the Federal Government within two years after such claim accrues and then brought to federal court "within six months" after the agency acts on the claim. Respondent Kwai Fun Wong (hereafter respondent) asserts that the Immigration and Naturalization Service (INS) falsely imprisoned her for five days in 1999. She filed suit in Federal District Court in 2001, alleging that the INS denied her administrative complaint on December 3, 2001, and gave her six months, under the Act, until June 3, 2002, to bring her tort claim in federal court. Several months prior to the INS ruling, respondent had filed a suit in the District Court, Anticipating that she had managed to add her FTCA claim only after the 6-month time period had expired, but equitably tolled that period for all the time between the Magistrate Judge's recommendation and its own order allowing amendment, thus bringing her claim within the statutory deadline. The District Court dismissed the claim on the ground that §2401(b) of the Act was jurisdictional and therefore not subject to equitable tolling. On appeal, the Court of Appeals agreed to hear the case en banc to address an intra-circuit conflict on the issue, holding that, because Wong had failed to submit her claim to the FHWA, the claim was subject to jurisdictional testing, and therefore did not require equitable testing. Held: Courts may toll both of the FTCA's limitations periods. . (a) One way to meet the burden of showing that Congress made the time bar at issue jurisdictional is to show that the time limit, like §2000e–16(c), is the rare statute of limitations that can deprive a court of jurisdiction. Neither the text nor the context nor the legislative history of the statute indicates (much less does so plainly) that Congress meant to enact something other than a standard time bar. Most important, the text speaks only to a claim's timeliness, not to a court's power. It states that the phrase, as used in both the Tucker Act and FTCA, is mandatory, and that not to matter. Moreover, nothing about the text or the context of those statutes is special. Rather, the Government must show that Congress intended the time period to be jurisdictional. This Court has never accorded the words talismanic power to render time bars jurisdictional, and has construed the very same phrase in15 U. S. C. §15b, the Clayton Act of limitations, to be subject to tolling, see, e.g., Holland v. Flor-ida,560 U.S. 631,647. In amending the Act four times after its enactment, Congress declined again (four times over) to say anything specific about whether the statute of limitations imposes a jurisdictional jurisdictional bar. Nothing else supports the Government's claim that Congress, when enacting the statute, wanted to incorporate this Court's view of that view with the needed clear statement. Irwin v. Department of Veterans Affairs, supra, at 95. Furthermore, the fact that nonjurisdictional time limits are just time limits, nothing more, does not mean that a court can toll them on equitable grounds. When Congress makes a time bar in a suit against the Government (as for one against a private party), it may reverse the usual rule if it chooses. Here, however, there is no such statement here. Nothing about the statute comes merely from this Court’s prior rulings, not from Congress' choice of wording. Nor does anything else in the statute itself indicate that the jurisdictional status of the time limits in the Act is jurisdictional or that Congress expressed that purported intent with respect to the availability of equitable treatment... 832 F. 3d 1030, affirmed and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I, II, III, and IV of which STEWART, J. joined. DOUGLAS, J., filed an opinion concurring in part and dissenting in part, post, p..

2014_14-144

https://www.oyez.org/cases/2014/14-144

. Texas offers automobile owners a choice between ordinary and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas. In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether that rejection violated the Constitution’s free speech guarantees. See Amdts. 1, 14. We conclude that it did not. I A Texas law requires all motor vehicles operating on the State’s roads to display valid license plates. See Tex. Transp. Code Ann. §§502.001 (West Supp. 2014), 504.001 (2013), 504.943 (Supp. 2014). And Texas makes available several kinds of plates. Drivers may choose to display the State’s general-issue license plates. See Texas Dept. of Motor Vehicles, Motor Vehicle Registration Manual 9.1 (Apr. 2015). Each of these plates contains the word“Texas,” a license plate number, a silhouette of theState, a graphic of the Lone Star, and the slogan“The Lone Star State.” Texas Dept. of Motor Vehicles, The Texas Classic FAQs (July 16, 2012), online at http://www.txdmv.gov/motorists/license-plates (all Internet materials as visited June 16, 2015, and available in Clerk of Court’s case file). In the alternative, drivers may choose from an assortment of specialty license plates. §504.008(b) (West 2013). Each of these plates contains the word “Texas,” a license plate number, and one of a selection of designs prepared by the State. See ibid.; Specialty License Plates, http://www.txdmv.gov/motorists/license-plates/specialty-license-plates (displaying available Texas specialty plates); Create a Plate: Your Design, http://www.myplates.com/BackgroundOnly (same). Finally, Texas law provides for personalized plates (also knownas vanity plates). 43 Tex. Admin. Code §217.45(c)(7) (2015). Pursuant to the personalization program, a vehicle owner may request a particular alphanumeric pattern for use as a plate number, such as “BOB” or “TEXPL8.” Here we are concerned only with the second category of plates, namely specialty license plates, not with the personalization program. Texas offers vehicle owners a va-riety of specialty plates, generally for an annual fee. See §217.45(b)(2). And Texas selects the designs for specialty plates through three distinct processes. First, the state legislature may specifically call for the development of a specialty license plate. See Tex. Transp. Code §§504.602–504.663 (West 2013 and Supp. 2014). The legislature has enacted statutes authorizing, for example, plates that say “Keep Texas Beautiful” and “Mothers Against Drunk Driving,” plates that “honor” the Texas citrus industry, and plates that feature an image of the World Trade Center towers and the words “Fight Terrorism.” See §§504.602, 504.608, 504.626, 504.647. Second, the Board may approve a specialty plate design proposal that a state-designated private vendor hascreated at the request of an individual or organization. See §§504.6011(a), 504.851(a); 43 Tex. Admin. Code §217.52(b). Among the plates created through the private-vendor process are plates promoting the “Keller Indians” and plates with the slogan “Get it Sold with RE/MAX.” Third, the Board “may create new specialty license plates on its own initiative or on receipt of an application from a” nonprofit entity seeking to sponsor a specialty plate. Tex. Transp. Code Ann. §§504.801(a), (b). A nonprofit must include in its application “a draft design of the specialty license plate.” 43 Tex. Admin. Code §217.45(i)(2)(C). And Texas law vests in the Board authority to approve or to disapprove an application. See §217.45(i)(7). The relevant statute says that the Board “may refuse to create a new specialty license plate” for a number of reasons, for example “if the design might be offensive to any member of the public . . . or for any other reason established by rule.” Tex. Transp. Code Ann. §504.801(c). Specialty plates that the Board has sanctioned through this process include plates featuring the words “The Gator Nation,” together with the Florida Gators logo, and plates featuring the logo of Rotary International and the words “SERVICE ABOVE SELF.” B In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a specialty license plate through this last-mentioned process. SCV’s application included a draft plate design. See Appendix, infra. At the bottom of the proposed plate were the words “SONS OF CONFEDERATE VETERANS.” At the side was the organization’s logo, a square Confederate battle flag framed by the words “Sons of Confederate Veterans 1896.” A faint Confederate battle flag appeared in the back-ground on the lower portion of the plate. Additionally,in the middle of the plate was the license plate number, and at the top was the State’s name and silhouette. The Board’s predecessor denied this application. In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate. The Board explained that it had found “it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” App. 64. The Board added “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” Id., at 65. In 2012, SCV and two of its officers (collectively SCV) brought this lawsuit against the chairman and members of the Board (collectively Board). SCV argued that the Board’s decision violated the Free Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. A divided panel of the Court of Appeals for the Fifth Circuit reversed. Texas Div., Sons of Confederate Veterans, Inc., v. Vandergriff, 759 F. 3d 388 (2014). It held that Texas’s specialty license plate designs are private speech and that the Board, in refusing to approve SCV’s design, engaged in constitutionally forbidden viewpoint discrimination. The dissenting judge argued that Texas’s specialty license plate designs are government speech, the content of which the State is free to control. We granted the Board’s petition for certiorari, and we now reverse. II When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460 –468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000) . Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005) . Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate. See Stromberg v. California, 283 U. S. 359, 369 (1931) (observing that “our constitutional system” seeks to maintain “the opportunity for free political discussion to the end that government may be responsive to the will of the people”). Were the Free Speech Clause interpreted otherwise, government would not work. How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization? “[I]t is not easy to imagine how government could function if it lacked th[e] freedom” to select the messages it wishes to convey. Summum, supra, at 468. We have therefore refused “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.” Rust v. Sullivan, 500 U. S. 173, 194 (1991) . We have pointed out that a contrary holding “would render numerous Government programs constitutionally suspect.” Ibid. Cf. Keller v. State Bar of Cal., 496 U. S. 1 –13 (1990) (“If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed”). And we have made clear that “the government can speak for itself.” Southworth, supra, at 229. That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech. Summum, supra, at 468. And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf. III In our view, specialty license plates issued pursuant to Texas’s statutory scheme convey government speech. Our reasoning rests primarily on our analysis in Summum, a recent case that presented a similar problem. We conclude here, as we did there, that our precedents regarding government speech (and not our precedents regarding forums for private speech) provide the appropriate framework through which to approach the case. See 555 U. S., at 464. A In Summum, we considered a religious organization’s request to erect in a 2.5-acre city park a monument setting forth the organization’s religious tenets. See id., at 464–465. In the park were 15 other permanent displays. Id., at 464. At least 11 of these—including a wishing well, a September 11 monument, a historic granary, the city’s first fire station, and a Ten Commandments monument—had been donated to the city by private entities. Id., at 464–465. The religious organization argued that the Free Speech Clause required the city to display the organization’s proposed monument because, by accepting a broad range of permanent exhibitions at the park, the city had created a forum for private speech in the form of monuments. Brief for Respondent in Pleasant Grove City v. Summum, O. T. 2008, No. 07–665, pp. 2–3, 30–36. This Court rejected the organization’s argument. We held that the city had not “provid[ed] a forum for private speech” with respect to monuments. Summum, 555 U. S., at 470. Rather, the city, even when “accepting a privately donated monument and placing it on city property,” had “engage[d] in expressive conduct.” Id., at 476. The speech at issue, this Court decided, was “best viewed as a form of government speech” and “therefore [was] not subject to scrutiny under the Free Speech Clause.” Id., at 464. We based our conclusion on several factors. First, his-tory shows that “[g]overnments have long used monuments to speak to the public.” Id., at 470. Thus, we observed that “[w]hen a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” Ibid. Second, we noted that it “is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated.” Id., at 471. As a result, “persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf.” Ibid. And “observers” of such monuments, as a consequence, ordinarily “appreciate the identity of the speaker.” Ibid. Third, we found relevant the fact that the city maintained control over the selection of monuments. We thought it “fair to say that throughout our Nation’s his-tory, the general government practice with respect to do-nated monuments has been one of selective receptivity.” Ibid. And we observed that the city government in Summum “ ‘effectively controlled’ the messages sent by the monuments in the [p]ark by exercising ‘final approval authority’ over their selection.” Id., at 473. In light of these and a few other relevant considerations, the Court concluded that the expression at issue was government speech. See id., at 470–472. And, in reaching that conclusion, the Court rejected the premise that the involvement of private parties in designing the monuments was sufficient to prevent the government from controlling which monuments it placed in its own public park. See id., at 470–471. Cf. Rust, supra, at 192–196 (upholding a federal regulation limiting speech in aGovernment-funded program where the program was established and administered by private parties). B Our analysis in Summum leads us to the conclusion that here, too, government speech is at issue. First, the history of license plates shows that, insofar as license plates have conveyed more than state names and vehicle identification numbers, they long have communicated messages from the States. Cf. 555 U. S., at 470 (“Governments have long used monuments to speak to the public”). In 1917, Arizona became the first State to display a graphic on its plates. J. Fox, License Plates of the United States 15 (1997) (Fox); J. Minard & T. Stentiford, A Moving History 56 (2004) (Minard). The State presented a depiction of the head of a Hereford steer. Fox 15; Minard 56. In the years since, New Hampshire plates have featured the profile of the “Old Man of the Mountain,” Massachusetts plates have included a representation of the Commonwealth’s famous codfish, and Wyoming plates have displayed a rider atop a bucking bronco. Minard 60, 61, 66. In 1928, Idaho became the first State to include a slogan on its plates. The 1928 Idaho plate proclaimed “Idaho Potatoes” and featured an illustration of a brown potato, onto which the license plate number was superimposed in green. Id., at 61. The brown potato did not catch on, but slogans on license plates did. Over the years, state plates have included the phrases “North to the Future” (Alaska), “Keep Florida Green” (Florida), “Hoosier Hospitality” (Indiana), “The Iodine Products State” (South Carolina), “Green Mountains” (Vermont), and “America’s Dairyland” (Wisconsin). Fox 13, 29, 39, 91, 101, 109. States have used license plate slogans to urge action, to promote tourism, and to tout local industries. Texas, too, has selected various messages to communicate through its license plate designs. By 1919, Texas had begun to display the Lone Star emblem on its plates. Texas Department of Transportation, The History of Texas License Plates 9, 11 (1999). In 1936, the State’s general-issue plates featured the first slogan on Texas license plates: the word “Centennial.” Id., at 20. In 1968, Texas plates promoted a San Antonio event by including the phrase “Hemisfair 68.” Id., at 46. In 1977, Texas replaced the Lone Star with a small silhouette of the State. Id., at 63. And in 1995, Texas plates celebrated “150 Years of Statehood.” Id., at 101. Additionally, the Texas Legislature has specifically authorized specialty plate designs stating, among other things, “Read to Succeed,” “Houston Livestock Show and Rodeo,” “Texans Conquer Cancer,” and “Girl Scouts.” Tex. Transp. Code Ann. §§504.607, 504.613, 504.620, 504.622. This kind of state speech has appeared on Texas plates for decades. Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Summum, supra, at 472. Each Texas license plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: The State places the name “TEXAS” in large letters at the top of every plate. More-over, the State requires Texas vehicle owners to display license plates, and every Texas license plate is issued by the State. See §504.943. Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis of proposals made by private individuals and organizations. See §504.002(3). And Texas dictates the manner in which drivers may dispose of unused plates. See §504.901(c). See also §504.008(g) (requiring that vehicle owners return unused specialty plates to the State). Texas license plates are, essentially, government IDs. And issuers of ID “typically do not permit” the placement on their IDs of “message[s] with which they do not wish to be associated.” Summum, 555 U. S., at 471. Consequently, “persons who observe” designs on IDs “routinely—and reasonably—interpret them as conveying some message on the [issuer’s] behalf.” Ibid. Indeed, a person who displays a message on a Texas license plate likely intends to convey to the public that the State has endorsed that message. If not, the individual could simply display the message in question in larger letters on a bumper sticker right next to the plate. But the individual prefers a license plate design to the purely private speech expressed through bumper stickers. That may well be because Texas’s license plate designs convey government agreement with the message displayed. Third, Texas maintains direct control over the messages conveyed on its specialty plates. Texas law provides that the State “has sole control over the design, typeface, color, and alphanumeric pattern for all license plates.” §504.005. The Board must approve every specialty plate design proposal before the design can appear on a Texas plate. 43 Tex. Admin. Code §§217.45(i)(7)–(8), 217.52(b). And the Board and its predecessor have actively exercised this authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed designs. Reply Brief 10; Tr. of Oral Arg. 49–51. Accordingly, like the city government in Summum, Texas “has ‘effectively controlled’ the messages [conveyed] by exercising ‘final approval authority’ over their selection.” 555 U. S., at 473 (quoting Johanns, 544 U. S., at 560–561). This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. See Tex. Transp. Code Ann. §504.615. But it need not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry. See §504.626. But it need not issue plates praising Florida’s oranges as far better. And Texas offers plates that say “Fight Terrorism.” See §504.647. But it need not issue plates promoting al Qaeda. These considerations, taken together, convince us that the specialty plates here in question are similar enough to the monuments in Summum to call for the same result. That is not to say that every element of our discussion in Summum is relevant here. For instance, in Summum we emphasized that monuments were “permanent” and we observed that “public parks can accommodate only a limited number of permanent monuments.” 555 U. S., at 464, 470, 478. We believed that the speech at issue was government speech rather than private speech in part because we found it “hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression.” Id., at 479. Here, a State could theoretically offer a much larger number of license plate designs, and those designs need not be available for time immemorial. But those characteristics of the speech at issue in Summum were particularly important because the government speech at issue occurred in public parks, which are traditional public forums for “the delivery of speeches and the holding of marches and demonstrations” by private citizens. Id., at 478. By contrast, license plates are not traditional public forums for private speech. And other features of the designs on Texas’s specialty license plates indicate that the message conveyed by those designs is conveyed on behalf of the government. Texas, through its Board, selects each design featured on the State’s specialty license plates. Texas presents these designs on government-mandated, government-controlled, and government-issued IDs that have traditionally been used as a medium for government speech. And it places the designs directly below the large letters identifying “TEXAS” as the issuer of the IDs. “The [designs] that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.” Id., at 472. C SCV believes that Texas’s specialty license plate designs are not government speech, at least with respect to the designs (comprising slogans and graphics) that were initially proposed by private parties. According to SCV, the State does not engage in expressive activity through such slogans and graphics, but rather provides a forum for private speech by making license plates available to display the private parties’ designs. We cannot agree. We have previously used what we have called “forum analysis” to evaluate government restrictions on purely private speech that occurs on government property. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985) . But forum analysis is misplaced here. Because the State is speaking on its own behalf, the First Amendment strictures that attend the various types of government-established forums do not apply. The parties agree that Texas’s specialty license plates are not a “traditional public forum,” such as a street or a park, “which ha[s] immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 –46 (1983) (internal quotation marks omitted). “The Court has rejected the view that traditional public forum status extends beyond its historic confines.” Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666 , 678 (1998). And state-issued specialty license plates lie far beyond those confines. It is equally clear that Texas’s specialty plates are neither a “ ‘designated public forum,’ ” which exists where “government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose,” Summum, supra, at 469, nor a “limited public forum,” which exists where a government has “reserv[ed a forum] for certain groups or for the discussion of certain topics,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995) . A government “does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius, 473 U. S., at 802. And in order “to ascertain whether [a government] intended to designate a place not traditionally open to assembly and debate as a public forum,” this Court “has looked to the policy and practice of the government” and to “the nature of the property and its compatibility with expressive activity.” Ibid. Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty license plates to serve as either a designated public forum or a limited public forum. First, the State exercises final authority over each specialty license plate design. This authority militates against a determination that Texas has created a public forum. See id., at 803–804 (explaining that a school mail system was not a public forum because “[t]he practice was to require permission from the individual school principal before access to the system to communicate with teachers was granted”). Second, Texas takes ownership of each specialty plate design, making it particularly untenable that the State intended specialty plates to serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for government speech, are primarily used as a form of government ID, and bear the State’s name. These features of Texas license plates indicate that Texas explicitly associates itself with the speech on its plates. For similar reasons, we conclude that Texas’s specialty license plates are not a “nonpublic for[um],” which exists “[w]here the government is acting as a proprietor, managing its internal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 –679 (1992). With respect to specialty license plate designs, Texas is not simply managing government property, but instead is engaging in expressive conduct. As we have described, we reach this conclusion based on the historical context, observers’ reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process. Texas’s specialty license plate designs “are meant to convey and have the effect of conveying a government message.” Summum, 555 U. S., at 472. They “constitute government speech.” Ibid. The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider. In Summum, private entities “financed and donated monuments that the government accept[ed] and display[ed] to the public.” Id., at 470–471. Here, similarly, private parties propose designs that Texas may accept and display on its license plates. In this case, as in Summum, the “government entity may exercise [its] freedom to express its views” even “when it receives assistance from private sources for the purpose of delivering a government-controlled message.” Id., at 468. And in this case, as in Summum, forum analysis is inapposite. See id., at 480. Of course, Texas allows many more license plate designs than the city in Summum allowed monuments. But our holding in Summum was not dependent on the precise number of monuments found within the park. Indeed, we indicated that the permanent displays in New York City’s Central Park also constitute government speech. See id., at 471–472. And an amicus brief had informed us that there were, at the time, 52 such displays. See Brief for City of New York in Pleasant Grove City v. Summum, O. T. 2008, No. 07–665, p. 2. Further, there may well be many more messages that Texas wishes to convey through its license plates than there were messages that the city in Summum wished to convey through its monuments. Texas’s desire to communicate numerous messages does not mean that the messages conveyed are not Texas’s own. Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech. While some nonpublic forums provide governments the opportunity to profit from speech, see, e.g., Lehman v. Shaker Heights, 418 U. S. 298, 299 (1974) (plurality opinion), the existence of government profit alone is insufficient to trigger forum analysis. Thus, if the city in Summum had established a rule that organizations wishing to donate monuments must also pay fees to assist in park maintenance, we do not believe that the result in that case would have been any different. Here, too, we think it sufficiently clear that Texas is speaking through its specialty license plate designs, such that the existence of annual fees does not convince us that the specialty plates are a nonpublic forum. Finally, we note that this case does not resemble other cases in which we have identified a nonpublic forum. This case is not like Perry Ed. Assn., where we found a school district’s internal mail system to be a nonpublic forum for private speech. See 460 U. S., at 48–49. There, it was undisputed that a number of private organizations, including a teachers’ union, had access to the mail system. See id., at 39–40. It was therefore clear that private parties, and not only the government, used the system to communicate. Here, by contrast, each specialty license plate design is formally approved by and stamped with the imprimatur of Texas. Nor is this case like Lehman, where we found the advertising space on city buses to be a nonpublic forum. See R. A. V. v. St. Paul, 505 U. S. 377, 390, n. 6 (1992) (identifying Lehman as a case about a nonpublic forum). There, the messages were located in a context (advertising space) that is traditionally available for private speech. And the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government. Nor is this case like Cornelius, where we determined that a charitable fundraising program directed at federal employees constituted a nonpublic forum. See 473 U. S., at 804–806. That forum lacked the kind of history present here. The fundraising drive had never been a medium for government speech. Instead, it was established “to bring order to [a] solicitation process” which had previously consisted of ad hoc solicitation by individual charitable organizations. Id., at 792, 805. The drive “was designed to minimize . . . disruption to the [federal] workplace,” id., at 805, not to communicate messages from the government. Further, the charitable solicitations did not appear on a government ID under the government’s name. In contrast to the instant case, there was no reason for employees to “interpret [the solicitation] as conveying some message on the [government’s] behalf.” Summum, 555 U. S., at 471. IV Our determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. We have acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705 , n. 15, 715 (1977) (observing that a vehicle “is readily associated with its operator” and that drivers displaying license plates “use their private property as a ‘mobile billboard’ for the State’s ideological message”). And we have recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. See id., at 715; Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995) ; West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) . But here, compelled private speech is not at issue. And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. * * * For the reasons stated, we hold that Texas’s specialty license plate designs constitute government speech and that Texas was consequently entitled to refuse to issue plates featuring SCV’s proposed design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is Reversed.

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 . SUPREME COURT OF THE UNITED STATES Syllabus WALKER, CHAIRMAN, TEXAS DEPARTMENT OF MOTOR VEHICLES BOARD, et al. v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC., et al. certiorari to the united states court of appeals for the fifth circuit No. 14–144. Argued March 23, 2015—Decided June 18, 2015 Texas offers automobile owners a choice between general-issue and specialty license plates. Those who want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a graphic, or both. If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for display on vehicles registered in Texas. Here, the Texas Division of the Sons of Confederate Veterans and its officers (collectively SCV) filed suit against the Chairman and members of the Board (collectively Board), arguing that the Board’s rejection of SCV’s proposal for a specialty plate design featuring a Confederate battle flag violated the Free Speech Clause. The District Court entered judgment for the Board, but the Fifth Circuit reversed, holding that Texas’s specialty license plate designs are private speech and that the Board engaged in constitutionally forbidden viewpoint discrimination when it refused to approve SCV’s design. Held: Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. . (a) When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460 –468. A government is generally entitled to promote a program, espouse a policy, or take a position. Were the Free Speech Clause interpreted otherwise, “it is not easy to imagine how government would function.” Id., at 468. That is not to say that a government’s ability to express itself is without restriction. Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech, and the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. . (b) This Court’s precedents regarding government speech provide the appropriate framework through which to approach the case. . (1) The same analysis the Court used in Summum—to conclude that a city “accepting a privately donated monument and placing it on city property” was engaging in government speech, 555 U. S., at 464—leads to the conclusion that government speech is at issue here. First, history shows that States, including Texas, have long used license plates to convey government speech, e.g., slogans urging action, promoting tourism, and touting local industries. Cf. id., at 470. Second, Texas license plate designs “are often closely identified in the public mind with the [State].” Id., at 472. Each plate is a government article serving the governmental purposes of vehicle registration and identification. The governmental nature of the plates is clear from their faces: the State places the name “TEXAS” in large letters across the top of every plate. Texas also requires Texas vehicle owners to display license plates, issues every Texas plate, and owns all of the designs on its plates. The plates are, essentially, government IDs, and ID issuers “typically do not permit” their IDs to contain “message[s] with which they do not wish to be associated,” id., at 471. Third, Texas maintains direct control over the messages conveyed on its specialty plates, by giving the Board final approval over each design. Like the city government in Summum, Texas “has effectively controlled the messages [conveyed] by exercising final approval authority over their selection.” Id., at 473. These considerations, taken together, show that Texas’s specialty plates are similar enough to the monuments in Summum to call for the same result. . (2) Forum analysis, which applies to government restrictions on purely private speech occurring on government property, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , is not appropriate when the State is speaking on its own behalf. The parties agree that Texas’s specialty license plates are not a traditional public forum. Further, Texas’s policies and the nature of its license plates indicate that the State did not intend its specialty plates to serve as either a designated public forum—where “government property . . . not traditionally . . . a public forum is intentionally opened up for that purpose,” Summum, supra, at 469—or a limited public forum—where a government “reserv[es a forum] for certain groups or for the discussion of certain topics,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 . The State exercises final authority over the messages that may be conveyed by its specialty plates, it takes ownership of each specialty plate design, and it has traditionally used its plates for government speech. These features of Texas specialty plates militate against a determination that Texas has created a public forum. Finally, the plates are not a nonpublic forum, where the “government is . . . a proprietor, managing its internal operations.” International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 –679. The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum provider. See Summum, supra, at 470–471. Nor does Texas’s requirement that vehicle owners pay annual fees for specialty plates mean that the plates are a forum for private speech. And this case does not resemble other nonpublic forum cases. Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 –49; Lehman v. Shaker Heights, 418 U. S. 298 ; and Cornelius, supra, at 804–806, distinguished. . (c) The determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. The Court has acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705 , n. 15. The Court has also recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. Just as Texas cannot require SCV to convey “the State’s ideological message,” id., at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates. . 759 F. 3d 388, reversed. Breyer, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Kennedy, JJ., joined.

A Texas statute requires all motor vehicles operating on the State's roads to display valid license plates. But drivers may choose to display the State Division of the Sons of Confederate Veterans, Texas Division (a nonprofit entity), which makes available several kinds of plates. Drivers may choose from an assortment of specialty plates. One category of plates, namely, specialty license plates, offers vehicle owners a va-riety of such plates. Texas selects the designs for such plates through three distinct processes. First, the legislature may specifically call for the development of a specialty license plate. Second, the Board may approve a specialty plate design proposal that a state-designated private vendor hascreated at the request of an individual or organization. Finally, the board may create new specialty plates on its own initiative or on the receipt of a license plate from a nonprofit entity seeking to sponsor such a plate. The Board must approve the design for any reason, and may refuse to refuse to approve any other design for which the board has established authority. Respondent Sons of Confederated Veterans, Inc., (collectively SCV), filed suit in Federal District Court against the Board and members of the Board, arguing that the Board's decision violated the Free Speech Clause of the First Amendment, and seeking an injunction requiring the Board to approve the proposed plate design. The District Court entered judgment for the Board. The Court of Appeals reversed, holding that Texas specialty plates designs are private speech and that, in refusing to approve SCV's design, engaged in constitutionally forbidden viewpoint discrimination. Held: SCV rejected the Board-approved design. . (a) The history of license plates shows that, insofar as license plates convey more than state names and vehicle identification numbers, they long have communicated messages from the States. As a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and carries out its duties on their behalf. Pleasant Grove City v. Summum, 555 U. S. 460-468, distinguished. Pp. 471. (b) Texas policies and the nature of its license plates indicate that the State did not intend its specialty plates to serve as either a designated public forum or a limited public forum. With respect to specialty plates, Texas is not simply managing government property, but instead is engaging in expressive conduct. This conclusion is based on the historical context, observers' reasonable interpretation of the messages conveyed by the plates, and the effective control that Texas exerts over the design selection process. Moreover, the fact that the government speech at issue occurred in public parks, which are traditional public forums for the delivery of speeches and the holding of marches and demonstrations by private citizens, does not mean that private speech is at issue here. Here, the specialty plates are not a traditional public forum, such as a street or park, which ha[s] immemorially held in trust for the use of the public and, time out of mind, ha(s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Furthermore, Texas maintains direct control over the message conveyed on the specialty plates by exercising final approval authority over their selection, which allows Texas to choose how to present itself and its constituency. Thus, it is sufficiently clear that Texas is speaking through its specialty license plate designs, such that the existence of annual fees does not convince us that the plates are a nonpublic forum, and, moreover, this case does not resemble other cases in which this Court has identified a nonPublic forum, since each specialty plate design is formally approved by and stamped with the imprimatur of Texas, and since the messages were located in a context (advertising space) that is traditionally available for private speech, and bore no indicia that the speech was owned or conveyed by the government. Nor is this case any different from instances in which the government has offered a much larger number of license plates, but the government, through its Board, has used the system to communicate. Although the advertising space on city buses was traditionally available, there was no reason for employees tointerpret the solicitation as conveying some message on the government's behalf, since the private solicitations did not appear on a government ID under the government ID. And just as Texas cannot require SCV to convey the State to convey its ideological message, Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty licenses. The First Amendment limits the rights of private parties to display government-financed, government-secured, and government-assistible designs, and are therefore inapposite to forum analysis. See, e.g., Miller v. SCV,; Hurley v. Hurley, 771, 715. Cf. ibid., at 471, at 468. Just as to accept

2014_13-517

https://www.oyez.org/cases/2014/13-517

. Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible “[d]uring an inquiry into the validity of a verdict.” The question presented in this case is whether Rule 606(b) precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire. We hold that it does. I Petitioner Gregory Warger was riding his motorcycle on a highway outside Rapid City, South Dakota, when a truck driven by respondent Randy Shauers struck him from behind. Warger claims he was stopped at the time of the accident, while Shauers claims that Warger suddenly pulled out in front of him. Regardless of the cause of the accident, no one disputes its tragic result: Warger sustained serious injuries that ultimately required the amputation of his left leg. Warger sued Shauers for negligence in Federal District Court. During jury selection, counsel for both parties conducted lengthy voir dire of the prospective jurors. Warger’s counsel asked whether any jurors would be unable to award damages for pain and suffering or for future medical expenses, or whether there was any juror who thought, “I don’t think I could be a fair and impartial juror on this kind of case.” App. 105. Prospective juror Regina Whipple, who was later selected as the jury foreperson, answered no to each of these questions. See id., at 83, 89, 105. Trial commenced, and the jury ultimately returned a verdict in favor of Shauers. Shortly thereafter, one of the jurors contacted Warger’s counsel to express concern over juror Whipple’s conduct. The complaining juror subsequently signed an affidavit claiming that Whipple had spoken during deliberations about “a motor vehicle collision in which her daughter was at fault for the collision and a man died,” and had “related that if her daughter had been sued, it would have ruined her life.” App. to Pet. for Cert. 40a–41a. Relying on this affidavit, Warger moved for a new trial. He contended that Whipple had deliberately lied during voir dire about her impartiality and ability to award damages. Thus, he asserted, he had satisfied the requirements of McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548 (1984) , which holds that a party may “obtain a new trial” if he “demonstrate[s] that a juror failed to answer honestly a material question on voir dire, and . . . that a correct response would have provided a valid basis for a challenge for cause.” Id., at 556. The District Court refused to grant a new trial, holding that the only evidence that supported Warger’s motion, the complaining juror’s affidavit, was barred by Federal Rule of Evidence 606(b). As relevant here, that Rule provides that “[d]uring an inquiry into the validity of a verdict,” evidence “about any statement made or incident that occurred during the jury’s deliberations” is inadmissible. Rule 606(b)(1). The Rule contains three specific exceptions—allowing testimony “about whether (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form,” Rule 606(b)(2)—but the District Court found none of these exceptions to be applicable. The Eighth Circuit affirmed. 721 F. 3d 606 (2013). It first held that Warger’s proffered evidence did not fall within the “extraneous prejudicial evidence” exception set forth in Rule 606(b)(2)(A). The court explained that “[j]urors’ personal experiences do not constitute extraneous information; it is unavoidable they will bring such innate experiences into the jury room.” Id., at 611. Next, the court rejected Warger’s alternative argument that Rule 606(b) is wholly inapplicable when a litigant offers evidence to show that a juror was dishonest during voir dire. Acknowledging that there was a split among the Federal Courts of Appeals on this question, the Eighth Circuit joined those Circuits that had held that Rule 606(b) applies to any proceeding in which the jury’s verdict might be invalidated, including efforts to demonstrate that a juror lied during voir dire. Compare id., at 611–612 (citing Williams v. Price, 343 F. 3d 223, 235–237 (CA3 2003), and United States v. Benally, 546 F. 3d 1230, 1235 (CA10 2008)), with Hard v. Burlington N. R. Co., 812 F. 2d 482, 485 (CA9 1987) (“Statements which tend to show deceit during voir dire are not barred by [Rule 606(b)]”), and Maldonado v. Missouri P. R. Co., 798 F. 2d 764, 770 (CA5 1986) (same). We granted certiorari, 571 U. S. ___ (2014), and now affirm. II We hold that Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire. In doing so, we simply accord Rule 606(b)’s terms their plain meaning. The Rule, after all, applies “[d]uring an inquiry into the validity of a verdict.” Rule 606(b)(1). A postverdict motion for a new trial on the ground of voir dire dishonesty plainly entails “an inquiry into the validity of [the] verdict”: If a juror was dishonest during voir dire and an honest response would have provided a valid basis to challenge that juror for cause, the verdict must be invalidated. See McDonough, 464 U. S., at 556. This understanding of the text of Rule 606(b) is consistent with the underlying common-law rule on which it was based. Although some common-law courts would have permitted evidence of jury deliberations to be introduced to demonstrate juror dishonesty during voir dire, the majority would not, and the language of Rule 606(b) reflects Congress’ enactment of the more restrictive version of the common-law rule. Rule 606(b) had its genesis in Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B. 1785), in which Lord Mansfield held inadmissible an affidavit from two jurors claiming that the jury had decided the case through a game of chance. See 8 J. Wigmore, Evidence §2352, p. 696 (J. McNaughton rev. 1961). The rule soon took root in the United States, id., at 696–697, where it was viewed as both promoting the finality of verdicts and insulating the jury from outside influences, see McDonald v. Pless, 238 U. S. 264 –268 (1915). Some versions of the rule were narrower than others. Under what was sometimes known as the “Iowa” approach, juror testimony regarding deliberations was excluded only to the extent that it related to matters that “ ‘inhere[d] in the verdict,’ ” which generally consisted of evidence of the jurors’ subjective intentions and thought processes in reaching a verdict. 3 C. Mueller & L. Kirkpatrick, Federal Evidence §6:16, p. 70 (4th ed. 2013); 8 Wigmore, Evidence §§2353, 2354, at 699–702. [ 1 ] A number of courts adhering to the Iowa rule held that testimony regarding jury deliberations is admissible when used to challenge juror conduct during voir dire. See, e.g., Mathi- sen v. Norton, 187 Wash. 240, 244–246, 60 P. 2d 1, 3–4 (1936); Williams v. Bridges, 140 Cal. App. 537, 538–541, 35 P. 2d 407, 408–409 (1934). But other courts applied a broader version of the anti-impeachment rule. Under this version, sometimes called the “federal” approach, litigants were prohibited from using evidence of jury deliberations unless it was offered to show that an “extraneous matter” had influenced the jury. See 3 Mueller & Kirkpatrick, Federal Evidence §6:16, at 71; Rules of Evidence for United States Courts and Magistrates, 56 F. R. D. 183, 265 (1973). The “great majority” of appellate courts applying this version of the rule held jury deliberations evidence inadmissible even if used to demonstrate dishonesty during voir dire. Wilson v. Wiggins, 54 Ariz. 240, 246, 94 P. 2d 870, 872 (1939); see, e.g., Willis v. Davis, 333 P. 2d 311, 314 (Okla. 1958); Turner v. Hall’s Adm’x, 252 S. W. 2d 30, 34 (Ky. 1952); Hinkel v. Oregon Chair Co., 80 Ore. 404, 406, 156 P. 438, 439 (1916); State v. Cloud, 130 La. 955, 958–960, 58 So. 827, 828–829 (1912); Payne v. Burke, 236 App. Div. 527, 528–530, 260 N. Y. S. 259, 260–262 (1932). This Court occasionally employed language that might have suggested a preference for the Iowa rule. See Hyde v. United States, 225 U. S. 347 –384 (1912) (“[W]e think the rule expressed in Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 [1866], . . . should apply, that the testimony of jurors should not be received to show matters which essentially inhere in the verdict itself and necessarily depend upon the testimony of the jurors and can receive no corroboration”); Mattox v. United States, 146 U. S. 140 –149 (1892) (quoting at length a Kansas Supreme Court decision setting out the Iowa test). But to the extent that these decisions created any question as to which approach this Court followed, McDonald v. Pless largely settled matters. There, we held that juror affidavits were not admissible to show that jurors had entered a “quotient” verdict, precisely the opposite of the result reached by the Iowa Supreme Court in its decision establishing the Iowa approach. Compare 238 U. S., at 265, 268, with Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 211–212 (1866). In doing so, we observed that although decisions in a few States made admissible a “juror’s affidavit as to an overt act of misconduct, which was capable of being controverted by other jurors,” the argument in favor of that approach (i.e., the Iowa rule) had not been generally accepted, because permitting such evidence “would open the door to the most pernicious arts and tampering with jurors.” 238 U. S., at 268 (internal quotation marks omitted). Our subsequent decision in Clark v. United States, 289 U. S. 1 (1933) , was consistent with our apparent rejection of the Iowa approach. In Clark, the Government had prosecuted for contempt a juror who, during voir dire in a prior case, had falsely denied knowing the defendant. Id., at 6–8. We held that the prosecution could introduce evidence of what had occurred during deliberations in the prior case, rejecting the juror’s argument that these communications were privileged. We were careful to explain, however, that nothing in our decision was “at variance with the rule . . . that the testimony of a juror is not admissible for the impeachment of his verdict.” Id., at 18. This was because the verdict in the original case was not at issue, and therefore “the rule against impeachment [was] wholly unrelated to the problem . . . before us.” Ibid.; accord, McDonald, 238 U. S., at 269. Clark thus clarified that the rule against jurors’ impeaching their verdicts applies only in a proceeding actually impeaching that verdict—precisely the line Rule 606(b) draws when it refers to an “inquiry into the validity of a verdict.” In any event, these decisions predated Congress’ enactment of Rule 606(b), and Congress was undoubtedly free to prescribe a broader version of the anti-impeachment rule than we had previously applied. The language of the Rule it adopted clearly reflects the federal approach: As enacted, Rule 606(b) prohibited the use of any evidence of juror deliberations, subject only to the express exceptions for extraneous information and outside influences. [ 2 ] For those who consider legislative history relevant, here it confirms that this choice of language was no accident. Congress rejected a prior version of the Rule that, in accordance with the Iowa approach, would have prohibited juror testimony only as to the “effect of anything upon . . . [any] juror’s mind or emotions . . . or concerning his mental processes.” Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F. R. D. 315, 387 (1971); see Tanner v. United States, 483 U. S. 107 –125 (1987) (detailing the legislative history of the Rule). Thus Congress “specifically understood, considered, and rejected a version of Rule 606(b)” that would have likely permitted the introduction of evidence of deliberations to show dishonesty during voir dire. Id., at 125. III A Seeking to rebut this straightforward understanding of Rule 606(b), Warger first insists that the proceedings that follow a motion for new trial based on dishonesty during voir dire do not involve an “inquiry into the validity of the verdict.” His argument is as follows: Under McDonough, a party moving for a new trial on the basis of voir dire dishonesty need not show that this dishonesty had an effect on the verdict. See 464 U. S., at 556. Although a successful claim will result in vacatur of the judgment, vacatur is simply the remedy for the McDonough error, just as it may be the remedy for a variety of errors that have nothing to do with the manner in which the jury reached its verdict. See, e.g., United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 12) (listing certain “ ‘structural’ ” errors warranting “automatic reversal” of a criminal conviction). Therefore, Warger asserts, the “inquiry begins and ends with what happened during voir dire.” Brief for Petitioner 19–20. We are not persuaded. Warger, it seems, would restrict Rule 606(b)’s application to those claims of error for which a court must examine the manner in which the jury reached its verdict—claims, one might say, involving an inquiry into the jury’s verdict. But the “inquiry” to which the Rule refers is one into the “validity of the verdict,” not into the verdict itself. The Rule does not focus on the means by which deliberations evidence might be used to invalidate a verdict. It does not say “during an inquiry into jury deliberations,” or prohibit the introduction of evidence of deliberations “for use in determining whether an asserted error affected the jury’s verdict.” It simply applies “[d]uring an inquiry into the validity of the verdict”—that is, during a proceeding in which the verdict may be rendered invalid. Whether or not a juror’s alleged misconduct during voir dire had a direct effect on the jury’s verdict, the motion for a new trial requires a court to determine whether the verdict can stand. B Next, Warger contends that excluding jury deliberations evidence tending to show that a juror lied during voir dire is unnecessary to fulfill Congress’ apparent objectives of encouraging full and open debate in the jury room and preventing the harassment of former jurors. He observes that jurors remain free to, and may sometimes be forced to, disclose what happened in the jury room, and that ethical rules limit the ability of parties to harass jurors following trial. But these are arguments against Rule 606(b) generally, not arguments for the particular exception to the Rule that Warger seeks. Congress’ enactment of Rule 606(b) was premised on the concerns that the use of deliberations evidence to challenge verdicts would represent a threat to both jurors and finality in those circumstances not covered by the Rule’s express exceptions. Warger cannot escape the scope of the Rule Congress adopted simply by asserting that its concerns were misplaced. C Nor do we accept Warger’s contention that we must adopt his interpretation of Rule 606(b) so as to avoid constitutional concerns. The Constitution guarantees both criminal and civil litigants a right to an impartial jury. See, e.g., Sheppard v. Maxwell, 384 U. S. 333, 362 (1966) ; Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946) . And we have made clear that voir dire can be an essential means of protecting this right. See, e.g., Turner v. Murray, 476 U. S. 28, 36 (1986) (plurality opinion); Ham v. South Carolina, 409 U. S. 524, 527 (1973) . These principles, Warger asserts, require that parties be allowed to use evidence of deliberations to demonstrate that a juror lied during voir dire. Given the clarity of both the text and history of Rule 606(b), however, the canon of constitutional avoidance has no role to play here. The canon “is a tool for choosing between competing plausible interpretations” of a provision. Clark v. Suarez-Martinez, 543 U. S. 371, 381 (2005) . It “has no application in the absence of . . . ambiguity.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001) . We see none here. Moreover, any claim that Rule 606(b) is unconstitutional in circumstances such as these is foreclosed by our decision in Tanner. In Tanner, we concluded that Rule 606(b) precluded a criminal defendant from introducing evidence that multiple jurors had been intoxicated during trial, rejecting the contention that this exclusion violated the defendant’s Sixth Amendment right to “ ‘a tribunal both impartial and mentally competent to afford a hearing.’ ” 483 U. S., at 126 (quoting Jordan v. Massachusetts, 225 U. S. 167, 176 (1912) ). We reasoned that the defendant’s right to an unimpaired jury was sufficiently protected by voir dire, the observations of court and counsel during trial, and the potential use of “nonjuror evidence” of misconduct. 483 U. S., at 127. Similarly here, a party’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring that jurors are unbiased. Even if jurors lie in voir dire in a way that conceals bias, juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered. [ 3 ] IV We further hold, consonant with the Eighth Circuit, that the affidavit Warger sought to introduce was not admissible under Rule 606(b)(2)(A)’s exception for evidence as to whether “extraneous prejudicial information was improperly brought to the jury’s attention.” Generally speaking, information is deemed “extraneous” if it derives from a source “external” to the jury. See Tanner, 483 U. S., at 117. “External” matters include publicity and information related specifically to the case the jurors are meant to decide, while “internal” matters include the general body of experiences that jurors are understood to bring with them to the jury room. See id., at 117–119; 27 C. Wright & V. Gold, Federal Practice and Procedure: Evidence §6075, pp. 520–521 (2d ed. 2007). Here, the excluded affidavit falls on the “internal” side of the line: Whipple’s daughter’s accident may well have informed her general views about negligence liability for car crashes, but it did not provide either her or the rest of the jury with any specific knowledge regarding Shauers’ collision with Warger. Indeed, Warger does not argue that Whipple’s statements related to “extraneous” information in this sense. Instead, he contends that because Whipple would have been disqualified from the jury had she disclosed her daughter’s accident, any information she shared with the other jurors was extraneous. We cannot agree that whenever a juror should have been excluded from the jury, anything that juror says is necessarily “extraneous” within the meaning of Rule 606(b)(2)(A). Were that correct, parties would find it quite easy to avoid Rule 606(b)’s limitations. As discussed above, Congress adopted the restrictive version of the anti-impeachment rule, one that common-law courts had concluded precludes parties from using deliberations evidence to prove juror dishonesty during voir dire. But if Warger’s understanding of the “extraneous” information exception were accepted, then any time a party could use such evidence to show that a juror’s “correct response [during voir dire] would have provided a valid basis for a challenge”—a prerequisite for relief under McDonough, 464 U. S., at 556—all evidence of what that juror said during deliberations would be admissible. The “extraneous” information exception would swallow much of the rest of Rule 606(b). Even if such a result were not precluded by Congress’ apparent intent to adopt the restrictive federal approach, it is foreclosed by Tanner, which relied upon the doctrine that “treat[s] allegations of the physical or mental incompetence of a juror as ‘internal’ rather than ‘external’ matters.” 483 U. S., at 118. Tanner cited, in particular, cases holding that evidence of jurors’ insanity, inability to understand English, and hearing impairments are all “internal” matters subject to exclusion under Rule 606(b). Id., at 119. Were we to follow Warger’s understanding of the “extraneous information” exception, all these cases, including Tanner, would have been wrongly decided: If the jurors were not able to serve on the jury in the first place, or should have been dismissed for their misconduct during the trial, then what they said or did during deliberations would necessarily be “extraneous” and admissible. Tanner’s implicit rejection of this view easily extends from the sort of juror incompetence considered in that case to the alleged bias considered here. Whether a juror would have been struck from the jury because of incompetence or bias, the mere fact that a juror would have been struck does not make admissible evidence regarding that juror’s conduct and statements during deliberations. For the foregoing reasons, the judgment of the United States Court of Appeals for the Eighth Circuit is affirmed. It is so ordered. Notes 1 The Iowa rule derived from Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866), in which the Iowa Supreme Court held that a trial court considering a motion for a new trial should have accepted the affidavits of four jurors who claimed that their damages verdict had been determined by taking the average of the sums each juror thought proper (a “quotient” verdict). Id., at 212–213. The Wright court reasoned that, unlike evidence of a juror’s subjective intentions in reaching a verdict, whether the verdict had been obtained in this fashion was an “independent fact” and thus could and should be proved by any avail-able evidence. Id., at 211. 2 The additional exception for mistakes made in entering the verdict on the verdict form was adopted in 2006. See 547 U. S. 1281 . 3 There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented 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 WARGER v. SHAUERS certiorari to the united states court of appeals for the eighth circuit No. 13–517. Argued October 8, 2014—Decided December 9, 2014 Petitioner Gregory Warger sued respondent Randy Shauers in federal court for negligence for injuries suffered in a motor vehicle accident. After the jury returned a verdict for Shauers, one of the jurors contacted Warger’s counsel, claiming that Regina Whipple, the jury foreperson, had revealed during deliberations that her daughter had been at fault in a fatal motor vehicle accident, and that a lawsuit would have ruined her daughter’s life. Armed with an affidavit from the juror, Warger moved for a new trial, arguing that Whipple had deliberately lied during voir dire about her impartiality and ability to award damages. The District Court denied Warger’s motion, holding that Federal Rule of Evidence 606(b), which bars evidence “about any statement made . . . during the jury’s deliberations,” barred the affidavit, and that none of the Rule’s three exceptions, see Rule 606(b)(2), were applicable. The Eighth Circuit affirmed. Held: 1. Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire. . (a) This reading accords with the plain meaning of Rule 606(b), which applies to “an inquiry into the validity of [the] verdict.” This understanding is also consistent with the underlying common-law rule on which Congress based Rule 606(b). The so-called “federal rule” made jury deliberations evidence inadmissible even if used to demonstrate dishonesty during voir dire. Both the majority of courts and this Court’s pre-Rule606(b) cases, see McDonald v. Pless, 238 U.S. 264, 268 ; Clark v. United States, 289 U.S. 1 , favored this rule over the “Iowa rule,” which permitted the use of such jury deliberations evidence. The federal approach is clearly reflected in the language Congress chose when it enacted Rule 606(b), and legislative history confirms that Congress’ choice was no accident. See Tanner v. United States, 483 U.S. 107, 125 . . (b) Warger’s arguments against this straightforward understanding are not persuasive. . (1) First, Warger insists that proceedings for a new trial based on voir dire dishonesty do not involve an “inquiry into the validity of the verdict.” His reading would restrict Rule 606(b)’s application to claims of error for which a court must examine the manner in which the jury reached its verdict, but the Rule does not focus on the means by which deliberations evidence might be used to invalidate a verdict. It simply applies during a proceeding in which a verdict may be rendered invalid. . (2) Warger also contends that excluding jury deliberations evidence that shows voir dire dishonesty is unnecessary to fulfill Congress’ objectives, but his arguments would apply to all evidence rendered inadmissible by Rule 606(b), and he cannot escape the scope of the Rule merely by asserting that Congress’ concerns were misplaced. P. 9. (3) Finally, Warger invokes the canon of constitutional avoidance, contending that only his interpretation protects the right to an impartial jury. But that canon has no application here, where there is no ambiguity. See United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494 . Moreover, this Court’s Tanner decision forecloses any claim that Rule 606(b) is unconstitutional. Similar to the right at issue in that case, Warger’s right to an impartial jury remains protected despite Rule 606(b)’s removal of one means of ensuring unbiased jurors. Even if a juror lies to conceal bias, parties may bring to the court’s attention evidence of bias before the verdict is rendered and use nonjuror evidence after the verdict is rendered. . 2. The affidavit at issue was not admissible under Rule 606(b)(2)(A)’s exception for evidence of “extraneous prejudicial information.” Generally speaking, extraneous information derives from a source “external” to the jury. See Tanner, 483 U. S., at 117. Here, the excluded affidavit falls on the “internal” side. Warger contends that any information Whipple shared with the other jurors was extraneous because she would have been disqualified from the jury had she disclosed her daughter’s accident. However, such an exception would swallow up much of the rest of the restrictive version of the common-law rule that Congress adopted in enacting Rule 606(b). . 721 F.3d 606, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court.

Rule 606(b) of the Federal Rules of Evidence, which provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict," does not preclude a party seeking a new trial on the ground that a juror lied during voir dire. . 721 F. 3d 606, affirmed. THE CHIEF JUSTICE, in an opinion joined by the United States Court of Appeals and the Court of Bishops, concluded that: 1. Federal Rule of Evidence 606 (b)(1), which applies in a proceeding in which a party seeks to secure a trial on a ground that the juror has lied, does not preclude the use of one juror's affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty. P.. 2. The affidavit Warger sought to introduce was not admissible under the Rule. The Rule does not focus on the means by which deliberations evidence might be used to invalidate a verdict, but simply applies to the manner in which the verdict may be rendered invalid. Whether or not the alleged misconduct had a direct effect on the jury's verdict, the motion requires a court to determine whether the verdict can stand. Cf. Clark v. United States, 289 U. S. 1 (1933). Moreover, the language of the Rule it adopted clearly reflects the federal approach of encouraging full and open debate in the jury room and preventing the harassment of former jurors, and it is foreclosed by Tanner, which relied on the doctrine that treats allegations of juror incompetence as "internal" rather than as "external" matters. See, e.g., Tanner, supra at 543. The exception for evidence as to whether an asserted error affected the jury verdict is applicable only in the proceeding actually impeaching the verdict. In any event, these decisions predated Congress' enactment of the rule, and Congress was undoubtedly free to prescribe a broader version of the anti-impeachment rule than we had previously applied. However, Congress rejected a prior version of Rule that, in accordance with the Iowa approach, would have prohibited jurors from using evidence of deliberations evidence to challenge verdicts unless it was offered to show that an extraneous matter had influenced the jury. Similarly, a party moving for a motion for new trial may not show that the dishonesty had an effect on its verdict, since a party may introduce evidence of that dishonesty only if it is shown by the observations of court and counsel during trial and the potential use of nonjuror evidence even after the verdict is rendered. Here, Warger would restrict the Rule to claims of error for which a court must examine the manner the jury reached its verdict.. Held:. (a) Warger is not entitled to adopt his interpretation of Rule 606 as to avoid constitutional concerns. The Constitution guarantees both criminal and civil litigants a right to an impartial jury, and voir- dire can be an essential means of protecting this right. As enacted, Rule 60 6(b)'s language clearly reflects this federal approach. It was not precluded by Congress' apparent intent to adopt the restrictive federal approach, and Tanner has no plausible role to play in choosing a canon of alternative interpretations of the relevant Rule. A jury trial trial juror is not immune from the exclusion of all matters subject to inquiry during jury deliberations, and a party's right to a unimpaired jury remains protected despite the Rule's removal of one means of ensuring that jurors are unbiased. Even if jurors lie in vooir dire in a way that conceals bias, juror impartiality is adequately assured by the parties' ability to bring to the court's attention any evidence of bias before the verdicts are rendered, and to employ non-jurors even after they are rendered. Pp. 467 U.S. 675-672. (b). Warger also cannot escape the scope of his Rule Congress adopted simply by asserting that its concerns were misplaced. If Warger had been struck from the jury deliberations evidence, all evidence of what he said or said during deliberations would have been admissible, and the mere fact that he would have had to have been struck does not make admissible evidence regarding that juror's conduct and statements during deliberations. Such an interpretation would swallow much of the rest of Rule... (c) Nor is there merit to Warger's contention that it must be adopted so as to avoid constitutional concerns. Vir dire is an essential part of the protection of this right, and, as made clear by the Constitution and clear by the Court's decisions in other cases involving juror bias, it was no accident for the canon to play a role in choosing the appropriate tool for avoidance of constitutional impairments. There is no plausible provision for choosing

2014_13-935

https://www.oyez.org/cases/2014/13-935

. Article III, §1, of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress has in turn established 94 District Courts and 13 Courts of Appeals, composed of judges who enjoy the protections of Article III: life tenure and pay that cannot be diminished. Because these protections help to ensure the integrity and independence of the Judiciary, “we have long recognized that, in general, Congress may not withdraw from” the Article III courts “any matter which, from its nature, is the subject of a suit at the common law, or in equity, or in admiralty.” Stern v. Marshall, 564 U. S. ___, ___ (2011) (slip op., at 18) (internal quotation marksomitted). Congress has also authorized the appointment of bankruptcy and magistrate judges, who do not enjoy the protections of Article III, to assist Article III courts in their work. The number of magistrate and bankruptcy judgeships exceeds the number of circuit and district judgeships.[1] And it is no exaggeration to say that without the distinguished service of these judicial colleagues, the work of the federal court system would grind nearly to a halt.[2] Congress’ efforts to align the responsibilities of non-Article III judges with the boundaries set by the Constitution have not always been successful. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) (plurality opinion), and more recently in Stern, this Court held that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. This case presents the question whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. We hold that Article III is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge. I A Before 1978, district courts typically delegated bankruptcy proceedings to “referees.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 4). Under the Bankruptcy Act of 1898, bankruptcy referees had “[s]ummary jurisdiction” over “claims involving ‘property in the actual or constructive possession of the bankruptcy court’ ”—that is, over the apportionment of the bankruptcy estate among creditors. Ibid. (alteration omitted). They could preside over other proceedings—matters implicating the court’s “plenary jurisdiction”—by consent. Id., at ___ (slip op., at 5); see also MacDonald v. Plymouth County Trust Co., 286 U. S. 263 –267 (1932). In 1978, Congress enacted the Bankruptcy Reform Act, which repealed the 1898 Act and gave the newly created bankruptcy courts power “much broader than that exercised under the former referee system.” Northern Pipeline, 458 U. S., at 54. The Act “[e]liminat[ed] the distinction between ‘summary’ and ‘plenary’ jurisdiction” and enabled bankruptcy courts to decide “all ‘civil proceedings arising under title 11 [the Bankruptcy title] or arisingin or related to cases under title 11.’ ” Ibid. (emphasis de-leted). Congress thus vested bankruptcy judges with most of the “ ‘powers of a court of equity, law, and admiralty,’ ” id., at 55, without affording them the benefits of Article III. This Court therefore held parts of the system unconstitutional in Northern Pipeline. Congress responded by enacting the Bankruptcy Amendments and Federal Judgeship Act of 1984. Under that Act, district courts have original jurisdiction over bankruptcy cases and related proceedings. 28 U. S. C. §§1334(a), (b). But “[e]ach district court may provide that any or all” bankruptcy cases and related proceedings “shall be referred to the bankruptcy judges for the district.” §157(a). Bankruptcy judges are “judicial officers of the United States district court,” appointed to 14-year terms by the courts of appeals, and subject to removal for cause. §§152(a)(1), (e). “The district court may withdraw” a reference to the bankruptcy court “on its own motion or on timely motion of any party, for cause shown.” §157(d). When a district court refers a case to a bankruptcy judge, that judge’s statutory authority depends on whether Congress has classified the matter as a “[c]ore proceed-in[g]” or a “[n]on-core proceedin[g],” §§157(b)(2), (4)—much as the authority of bankruptcy referees, before the 1978 Act, depended on whether the proceeding was “summary” or “plenary.” Congress identified as “[c]ore” a nonexclusive list of 16 types of proceedings, §157(b)(2), in which it thought bankruptcy courts could constitutionally enter judgment.[3] Congress gave bankruptcy courts the power to “hear and determine” core proceedings and to “enter appropriate orders and judgments,” subject to appellate review by the district court. §157(b)(1); see §158. But it gave bankruptcy courts more limited author-ity in non-core proceedings: They may “hear and determine” such proceedings, and “enter appropriate orders and judgments,” only “with the consent of all the parties to the proceeding.” §157(c)(2). Absent consent, bankruptcy courts in non-core proceedings may only “submit proposed findings of fact and conclusions of law,” which the district courts review de novo. §157(c)(1). B Petitioner Wellness International Network is a manufacturer of health and nutrition products.[4] Wellness and respondent Sharif entered into a contract under which Sharif would distribute Wellness’ products. The relationship quickly soured, and in 2005, Sharif sued Wellness in the United States District Court for the Northern District of Texas. Sharif repeatedly ignored Wellness’ discovery requests and other litigation obligations, resulting in an entry of default judgment for Wellness. The District Court eventually sanctioned Sharif by awarding Wellness over $650,000 in attorney’s fees. This case arises from Wellness’ long-running—and so far unsuccessful—efforts to collect on that judgment. In February 2009, Sharif filed for Chapter 7 bankruptcy in the Northern District of Illinois. The bankruptcy petition listed Wellness as a creditor. Wellness requested documents concerning Sharif’s assets, which Sharif did not provide. Wellness later obtained a loan application Sharif had filed in 2002, listing more than $5 million in assets. When confronted, Sharif informed Wellness and the Chapter 7 trustee that he had lied on the loan application. The listed assets, Sharif claimed, were actually owned by the Soad Wattar Living Trust (Trust), an entity Sharif said he administered on behalf of his mother, and for the benefit of his sister. Wellness pressed Shariffor information on the Trust, but Sharif again failed to respond. Wellness filed a five-count adversary complaint against Sharif in the Bankruptcy Court. See App. 5–22. Counts I–IV of the complaint objected to the discharge of Sharif’s debts because, among other reasons, Sharif had concealed property by claiming that it was owned by the Trust. Count V of the complaint sought a declaratory judgment that the Trust was Sharif’s alter ego and that its assets should therefore be treated as part of Sharif’s bankruptcy estate. Id., at 21. In his answer, Sharif admitted that the adversary proceeding was a “core proceeding” under 28 U. S. C. §157(b)—i.e., a proceeding in which the Bankruptcy Court could enter final judgment subject to appeal. See §§157(b)(1), (2)(J); App. 24. Indeed, Sharif requested judgment in his favor on all counts of Wellness’ complaint and urged the Bankruptcy Court to “find that the Soad Wattar Living Trust is not property of the [bankruptcy] estate.” Id., at 44. A familiar pattern of discovery evasion ensued. Wellness responded by filing a motion for sanctions, or, in the alternative, to compel discovery. Granting the motion to compel, the Bankruptcy Court warned Sharif that if he did not respond to Wellness’ discovery requests a default judgment would be entered against him. Sharif eventu-ally complied with some discovery obligations, but did not produce any documents related to the Trust. In July 2010, the Bankruptcy Court issued a ruling finding that Sharif had violated the court’s discovery order. See App. to Pet. for Cert. 92a–120a. It accordingly denied Sharif’s request to discharge his debts and entered a default judgment against him in the adversary proceeding. And it declared, as requested by count V of Wellness’ complaint, that the assets supposedly held by the Trust were in fact property of Sharif’s bankruptcy estate because Sharif “treats [the Trust’s] assets as his own prop-erty.” Id., at 119a. Sharif appealed to the District Court. Six weeks before Sharif filed his opening brief in the District Court, this Court decided Stern. In Stern, the Court held that Article III prevents bankruptcy courts from entering final judgment on claims that seek only to “augment” the bankruptcy estate and would otherwise “exis[t] without regard toany bankruptcy proceeding.” 564 U. S., at ___, ___ (slip op., at 27, 34). Sharif did not cite Stern in his opening brief. Rather, after the close of briefing, Sharif moved for leave to file a supplemental brief, arguing that in light of In re Ortiz, 665 F. 3d 906 (CA7 2011)—a recently issued decision interpreting Stern—“the bankruptcy court’s order should only be treated as a report and recommendation.” App. 145. The District Court denied Sharif's motion for supplemental briefing as untimely and affirmed the Bankruptcy Court’s judgment. The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 727 F. 3d 751 (2013). The Seventh Circuit acknowledged that ordinarily Sharif’s Stern objection would “not [be] preserved because he waited too long to assert it.” 727 F. 3d, at 767.[5] But the court determined that the ordinary rule did not apply because Sharif’s argument concerned “the allocation of authority between bankruptcy courts and district courts” under Article III, and thus “implicate[d] structural interests.” Id., at 771. Based on those separation-of-powers considerations, the court held that “a litigant may not waive” a Stern objection. Id., at 773. Turning to the merits of Sharif’s contentions, the Seventh Circuit agreed with the Bankruptcy Court’s resolution of counts I–IV of Wellness’ adversary complaint. It further concluded, however, that count V of the complaint alleged a so-called “Stern claim,” that is, “a claim designated for final adjudication in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter.” Executive Benefits, 573 U. S., at ___ (slip op., at 4). The Seventh Circuit therefore ruled that the Bankruptcy Court lacked constitutional authority to enter final judgment on count V.[6] We granted certiorari, 573 U. S. ___ (2014), and now reverse the judgment of the Seventh Circuit.[7] II Our precedents make clear that litigants may validly consent to adjudication by bankruptcy courts. A Adjudication by consent is nothing new. Indeed, “[d]uring the early years of the Republic, federal courts, with the consent of the litigants, regularly referred adjudication of entire disputes to non-Article III referees, masters, or arbitrators, for entry of final judgment in accordance with the referee’s report.” Brubaker, The Constitutionality of Litigant Consent to Non-Article III Bankruptcy Adjudications, 32 Bkrtcy. L. Letter No. 12, p. 6 (Dec. 2012); see, e.g., Thornton v. Carson, 7 Cranch 596, 597 (1813) (affirming damages awards in two actions that “were referred, by consent under a rule of Court to arbitrators”); Heckers v. Fowler, 2 Wall. 123, 131 (1865) (observing that the “[p]ractice of referring pending actions under a rule of court, by consent of parties, was well known at common law,” and “is now universally regarded . . . as the proper foundation of judgment”); Newcomb v. Wood, 97 U. S. 581, 583 (1878) (recognizing “[t]he power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it”). The foundational case in the modern era is Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986) . The Commodity Futures Trading Commission (CFTC), which Congress had authorized to hear customer complaints against commodities brokers, issued a regulation allowing itself to hear state-law counterclaims as well. William Schor filed a complaint with the CFTC against his broker, and the broker, which had previously filed claims against Schor in federal court, refiled them as counterclaims in the CFTC proceeding. The CFTC ruled against Schor on the counterclaims. This Court upheld that ruling against both statutory and constitutional challenges. On the constitutional question (the one relevant here) the Court began by holding that Schor had “waived any right he may have possessed to the full trial of [the broker’s] counterclaim before an Article III court.” Id., at 849. The Court then explained why this waiver legitimated the CFTC’s exercise of authority: “[A]s a personal right, Article III’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other per-sonal constitutional rights”—such as the right to a jury—“that dictate the procedures by which civil and criminal matters must be tried.” Id., at 848–849. The Court went on to state that a litigant’s waiver of his “personal right” to an Article III court is not always dispositive because Article III “not only preserves to litigants their interest in an impartial and independent federal adjudication of claims . . . , but also serves as ‘an inseparable element of the constitutional system of checks and balances.’ . . . To the extent that this structural principle is implicated in a given case”—but only to that extent—“the parties cannot by consent cure the constitutional difficulty . . . .” Id., at 850–851. Leaning heavily on the importance of Schor’s consent, the Court found no structural concern implicated by the CFTC’s adjudication of the counterclaims against him. While “Congress gave the CFTC the authority to adjudicate such matters,” the Court wrote, “the decision to invoke this forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of powers concerns are diminished, for it seems self-evident that just as Congress may encourage parties to settle a dispute out of court or resort to arbitration without impermissible incursions on the separation of powers, Congress may make available a quasi-judicial mechanism through which willing parties may, at their option, elect to resolve their differences.” Id., at 855. The option for parties to submit their disputes to a non-Article III adjudicator was at most a “de minimis” infringement on the prerogative of the federal courts. Id., at 856. A few years after Schor, the Court decided a pair of cases—Gomez v. United States, 490 U. S. 858 (1989) , and Peretz v. United States, 501 U. S. 923 (1991) —that reiterated the importance of consent to the constitutional analysis. Both cases concerned whether the Federal Magistrates Act authorized magistrate judges to preside over jury selection in a felony trial;[8] the difference was that Peretz consented to the practice while Gomez did not. That difference was dispositive. In Gomez, the Court interpreted the statute as not allowing magistrate judges to supervise voir dire without consent, emphasizing the constitutional concerns that might otherwise arise. See 490 U. S., at 864. In Peretz, the Court upheld the Magistrate Judge’s action, stating that “the defendant’s consent significantly changes the constitutional analysis.” 501 U. S., at 932. The Court concluded that allowing a magistrate judge to supervise jury selection—with consent—does not violate Article III, explaining that “litigants may waive their personal right to have an Article III judge preside over a civil trial,” id., at 936 (citing Schor, 478 U. S., at 848), and that “[t]he most basic rights of criminal defendants are similarly subject to waiver,” 501 U. S., at 936. And “[e]ven assuming that a litigant may not waive structural protections provided by Article III,” the Court found “no such structural protections . . . implicated by” a magistrate judge’s supervision of voir dire: “Magistrates are appointed and subject to removal by Article III judges. The ‘ultimate decision’ whether to invoke the magistrate’s assistance is made by the district court, subject to veto by the parties. The decision whether to empanel the jury whose selection a magistrate has supervised also remains entirely with the district court. Because ‘the entire process takes place under the district court’s total control and jurisdiction,’ there is no danger that use of the magistrate involves a ‘congressional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” Id., at 937 (citations omitted; alteration in original).[9] The lesson of Schor, Peretz, and the history that preceded them is plain: The entitlement to an Article III adjudicator is “a personal right” and thus ordinarily “subject to waiver,” Schor, 478 U. S., at 848. Article III also serves a structural purpose, “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense of the other.’ ” Id., at 850 (citations omitted). But allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process. B The question here, then, is whether allowing bankruptcy courts to decide Stern claims by consent would “imper-missibly threate[n] the institutional integrity of the Judicial Branch.” Schor, 478 U. S., at 851. And that question must be decided not by “formalistic and unbending rules,” but “with an eye to the practical effect that the” practice “will have on the constitutionally assigned role of the federal judiciary.” Ibid.; see Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 587 (1985) (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III”). The Court must weigh “the extent to which the essential attributes of judicial power are reserved to Article III courts, and, con-versely, the extent to which the non-Article III forum exer-cises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.” Schor, 478 U. S., at 851 (internal quotation marks omitted). Applying these factors, we conclude that allowing bankruptcy litigants to waive the right to Article III adjudication of Stern claims does not usurp the constitutional prerogatives of Article III courts. Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III judges,” Peretz, 501 U. S., at 937; see 28 U. S. C. §§152(a)(1), (e). They “serve as judicial officers of the United States district court,” §151, and collectively “constitute a unit of the district court” for that district, §152(a)(1). Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate [judge]’s assistance is made by the district court,” Peretz, 501 U. S., at 937, bankruptcy courts hear matters solely on a district court’s reference, §157(a), which the district court may withdraw sua sponte or at the request of a party, §157(d). “[S]eparation of powers concerns are diminished” when, as here, “the decision to invoke [a non-Article III] forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction” remains in place. Schor, 478 U. S., at 855. Furthermore, like the CFTC in Schor, bankruptcy courts possess no free-floating authority to decide claims traditionally heard by Article III courts. Their ability to resolve such matters is limited to “a narrow class of common law claims as an incident to the [bankruptcy courts’] primary, and unchallenged, adjudicative function.” Id., at 854. “In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimis.” Id., at 856. Finally, there is no indication that Congress gave bankruptcy courts the ability to decide Stern claims in an effort to aggrandize itself or humble the Judiciary. As in Peretz, “[b]ecause ‘the entire process takes place under the district court’s total control and jurisdiction,’ there is no danger that use of the [bankruptcy court] involves a ‘congres-sional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” 501 U. S., at 937 (citation omitted); see also Schor, 478 U. S., at 855 (allowing CFTC’s adjudication of counterclaims because of “the degree of judicial control saved to the federal courts, as well as the congressional purpose behind the jurisdictional delegation, the demonstrated need for the delegation, and the limited nature of the delegation” (citation omitted)); Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F. 2d 537, 544 (CA9 1984) (en banc) (Kennedy, J.) (magistrate judges may adjudicate civil cases by consent because the Federal Magistrates Act “invests the Article III judiciary with extensive administrative control over the management, composition, and operation of the magistrate system”).[10] Congress could choose to rest the full share of the Judiciary’s labor on the shoulders of Article III judges. But doing so would require a substantial increase in the number of district judgeships. Instead, Congress has supplemented the capacity of district courts through the able assistance of bankruptcy judges. So long as those judges are subject to control by the Article III courts, their work poses no threat to the separation of powers. C Our recent decision in Stern, on which Sharif and the principal dissent rely heavily, does not compel a different result. That is because Stern—like its predecessor, Northern Pipeline—turned on the fact that the litigant “did not truly consent to” resolution of the claim against it in a non-Article III forum. 564 U. S., at ___ (slip op., at 27). To understand Stern, it is necessary to first understand Northern Pipeline. There, the Court considered whether bankruptcy judges “could ‘constitutionally be vested with jurisdiction to decide [a] state-law contract claim’ against an entity that was not otherwise part of the bankruptcy proceedings.” 564 U. S., at ___ (slip op., at 19). In answering that question in the negative, both the plurality and then-Justice Rehnquist, concurring in the judgment, noted that the entity in question did not consent to the bankruptcy court’s adjudication of the claim. See 458 U. S., at 80, n. 31 (plurality opinion); id., at 91 (opinion of Rehnquist, J.). The Court confirmed in two later cases that Northern Pipeline turned on the lack of consent. See Schor, 478 U. S., at 849 (“[I]n Northern Pipeline, . . . the absence of consent to an initial adjudication before a non-Article III tribunal was relied on as a significant factor in determining that Article III forbade such adjudication”); Thomas, 473 U. S., at 584. Stern presented the same scenario. The majority cited the dissent’s observation that Northern Pipeline “establish[ed] only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review,” 564 U. S., at ___ (slip op., at 28–29) (emphasis added; internal quotation marks omitted). To which the majority responded, “Just so: Substitute ‘tort’ for ‘contract,’ and that statement directly covers this case.” Id., at ___ (slip op., at 29); see also id., at ___ (slip op., at 27) (defendant litigated in the Bankruptcy Court because he “had nowhere else to go” to pursue his claim). Because Stern was premised on nonconsent to adjudication by the Bankruptcy Court, the “constitutional bar” it announced, see post, at 14 (Roberts, C. J., dissenting), simply does not govern the question whether litigants may validly consent to adjudication by a bankruptcy court. An expansive reading of Stern, moreover, would be inconsistent with the opinion’s own description of its holding. The Court in Stern took pains to note that the question before it was “a ‘narrow’ one,” and that its answer did “not change all that much” about the division of labor between district courts and bankruptcy courts. Id., at ___ (slip op., at 37); see also id., at ___ (slip op., at 38) (stating that Congress had exceeded the limitations of Article III “in one isolated respect”). That could not have been a fair characterization of the decision if it meant that bank-ruptcy judges could no longer exercise their longstanding authority to resolve claims submitted to them by consent. Interpreting Stern to bar consensual adjudications by bankruptcy courts would “meaningfully chang[e] the division of labor” in our judicial system, contra, id., at ___ (slip op., at 37).[11] In sum, the cases in which this Court has found a violation of a litigant’s right to an Article III decisionmaker have involved an objecting defendant forced to litigate involuntarily before a non-Article III court. The Court has never done what Sharif and the principal dissent would have us do—hold that a litigant who has the right to an Article III court may not waive that right through his consent. D The principal dissent warns darkly of the consequences of today’s decision. See post, at 17–20. To hear the principal dissent tell it, the world will end not in fire, or ice, but in a bankruptcy court. The response to these ominous predictions is the same now as it was when Justice Brennan, dissenting in Schor, first made them nearly 30 years ago: “This is not to say, of course, that if Congress created a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control and without evidence of valid and specific legislative necessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack. But this case obviously bears no resemblance to such a sce-nario . . . .” 478 U. S., at 855 (citations omitted). Adjudication based on litigant consent has been a consistent feature of the federal court system since its inception. Reaffirming that unremarkable fact, we are confident, poses no great threat to anyone’s birthrights, constitutional or otherwise. III Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree. Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express. Nor does the relevant statute, 28 U. S. C. §157, mandate express consent; it states only that a bankruptcy court must obtain “the consent”—consent simpliciter—“of all parties to the proceeding” before hearing and determining a non-core claim. §157(c)(2). And a requirement of express consent would be in great tension with our decision in Roell v. Withrow, 538 U. S. 580 (2003) . That case concerned the interpretation of §636(c), which authorizes magistrate judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case,” with “the consent of the parties.”[12] The specific question in Roell was whether, as a statutory matter, the “consent” required by §636(c) had to be express. The dissent argued that “[r]eading §636(c)(1) to require express consent not only is more consistent with the text of the statute, but also” avoids constitutional concerns by “ensur[ing] that the parties knowingly and voluntarily waive their right to an Article III judge.” 538 U. S., at 595 (opinion of Thomas, J.). But the majority—thus placed on notice of the constitutional concern—was untroubled by it, opining that “the Article III right is substantially honored” by permitting waiver based on “actions rather than words.” Id., at 589, 590. The implied consent standard articulated in Roell supplies the appropriate rule for adjudications by bankruptcy courts under §157. Applied in the bankruptcy context, that standard possesses the same pragmatic virtues—increasing judicial efficiency and checking gamesmanship—that motivated our adoption of it for consent-based adjudications by magistrate judges. See id., at 590. It bears emphasizing, however, that a litigant’s consent—whether express or implied—must still be knowing and voluntary. Roell makes clear that the key inquiry is whether “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case” before the non-Article III adjudicator. Ibid.; see also id., at 588, n. 5 (“notification of the right to refuse” adjudication by a non-Article III court “is a prerequisite to any inference of consent”).[13] IV It would be possible to resolve this case by determining whether Sharif in fact consented to the Bankruptcy Court’s adjudication of count V of Wellness’ adversary complaint. But reaching that determination would require a deeply factbound analysis of the procedural history unique to this protracted litigation. Our resolution of the consent question—unlike the antecedent constitutional question—would provide little guidance to litigants or the lower courts. Thus, consistent with our role as “a court of review, not of first view,” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14) (internal quotation marks omitted), we leave it to the Seventh Circuit to decide on remand whether Sharif’s actions evinced the requisite knowing and voluntary consent, and also whether, as Wellness contends, Sharif forfeited his Stern argument below. * * * The Court holds that Article III permits bankruptcy courts to decide Stern claims submitted to them by consent. The judgment of the United States Court of Appeals for the Seventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Congress has authorized 179 circuit judgeships and 677 district judgeships, a total of 856. United States Courts, Status of Article III Judgeships, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/status-article-iii-judgeships.aspx (all Internet materials as visitedMay 22, 2015, and available in Clerk of Court’s case file).The number of authorized magistrate and bankruptcy judgeships currently stands at 883: 534 full-time magistrate judgeships and349 bankruptcy judgeships. United States Courts, Appointments of Magistrate Judges, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/appointments-magistrate-judges.aspx; United States Courts, Status of Bankruptcy Judgeships, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/status-bankruptcy-judgeships.aspx. 2 Between October 1, 2013, and September 30, 2014, for example, litigants filed 963,739 cases in bankruptcy courts—more thandouble the total number filed in district and circuit courts. United States Courts, Judicial Caseload Indicators, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/judicial-caseload-indicators.aspx. 3 Congress appears to have drawn the term “core” from Northern Pipeline’s description of “the restructuring of debtor-creditor relations” as “the core of the federal bankruptcy power.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S., 50, 71 (1982). 4 Individual petitioners Ralph and Cathy Oats are Wellness’ founders. This opinion refers to all petitioners collectively as “Wellness.” 5 Although the Seventh Circuit referred to Sharif’s failure to raise his Stern argument in a timely manner as a waiver, that court has since clarified that its decision rested on forfeiture. See Peterson v. Somers Dublin Ltd., 729 F. 3d 741, 747 (2013) (“The issue in Wellness International Network was forfeiture rather than waiver”). 6 The Seventh Circuit concluded its opinion by considering the rem-edy for the Bankruptcy Court’s purportedly unconstitutional issuance of a final judgment. The court determined that if count V of Wellness’ complaint raised a core claim, the only statutorily authorized remedy would be for the District Court to withdraw the reference to the Bankruptcy Court and set a new discovery schedule. The Seventh Circuit’s reasoning on this point was rejected by our decision last Term in Executive Benefits, which held that district courts may treat Stern claims like non-core claims and thus are not required to restart proceedings entirely when a bankruptcy court improperly enters final judgment. 7 Because the Court concludes that the Bankruptcy Court could val-idly enter judgment on Wellness’ claim with the parties’ consent, this opinion does not address, and expresses no view on, Wellness’ alternative contention that the Seventh Circuit erred in concluding the claim in count V of its complaint was a Stern claim. 8 In relevant part, the Act provides that district courts may assign magistrate judges certain enumerated duties as well as “such additional duties as are not inconsistent with the Constitution and the laws ofthe United States.” 28 U. S. C. §636(b)(3). 9 Discounting the relevance of Gomez and Peretz, the principal dissent emphasizes that neither case concerned the entry of final judgment by a non-Article III actor. See post, at 16 (opinion of Roberts, C. J.). Here again, the principal dissent’s insistence on formalism leads it astray. As we explained in Peretz, the “responsibility and importance [of] presiding over voir dire at a felony trial” is equivalent to the “supervision of entire civil and misdemeanor trials,” 501 U. S., at 933, tasks in which magistrate judges may “order the entry of judgment” with the parties’ consent, §636(c)(1). 10 The principal dissent accuses us of making Sharif’s consent “ ‘dispositive’ in curing [a] structural separation of powers violation,” con-trary to the holding of Schor. Post, at 16. That argument misapprehends both Schor and the nature of our analysis. What Schor forbids is using consent to excuse an actual violation of Article III. See 478 U. S., at 850–851 (“To the extent that th[e] structural principle [protected by Article III] is implicated in a given case, the parties cannot by consent cure the constitutional difficulty . . .” (emphasis added)). But Schor confirms that consent remains highly relevant when determining, as we do here, whether a particular adjudication in fact raises constitutional concerns. See id., at 855 (“separation of powers concerns are diminished” when “the decision to invoke [a non-Article III] forum is left entirely to the parties”). Thus, we do not rely on Sharif’s consent to “cur[e]” a violation of Article III. His consent shows, in part, why no such violation has occurred. Cf. Meltzer, Legislative Courts, Legislative Power, and the Constitution, 65 Ind. L. J. 291, 303 (1990) (“[C]onsent provides, if not complete, at least very considerable reason to doubt that the tribunal poses a serious threat to the ideal of federal adjudicatory independence”); Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 992 (1988) (when the parties consent, “there is substantial assurance that the agency is not generally behaving arbitrarily or otherwise offending separation-of-powers values. Judicial integrity is not at risk”). 11 In advancing its restrictive view of Stern, the principal dissent ignores the sweeping jurisprudential implications of its position. If, as the principal dissent suggests, consent is irrelevant to the Article III analysis, it is difficult to see how Schor and Peretz were not wrongly decided. But those decisions obviously remain good law. It is the principal dissent’s position that breaks with our precedents. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 231 (1995) (“[T]he proposition that legal defenses based upon doctrines central to the courts’ struc-tural independence can never be waived simply does not accord with our cases”). 12 Consistent with our precedents, the Courts of Appeals have unanimously upheld the constitutionality of §636(c). See Sinclair v. Wainwright, 814 F. 2d 1516, 1519 (CA11 1987); Bell & Beckwith v. United States, 766 F. 2d 910, 912 (CA6 1985); Gairola v. Virginia Dept. of Gen. Servs., 753 F. 2d 1281, 1285 (CA4 1985); D. L. Auld Co. v. Chroma Graphics Corp., 753 F. 2d 1029, 1032 (CA Fed. 1985); United States v. Dobey, 751 F. 2d 1140, 1143 (CA10 1985); Fields v. Washington Metropolitan Area Transit Auth., 743 F. 2d 890, 893 (CADC 1984); Geras v. Lafayette Display Fixtures, Inc., 742 F. 2d 1037, 1045 (CA7 1984); Lehman Bros. Kuhn Loeb Inc. v. Clark Oil & Refining Corp., 739 F. 2d 1313, 1316 (CA8 1984) (en banc); Puryear v. Ede’s Ltd., 731 F. 2d 1153, 1154 (CA5 1984); Goldstein v. Kelleher, 728 F. 2d 32, 36 (CA1 1984); Collins v. Foreman, 729 F. 2d 108, 115–116 (CA2 1984); Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 1984) (en banc) (Kennedy, J.); Wharton-Thomas v. United States, 721 F. 2d 922, 929–930 (CA3 1983). 13 Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to Article III adjudication is knowing and voluntary and to limit subsequent litigation over the consent issue. Statutes or judicial rules may require express consent where the Constitution does not. Indeed, the Federal Rules of Bankruptcy Procedure already require that pleadings in adversary proceedings before a bankruptcy court “contain a statement that the proceeding is core or non-core and, if non-core, that the pleader does or does not consent to entry of final orders or judgment by the bankruptcy judge.” Fed. Rule Bkrtcy. Proc. 7008 (opening pleadings); see Fed. Rule Bkrtcy. Proc. 7012 (responsive pleadings). The Bankruptcy Court and the parties followed that procedure in this case. See App. 6, 24; supra, at 5–6. And this Court recently submitted to Congress, pursuant to the Rules Enabling Act, proposed amendments to Rules 7008 and 7012 that remove references to the core/non-core distinction and thus require parties in all bankruptcy proceedings to state expressly whether they consent to the bankruptcy court’s entry of judgment. Report of the Judicial Conference, Committee on Rules of Practice and Procedure, pp. 6, 7, 9. (Sept. 2013).

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 . SUPREME COURT OF THE UNITED STATES Syllabus WELLNESS INTERNATIONAL NETWORK, LTD., et al. v. SHARIF certiorari to the united states court of appeals for the seventh circuit No. 13–935. Argued January 14, 2015—Decided May 26, 2015 Respondent Richard Sharif tried to discharge a debt he owed petitioners, Wellness International Network, Ltd., and its owners (collectively Wellness), in his Chapter 7 bankruptcy. Wellness sought, inter alia, a declaratory judgment from the Bankruptcy Court, contending that a trust Sharif claimed to administer was in fact Sharif’s alter-ego, and that its assets were his personal property and part of his bankruptcy estate. The Bankruptcy Court eventually entered a default judgment against Sharif. While Sharif’s appeal was pending in District Court, but before briefing concluded, this Court held that Article III forbids bankruptcy courts to enter a final judgment on claims that seek only to “augment” the bankruptcy estate and would otherwise “exis[t] without regard to any bankruptcy proceeding.” Stern v. Marshall, 564 U. S. ___, ___. After briefing closed, Sharif sought permission to file a supplemental brief raising a Stern objection. The District Court denied the motion, finding it untimely, and affirmed the Bankruptcy Court’s judgment. As relevant here, the Seventh Circuit determined that Sharif’s Stern objection could not be waived because it implicated structural interests and reversed on the alter-ego claim, holding that the Bankruptcy Court lacked constitutional authority to enter final judgment on that claim. Held: 1. Article III permits bankruptcy judges to adjudicate Stern claims with the parties’ knowing and voluntary consent. . (a) The foundational case supporting the adjudication of legal disputes by non-Article III judges with the consent of the parties is Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833 . There, the Court held that the right to adjudication before an Article III court is “personal” and therefore “subject to waiver.” Id., at 848. The Court also recognized that if Article III’s structural interests as “ ‘an inseparable element of the constitutional system of checks and balances’ ” are implicated, “the parties cannot by consent cure the constitutional difficulty.” Id., at 850–851. The importance of consent was reiterated in two later cases involving the Federal Magistrates Act’s assignment of non-Article III magistrate judges to supervise voir dire in felony trials. In Gomez v. United States, 490 U. S. 858 , the Court held that a magistrate judge was not permitted to select a jury without the defendant’s consent, id., at 864. But in Peretz v. United States, 501 U. S. 923 , the Court stated that “the defendant’s consent significantly changes the constitutional analysis,” id., at 932. Because an Article III court retained supervisory authority over the process, the Court found “no structural protections . . . implicated” and upheld the Magistrate Judge’s action. Id., at 937. . (b) The question whether allowing bankruptcy courts to decide Stern claims by consent would “impermissibly threate[n] the institutional integrity of the Judicial Branch,” Schor, 478 U. S., at 851, must be decided “with an eye to the practical effect that the” practice “will have on the constitutionally assigned role of the federal judiciary,” ibid. For several reasons, this practice does not usurp the constitutional prerogatives of Article III courts. Bankruptcy judges are appointed and may be removed by Article III judges, see 28 U. S. C. §§152(a)(1), (e); “serve as judicial officers of the United States district court,” §151; and collectively “constitute a unit of the district court” for the district in which they serve, §152(a)(1). Bankruptcy courts hear matters solely on a district court’s reference, §157(a), and possess no free-floating authority to decide claims traditionally heard by Article III courts, see Schor, 478 U. S., at 854, 856. “[T]he decision to invoke” the bankruptcy court’s authority “is left entirely to the parties,” id., at 855, and “the power of the federal judiciary to take jurisdiction” remains in place, ibid. Finally, there is no indication that Congress gave bankruptcy courts the ability to decide Stern claims in an effort to aggrandize itself or humble the Judiciary. See, e.g., Peretz, 501 U. S., at 937. . (c) Stern does not compel a different result. It turned on the fact that the litigant “did not truly consent to” resolution of the claim against it in a non-Article III forum, 564 U. S., at ___, and thus, does not govern the question whether litigants may validly consent to adjudication by a bankruptcy court. Moreover, expanding Stern to hold that a litigant may not waive the right to an Article III court through consent would be inconsistent with that opinion’s own description of its holding as “a ‘narrow’ one” that did “not change all that much” about the division of labor between district and bankruptcy courts. Id., at ___. . 2. Consent to adjudication by a bankruptcy court need not be express, but must be knowing and voluntary. Neither the Constitution nor the relevant statute—which requires “the consent of all parties to the proceeding” to hear a Stern claim, §157(c)(2)—mandates express consent. Such a requirement would be in great tension with this Court’s holding that substantially similar language in §636(c)—which authorizes magistrate judges to conduct proceedings “[u]pon consent of the parties”—permits waiver based on “actions rather than words,” Roell v. Withrow, 538 U. S. 580 . Roell’s implied consent standard supplies the appropriate rule for bankruptcy court adjudications and makes clear that a litigant’s consent—whether express or implied—must be knowing and voluntary. . 3. The Seventh Circuit should decide on remand whether Sharif’s actions evinced the requisite knowing and voluntary consent and whether Sharif forfeited his Stern argument below. P. 20. 727 F. 3d 751, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined, and in which Alito, J., joined in part. Alito, J., filed an opinion concurring in part and concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Scalia, J., joined, and in which Thomas, J., joined as to Part I. Thomas, J., filed a dissenting opinion.

Section 1 of Article III of the Constitution entitles a bankruptcy judge to proceed on his own merits in any civil action at the common law, equity, or admiralty court, and he may appoint bankruptcy and magistrate judges to assist such court in its work. Petitioner Wellness International Network is a manufacturer of health and nutrition products, and respondent filed a five-count adversary complaint against respondent in the Bankruptcy Court, seeking a declaratory judgment that the Trust was respondent's alter ego and that its assets should be treated as part of respondent's bankruptcy estate. Petitioner responded by filing a motion for sanctions, or, in the alternative, to compel discovery. The court warned respondent that if he did not respond to Wellness discovery requests, a default judgment would be entered against him, and issued a ruling that the court had violated its authority under 28 U.S. C. §157(b), which authorizes bankruptcy courts to decide all civil actions involving property in the actual or constructive possession of the bankruptcy court. Respondent did not produce any documents related to the Trust, but did file a supplemental brief in the District Court, arguing that, in light of In re Ortiz, 665 F. 3d 906, a recently issued decision interpreting Stern v. Marshall, 564 U. S. ___, which held that Congress had violated Article III by authorizing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. The District Court denied respondent leave to file supplemental brief, but the Court of Appeals affirmed. Held: Article III is not violated when the parties knowingly and voluntarily consent to the bankruptcy judge adjudication of respondent.. (a) Adjudication by consent is nothing new. A litigant may validly consent to adjudication by bankruptcy courts. Nothing in the Constitution requires that consent to a bankruptcy court be express. Nor does the relevant statute, which states only that a bankruptcy court must obtain the consent of all parties to the proceeding before determining a non-core claim, be express or implied. An expansive reading of the implied consent standard articulated in Roell v. Withrow,, which provides that bankruptcy courts may treat claims traditionally heard by Article III courts like respondent's claim with consent, simply does not govern the question whether litigans may consent. Moreover, there is no indication that Congress gave bankruptcy courts the ability to decide Stern claims in an effort to aggrandize itself or humble the Judiciary.. Pp. (b) Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to adjudicate by the court will not contravene Article III. . 727 F.3d 751, reversed and remanded. REHNQUIST, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in Parts I, II, III, and IV of which STEWART, POWELL, and O'CONNOR,

2014_13-9026

https://www.oyez.org/cases/2014/13-9026

. Federal law establishes enhanced penalties for anyone who “forces any person to accompany him” in the course of committing or fleeing from a bank robbery.18 U. S. C. §2113(e). We consider whether this provision applies when a bank robber forces someone to move with him over a short distance.I Petitioner Larry Whitfield, fleeing police after a botched bank robbery, entered the home of 79-year-old Mary Parnell through an unlocked door. Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away. Brief for Petitioner 5). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby. A grand jury indicted Whitfield for, among other things, violating §2113(e) by forcing Parnell to accompany him in the course of avoiding apprehension for a bank robbery. That section provides:“Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense . . . forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.” (Emphasis added.)Whitfield pleaded not guilty to the offense but a jury convicted him. On appeal, Whitfield challenged the sufficiency of the evidence, arguing that §2113(e) requires “substantial” movement, and that his movement with Parnell did not qualify. Brief for Appellant in No. 10–5217 (CA4),pp. 50–52. The Fourth Circuit disagreed, holding that, “[a]lthough Whitfield required Mrs. Parnell to accompany him for only a short distance within her own home, and for a brief period, no more is required to prove that a forced accompaniment occurred.” 695 F. 3d 288, 311 (2012). After further proceedings in the District Court and Court of Appeals, 548 Fed. Appx. 70 (2013), we granted certiorari, 573 U. S. ___ (2014).II Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” Carter v. United States,530 U. S. 255,280 (2000) (Ginsburg, J., dissenting). Section 2113 has been amended frequently, but the relevant phrase—“forces any person to accompany him without the consent of such person”—has remained unchanged, and so presumptively retains its original meaning. Vermont Agency of Natural Resources v. United States ex rel. Stevens,529 U. S. 765,783, n.12 (2000). In 1934, just as today, to “accompany” someone meant to “go with” him. See Oxford English Dictionary 60 (1st ed. 1933) (defining “accompany” as: “To go in company with, to go along with”). The word does not, as Whitfield contends, connote movement over a substantial distance. It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank “to the vault”;[1] “to the altar” at a wedding;[2] “up the stairway”;[3] or into, out of, or across a room.[4] English literature is replete with examples. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000) (Uriah “accompanied me into Mr. Wickfield’s room”); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room”). It is true enough that accompaniment does not embrace minimal movement—for example, the movement of a bank teller’s feet when the robber grabs her arm. It must constitute movement that would normally be described as from one place to another, even if only from one spot withina room or outdoors to a different one. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another. That surely sufficed. In an attempt to support his position that “accompany” should be read to mean “accompany over a substantial distance,” Whitfield observes that a forced-accompaniment conviction carries severe penalties: a mandatory minimum sentence of 10 years, and a maximum sentence of life imprisonment. In 1934, a forced-accompaniment conviction could even be punished with death. Act of May 18, 1934, ch. 304, §3,48Stat.783. The severity of these sentences, Whitfield says, militates against interpreting subsection (e) to capture forced accompaniment occurring over a small distance. But it does not seem to us that the danger of a forced accompaniment varies with the distance traversed. Consider, for example, a hostage-taker’s movement of one of his victims a short distance to a window, where she would be exposed to police fire; or his use of the victim as a human shield as he approaches the door. And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain. The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes wellbeyond that. It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances. Whitfield also contends that “accompany” must be read narrowly in light of §2113’s graduated penalty scheme. That scheme prescribes: (1) a 20-year maximum sentence for bank robbers who use “force and violence” or “intimidation,” §2113(a), (2) a 25-year maximum sentence for those who “assaul[t]” or “pu[t] in jeopardy the life of” another “by the use of a dangerous weapon or device,” §2113(d), and (3) a minimum sentence of 10 years, and a maximum sentence of life, for forced accompaniment, §2113(e). According to Whitfield, bank robbers almost always “exert some control over the movement of the bank’s employ-ees.” Brief for Petitioner 22. Therefore, he says, unless “accompany” is limited to forced movement over sub-stantial distances, nearly all §2113 violations will be punishable under subsection (e), making subsections (a) and(d) pointless. We disagree. Even if Whitfield is right that bank robbers always “exert some control” over others, it does not follow that they always force others to accompany them somewhere—that is, to go somewhere with them. As we have no reason to think that to be the case, and because subsections (a), (d), and (e) all cover distinct conduct, our interpretation of “accompany” does not make any part of §2113 superfluous.* * * We hold that a bank robber “forces [a] person to accompany him,” for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. Defined in this manner, Whitfield forced Parnell to “accompany him.” §2113(e). The judgment of the Fourth Circuit is affirmed.It is so ordered.Notes1 Addison State Bank Robbed, DuPage County Register, Apr. 6, 1928.2 Salmon-Peters Marriage Announcement, N. Y. Times, Dec. 7, 1930, p. N7.3 Woman’s Version of Norris Killing Being Challenged, Washington Post, Jan. 20, 1927, p. 3.4 See, e.g., Davis v. Potter, 51 Idaho 81, 84, 2 P. 2d 318, 319 (1931) (“[T]he patient, still under the influence of the anesthetic, was wheeled to her room, accompanied by Dr. Sturges”); Union & Planters’ Bank & Trust Co. v. Rylee, 130 Miss. 892, 906, 94 So. 796, 798 (1923) (“This witness further testified that when J. N. Rylee left the decedent’s room she accompanied him into the hall”); Vernonia School Dist. 47J v. Acton,515 U. S. 646,650 (1995) (“The student then enters an empty locker room accompanied by an adult monitor of the same sex”).

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 whitfield v. united states certiorari to the united states court of appeals for the fourth circuit No. 13–9026. Argued December 2, 2014—Decided January 13, 2015 Petitioner Whitfield, fleeing a botched bank robbery, entered 79-year-old Mary Parnell’s home and guided a terrified Parnell from a hallway to a room a few feet away, where she suffered a fatal heart attack. He was convicted of, among other things, violating 18 U. S. C. §2113(e), which establishes enhanced penalties for anyone who “forces any person to accompany him without the consent of such person” in the course of committing or fleeing from a bank robbery. On appeal, the Fourth Circuit held that the movement Whitfield required Parnell to make satisfied the forced-accompaniment requirement, rejecting his argument that §2113(e) requires “substantial” movement. Held: A bank robber “forces [a] person to accompany him,” for purposes of §2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance, as was the case here. At the time the forced-accompaniment provision was enacted, just as today, to “accompany” someone meant to “go with” him. The word does not, as Whitfield contends, connote movement over a substantial distance. Accompaniment requires movement that would normally be described as from one place to another. Here, Whitfield forced Parnell to accompany him for at least several feet, from one room to another, and that surely sufficed. The severity of the penalties for a forced-accompaniment conviction—a mandatory minimum of 10 years, and a maximum of life imprisonment—does not militate against this interpretation, for the danger of a forced accompaniment does not vary depending on the distance traversed. This reading also does not make any other part of §2113’s graduated penalty scheme superfluous. . 548 Fed. Appx. 70, affirmed. Scalia, J., delivered the opinion for a unanimous Court.

Petitioner Whitfield, fleeing police after a botched bank robbery, entered the home of 79-year-old Mary Parnell through an unlocked door. Once inside, he encountered a terrified woman and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away) where she suffered a fatal heart attack. There, she was found hiding nearby, and Whitfield was indicted for violating 18 U.S. C. §2113(e), which provides that anyone who forces any person to accompany him without the consent of such person shall be imprisoned and punished by death or life imprisonment. Whitfield pleaded not guilty, but a jury convicted him. On appeal, he challenged the sufficiency of the evidence, arguing, inter alia, that the section requires only movement over a substantial distance. The District Court and Court of Appeals disagreed, holding that Whitfield required Mrs. Parnella (a) only a short distance within her own home, and for a brief period, no more was required to prove that a forced accompaniment occurred. Held: A bank robber "forces [a] person [to accompany him," for purposes of §2112(e) when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance. 688 F. 3d 288, affirmed. JUSTICE WHITE delivered the opinion of the Court with respect to Parts I, II-A, III-B, IV-C, and IV-A of the United States, concluding that: (a) To say that a bank robber always exert some control over the movement of the employ-ees does not mean that he always forces others to accompany them somewhere. It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank to the vault;[1] to the altar at a wedding;[2] up the stairway at a reception;[3] or into, out of, or across a room. . (b) Whitfield correctly contends that bank robbers always have control over their employees' movement, and that subsection (a), (d), and (e) all cover distinct conduct. As this Court has no reason to think that to be the case, and because subsections (a, (d) and (E) all cover distinct conduct, our interpretation of the word does not make any part of § 2113 superfluous. Pp. 478 U. S. 478-486. 685 F.3d 288 (CA4, certiorari affirmed.) JUST JUSTICE WHITE concluded that, under the graduated penalty scheme of the graduated penalties scheme, nearly all violations will be punishable under subsection (e), and that, in light of the latter scheme, a minimum sentence of 10 years, and a maximum sentence of life, for forced accompaniment, would suffice. He further contends that, since bank robbers almost always exert some control over their employees, it does not follow that they always force others to go somewhere, that is, to go to somewhere with them. This interpretation is not rendered superfluous by the fact that, as here, there is no reason to believe that bank robbery always have such control over others' movement. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room) (Emphasis added). The judgment of the Fourth Circuit is affirmed.

2014_13-1499

https://www.oyez.org/cases/2014/13-1499

, except as to Part II. Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech. We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.IA When Florida entered the Union in 1845, its Constitution provided for trial and appellate judges to be elected by the General Assembly. Florida soon followed more than a dozen of its sister States in transferring authority to elect judges to the voting public. See J. Shugerman, The People’s Courts: Pursuing Judicial Independence in America 103–122 (2012). The experiment did not last long in the Sunshine State. The war came, and Florida’s 1868 Constitution returned judicial selection to the political branches. Over time, however, the people reclaimed the power to elect the state bench: Supreme Court justices in 1885 and trial court judges in 1942. See Little, An Overview of the Historical Development of the Judicial Article of the Flor-ida Constitution, 19 Stetson L. Rev. 1, 40 (1989). In the early 1970s, four Florida Supreme Court justices resigned from office following corruption scandals. Florida voters responded by amending their Constitution again. Under the system now in place, appellate judges are appointed by the Governor from a list of candidates proposed by a nominating committee—a process known as “merit selection.” Then, every six years, voters decide whether to retain incumbent appellate judges for another term. Trial judges are still elected by popular vote, unless the local jurisdiction opts instead for merit selection. Fla. Const., Art. V, §10; Hawkins, Perspective on Judicial Merit Retention in Florida, 64 Fla. L. Rev. 1421, 1423–1428 (2012). Amid the corruption scandals of the 1970s, the Florida Supreme Court adopted a new Code of Judicial Conduct. 281 So. 2d 21 (1973). In its present form, the first sentence of Canon 1 reads, “An independent and honorable judiciary is indispensable to justice in our society.” Code of Judicial Conduct for the State of Florida 6 (2014). Canon 1 instructs judges to observe “high standards of conduct” so that “the integrity and independence of the judiciary may be preserved.” Ibid. Canon 2 directs that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Id., at 7. Other provisions prohibit judges from lending the prestige of their offices to private interests, engaging in certain business transactions, and personally participating in soliciting funds for nonprofit organizations. Canons 2B, 5C(3)(b)(i), 5D; id., at 7, 23, 24. Canon 7C(1) governs fundraising in judicial elections. The Canon, which is based on a provision in the Ameri-can Bar Association’s Model Code of Judicial Conduct, provides: “A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.” Id., at 38. Florida statutes impose additional restrictions on campaign fundraising in judicial elections. Contributors may not donate more than $1,000 per election to a trial court candidate or more than $3,000 per retention election to a Supreme Court justice. Fla. Stat. §106.08(1)(a) (2014). Campaign committee treasurers must file periodic reports disclosing the names of contributors and the amount of each contribution. §106.07. Judicial candidates can seek guidance about campaign ethics rules from the Florida Judicial Ethics Advisory Committee. The Committee has interpreted Canon 7 to allow a judicial candidate to serve as treasurer of his own campaign committee, learn the identity of campaign contributors, and send thank you notes to donors. An Aid to Understanding Canon 7, pp. 51–58 (2014). Like Florida, most other States prohibit judicial candidates from soliciting campaign funds personally, but allow them to raise money through committees. According to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1). Brief for American Bar Association as Amicus Curiae 4.B Lanell Williams-Yulee, who refers to herself as Yulee, has practiced law in Florida since 1991. In September 2009, she decided to run for a seat on the county court for Hillsborough County, a jurisdiction of about 1.3 million people that includes the city of Tampa. Shortly after filing paperwork to enter the race, Yulee drafted a letter announcing her candidacy. The letter described her experience and desire to “bring fresh ideas and positive solutions to the Judicial bench.” App. to Pet. for Cert. 31a. The letter then stated:“An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee Campaign for County Judge’, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support [i]n meeting the primary election fund raiser goals. Thank you in advance for your support.” Id., at 32a.Yulee signed the letter and mailed it to local voters. She also posted the letter on her campaign Web site. Yulee’s bid for the bench did not unfold as she had hoped. She lost the primary to the incumbent judge. Then the Florida Bar filed a complaint against her. As relevant here, the Bar charged her with violating Rule 4–8.2(b) of the Rules Regulating the Florida Bar. That Rule requires judicial candidates to comply with applicable provisions of Florida’s Code of Judicial Conduct, including the ban on personal solicitation of campaign funds in Canon 7C(1). Yulee admitted that she had signed and sent the fundraising letter. But she argued that the Bar could not discipline her for that conduct because the First Amendment protects a judicial candidate’s right to solicit campaign funds in an election.[1]* The Florida Supreme Court appointed a referee, who held a hearing and recommended a finding of guilt. As a sanction, the referee recommended that Yulee be publicly reprimanded and ordered to pay the costs of the proceeding ($1,860). App. to Pet. for Cert. 19a–25a. The Florida Supreme Court adopted the referee’s recommendations. 138 So. 3d 379 (2014). The court explained that Canon 7C(1) “clearly restricts a judicial candidate’s speech” and therefore must be “narrowly tailored to serve a compelling state interest.” Id., at 384. The court held that the Canon satisfies that demanding inquiry. First, the court reasoned, prohibiting judicial candidates from personally soliciting funds furthers Florida’s compelling interest in “preserving the integrity of [its] judiciary and maintaining the public’s confidence in an impartial judiciary.” Ibid. (internal quotation marks omitted; alteration in original). In the court’s view, “personal solicitation of campaign funds, even by mass mailing, raises an appearance of impropriety and calls into question, in the public’s mind, the judge’s impartiality.” Id., at 385. Second, the court concluded that Canon 7C(1) is narrowly tailored to serve that compelling interest because it “ ‘insulate[s] judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns.’ ” Id., at 387 (quoting Simes v. Arkansas Judicial Discipline & Disability Comm’n, 368 Ark. 577, 588, 247 S. W. 3d 876, 883 (2007)). The Florida Supreme Court acknowledged that some Federal Courts of Appeals—“whose judges have lifetime appointments and thus do not have to engage in fundraising”—had invalidated restrictions similar to Canon 7C(1). 138 So. 3d, at 386, n. 3. But the court found it persuasive that every State Supreme Court that had considered similar fundraising provisions—along with several Fed-eral Courts of Appeals—had upheld the laws against First Amendment challenges. Id., at 386. Florida’s chief justice and one associate justice dissented. Id., at 389. We granted certiorari. 573 U. S. ___ (2014).II The First Amendment provides that Congress “shall make no law . . . abridging the freedom of speech.” The Fourteenth Amendment makes that prohibition applicable to the States. Stromberg v. California,283 U. S. 359,368 (1931). The parties agree that Canon 7C(1) restricts Yulee’s speech on the basis of its content by prohibiting her from soliciting contributions to her election campaign. The parties disagree, however, about the level of scrutiny that should govern our review. We have applied exacting scrutiny to laws restricting the solicitation of contributions to charity, upholding the speech limitations only if they are narrowly tailored to serve a compelling interest. See Riley v. National Federation of Blind of N. C., Inc.,487 U. S. 781,798 (1988); id., at 810 (Rehnquist, C. J., dissenting). As we have explained, noncommercial solicitation “is characteristically intertwined with informative and perhaps persuasive speech.” Id., at 796 (majority opinion) (quoting Schaumburg v. Citizens for Better Environment,444 U. S. 620,632 (1980)). Applying a lesser standard of scrutiny to such speech would threaten “the exercise of rights so vital to the maintenance of democratic institutions.” Schneider v. State (Town of Irvington),308 U. S. 147,161 (1939). The principles underlying these charitable solicitation cases apply with even greater force here. Before asking for money in her fundraising letter, Yulee explained her fitness for the bench and expressed her vision for the judiciary. Her stated purpose for the solicitation was to get her “message out to the public.” App. to Pet. for Cert. 32a. As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection. See Eu v. San Francisco County Democratic Central Comm.,489 U. S. 214,223 (1989). Indeed, in our only prior case concerning speech restrictions on a candidate for judicial office, this Court and both parties assumed that strict scrutiny applied. Republican Party of Minn. v. White,536 U. S. 765,774 (2002). Although the Florida Supreme Court upheld Canon 7C(1) under strict scrutiny, the Florida Bar and several amici contend that we should subject the Canon to a more permissive standard: that it be “closely drawn” to match a “sufficiently important interest.” Buckley v. Valeo,424 U. S. 1,25 (1976) (per curiam). The “closely drawn” standard is a poor fit for this case. The Court adopted that test in Buckley to address a claim that campaign contribution limits violated a contributor’s “freedom of political association.” Id., at 24–25. Here, Yulee does not claim that Canon 7C(1) violates her right to free association; she argues that it violates her right to free speech. And the Florida Bar can hardly dispute that the Canon infringes Yulee’s freedom to discuss candidates and public issues—namely, herself and her qualifications to be a judge. The Bar’s call to import the “closely drawn” test from the contribution limit context into a case about solicitation therefore has little avail. As several of the Bar’s amici note, we applied the “closely drawn” test to solicitation restrictions in McConnell v. Federal Election Comm’n,540 U. S. 93,136 (2003), overruled in part by Citizens United v. Federal Election Comm’n,558 U. S. 310 (2010). But the Court in that case determined that the solicitation restrictions operated primarily to prevent circumvention of the contribution limits, which were the subject of the “closely drawn” test in the first place. 540 U. S., at 138–139. McConnell offers no help to the Bar here, because Florida did not adopt Canon 7C(1) as an anticircumvention measure. In sum, we hold today what we assumed in White: A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.III The Florida Bar faces a demanding task in defending Canon 7C(1) against Yulee’s First Amendment challenge. We have emphasized that “it is the rare case” in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest. Burson v. Freeman,504 U. S. 191,211 (1992) (plurality opinion). But those cases do arise. See ibid.; Holder v. Humanitarian Law Project,561 U. S. 1–39 (2010); McConnell, 540 U. S., at 314 (opinion of Kennedy, J.); cf. Adarand Constructors, Inc. v. Peña,515 U. S. 200,237 (1995) (“we wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact’ ”). Here, Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.A The Florida Supreme Court adopted Canon 7C(1) to promote the State’s interests in “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary.” 138 So. 3d, at 385. The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914). The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” 10 Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich,”28 U. S. C. §453. Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors. The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.” Caperton v. A. T. Massey Coal Co.,556 U. S. 868,889 (2009) (internal quotation marks omitted). The importance of public confidence in the integrity of judges stems from the place ofthe judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, “justice must satisfy the appearance of justice.” Offutt v. United States,348 U. S. 11,14 (1954). It follows that public perception of judicial integrity is “a state interest of the highest order.” Caperton, 556 U. S., at 889 (quoting White, 536 U. S., at 793 (Kennedy, J., concurring)). The principal dissent observes that bans on judicial candidate solicitation lack a lengthy historical pedigree. Post, at 1–2 (opinion of Scalia, J.). We do not dispute that fact, but it has no relevance here. As the precedent cited by the principal dissent demonstrates, a history and tradition of regulation are important factors in determining whether to recognize “new categories of unprotected speech.” Brown v. Entertainment Merchants Assn., 564 U. S. ___, ___ (2011) (slip op., at 3); see post, at 1. But nobody argues that solicitation of campaign funds by judicial candidates is a category of unprotected speech. As explained above, the First Amendment fully applies to Yulee’s speech. The question is instead whether that Amendment permits the particular regulation of speech at issue here. The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. 536 U. S., at 783; id., at 805 (Ginsburg, J., dissenting). Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 39). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here. The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be moti-vated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio,273 U. S. 510,532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011–12, p. 15 (2013). The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling. In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between judicial candidates and campaign contributors. As the Supreme Court of Oregon explained, “the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.” In re Fadeley, 310 Ore. 548, 565, 802 P. 2d 31, 41 (1990). Moreover, personal solicitation by a judicial candidate “inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate.” Simes, 368 Ark., at 585, 247 S. W. 3d, at 882. Potential litigants then fear that “the integrity of the judicial system has been compromised, forcing them to search for an attorney in part based upon the criteria of which attorneys have made the obligatory contributions.” Ibid. A State’s decision to elect its judges does not require it to tolerate these risks. The Florida Bar’s interest is compelling.B Yulee acknowledges the State’s compelling interest in judicial integrity. She argues, however, that the Canon’s failure to restrict other speech equally damaging to judicial integrity and its appearance undercuts the Bar’s position. In particular, she notes that Canon 7C(1) allows a judge’s campaign committee to solicit money, which arguably reduces public confidence in the integrity of the judiciary just as much as a judge’s personal solicitation. Yulee also points out that Florida permits judicial candidates to write thank you notes to campaign donors, which ensures that candidates know who contributes and who does not. It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech. We have recognized, however, that underinclusiveness can raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Brown, 564 U. S., at ___ (slip op., at 14). In a textbook illustration of that principle, we invalidated a city’s ban on ritual animal sacrifices because the city failed to regulate vast swaths of conduct that similarly diminished its asserted interests in public health and animal welfare. Church of Lukumi Babalu Aye, Inc. v. Hialeah,508 U. S. 520–547 (1993). Underinclusiveness can also reveal that a law does not actually advance a compelling interest. For example, a State’s decision to prohibit newspapers, but not electronic media, from releasing the names of juvenile defendants suggested that the law did not advance its stated purpose of protecting youth privacy. Smith v. Daily Mail Publishing Co.,443 U. S. 97–105 (1979). Although a law’s underinclusivity raises a red flag, the First Amendment imposes no freestanding “underinclusiveness limitation.” R. A. V. v. St. Paul,505 U. S. 377,387 (1992) (internal quotation marks omitted). A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests. Burson, 504 U. S., at 207; see McConnell, 540 U. S., at 207–208; Metromedia, Inc. v. San Diego,453 U. S. 490–512 (1981) (plurality opinion); Buckley, 424 U. S., at 105. Viewed in light of these principles, Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions. See City of Ladue v. Gilleo,512 U. S. 43–53 (1994). Indeed, the Canon contains zero exceptions to its ban on personal solicitation. Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. In short, personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign commit-tees does not undermine its decision to ban solicitation by judges. Likewise, allowing judicial candidates to write thank you notes to campaign donors does not detract from the State’s interest in preserving public confidence in the integrity of the judiciary. Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State’s compelling interest is implicated most directly by the candidate’s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar’s rationale. In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Flor-ida’s effort to respect the First Amendment interests of candidates and their contributors—to resolve the “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” Chisom v. Roemer,501 U. S. 380,400 (1991). They belie the principal dissent’s suggestion that Canon 7C(1) reflects general “hostility toward judicial campaigning” and has “nothing to do with the appearances created by judges’ asking for money.” Post, at 11. Nothing? The principal dissent also suggests that Canon 7C(1) is underinclusive because Florida does not ban judicial candidates from asking individuals for personal gifts or loans. Post, at 10. But Florida law treats a personal “gift” or “loan” as a campaign contribution if the donor makes it “for the purpose of influencing the results of an election,” Fla. Stat. §106.011(5)(a), and Florida’s Judicial Qualifications Commission has determined that a judicial candidate violates Canon 7C(1) by personally soliciting such a loan. See In re Turner, 76 So. 3d 898, 901–902 (Fla. 2011). In any event, Florida can ban personal solicitation of campaign funds by judicial candidates without making them obey a comprehensive code to leading an ethical life. Underinclusivity creates a First Amendment concern when the State regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects its stated interest in a comparable way. See Flor-ida Star v. B. J. F.,491 U. S. 524,540 (1989). The principal dissent offers no basis to conclude that judicial candidates are in the habit of soliciting personal loans, football tickets, or anything of the sort. Post, at 10. Even under strict scrutiny, “[t]he First Amendment does not require States to regulate for problems that do not exist.” Burson, 504 U. S., at 207 (State’s regulation of political solicitation around a polling place, but not charitable or commercial solicitation, was not fatally underinclusive under strict scrutiny). Taken to its logical conclusion, the position advanced by Yulee and the principal dissent is that Florida may ban the solicitation of funds by judicial candidates only if the State bans all solicitation of funds in judicial elections. The First Amendment does not put a State to that all-or-nothing choice. We will not punish Florida for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.C After arguing that Canon 7C(1) violates the First Amendment because it restricts too little speech, Yulee argues that the Canon violates the First Amendment because it restricts too much. In her view, the Canon is not narrowly tailored to advance the State’s compelling interest through the least restrictive means. See United States v. Playboy Entertainment Group, Inc.,529 U. S. 803,813 (2000). By any measure, Canon 7C(1) restricts a narrow slice of speech. A reader of Justice Kennedy’s dissent could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts, approving “state censorship” that “locks the First Amendment out,” imposes a “gag” on candidates, and inflicts “dead weight” on a “silenced” public debate. Post, at 2–4. But in reality, Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time. Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, “Please give me money.” They can, however, direct their campaign committees to do so. Whatever else may be said of the Canon, it is surely not a “wildly disproportionate restriction upon speech.” Post, at 1 (Scalia, J., dissenting). Indeed, Yulee concedes—and the principal dissent seems to agree, post, at 8—that Canon 7C(1) is valid in numerous applications. Yulee acknowledges that Florida can prohibit judges from soliciting money from lawyers and litigants appearing before them. Reply Brief 18. In addition, she says the State “might” be able to ban “direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear in the court for which the individual is a candidate.” Ibid. She also suggests that the Bar could forbid “in person” solicitation by judicial candidates. Tr. of Oral Arg. 7; cf. Ohralik v. Ohio State Bar Assn.,436 U. S. 447 (1978) (permitting State to ban in person solicitation of clients by lawyers). But Yulee argues that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. No one, she contends, will lose confidence in the integrity of the judiciary based on personal solicitation to such a broad audience. This argument misperceives the breadth of the compelling interest that underlies Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge personally asking for money. Moreover, the lines Yulee asks us to draw are unwork-able. Even under her theory of the case, a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers and litigants with pending cases. So would a speech soliciting contributions from the 100 most frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-to-one solicitation, but is the public impression really any different if a judicial candidate tries to buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person solicitation creates a problem. But would the public’s concern recede if the request for money came in a phone call or a text message? We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be “perfectly tailored.” Burson, 504 U. S., at 209. The impossibility of perfect tailoring is especially apparent when the State’s compelling interest is as intangible as public confidence in the integrity of the judiciary. Yulee is of course correct that some personal solicitations raise greater concerns than others. A judge who passes the hat in the courthouse creates a more serious appearance of impropriety than does a judicial candidate who makes a tasteful plea for support on the radio. But most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form. See id., at 210. Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern. In considering Yulee’s tailoring arguments, we are mindful that most States with elected judges have determined that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary. These considered judgments deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who “sit as their judges.” Gregory v. Ashcroft,501 U. S. 452,460 (1991). Finally, Yulee contends that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits. We dis-agree. A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could “erode public confidence in judicial impartiality” and thereby exacerbate the very appearance problem the State is trying to solve. Caperton, 556 U. S., at 891 (Roberts, C. J., dissenting). Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal—a form of peremptory strike against a judge that would enable transparent forum shopping. As for campaign contribution limits, Florida already applies them to judicial elections. Fla. Stat. §106.08(1)(a). A State may decide that the threat to public confidence created by personal solicitation exists apart from the amount of money that a judge or judicial candidate seeks. Even if Florida decreased its contribution limit, the ap-pearance that judges who personally solicit funds might improperly favor their campaign donors would remain. Although the Court has held that contribution limits advance the interest in preventing quid pro quo corruption and its appearance in political elections, we have never held that adopting contribution limits precludes a State from pursuing its compelling interests through additional means. And in any event, a State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians. In sum, because Canon 7C(1) is narrowly tailored to serve a compelling government interest, the First Amendment poses no obstacle to its enforcement in this case. As a result of our decision, Florida may continue to prohibit judicial candidates from personally soliciting campaign funds, while allowing them to raise money through committees and to otherwise communicate their electoral messages in practically any way. The principal dissent faults us for not answering a slew of broader questions, such as whether Florida may cap a judicial candidate’s spending or ban independent expenditures by corporations. Post, at 8–9. Yulee has not asked these questions, and for good reason—they are far afield from the narrow regulation actually at issue in this case. We likewise have no cause to consider whether the citizens of States that elect their judges have decided anything about the “oracular sanctity of judges” or whether judges are due “a hearty helping of humble pie.” Post,at 12. The principal dissent could be right that the decision to adopt judicial elections “probably springs,” at least in part, from a desire to make judges more accountable to the public, ibid., although the history on this matter is more complicated. See J. Shugerman, The People’s Courts, at 5 (arguing that States adopted judicial elections to increase judicial independence). In any event, it is a long way from general notions of judicial accountability to the principal dissent’s view, which evokes nothing so much as Delacroix’s painting of Liberty leading a determined band of citoyens, this time against a robed aristocracy scurrying to shore up the ramparts of the judicial castle through disingenuous ethical rules. We claim no similar insight into the People’s passions, hazard no assertions about ulterior motives of those who promulgated Canon 7C(1), and firmly reject the charge of a deceptive “pose of neutrality” on the part of those who uphold it. Post, at 12.* * * The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004). It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity. The judgment of the Florida Supreme Court isAffirmed. Notes1* Yulee also contended that she had not violated Canon 7C(1), which applies to “a judicial office that is filled by public election between competing candidates,” because the incumbent judge had not declared his campaign for reelection at the time she sent her solicitation letter. She has since abandoned that 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 . SUPREME COURT OF THE UNITED STATES Syllabus WILLIAMS-YULEE v. FLORIDA BAR certiorari to the supreme court of florida No. 13–1499. Argued January 20, 2015—Decided April 29, 2015 Florida is one of 39 States where voters elect judges at the polls. To promote public confidence in the integrity of the judiciary, the Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, which provides that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns. Petitioner Lanell Williams-Yulee (Yulee) mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Florida Bar Rule requiring candidates to comply with Canon 7C(1), but Yulee contended that the First Amendment protects a judicial candidate’s right to personally solicit campaign funds in an election. The Florida Supreme Court upheld the disciplinary sanctions, concluding that Canon 7C(1) is narrowly tailored to serve the State’s compelling interest. Held: The judgment is affirmed. 138 So. 3d 379, affirmed. Chief Justice Roberts delivered the opinion of the Court, except as to Part II, concluding that the First Amendment permits Canon 7C(1)’s ban on the personal solicitation of campaign funds by judicial candidates. . (a) Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling. The State may conclude that judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. Simply put, the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors. This Court’s precedents have recognized the “vital state interest” in safeguarding “ ‘public confidence in the fairness and integrity of the nation’s elected judges,’ ” Caperton v. A. T. Massey Coal Co., 556 U. S. 868 . Unlike the legislature or the executive, the judiciary “has no influence over either the sword or the purse,” Federalist No. 78, p. 465 (A. Hamilton), so its authority depends in large measure on the public’s willingness to respect and follow its decisions. Public perception of judicial integrity is accordingly “ ‘a state interest of the highest order.’ ” 556 U. S., at 889. A State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge’s role differs from that of a politician. Republican Party of Minn. v. White, 536 U. S. 765 . Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors. As in White, therefore, precedents applying the First Amendment to political elections have little bearing on the issues here. The vast majority of elected judges in States allowing personal solicitation serve with fairness and honor, but in the eyes of the public, a judicial candidate’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510 . That risk is especially pronounced where most donors are lawyers and litigants who may appear before the judge they are supporting. In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between judicial candidates and campaign contributors. . (b) Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of viewpoint or means of solicitation. And unlike some laws that have been found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions. Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. When the judicial candidate himself asks for money, the stakes are higher for all involved. A judicial candidate asking for money places his name and reputation behind the request, and the solicited individual knows that the same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Permitting a judicial candidate to write thank you notes to campaign donors likewise does not detract from the State’s interest in preserving public confidence in the integrity of the judiciary. The State’s compelling interest is implicated most directly by the candidate’s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar’s rationale. In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Florida’s effort to respect the First Amendment interests of candidates and their contributors—to resolve the “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” Chisom v. Roemer, 501 U. S. 380 . The State should not be punished for leaving open more, rather than fewer, avenues of expression, especially when there is no indication of a pretextual motive for the selective restriction of speech. . (c) Canon 7C(1) is also not overinclusive. By any measure, it restricts a narrow slice of speech. It leaves judicial candidates free to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so. Yulee concedes that Canon 7C(1) is valid in numerous applications, but she contends that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. This argument misperceives the breadth of the compelling interest underlying Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge person-ally asking for money. Canon 7C(1) must be narrowly tailored, not “perfectly tailored.” Burson v. Freeman, 504 U. S. 191 . The First Amendment does not confine a State to addressing evils in their most acute form. Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern. Yulee errs in contending that Florida can accomplish its compelling interest through recusal rules and campaign contribution limits. A rule requiring recusal in every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions, and a flood of postelection recusal motions could exacerbate the very appearance problem the State is trying to solve. As for contribution limits, Florida already applies them to judicial elections, and this Court has never held that adopting such limits precludes a State from pursuing its compelling interests through additional means. The desirability of judicial elections is a question that has sparked disagreement for more than 200 years, but it is not the Court’s place to resolve that enduring debate. The Court’s limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity. . Roberts, C. J., delivered the opinion of the Court, except as to Part II. Breyer, Sotomayor, and Kagan, JJ., joined that opinion in full, and Ginsburg, J., joined except as to Part II. Breyer, J., filed a concurring opinion. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined as to Part II. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Kennedy, J., and Alito, J., filed dissenting opinions.

The Florida Supreme Court upheld a statute ( Canon 7C(1) of the State Supreme Court that provides that a candidate, including an incumbent judge) for a judicial office that is filled by a public election between competing candidates shall not personally solicit campaign funds or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Canon 2B, 5C(3)(b)(i), 5D; id., governs fundraising in judicial elections. The Canon, which is based on a provision in the Ameri-can Bar Association's Model Code of Judicial Conduct, prohibits a judicial candidate from personally soliciting campaign funds, but allows him to raise money through committees. The Florida Bar filed a complaint against respondent Yulee, charging her with violating a Florida Rule that requires judicial candidates to comply with applicable provisions of the Florida Code. She admitted that she had signed and sent the fundraising letter, but argued that the Bar could not discipline her for that conduct because the First Amendment protected her right to solicit a campaign funds in an election. The Florida Supreme court adopted the referee's recommendations, and the Florida Court affirmed. Held: 1. The First Amendment permits restrictions on speech on the basis of its content by prohibiting judges from soliciting contributions to her election campaign. . (a) Speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection. Here, Florida has concluded that the public may lack confidence in a judge's ability to administer justice without fear or favor if he comes to office by asking for favors. But the interest served by the Canon is not narrowly tailored to advance the State's compelling interest in preserving public confidence in judicial integrity. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State may not restrict the speech of a candidate only if the restriction is narrowly tailored to serve a compelling interest. See, e.g., McConnell v. Federal Election Comm'n, 540 U. S. 93,136, overruled in part by Citizens United v. FEC,558 U.S. 310; see post, at 1. Moreover, the Constitution does not permit the particular regulation of speech at issue in this case. Florida has reasonably determined that personal appeals for money by judicial candidates inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary because judges are not politicians. This is a rare case in which a speech restriction withstands strict scrutiny. Cf. White v. Humanitarian Law Project,. . (b) The First and Fourteenth Amendments do not dispel the notion that strict scrutiny in strict cases is fatal, but rather dispel the fact that the State advances the compelling interest that advances the public trust in the judiciary, and does so through means narrowly tailored tailored to avoid unnecessarily abridging speech. P.. (c) Florida may continue to prohibit judicial candidates, who are free to discuss candidates and public issues in any forum, from personally engaging in any form of solicitation, while allowing them to raise funds through committees and otherwise communicate their electoral messages in practically any way. Although the Florida Bar concedes that the Canon does not violate its First Amendment right to free association, it misperceives the breadth of the compelling interests that underinclusiveness underlie the Canon. It is irrelevant whether the citizens of States that elect their judges have decided anything about the ethics of judicial elections or whether judges are dueaa culpability. Nor is there any merit to the argument that Canon cannot constitutionally be applied to judicial candidates' chosen form of solicitance: a letter posted online and distributed via mass mailing. No one will lose confidence, as Florida has determined, in the face of such an interest, in preventing quid pro quo corruption and its appearance in political elections. Moreover, a State has compelling interests in regulating judicial elections that extend beyond its interest in regulating political elections, because judges, not politicians, are expected to follow the concept of strict self-responsiveness through the very concept of free self-governance... 2. Florida may not ban the solicitation of judicial candidates only if, as here, it bans all solicitation of funds in a judicial election. See White, supra, at 793. Viewed in light of the principles underlying the Canon, this is one of the rare cases in which such a restriction can withstand strict scrutiny, especially when there is no indication that the selective restriction of speech reflects a pretextual motive. See, for example, that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits. Fla. Stat. §106.08(1)(a), which applies to judicial elections, does not require it to tolerate the risks inherent in judicial candidates soliciting money from lawyers and litigants appearing

2014_13-7451

https://www.oyez.org/cases/2014/13-7451

, in which The Chief Justice, Justice Breyer, and Justice Sotomayor join. John Yates, a commercial fisherman, caught undersized red grouper in federal waters in the Gulf of Mexico. To prevent federal authorities from confirming that he had harvested undersized fish, Yates ordered a crew member to toss the suspect catch into the sea. For this offense, he was charged with, and convicted of, violating18 U. S. C. §1519, which provides: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”Yates was also indicted and convicted under §2232(a), which provides: “Destruction or Removal of Property to Prevent Seizure.—Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both.”Yates does not contest his conviction for violating §2232(a), but he maintains that fish are not trappedwithin the term “tangible object,” as that term is used in §1519. Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002,116Stat.745, legislation designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation. A fish is no doubt an object that is tangible; fish can be seen, caught, andhandled, and a catch, as this case illustrates, is vulnerable to destruction. But it would cut §1519 loose from itsfinancial-fraud mooring to hold that it encompasses any and all objects, whatever their size or significance, destroyed with obstructive intent. Mindful that in Sarbanes-Oxley, Congress trained its attention on corporate and accounting deception and cover-ups, we conclude that a matching construction of §1519 is in order: A tangible object captured by §1519, we hold, must be one used to record or preserve information.I On August 23, 2007, the Miss Katie, a commercial fishing boat, was six days into an expedition in the Gulf of Mexico. Her crew numbered three, including Yates, the captain. Engaged in a routine offshore patrol to inspect both recreational and commercial vessels, Officer John Jones of the Florida Fish and Wildlife Conservation Commission decided to board the Miss Katie to check on the vessel’s compliance with fishing rules. Although the Miss Katie was far enough from the Florida coast to be in exclusively federal waters, she was nevertheless within Officer Jones’s jurisdiction. Because he had been deputized as a federal agent by the National Marine Fisheries Service, Officer Jones had authority to enforce federal, as well as state, fishing laws. Upon boarding the Miss Katie, Officer Jones noticed three red grouper that appeared to be undersized hanging from a hook on the deck. At the time, federal conservation regulations required immediate release of red grouper less than 20 inches long. 50 CFR §622.37(d)(2)(ii) (effective April 2, 2007). Violation of those regulations is a civil offense punishable by a fine or fishing license suspension. See 16 U. S. C. §§1857(1)(A), (G), 1858(a), (g). Suspecting that other undersized fish might be on board, Officer Jones proceeded to inspect the ship’s catch, setting aside and measuring only fish that appeared to him to be shorter than 20 inches. Officer Jones ultimately determined that 72 fish fell short of the 20inch mark. A fellow officer recorded the length of each of the undersized fish on a catch measurement verification form. With few exceptions, the measured fish were between 19 and 20 inches; three were less than 19 inches; none were less than 18.75 inches. After separating the fish measuring below 20 inches from the rest of the catch by placing them in wooden crates, Officer Jones directed Yates to leave the fish, thus segregated, in the crates until the Miss Katie returned to port. Before departing, Officer Jones issued Yates a citation for possession of undersized fish. Four days later, after the Miss Katie had docked in Cortez, Florida, Officer Jones measured the fish contained in the wooden crates. This time, however, the measured fish, although still less than 20 inches, slightly exceeded the lengths recorded on board. Jones surmised that the fish brought to port were not the same as those he had detected during his initial inspection. Under questioning, one of the crew members admitted that, at Yates’s direction, he had thrown overboard the fish Officer Jones had measured at sea, and that he and Yates had replaced the tossed grouper with fish from the rest of the catch. For reasons not disclosed in the record before us, more than 32 months passed before criminal charges were lodged against Yates. On May 5, 2010, he was indicted for destroying property to prevent a federal seizure, in violation of §2232(a), and for destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of §1519.[1] By the time of the indictment, the minimum legal length for Gulf red grouper had been lowered from 20 inches to 18 inches. See 50 CFR §622.37(d)(2)(iv) (effective May 18, 2009). No measured fish in Yates’s catch fell below that limit. The record does not reveal what civil penalty, if any, Yates received for his possession of fish undersized under the 2007 regulation. See16 U. S. C. §1858(a). Yates was tried on the criminal charges in August 2011. At the end of the Government’s case in chief, he moved for a judgment of acquittal on the §1519 charge. Pointing to §1519’s title and its origin as a provision of the Sarbanes-Oxley Act, Yates argued that the section sets forth “a documents offense” and that its reference to “tangible object[s]” subsumes “computer hard drives, logbooks, [and] things of that nature,” not fish. App. 91–92. Yates acknowledged that the Criminal Code contains “sections that would have been appropriate for the [G]overnment to pursue” if it wished to prosecute him for tampering with evidence. App. 91. Section 2232(a), set out supra, at 1–2, fit that description. But §1519, Yates insisted, did not. The Government countered that a “tangible object” within §1519’s compass is “simply something other than a document or record.” App. 93. The trial judge expressed misgivings about reading “tangible object” as broadly as the Government urged: “Isn’t there a Latin phrase [about] construction of a statute . . . . The gist of it is . . . you take a look at [a] line of words, and you interpret the words consistently. So if you’re talking about documents, and records, tangible objects are tangible objects in the nature of a document or a record, as opposed to a fish.” Ibid. The first-instance judge nonetheless followed controlling Eleventh Circuit precedent. While recognizing that §1519 was passed as part of legislation targeting corporate fraud, the Court of Appeals had instructed that “the broad language of §1519 is not limited to corporate fraud cases, and ‘Congress is free to pass laws with language covering areas well beyond the particular crisis du jour that initially prompted legislative action.’ ” No. 2:10–cr–66–FtM–29SPC (MD Fla., Aug. 8, 2011), App. 116 (quoting United States v. Hunt, 526 F. 3d 739, 744 (CA11 2008)). Accordingly, the trial court read “tangible object” as a term “independent” of “record” or “document.” App. 116. For violating §1519 and §2232(a), the court sentenced Yates to imprisonment for 30 days, followed by supervised release for three years. App. 118–120. For life, he will bear the stigma of having a federal felony conviction. On appeal, the Eleventh Circuit found the text of §1519 “plain.” 733 F. 3d 1059, 1064 (2013). Because “tangible object” was “undefined” in the statute, the Court of Appeals gave the term its “ordinary or natural meaning,” i.e., its dictionary definition, “[h]aving or possessing physical form.” Ibid. (quoting Black’s Law Dictionary 1592 (9th ed. 2009)). We granted certiorari, 572 U. S. ___ (2014), and now reverse the Eleventh Circuit’s judgment.II The Sarbanes-Oxley Act, all agree, was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents. The Government acknowledges that §1519 was intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrong-doing. Brief for United States 46. Prior law made it an offense to “intimidat[e], threate[n], or corruptly persuad[e] another person” to shred documents. §1512(b) (emphasis added). Section 1519 cured a conspicuous omission by imposing liability on a person who destroys records himself. See S. Rep. No. 107–146, p. 14 (2002) (describing §1519 as “a new general anti shredding provision” and explaining that “certain current provisions make it a crime to persuade another person to destroy documents, but not a crime to actually destroy the same documents yourself”). The new section also expanded prior law by including within the provision’s reach “any matter within the jurisdiction of any department or agency of the United States.” Id., at 14–15. In the Government’s view, §1519 extends beyond the principal evil motivating its passage. The words of §1519, the Government argues, support reading the provision as a general ban on the spoliation of evidence, covering all physical items that might be relevant to any matter under federal investigation. Yates urges a contextual reading of §1519, tying “tangible object” to the surrounding words, the placement of the provision within the Sarbanes-Oxley Act, and related provisions enacted at the same time, in particular §1520 and §1512(c)(1), see infra, at 10, 12–13. Section 1519, he maintains, targets not all manner of evidence, but records, documents, and tangible objects used to preserve them, e.g., computers, servers, and other media on which information is stored. We agree with Yates and reject the Government’s unrestrained reading. “Tangible object” in §1519, we conclude, is better read to cover only objects one can use to record or preserve information, not all objects in the physical world.A The ordinary meaning of an “object” that is “tangible,” as stated in dictionary definitions, is “a discrete . . . thing,” Webster’s Third New International Dictionary 1555 (2002), that “possess[es] physical form,” Black’s Law Dictionary 1683 (10th ed. 2014). From this premise, the Government concludes that “tangible object,” as that term appears in §1519, covers the waterfront, including fish from the sea. Whether a statutory term is unambiguous, however, does not turn solely on dictionary definitions of its component words. Rather, “[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co.,519 U. S. 337,341 (1997). See also Deal v. United States,508 U. S. 129,132 (1993) (it is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used”). Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things. We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute. See, e.g., FAA v. Cooper, 566 U. S. ___, ___–___ (2012), (slip op., at 6–7) (“actual damages” has different meanings in different statutes); Wachovia Bank, N. A. v. Schmidt,546 U. S. 303–314 (2006) (“located” has different meanings in different provisions of the National Bank Act); General Dynamics Land Systems, Inc. v. Cline,540 U. S. 581–597 (2004) (“age” has different meanings in different provisions of the Age Discrimination in Employment Act of 1967); United States v. Cleveland Indians Baseball Co.,532 U. S. 200,213 (2001) (“wages paid” has different meanings in different provisions of Title 26 U. S. C.); Robinson, 519 U. S., at 342–344 (“employee” has different meanings in different sections of Title VII of the Civil Rights Act of 1964); Merrell Dow Pharmaceuticals Inc. v. Thompson,478 U. S. 804–808 (1986) (“arising under” has different meanings in U. S. Const., Art. III, §2, and28 U. S. C. §1331); District of Columbia v. Carter,409 U. S. 418–421 (1973) (“State or Territory” has different meanings in42 U. S. C. §1982 and §1983); Atlantic Cleaners & Dyers, Inc. v. United States,286 U. S. 427–437 (1932) (“trade or commerce” has different meanings in different sections of the Sherman Act). As the Court observed in Atlantic Cleaners & Dyers, 286 U. S., at 433:“Most words have different shades of meaning and consequently may be variously construed . . . . Where the subject matter to which the words refer is not the same in the several places where [the words] are used, or the conditions are different, or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed.”[2]In short, although dictionary definitions of the words “tangible” and “object” bear consideration, they are not dispositive of the meaning of “tangible object” in §1519. Supporting a reading of “tangible object,” as used in §1519, in accord with dictionary definitions, the Government points to the appearance of that term in Federal Rule of Criminal Procedure 16. That Rule requires the prosecution to grant a defendant’s request to inspect “tangible objects” within the Government’s control that have utility for the defense. See Fed. Rule Crim. Proc. 16(a)(1)(E). Rule 16’s reference to “tangible objects” has been interpreted to include any physical evidence. See 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §20.3(g), pp. 405–406, and n. 120 (3d ed. 2007). Rule 16 is a discovery rule designed to protect defendants by compelling the prosecution to turn over to the defense evidence material to the charges at issue. In that context, a comprehensive construction of “tangible objects” is fitting. In contrast, §1519 is a penal provision that refers to “tangible object” not in relation to a request for information relevant to a specific court proceeding, but rather in relation to federal investigations or proceedings of every kind, including those not yet begun.[3] See Commissioner v. National Carbide Corp., 167 F. 2d 304, 306 (CA2 1948) (Hand, J.) (“words are chameleons, which reflect the color of their environment”). Just as the context of Rule 16 supports giving “tangible object” a meaning as broad as its dictionary definition, the context of §1519 tugs strongly in favor of a narrower reading.B Familiar interpretive guides aid our construction of the words “tangible object” as they appear in §1519. We note first §1519’s caption: “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” That heading conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records. Neither does the title of the section of the Sarbanes-Oxley Act in which §1519 was placed, §802: “Criminal penalties for altering documents.”116Stat.800. Furthermore, §1520, the only other provision passed as part of §802, is titled “Destruction of corporate audit records” and addresses only that specific subset of records and documents. While these headings are not commanding, they supply cues that Congress did not intend “tangible object” in §1519 to sweep within its reach physical objects of every kind, including things no one would describe as records, documents, or devices closely associated with them. SeeAlmendarez-Torres v. United States,523 U. S. 224,234 (1998) (“[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” (internal quotation marks omitted)). If Congress indeed meant to make §1519 an all-encompassing ban on the spoliation of evidence, as the dissent believes Congress did, one would have expected a clearer indication of that intent. Section 1519’s position within Chapter 73 of Title 18 further signals that §1519 was not intended to serve as a cross-the-board ban on the destruction of physical evidence of every kind. Congress placed §1519 (and its companion provision §1520) at the end of the chapter, following immediately after the pre-existing §1516, §1517, and §1518, each of them prohibiting obstructive acts in specific contexts. See §1516 (audits of recipients of federal funds); §1517 (federal examinations of financial institutions); §1518 (criminal investigations of federal health care offenses). See also S. Rep. No. 107–146, at 7 (observing that §1517 and §1518 “apply to obstruction in certain limited types of cases, such as bankruptcy fraud, examinations of financial institutions, and healthcare fraud”). But Congress did not direct codification of the Sarbanes-Oxley Act’s other additions to Chapter 73 adjacent to these specialized provisions. Instead, Congress directed placement of those additions within or alongside retained provisions that address obstructive acts relating broadly to official proceedings and criminal trials: Section 806, “Civil Action to protect against retaliation in fraud cases,” was codified as §1514A and inserted between the pre-existing §1514, which addresses civil actions to restrain harassment of victims and witnesses in criminal cases, and §1515, which defines terms used in §1512 and §1513. Section 1102, “Tampering with a record or otherwise impeding an official proceeding,” was codified as §1512(c) and inserted within the pre-existing §1512, which addresses tampering with a victim, witness, or informant to impede any official proceeding. Section 1107, “Retaliation against informants,” was codified as §1513(e) and inserted within the pre-existing §1513, which addresses retaliation against a victim, witness, or informant in any official proceeding. Congress thus ranked §1519, not among the broad proscriptions, but together with specialized provisions expressly aimed at corporate fraud and financial audits. This placement accords with the view that Congress’ conception of §1519’s coverage was considerably more limited than the Government’s.[4] The contemporaneous passage of §1512(c)(1), which was contained in a section of the Sarbanes-Oxley Act discrete from the section embracing §1519 and §1520, is also instructive. Section 1512(c)(1) provides: “(c) Whoever corruptly— “(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding. . . . .“shall be fined under this title or imprisoned not more than 20 years, or both.”The legislative history reveals that §1512(c)(1) was drafted and proposed after §1519. See 148 Cong. Rec. 12518, 13088–13089 (2002). The Government argues, and Yates does not dispute, that §1512(c)(1)’s reference to “other object” includes any and every physical object. But if §1519’s reference to “tangible object” already included all physical objects, as the Government and the dissent contend, then Congress had no reason to enact §1512(c)(1): Virtually any act that would violate §1512(c)(1) no doubt would violate §1519 as well, for §1519 applies to “the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter,” not just to “an official proceeding.”[5] The Government acknowledges that, under its reading, §1519 and §1512(c)(1) “significantly overlap.” Brief for United States 49. Nowhere does the Government explain what independent function §1512(c)(1) would serve if the Government is right about the sweeping scope of §1519. We resist a reading of §1519 that would render superfluous an entire provision passed in proximity as part of the same Act.[6] See Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 14) (“[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”). The words immediately surrounding “tangible object” in §1519—“falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. As explained in Gustafson v. Alloyd Co.,513 U. S. 561,575 (1995), we rely on the principle of noscitur a sociis—a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.” (internal quotation marks omitted). See also United States v. Williams,553 U. S. 285,294 (2008) (“a word is given more precise content by the neighboring words with which it is associated”). In Gustafson, we interpreted the word “communication” in §2(10) of the Securities Act of 1933 to refer to a public communication, rather than any communication, because the word appeared in a list with other words, notably “notice, circular, [and] advertisement,” making it “apparent that the list refer[red] to documents of wide dissemination.” 513 U. S., at 575–576. And we did so even though the list began with the word “any.” The noscitur a sociis canon operates in a similar manner here. “Tangible object” is the last in a list of terms that begins “any record [or] document.” The term is therefore appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents, i.e., objects used to record or preserve information. See United States Sentencing Commission, Guidelines Manual §2J1.2, comment., n. 1 (Nov. 2014) (“ ‘Records, documents, or tangible objects’ includes (A) records, documents, or tangible objects that are stored on, or that are, magnetic, optical, digital, other electronic, or other storage mediums or devices; and (B) wire or electronic communications.”). This moderate interpretation of “tangible object” accords with the list of actions §1519 proscribes. The section applies to anyone who “alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the requisite obstructive intent. (Emphasis added.) The last two verbs, “falsif[y]” and “mak[e] a false entry in,” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See, e.g., Black’s Law Dictionary 720 (10th ed. 2014) (defining “falsify” as “[t]o make deceptive; to counterfeit, forge, or misrepresent; esp., to tamper with (a document, record, etc.)”). It would be unnatural, for example, to describe a killer’s act of wiping his fingerprints from a gun as “falsifying” the murder weapon. But it would not be strange to refer to “falsifying” data stored on a hard drive as simply “falsifying” a hard drive. Furthermore, Congress did not include on §1512(c)(1)’s list of prohibited actions “falsifies” or “makes a false entry in.” See §1512(c)(1) (making it unlawful to “alte[r], destro[y], mutilat[e], or concea[l] a record, document, or other object” with the requisite obstructive intent). That contemporaneous omission also suggests that Congress intended “tangible object” in §1519 to have a narrower scope than “other object” in §1512(c)(1).[7] A canon related to noscitur a sociis, ejusdem generis, counsels: “Where general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler,537 U. S. 371,384 (2003) (internal quotation marks omitted). In Begay v. United States,553 U. S. 137–143 (2008), for example, we relied on this principle to determine what crimes were covered by the statutory phrase “any crime . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,”18 U. S. C. §924(e)(2)(B)(ii). The enumeration of specific crimes, we explained, indicates that the “otherwise involves” provision covers “only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” 553 U. S., at 142. Had Congress intended the latter “all encompassing” meaning, we observed, “it is hard to see why it would have needed to include the examples at all.” Ibid. See also CSX Transp., Inc. v. Alabama Dept. of Revenue,562 U. S. 277, ___ (2011) (slip op., at 16) (“We typically use ejusdem generis to ensure that a general word will not render specific words meaningless.”). Just so here. Had Congress intended “tangible object” in §1519 to be interpreted so generically as to capture physical objects as dissimilar as documents and fish, Congress would have had no reason to refer specifically to “record” or “document.” The Government’s unbounded reading of “tangible object” would render those words misleading surplusage. Having used traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and §1519 itself, we are persuaded that an aggressive interpretation of “tangible object” must be rejected. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping. The Government argues, however, that our inquiry would be incomplete if we failed to consider the origins of the phrase “record, document, or tangible object.” Congress drew that phrase, the Government says, from a 1962 Model Penal Code (MPC) provision, and reform proposals based on that provision. The MPC provision and proposals prompted by it would have imposed liability on anyone who “alters, destroys, mutilates, conceals, or removes a record, document or thing.” See ALI, MPC §241.7(1), p. 175 (1962). Those proscriptions were understood to refer to all physical evidence. See MPC §241.7, Comment 3, at 179 (1980) (provision “applies to any physical object”). Accordingly, the Government reasons, and the dissent exuberantly agrees, post, at 4–5, Congress must have intended §1519 to apply to the universe of physical evidence. The inference is unwarranted. True, the 1962 MPC provision prohibited tampering with any kind of physical evidence. But unlike §1519, the MPC provision did not prohibit actions that specifically relate to records, documents, and objects used to record or preserve information. The MPC provision also ranked the offense as a misdemeanor and limited liability to instances in which the actor “believ[es] that an official proceeding or investigation is pending or about to be instituted.” MPC §241.7(1), at 175. Yates would have had scant reason to anticipate a felony prosecution, and certainly not one instituted at a time when even the smallest of the fish he caught came within the legal limit. See supra, at 4; cf. Bond v. United States, 572 U. S. ___, ___ (2014), (slip op., at 14) (rejecting “boundless reading” of a statutory term given “deeply serious consequences” that reading would entail). A proposed federal offense in line with the MPC provision, advanced by a federal commission in 1971, was similarly qualified. See Final Report of the National Commission on Reform of Federal Criminal Laws §1323, pp. 116–117 (1971). Section 1519 conspicuously lacks the limits built into the MPC provision and the federal proposal. It describes not a misdemeanor, but a felony punishable by up to 20 years in prison. And the section covers conduct intended to impede any federal investigation or proceeding, including one not even on the verge of commencement. Given these significant differences, the meaning of “record, document, or thing” in the MPC provision and a kindred proposal is not a reliable indicator of the meaning Congress assigned to “record, document, or tangible object” in §1519. The MPC provision, in short, tells us neither “what Congress wrote [nor] what Congress wanted,” cf. post, at 15, concerning Yates’s small fish as the subject of a federal felony prosecution.C Finally, if our recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object,” as that term is used in §1519, we would invoke the rule that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland v. United States,531 U. S. 12,25 (2000) (quoting Rewis v. United States,401 U. S. 808,812 (1971)). That interpretative principle is relevant here, where the Government urges a reading of §1519 that exposes individuals to 20-year prison sentences for tampering with any physical object that might have evidentiary value in any federal investigation into any offense, no matter whether the investigation is pending or merely contemplated, or whether the offense subject to investigation is criminal or civil. See Liparota v. United States,471 U. S. 419,427 (1985) (“Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.”). In determining the meaning of “tangible object” in §1519, “it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” See Cleveland, 531 U. S., at 25 (quoting United States v. Universal C. I. T. Credit Corp.,344 U. S. 218,222 (1952)). See also Jones v. United States,529 U. S. 848–859 (2000) (rule of lenity “reinforces” the conclusion that arson of an owner-occupied residence is not subject to federal prosecution under18 U. S. C. §844(i) because such a residence does not qualify as property “used in” commerce or commerce-affecting activity).[8]* * * For the reasons stated, we resist reading §1519 expansively to create a coverall spoliation of evidence statute, advisable as such a measure might be. Leaving that important decision to Congress, we hold that a “tangible object” within §1519’s compass is one used to record or preserve information. The judgment of the U. S. Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings.It is so ordered.Notes1 Yates was also charged with making a false statement to federal law enforcement officers, in violation of18 U. S. C. §1001(a)(2). That charge, on which Yates was acquitted, is not relevant to our analysis.2 The dissent assiduously ignores all this, post, at 11–12, in insisting that Congress wrote §1519 to cover, along with shredded corporate documents, red grouper slightly smaller than the legal limit.3 For the same reason, we do not think the meaning of “tangible objects” (or “tangible things,” see Fed. Rule Civ. Proc. 26(b)) in other discovery prescriptions cited by the Government leads to the conclusion that “tangible object” in §1519 encompasses any and all physical evidence existing on land or in the sea.4 The dissent contends that nothing can be drawn from the placement of §1519 because, before and after Sarbanes-Oxley, “all of Chapter 73 was ordered chronologically.” Post, at 9. The argument might have some force if the factual premise were correct. In Sarbanes-Oxley, Congress directed insertion of §1514A before §1518, then the last section in Chapter 73. If, as the dissent argues, Congress adopted §1519 to fill out §1512, post, at 6–7, it would have made more sense for Congress to codify the substance of §1519 within §1512 or in a new §1512A, rather than placing §1519 among specialized provisions. Notably, in Sarbanes-Oxley, Congress added §1512(c)(1), “a broad ban on evidence-spoliation,” cf. post, at 9, n. 2, to §1512, even though §1512’s preexisting title and provisions all related to witness-tampering. 5 Despite this sweeping “in relation to” language, the dissent remarkably suggests that §1519 does not “ordinarily operate in th[e] context [of] federal court[s],” for those courts are not “department[s] or agenc[ies].” Post, at 10. That suggestion, which, as one would expect, lacks the Government’s endorsement, does not withstand examination. The Senate Committee Report on §1519, on which the dissent elsewhere relies, see post, at 6, explained that an obstructive act is within §1519’s scope if “done ‘in contemplation’ of or in relation to a matter or investigation.” S. Rep. 107–146, at 15. The Report further informed that §1519 “is . . . meant to do away with the distinctions, which some courts have read into obstruction statutes, between court proceedings, investigations, regulatory or administrative proceedings (whether formal or not), and less formal government inquiries, regardless of their title.” Ibid. If any doubt remained about the multiplicity of contexts in which §1519 was designed to apply, the Report added, “[t]he intent of the provision is simple; people should not be destroying, altering, or falsifying documents to obstruct any government function.” Ibid.6 Furthermore, if “tangible object” in §1519 is read to include any physical object, §1519 would prohibit all of the conduct proscribed by §2232(a), which imposes a maximum penalty of five years in prison for destroying or removing “property” to prevent its seizure by the Government. See supra, at 1–2. 7 The dissent contends that “record, document, or tangible object” in §1519 should be construed in conformity with “record, document, or other object” in §1512(c)(1) because both provisions address “the same basic problem.” Post, at 11–12. But why should that be so when Congress prohibited in §1519 additional actions, specific to paper and electronic documents and records, actions it did not prohibit in §1512(c)(1)? When Congress passed Sarbanes-Oxley in 2002, courts had already interpreted the phrase “alter, destroy, mutilate, or conceal an object” in §1512(b)(2)(B) to apply to all types of physical evidence. See, e.g., United States v. Applewhaite, 195 F. 3d 679, 688 (CA3 1999) (affirming conviction under §1512(b)(2)(B) for persuading another person to paint over blood spatter). Congress’ use of a formulation in §1519 that did not track the one used in §1512(b)(2)(B) (and repeated in §1512(c)(1)) suggests that Congress designed §1519 to be interpreted apart from §1512, not in lockstep with it.8 The dissent cites United States v. McRae, 702 F. 3d 806, 834–838 (CA5 2012), United States v. Maury, 695 F. 3d 227, 243–244 (CA3 2012), and United States v. Natal, 2014 U. S. Dist. LEXIS 108852, *24–*26 (Conn., Aug. 7, 2014), as cases that would not be covered by §1519 as we read it. Post, at 18–19. Those cases supply no cause for concern that persons who commit “major” obstructive acts, id. at 18, will go unpunished. The defendant in McRae, a police officer who seized a car containing a corpse and then set it on fire, was also convicted for that conduct under18 U. S. C. §844(h) and sentenced to a term of 120 months’ imprisonment for that offense. See 702 F. 3d, at 817–818, 839–840. The defendant in Natal, who repainted a van to cover up evidence of a fatal arson, was also convicted of three counts of violating18 U. S. C. §3 and sentenced to concurrent terms of 174 months’ imprisonment. See Judgment in United States v. Morales, No. 3:12–cr–164 (Conn., Jan. 12, 2015). And the defendant in Maury, a company convicted under §1519 of concealing evidence that a cement mixer’s safety lock was disabled when a worker’s fingers were amputated, was also convicted of numerous other violations, including three counts of violating18 U. S. C. §1505 for concealing evidence of other worker safety violations. See 695 F. 3d, at 244–245. See also United States v. Atlantic States Cast Iron Pipe Co., 2007 WL 2282514, *70 (NJ, Aug. 2, 2007) (setting forth charges against the company). For those violations, the company was fined millions of dollars and ordered to operate under the supervision of a court-appointed monitor. See 695 F. 3d, at 246.

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 yates v. united states certiorari to the united states court of appeals for the eleventh circuit No. 13–7451. Argued November 5, 2014—Decided February 25, 2015 While conducting an offshore inspection of a commercial fishing vessel in the Gulf of Mexico, a federal agent found that the ship’s catch contained undersized red grouper, in violation of federal conservation regulations. The officer instructed the ship’s captain, petitioner Yates, to keep the undersized fish segregated from the rest of the catch until the ship returned to port. After the officer departed, Yates instead told a crew member to throw the undersized fish overboard. For this offense, Yates was charged with destroying, concealing, and covering up undersized fish to impede a federal investigation, in violation of 18 U. S. C. §1519. That section provides that a person may be fined or imprisoned for up to 20 years if he “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. At trial, Yates moved for a judgment of acquittal on the §1519 charge. Pointing to §1519’s origin as a provision of the Sarbanes-Oxley Act of 2002, a law designed to protect investors and restore trust in financial markets following the collapse of Enron Corporation, Yates argued that §1519’s reference to “tangible object” subsumes objects used to store information, such as computer hard drives, not fish. The District Court denied Yates’s motion, and a jury found him guilty of violating §1519. The Eleventh Circuit affirmed the conviction, concluding that §1519 applies to the destruction or concealment of fish because, as objects having physical form, fish fall within the dictionary definition of “tangible object.” Held: The judgment is reversed, and the case is remanded. 733 F.3d 1059, reversed and remanded. Justice Ginsburg, joined by The Chief Justice, Justice Breyer, and Justice Sotomayor, concluded that a “tangible object” within §1519’s compass is one used to record or preserve information. . (a) Although dictionary definitions of the words “tangible” and “object” bear consideration in determining the meaning of “tangible object” in §1519, they are not dispositive. Whether a statutory term is unambiguous “is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341. Identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute. See, e.g., FAA v. Cooper, 566 U. S. ___, ___. . (b) Familiar interpretive guides aid the construction of “tangible object.” Though not commanding, §1519’s heading—“Destruction, alteration, or falsification of records in Federal investigations and bankruptcy”—conveys no suggestion that the section prohibits spoliation of any and all physical evidence, however remote from records. Section 1519’s position within Title 18, Chapter 73, further signals that §1519 was not intended to serve as a cross-the-board ban on the destruction of physical evidence. Congress placed §1519 at the end of Chapter 73 following immediately after pre-existing specialized provisions expressly aimed at corporate fraud and financial audits. The contemporaneous passage of §1512(c)(1), which prohibits a person from “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object . . . with the intent to impair the object’s integrity or availability for use in an official proceeding,” is also instructive. The Government argues that §1512(c)(1)’s reference to “other object” includes any and every physical object. But if §1519’s reference to “tangible object” already included all physical objects, as the Government also contends, then Congress had no reason to enact §1512(c)(1). Section 1519 should not be read to render superfluous an entire provision passed in proximity as part of the same Act. See Marx v. General Revenue Corp., 568 U. S. ___, ___. The words immediately surrounding “tangible object” in §1519—“falsifies, or makes a false entry in any record [or] document”—also cabin the contextual meaning of that term. Applying the canons noscitur a sociis and ejusdem generis, “tangible object,” as the last in a list of terms that begins “any record [or] document,” is appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects used to record or preserve information. This moderate interpretation accords with the list of actions §1519 proscribes; the verbs “falsif[y]” and “mak[e] a false entry in” typically take as grammatical objects records, documents, or things used to record or preserve information, such as logbooks or hard drives. See Gustafson v. Alloyd Co., 513 U.S. 561, 575. Use of traditional tools of statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and §1519 itself thus call for rejection of an aggressive interpretation of “tangible object.” Furthermore, the meaning of “record, document, or thing” in a provision of the 1962 Model Penal Code (MPC) that has been interpreted to prohibit tampering with any kind of physical evidence is not a reliable indicator of the meaning Congress assigned to “record, document, or tangible object” in §1519. There are significant differences between the offense described by the MPC provision and the offense created by §1519. . (c) Finally, if recourse to traditional tools of statutory construction leaves any doubt about the meaning of “tangible object” in §1519, it would be appropriate to invoke the rule of lenity. . Justice Alito concluded that traditional rules of statutory construction confirm that Yates has the better argument. Title 18 U. S. C. §1519’s list of nouns, list of verbs, and title, when combined, tip the case in favor of Yates. Applying the canons noscitur a sociis and ejusdem generis to the list of nouns—“any record, document, or tangible object”—the term “tangible object” should refer to something similar to records or documents. And while many of §1519’s verbs—“alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in”—could apply to far-flung nouns such as salamanders or sand dunes, the term “makes a false entry in” makes no sense outside of filekeeping. Finally, §1519’s title—“Destruction, alteration, or falsification of records in Federal investigations and bankruptcy”—also points toward filekeeping rather than fish. . Ginsburg, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Breyer and Sotomayor, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Kagan, J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined.

A commercial fisherman in federal waters caught undersized red grouper. To prevent federal authorities from confirming that the fisherman had harvested the fish, he ordered a crew member to toss the catch into the sea. For this offense, he was charged with, and convicted of, violating18 U. S. C. §1519, which provides that Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title or imprisoned not more than 20 years, or both. The first-instance judge followed controlling Eleventh Circuit precedent. Held:1. A tangible object captured by § 1519 must be one used to record or preserve information. Whether a statutory term is unambiguous does not turn solely on dictionary definitions of its component words. Rather, the plainness or ambiguity of statutory language is determined not only by reference to the language itself, but also by the specific context in which that language is used, and the broader context of the statute as a whole. Here, the ordinary meaning of an object is that of a discrete... thing. . 2. The wordangible object, as that term appears in §1632(a) of the Sarbanes-Oxley Act of 2002, which was enacted as part of legislation to protect investors and restore trust in financial markets following the collapse of the Enron Corporation, is better read to cover only objects one can use to record and preserve information, not all objects in the physical world. P.. 3. Section 1519 is not intended to serve as a cross-the-board ban on the destruction of physical evidence of every kind. It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping. Pp. 456 U.S. 568-544. 4. The meaning of the termangible object is not dispositive of the meaning of that term in §1762(c)(1), which prohibits destruction of records, documents, and tangible objects used to preserve them, e.g., computers, servers, and other media on which information is stored.. 5. The words "tangible object" are better read than the words in §1512(b)(2)(B), which refers to the subset of tangible objects involving records and documents, i.e., objects used in records or documents. In contrast, §1719 is a penal provision that refers to a request for information relevant to a specific court proceeding, but not to a criminal investigation, including those not yet begun. Just as the context of Rule 16 supports giving the term tangible object a meaning as broad as its dictionary definition, that context tugs strongly in favor of a narrower reading. Cf. Davis v. United States,; General Revenue Corp.,; United States v. Revenue Dept. of Revenue, 561 U. s. 561, 233; Gustafson v. Alloyd Co.,513 U. S. 661,575. Moreover, since Yates was also charged with making a false statement to federal law enforcement officers, the charge, on which Yates was acquitted, is not relevant to this analysis. See §1517,  116 Stat.745. 6. A person who commits a major obstructive act will not go unpunished. See id. at 18. That section describes not a misdemeanor, but a felony punishable by up to 20 years in prison, and covers conduct intended to impede any federal investigation into any federal cause, violation of which Yates would have scant reason to anticipate a felony prosecution, and certainly not one instituted at a time when even the smallest of the fish he caught came within the legal limit. See Id. at 9, n. 2. Moreover, the legislative history reveals that §1511 was drafted and proposed after the passage of the Model Penal Code (MPC) provision, and that Congress did not include on the list of prohibited actions the phrase, which includes any physical evidence, however remote from records. Nor does the title of the section, §802, that addresses corporate document-shredding, refer to a misdemeanor or limited liability to instances in which the actor believes that an official proceeding is pending or about to be instituted, since the section does not refer to the specific phrase used in the MPC provision or the federal proposal, which addresses the same basic problem. There is no merit to Yates' contention that, under its reading, the section is to cover, along with shredded corporate documents, documents that would otherwise be in the category of records. See

2014_12-1226

https://www.oyez.org/cases/2014/12-1226

. The Pregnancy Discrimination Act makes clear that Title VII's prohibition against sex discrimination applies to discrimination based on pregnancy. It also says that employers must treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or in-ability to work." 42 U. S. C. 2000e(k). We must decide how this latter provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. In our view, the Act requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work. And here as in all cases in which an individual plaintiff seeks to show disparate treatment through indirect evidence it requires courts to consider any legitimate, nondiscrimina-tory, nonpretextual justification for these differences in treatment. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973) . Ultimately the court must determine whether the nature of the employer's policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination. The Court of Appeals here affirmed a grant of summary judgment in favor of the employer. Given our view of the law, we must vacate that court's judgment. I A We begin with a summary of the facts. The petitioner, Peggy Young, worked as a part-time driver for the respondent, United Parcel Service (UPS). Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. App. 580. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). Id., at 578. UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage. Young subsequently brought this federal lawsuit. We focus here on her claim that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young said that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were "similar in their . . . inability to work." She accordingly concluded that UPS must accommodate her as well. See Brief for Petitioner 30 31. UPS responded that the "other persons" whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. 12101 et seq. UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all "other" relevant "persons." See Brief for Respondent 34. B Title VII of the Civil Rights Act of 1964 forbids a covered employer to "discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex." 78Stat. 253, 42 U. S. C. 2000e 2(a)(1). In 1978, Congress enacted the Pregnancy Discrimination Act, 92Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title VII's "ter[m] 'because of sex' . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions." 2000e(k). The second clause says that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . ." Ibid. This case requires us to consider the application of the second clause to a "disparate-treatment" claim a claim that an employer intentionally treated a complainant less favorably than employees with the "complainant's qualifications" but outside the complainant's protected class. McDonnell Douglas, supra, at 802. We have said that "[l]iability in a disparate-treatment case depends on whether the protected trait actually motivated the employer's decision." Raytheon Co. v. Hernandez, 540 U. S. 44, 52 (2003) (ellipsis and internal quotation marks omitted). We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985) . In McDonnell Douglas, we considered a claim of discriminatory hiring. We said that, to prove disparate treatment, an individual plaintiff must "carry the initial burden" of "establishing a prima facie case" of discrimination by showing "(i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his quali-fications, he was rejected; and (iv) that, after hisrejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U. S., at 802. If a plaintiff makes this showing, then the employer must have an opportunity "to articulate some legitimate, non-discriminatory reason for" treating employees outside the protected class better than employees within the protected class. Ibid. If the employer articulates such a reason, the plaintiff then has "an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant [i.e., the employer] were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 253 (1981) . We note that employment discrimination law also creates what is called a "disparate-impact" claim. In evaluating a disparate-impact claim, courts focus on the effects of an employment practice, determining whether they are unlawful irrespective of motivation or intent. See Raytheon, supra, at 52 53; see also Ricci v. DeStefano, 557 U. S.557, 578 (2009). But Young has not alleged a disparate-impact claim. Nor has she asserted what we have called a "pattern-or-practice" claim. See Teamsters v. United States, 431 U. S. 324, 359 (1977) (explaining that Title VII plaintiffs who allege a "pattern or practice" of discrimination may establish a prima facie case by "another means"); see also id., at 357 (rejecting contention that the "burden of proof in a pattern-or-practice case must be equivalent to that outlined in McDonnell Douglas"). C In July 2007, Young filed a pregnancy discrimination charge with the Equal Employment Opportunity Commission (EEOC). In September 2008, the EEOC provided her with a right-to-sue letter. See 29 CFR 1601.28 (2014). Young then filed this complaint in Federal District Court. She argued, among other things, that she could show by direct evidence that UPS had intended to discriminate against her because of her pregnancy and that, in any event, she could establish a prima facie case of disparate treatment under the McDonnell Douglas framework. See App. 60 62. After discovery, UPS filed a motion for summary judgment. See Fed. Rule Civ. Proc. 56(a). In reply, Young pointed to favorable facts that she believed were either undisputed or that, while disputed, she could prove. They include the following: Young worked as a UPS driver, picking up and delivering packages carried by air. Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment in No. 08 cv 02586 (D Md.), pp. 3 4 (hereinafter Memorandum). Young was pregnant in the fall of 2006. Id., at 15 16. Young's doctor recommended that she "not be required to lift greater than 20 pounds for the first 20 weeks of pregnancy and no greater than 10 pounds thereafter." App. 580; see also Memorandum 17. UPS required drivers such as Young to be able to "[l]ift, lower, push, pull, leverage and manipulate . . . packages weighing up to 70 pounds" and to "[a]ssist in moving packages weighing up to 150 pounds." App. 578; see also Memorandum 5. UPS' occupational health manager, the official "responsible for most issues relating to employee health and ability to work" at Young's UPS facility, App. 568 569, told Young that she could not return to work during her pregnancy because she could not satisfy UPS' lifting requirements, see Memorandum 17 18; 2011 WL 665321, *5 (D Md., Feb. 14, 2011). The manager also determined that Young did not qualify for a temporary alternative work assignment. Ibid.; see also Memorandum 19 20. UPS, in a collective-bargaining agreement, had promised to provide temporary alternative work assignments to employees "unable to perform their normal work assignments due to an on-the-job in-jury." App. 547 (emphasis added); see also Memorandum 8, 45 46. The collective-bargaining agreement also provided that UPS would "make a good faith effort to comply . . . with requests for a reasonable accommodation because of a permanent disability" under the ADA. App. 548; see also Memorandum 7. The agreement further stated that UPS would give "inside" jobs to drivers who had lost their DOT certifications because of a failed medical exam, a lost driver's license, or involvement in a motor vehicle accident. See App. 563 565; Memorandum 8. When Young later asked UPS' Capital Division Manager to accommodate her disability, he replied that, while she was pregnant, she was "too much of a liability" and could "not come back" until she " 'was no longer pregnant.' " Id., at 20. Young remained on a leave of absence (without pay) for much of her pregnancy. Id., at 49. Young returned to work as a driver in June 2007, about two months after her baby was born. Id., at 21, 61. As direct evidence of intentional discrimination, Young relied, in significant part, on the statement of the Capital Division Manager (10 above). As evidence that she had made out a prima facie case under McDonnell Douglas, Young relied, in significant part, on evidence showing that UPS would accommodate workers injured on the job (7), those suffering from ADA disabilities (8), and those who had lost their DOT certifications (9). That evidence, she said, showed that UPS had a light-duty-for-injury policy with respect to numerous "other persons," but not with respect to pregnant workers. See Memorandum 29. Young introduced further evidence indicating that UPS had accommodated several individuals when they suffered disabilities that created work restrictions similar to hers. UPS contests the correctness of some of these facts and the relevance of others. See Brief for Respondent 5, 6, 57. But because we are at the summary judgment stage, and because there is a genuine dispute as to these facts, we view this evidence in the light most favorable to Young, the nonmoving party, see Scott v. Harris, 550 U. S. 372, 380 (2007) : Several employees received accommodations while suffering various similar or more serious disabilities incurred on the job. See App. 400 401 (10 pound lifting limitation); id., at 635 (foot injury); id., at 637 (arm injury). Several employees received accommodations following injury, where the record is unclear as to whether the injury was incurred on or off the job. See id.,at 381 (recurring knee injury); id., at 655 (ankle injury); id., at 655 (knee injury); id., at 394 398 (stroke); id., at 425, 636 637 (leg injury). Several employees received "inside" jobs after losing their DOT certifications. See id., at 372 (DOT certification suspended after conviction for driv-ing under the influence); id., at 636, 647 (failed DOT test due to high blood pressure); id., at 640 641 (DOT certification lost due to sleep apneadiagnosis). Some employees were accommodated despite the fact that their disabilities had been incurred off the job. See id., at 446 (ankle injury); id., at 433, 635 636 (cancer). According to a deposition of a UPS shop steward who had worked for UPS for roughly a decade, id., at 461, 463, "the only light duty requested [due to physical] restrictions that became an issue" at UPS "were with women who were pregnant," id., at 504. The District Court granted UPS' motion for summary judgment. It concluded that Young could not show intentional discrimination through direct evidence. 2011 WL 665321, *10 *12. Nor could she make out a prima facie case of discrimination under McDonnell Douglas. The court wrote that those with whom Young compared herself those falling within the on-the-job, DOT, or ADA categories were too different to qualify as "similarly situated comparator[s]." 2011 WL 665321, *14. The court added that, in any event, UPS had offered a legitimate, nondiscriminatory reason for failing to accommodate pregnant women, and Young had not created a genuine issue of material fact as to whether that reason was pretextual. Id., at *15. On appeal, the Fourth Circuit affirmed. It wrote that "UPS has crafted a pregnancy-blind policy" that is "at least facially a 'neutral and legitimate business practice,' and not evidence of UPS's discriminatory animus toward pregnant workers." 707 F. 3d 437, 446 (2013). It also agreed with the District Court that Young could not show that "similarly-situated employees outside the protected class received more favorable treatment than Young." Id., at 450. Specifically, it believed that Young was different from those workers who were "disabled under the ADA" (which then protected only those with permanent disabilities) because Young was "not disabled"; her lifting limitation was only "temporary and not a significant restriction on her ability to perform major life activities." Ibid. Young was also different from those workers who had lost their DOT certifications because "no legal obstacle stands between her and her work" and because many with lost DOT certifications retained physical (i.e., lifting) capacity that Young lacked. Ibid. And Young was different from those "injured on the job because, quite simply, her inability to work [did] not arise from an on-the-job injury." Id., at 450 451. Rather, Young more closely resembled "an employee who injured his back while picking up his infant child or . . . an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter," neither of whom would have been eligible for accommodation under UPS' policies. Id., at 448. Young filed a petition for certiorari essentially asking us to review the Fourth Circuit's interpretation of the Pregnancy Discrimination Act. In light of lower-court uncertainty about the interpretation of the Act, we granted the petition. Compare Ensley-Gaines v. Runyon, 100 F. 3d 1220, 1226 (CA6 1996), with Urbano v. Continental Airlines, Inc., 138 F. 3d 204, 206 208 (CA5 1998); Reeves v. Swift Transp. Co., 446 F. 3d 637, 640 643 (CA6 2006); Serednyj v. Beverly Healthcare, LLC, 656 F. 3d 540, 547 552 (CA7 2011); Spivey v. Beverly Enterprises, Inc., 196 F. 3d 1309, 1312 1314 (CA11 1999). D We note that statutory changes made after the time of Young's pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of "disability" under the ADA to make clear that "physical or mental impairment[s] that substantially limi[t]" an individual's ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 122Stat. 3555, codified at 42 U. S. C. 12102(1) (2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., 1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes. II The parties disagree about the interpretation of the Pregnancy Discrimination Act's second clause. As we have said, see Part I B, supra, the Act's first clause specifies that discrimination " 'because of sex' " includes discrimination "because of . . . pregnancy." But the meaning of the second clause is less clear; it adds: "[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U. S. C. 2000e(k) (emphasis added). Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant "other persons" are, may consider other similarities and differences as well? If so, which ones? The differences between these possible interpretations come to the fore when a court, as here, must consider a workplace policy that distinguishes between pregnant and nonpregnant workers in light of characteristics not related to pregnancy. Young poses the problem directly in her reply brief when she says that the Act requires giving "the same accommodations to an employee with a pregnancy-related work limitation as it would give that employee if her work limitation stemmed from a different cause but had a similar effect on her inability to work." Reply Brief 15. Suppose the employer would not give "that [ pregnant] employee" the "same accommodations" as another employee, but the employer's reason for the difference in treatment is that the pregnant worker falls within a facially neutral category (for example, individuals with off-the-job in-juries). What is a court then to do? The parties propose very different answers to this question. Young and the United States believe that the second clause of the Pregnancy Discrimination Act "requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work." Brief for Petitioner 23. In other words, Young contends that the second clause means that whenever "an employer accommodates only a subset of workers with disabling conditions," a court should find a Title VII violation if "pregnant workers who are similar in the ability to work" do not "receive the same [accommodation] even if still other non-pregnant workers do not receive accommodations." Id., at 28. UPS takes an almost polar opposite view. It contends that the second clause does no more than define sex discrimination to include pregnancy discrimination. See Brief for Respondent 25. Under this view, courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. Cf. post, at 4 (Scalia, J., dissenting) (hereinafter the dissent) (the clause "does not prohibit denying pregnant women accommodations . . . on the basis of an evenhanded policy"). A We cannot accept either of these interpretations. Young asks us to interpret the second clause broadly and, in her view, literally. As just noted, she argues that, as long as "an employer accommodates only a subset of workers with disabling conditions," "pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations." Brief for Petitioner 28. She adds that, because the record here contains "evidence that pregnant and nonpregnant workers were not treated the same," that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas. Brief for Petitioner 47. The problem with Young's approach is that it proves too much. It seems to say that the statute grants pregnant workers a "most-favored-nation" status. As long as an employer provides one or two workers with an accommodation say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55 then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer's need to keep them working, their ages, or any other criteria. Lower courts have concluded that this could not have been Congress' intent in passing the Pregnancy Discrimination Act. See, e.g., Urbano, 138 F. 3d, at 206 208; Reeves, 466 F. 3d, at 641; Serednyj, 656 F. 3d, at 548 549; Spivey, 196 F. 3d, at 1312 1313. And Young partially agrees, for she writes that "the statute does not require employers to give" to "pregnant workers all of the benefits and privileges it extends to other" similarly disabled "employees when those benefits and privileges are . . . based on the employee's tenure or position within the company." Reply Brief 15 16; see also Tr. of Oral Arg. 22 ("[S]eniority, full-time work, different job classifications, all of those things would be permissible distinctions foran employer to make to differentiate among who gets benefits"). Young's last-mentioned concession works well with respect to seniority, for Title VII itself contains a seniority defense, see 42 U. S. C. 2000e 2(h). Hence, seniority is not part of the problem. But otherwise the most-favored-nation problem remains, and Young's concession does not solve it. How, for example, should a court treat special benefits attached to injuries arising out of, say, extra-hazardous duty? If Congress intended to allow differences in treatment arising out of special duties, special service, or special needs, why would it not also have wantedcourts to take account of differences arising out of special "causes" for example, benefits for those who drive (and are injured) in extrahazardous conditions? We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with similar disabilities, uses the open-ended term "other persons." It does not say that the employer must treat pregnant employees the "same" as "any other persons" (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind. Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Raytheon, 540 U. S., at 51 55; Burdine, 450 U. S., at 252 258; McDonnell Douglas, 411 U. S., at 802. There is no reason to believe Congress intended its language in the Pregnancy Discrimination Act to embody a significant deviation from this approach. Indeed, the relevant House Report specifies that the Act "reflect[s] no new legislative mandate." H. R. Rep. No. 95 948, pp. 3 4 (1978) (hereinafter H. R. Rep.). And the Senate Report states that the Act was designed to "reestablis[h] the law as it was understood prior to" this Court's decision in General Electric Co. v. Gilbert, 429 U. S. 125 (1976) . S. Rep. No. 95 331, p. 8 (1978) (hereinafter S. Rep.). See Gilbert, supra, at 147 (Brennan, J., dissenting) (lower courts had held that a disability plan that compensates employees for temporary disabilities but not pregnancy violates Title VII); see also AT&T Corp. v. Hulteen, 556 U. S. 701, 717, n. 2 (2009) (Ginsburg, J., dissenting). B Before Congress passed the Pregnancy Discrimination Act, the EEOC issued guidance stating that "[d]isabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities" and that "the availability of . . . benefits and privileges . . . shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities." 29 CFR 1604.10(b) (1975). Indeed, as early as 1972, EEOC guidelines provided: "Disabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment." 37 Fed. Reg. 6837 (1972) (codified in 29 CFR 1604.10(b) (1973)). Soon after the Act was passed, the EEOC issued guidance consistent with its pre-Act statements. The EEOC explained: "Disabilities caused or contributed to by pregnancy . . . for all job-related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions." See 1604.10(b) (1979). Moreover, the EEOC stated that "[i]f other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function." 29 CFR pt. 1604, App., p. 918. This post-Act guidance, however, does not resolve the ambiguity of the term "other persons" in the Act's second clause. Rather, it simply tells employers to treat pregnancy-related disabilities like nonpregnancy-related disabilities, without clarifying how that instruction should be implemented when an employer does not treat all nonpregnancy-related disabilities alike. More recently in July 2014 the EEOC promulgated an additional guideline apparently designed to address this ambiguity. That guideline says that "[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee's limitations (e.g., a policy of providing light duty only to workers injured on the job)." 2 EEOC Compliance Manual 626 I(A)(5), p. 626:0009 (July 2014). The EEOC also provided an example of disparate treatment that would violate the Act: "An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20 pound lifting restriction related to her pregnancy. The em-ployer denies the light duty request." Id., at 626:0013, Example 10. The EEOC further added that "an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries." Id., at 626:0028. The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that "the rulings, interpretations and opinions" of an agency charged with the mission of enforcing a particular statute, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) . See Brief for United States as Amicus Curiae 26. But we have also held that the "weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control." Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC's July 2014 guidance's special power to persuade. We come to this conclusion not because of any agency lack of "experience" or "informed judgment." Rather, the difficulties are those of timing, "consistency," and "thoroughness" of "consideration." The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC's current guidelines take a position about which the EEOC's previous guidelines were silent. And that position is inconsistent with positions forwhich the Government has long advocated. See Brief for Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95 1038 (CA6 1996), pp. 26 27 (explaining that a reading of the Act like Young's was "simply incorrect" and "runs counter" to this Court's precedents). See also Brief for United States as Amicus Curiae 16, n. 2 ("The Department of Justice, on behalf of the United States Postal Service, has previously taken the position that pregnant employees with work limitations are not similarly situated to employees with similar limitations caused by on-the-job injuries"). Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example,as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation positionthe Government previously took? Without furtherexplanation, we cannot rely significantly on the EEOC's determination. C We find it similarly difficult to accept the opposite interpretation of the Act's second clause. UPS says that the second clause simply defines sex discrimination to include pregnancy discrimination. See Brief for Respondent 25. But that cannot be so. The first clause accomplishes that objective when it expressly amends Title VII's definitional provision to make clear that Title VII's words "because of sex" and "on the basis of sex" "include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U. S. C. 2000e(k). We have long held that " 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause' " is rendered " 'superfluous, void, or insignificant.' " TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U. S. 167, 174 (2001) ). But that is what UPS' interpretation of the second clause would do. The dissent, basically accepting UPS' interpretation, says that the second clause is not "superfluous" because it adds "clarity." Post, at 4 5 (internal quotation marks omitted). It makes "plain," the dissent adds, that unlawful discrimination "includes disfavoring pregnant women relative to other workers of similar inability to work." Post, at 5. Perhaps we fail to understand. McDonnell Douglas itself makes clear that courts normally consider how a plaintiff was treated relative to other "persons of [the plaintiff's] qualifications" (which here include disabilities). 411 U. S., at 802. If the second clause of the Act did not exist, we would still say that an employer who disfavored pregnant women relative to other workers of similar ability or inability to work had engaged in pregnancy discrimination. In a word, there is no need for the "clarification" that the dissent suggests the second sentence provides. Moreover, the interpretation espoused by UPS and the dissent would fail to carry out an important congressional objective. As we have noted, Congress' "unambiguou[s]" intent in passing the Act was to overturn "both the holding and the reasoning of the Court in the Gilbert decision." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983) ; see also post, at 6 (recognizing that "the object of the Pregnancy Discrimination Act is to displace this Court's conclusion in [Gilbert]"). In Gilbert, the Court considered a company plan that provided "nonoccupational sickness and accident benefits to all employees" without providing "disability-benefit payments for any absence due to pregnancy." 429 U. S., at 128, 129. The Court held that the plan did not violate Title VII; it did not discriminate on the basis of sex because there was "no risk from which men are protected and women are not." Id., at 138 (internal quotation marks omitted). Although pregnancy is "confined to women," the majority believed it was not "comparable in all other respects to [the] diseases or disabilities" that the plan covered. Id., at 136. Specifically, the majority explained that pregnancy "is not a 'disease' at all," nor is it necessarily a result of accident. Ibid. Neither did the majority see the distinction theplan drew as "a subterfuge" or a "pretext" for engaging in gender-based discrimination. Ibid. In short, the Gilbert majority reasoned in part just as the dissent reasons here. The employer did "not distinguish between pregnant women and others of similar ability or inability because of pregnancy." Post, at 2. It distinguished between them on a neutral ground i.e., it accommodated only sicknesses and accidents, and pregnancy was neither of those. See 429 U. S., at 136. Simply including pregnancy among Title VII's protected traits (i.e., accepting UPS' interpretation) would not overturn Gilbert in full in particular, it would not respond to Gilbert's determination that an employer can treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work. As we explained in California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987) , "the first clause of the [Act] reflects Congress' disapproval of the reasoning in Gilbert" by "adding pregnancy to the definition of sex discrimination prohibited by Title VII." Id., at 284. But the second clause was intended to do more than that it "was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied." Id., at 285. The dissent's view, like that of UPS', ignores this precedent. III The statute lends itself to an interpretation other than those that the parties advocate and that the dissent sets forth. Our interpretation minimizes the problems we have discussed, responds directly to Gilbert, and is consistent with longstanding interpretations of Title VII. In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination. But it is "not intended to be an inflexible rule." Furnco Constr. Corp. v. Waters, 438 U. S. 567, 575 (1978) . Rather, an individual plaintiff may establish a prima facie case by "showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under" Title VII. Id., at 576 (internal quotation marks omitted). The burden of making this showing is "not onerous." Burdine, 450 U. S., at 253. In particular, making this showing is not as burdensome as succeeding on "an ultimate finding of fact as to" a discriminatory employment action. Furnco, supra, at 576. Neither does it require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways. See McDonnell Douglas, 411 U. S., at 802 (burden met where plaintiff showed that employer hired other "qualified" individuals outside the protected class); Furnco, supra, at 575 577 (same); Burdine, supra, at 253 (same). Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 142 (2000) (similar). Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act's second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." The employer may then seek to justify its refusal to accommodate the plaintiff by relying on "legitimate, nondiscriminatory" reasons for denying her accommodation. 411 U. S., at 802. But, consistent with the Act's basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those ("similar in their ability or inability to work") whom the employer accommodates. After all, the employer in Gilbert could in all likelihood have made just such a claim. If the employer offers an apparently "legitimate, non-discriminatory" reason for its actions, the plaintiff may in turn show that the employer's proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather when considered along with the burden imposed give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong to the point that a jury could find that its reasons for failing to accommodate preg-nant employees give rise to an inference of intentional discrimination. This approach, though limited to the Pregnancy Discrimination Act context, is consistent with our longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than those outside the protected class. See Burdine, supra, at 255, n. 10. In particular, it is hardly anomalous (as the dissent makes it out to be, see post, at 8 9) that a plaintiff may rebut an employer's proffered justifications by showing how a policy operates in practice. In McDonnell Douglas itself, we noted that an employer's "general policy and practice with respect to minority employment" including "statistics as to" that policy and practice could be evidence of pretext. 411 U. S., at 804 805. Moreover, the continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination avoids confusing the disparate-treatment and disparate-impact doctrines, cf. post, at 8 10. Our interpretation of the Act is also, unlike the dissent's, consistent with Congress' intent to overrule Gilbert's reasoning and result. The dissent says that "[i]f a pregnant woman is denied an accommodation under a policy that does not discriminate against pregnancy, she has been 'treated the same' as everyone else." Post, at 2. This logic would have found no problem with the employer plan in Gilbert, which "denied an accommodation" to pregnant women on the same basis as it denied accommodations to other employees i.e., it accommodated only sicknesses and accidents, and pregnancy was neither of those. See Part II C, supra. In arguing to the contrary, the dissent's discussion of Gilbert relies exclusively on the opinions of the dissenting Justices in that case. See post, at 6 7. But Congress' intent in passing the Act was to overrule the Gilbert majority opinion, which viewed the employer's disability plan as denying coverage to pregnant employees on a neutral basis. IV Under this interpretation of the Act, the judgment of the Fourth Circuit must be vacated. A party is entitled to summary judgment if there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. Rule Civ. Proc. 56(a). We have already outlined the evidence Young introduced. See Part I C, supra. Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis. Young also introduced evidence that UPS had three separate accommodation policies (on-the-job, ADA, DOT). Taken together, Young argued, these policies significantly burdened pregnant women. See App. 504 (shop steward's testimony that "the only light duty requested [due to physical] restrictions that became an issue" at UPS "were with women who were pregnant"). The Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of UPS' justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well? We do not determine whether Young created a genuine issue of material fact as to whether UPS' reasons for having treated Young less favorably than it treated these other nonpregnant employees were pretextual. We leave a final determination of that question for the Fourth Circuit to make on remand, in light of the interpretation of the Pregnancy Discrimination Act that we have set out above. * * * For the reasons above, we vacate the judgment of the Fourth 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 . SUPREME COURT OF THE UNITED STATES Syllabus Young v. United Parcel Service, Inc. certiorari to the united states court of appeals for the fourth circuit No. 12 1226. Argued December 3, 2014 Decided March 25, 2015 The Pregnancy Discrimination Act added new language to the definitions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII's prohibition against sex discrimination applies to discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U. S. C 2000e(k). The Act's second clause says that employers must treat "women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young subsequently filed this federal lawsuit, claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. She brought only a disparate-treatment claim of discrimination, which a plaintiff can prove either by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or by using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 . Under that framework, the plaintiff has "the initial burden" of "establishing a prima facie case" of discrimination. Id., at 802. If she carries her burden, the employer must have an opportunity "to articulate some legitimate, non-discriminatory reason[s] for" the difference in treatment. Ibid. If the employer articulates such reasons, the plaintiff then has "an opportunity to prove by a preponderance of the evidence that the reasons . . . were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 . After discovery, UPS sought summary judgment. In reply, Young presented several favorable facts that she believed she could prove. In particular, she pointed to UPS policies that accommodated workers who were injured on the job, had disabilities covered by the Americans with Disabilities Act of 1990 (ADA), or had lost Department of Transportation (DOT) certifications. Pursuant to these policies, Young contended, UPS had accommodated several individuals whose disabilities created work restrictions similar to hers. She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous "other persons," but not for pregnant workers. UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all "other" relevant "persons." The District Court granted UPS summary judgment, concluding, inter alia, that Young could not make out a prima facie case of discrimination under McDonnell Douglas. The court found that those with whom Young had compared herself those falling within the on-the-job, DOT, or ADA categories were too different to qualify as "similarly situated comparator[s]." The Fourth Circuit affirmed. Held: 1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10 23. (a) The parties' interpretations of the Pregnancy Discrimination Act's second clause are unpersuasive. Pp. 12 20. (i) Young claims that as long as "an employer accommodates only a subset of workers with disabling conditions," "pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations." Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional "most-favored-nation" status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term "other persons." It does not say that the employer must treat pregnant employees the "same" as "any other persons" who are similar in their ability or inability to work, nor does it specify the particular "other persons" Congress had in mind as appropriate comparators for pregnant workers. Moreover, disparate-treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Burdine, supra, at 252 258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12 14. (ii) The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Opportunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, "consistency," and "thoroughness" of "consideration" necessary to "give it power to persuade." Skidmore v. Swift & Co., 323 U. S. 134 . The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14 17. (iii) UPS claims that the Act's second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act's second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key congressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert, 429 U. S. 125 , which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy. Pp. 17 20. (b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." The employer may then seek to justify its refusal to accommodate the plaintiff by relying on "legitimate, nondiscriminatory" reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a "legitimate, nondiscriminatory" reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather when considered along with the burden imposed give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress' intent to overrule Gilbert. Pp. 20 23. 2. Under this interpretation of the Act, the Fourth Circuit's judgment must be vacated. Summary judgment is appropriate when there is "no genuine dispute as to any material fact." Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS' reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23 24. 707 F. 3d 437, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion.

Title VII of the Civil Rights Act of 1964 forbids a covered employer to discriminate against any individual with respect to employment terms, conditions, or privileges of employment, because of such individual's sex. In 1978, Congress enacted the Pregnancy Discrimination Act (PDA) which added new language to Title VII's definitions subsection. The first clause specifies that the "ter[m] 'because of sex' includes[s]... because of or on the basis of pregnancy, childbirth, or related medical conditions." The second clause states that "[w]omen affected by pregnancy.., shall be treated the same for all employment-related purposes... as other persons not so affected but similar in their ability or in-ability to work." Petitioner Young, a driver for respondent, filed a pregnancy discrimination charge with the Equal Employment Opportunity Commission (EEOC), which then provided her with a right-to-sue letter. She then filed this complaint in Federal District Court, arguing, inter alia, that she could show by direct evidence that respondent had intended to discriminate against her because of her pregnancy and that, in any event, she could establish a prima facie case of disparate treatment under the McDonnell Douglas framework. The District Court granted summary judgment for the EEOC, concluding that Young could not show intentional discrimination through direct evidence, nor could she show discrimination under McDonnell Douglas. The Court of Appeals affirmed. Held: The judgment of the Fourth Circuit is vacated, and the case is remanded. ;;. 441 F.2d 437, vacated. PER CURIAM. The PGA's second clause does not simply define sex discrimination to include pregnancy discrimination. Rather, it defines sex discrimination as including discrimination "because of pregnancy." That clause accomplishes that objective when it expressly amends the PDA's definitional provision to make clear that "physical or mental impairment [s] that substantially limi[t]" an individual's ability to lift, stand, or bend are ADA-covered disabilities. . (a) There is a genuine dispute as to whether respondent provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's. Viewing the record in the light most favorable to Young, who is the nonmoving party, there is also a genuine question as to the second clause's meaning. It does not require that an unqualified reading be given. The first clauses, when referring to nonpregnant persons with similar disabilities, uses the open-ended term "other persons." It makes plain that unlawful discrimination includes disfavoring pregnant women relative to other workers of similar ability or inability to work. Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment is not required to show that she belongs to the protected class, that respondent did not accommodate her, and that the employer did accommodate others similar in ability or ability to work; but the employer's reason for the difference in treatment is that the latter falls within the facially neutral category. Young also introduced evidence that UPS had three separate accommodation policies (on-the-job, ADA, DOT, and ADA) that significantly burdened pregnant women. That is, when the employer accommodated many, but not all, workers with nonpregnancy-related disabilities, Young's reasons for failing to accommodate pregnant workers with lifting restrictions are not sufficiently strong to give rise to an inference of intentional discrimination. Simply including pregnancy among the protected traits of Title VII would not overturn Gilbert in full in particular, it would not respond to Gilbert's determination that an employer can treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work, and would instead be inconsistent with positions forwhich the Government has long advocated. Pp. 456 U. S. 792-793. (b) An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnellDou framework. That framework requires a plaintiff to make out a "principled" case of discrimination. But it is not intended to be an inflexible rule. Rather, an individual plaintiff may establish such a case by showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII. Moreover, the burden of making this showing is not as burdensome as succeeding on an ultimate finding of fact as to a discriminatory employment action. See McDonnell Douglas, supra, at 576. Nor is it required that the plaintiff show that those whom the employer favored and those whom he disfavored were similar in all but the protected ways. Here, Young created a genuine issue of material fact, since the employer offered the "same accommodations" as another employee, and since UPS' justification for each of these policies was based on its policy making distinctions based on the source of the employee's limitations.

2014_13-628

https://www.oyez.org/cases/2014/13-628

. A delicate subject lies in the background of this case. That subject is Jerusalem. Questions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs. In our constitutional system these matters are committed to the Legislature and the Executive, not the Judiciary. As a result, in this opinion the Court does no more, and must do no more, than note the existence of international debate and tensions respecting Jerusalem. Those matters are for Congress and the President to discuss and consider as they seek to shape the Nation’s foreign policies. The Court addresses two questions to resolve the interbranch dispute now before it. First, it must determine whether the President has the exclusive power to grant formal recognition to a foreign sovereign. Second, if he has that power, the Court must determine whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition. The statement in question here is a congressional mandate that allows a United States citizen born in Jerusalem to direct the President and Secretary of State, when issuing his passport, to state that his place of birth is “Israel.” I A Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs. In 1948, President Truman formally recognized Israel in a signed statement of “recognition.” See Statement by the President Announcing Recognition of the State of Israel, Public Papers of the Presidents, May 14, 1948, p. 258 (1964). That statement did not recognize Israeli sovereignty over Jerusalem. Over the last 60 years, various actors have sought to assert full or partial sovereignty over the city, including Israel, Jordan, and the Palestinians. Yet, in contrast to a consistent policy of formal recognition of Israel, neither President Truman nor any later United States President has issued an official statement or declaration acknowledging any country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “ ‘the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.’ ” United Nations Gen. Assembly Official Records, 5th Emergency Sess., 1554th Plenary Meetings, United Nations Doc. No. 1 A⁄PV.1554, p. 10 (July 14, 1967); see, e.g., Remarks by President Obama in Address to the United Nations Gen. Assembly (Sept. 21, 2011), 2011 Daily Comp. of Pres. Doc. No. 00661, p. 4 (“Ultimately, it is the Israelis and the Palestinians, not us, who must reach agreement on the issues that divide them,” including “Jerusalem”). In a letter to Congress then-Secretary of State Warren Christopher expressed the Executive’s concern that “[t]here is no issue related to the Arab-Israeli negotiations that is more sensitive than Jerusalem.” See 141 Cong. Rec. 28967 (1995) (letter to Robert Dole, Majority Leader, (June 20, 1995)). He further noted the Executive’s opinion that “any effort . . . to bring it to the forefront” could be “very damaging to the success of the peace process.” Ibid. The President’s position on Jerusalem is reflected in State Department policy regarding passports and consular reports of birth abroad. Understanding that passports will be construed as reflections of American policy, the State Department’s Foreign Affairs Manual instructs its employees, in general, to record the place of birth on a passport as the “country [having] present sovereignty over the actual area of birth.” Dept. of State, 7 Foreign Affairs Manual (FAM) §1383.4 (1987). If a citizen objects to the country listed as sovereign by the State Department, he or she may list the city or town of birth rather than the country. See id., §1383.6. The FAM, however, does not allow citizens to list a sovereign that conflicts with Executive Branch policy. See generally id., §1383. Because the United States does not recognize any country as having sovereignty over Jerusalem, the FAM instructs employees to record the place of birth for citizens born there as “Jerusalem.” Id., §1383.5–6 (emphasis deleted). In 2002, Congress passed the Act at issue here, the Foreign Relations Authorization Act, Fiscal Year 2003, 116Stat. 1350. Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” Id., at 1365. The subsection that lies at the heart of this case, §214(d), addresses passports. That subsection seeks to override the FAM by allowing citizens born in Jerusalem to list their place of birth as “Israel.” Titled “Record of Place of Birth as Israel for Passport Purposes,” §214(d) states “[f ]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Id., at 1366. When he signed the Act into law, President George W. Bush issued a statement declaring his position that §214 would, “if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” Statement on Signing the Foreign Relations Authorization Act, Fiscal Year 2003, Public Papers of the Presidents, George W. Bush, Vol. 2, Sept. 30, 2002, p. 1698 (2005). The President concluded, “U. S. policy regarding Jerusalem has not changed.” Ibid. Some parties were not reassured by the President’s statement. A cable from the United States Consulate in Jerusalem noted that the Palestine Liberation Organization Executive Committee, Fatah Central Committee, and the Palestinian Authority Cabinet had all issued statements claiming that the Act “ ‘undermines the role of the U. S. as a sponsor of the peace process.’ ” App. 231. In the Gaza Strip and elsewhere residents marched in protest. See The Associated Press and Reuters, Palestinians Stone Police Guarding Western Wall, The Seattle Times, Oct. 5, 2002, p. A7. In response the Secretary of State advised diplomats to express their understanding of “Jerusalem’s importance to both sides and to many others around the world.” App. 228. He noted his belief that America’s “policy towards Jerusalem” had not changed. Ibid. B In 2002, petitioner Menachem Binyamin Zivotofsky was born to United States citizens living in Jerusalem. App. 24–25. In December 2002, Zivotofsky’s mother visited the American Embassy in Tel Aviv to request both a passport and a consular report of birth abroad for her son. Id., at 25. She asked that his place of birth be listed as “ ‘Jerusalem, Israel.’ ” Ibid. The Embassy clerks explained that, pursuant to State Department policy, the passport would list only “Jerusalem.” Ibid. Zivotofsky’s parents objected and, as his guardians, brought suit on his behalf in the United States District Court for the District of Columbia, seeking to enforce §214(d). Pursuant to §214(d), Zivotofsky claims the right to have “Israel” recorded as his place of birth in his passport. See Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 4) (“[W]hile Zivotofsky had originally asked that ‘Jerusalem, Israel’ be recorded on his passport, ‘[b]oth sides agree that the question now is whether §214(d) entitles [him] to have just ‘Israel’ listed’ ”). The arguments in Zivotofsky’s brief center on his passport claim, as opposed to the consular report of birth abroad. Indeed, in the court below, Zivotofsky waived any argument that his consular report of birth abroad should be treated differently than his passport. Zivotofsky v. Secretary of State, 725 F. 3d 197, 203, n. 3 (CADC 2013). He has also waived the issue here by failing to differentiate between the two documents. As a result, the Court addresses Zivotofsky’s passport arguments and need not engage in a separate analysis of the validity of §214(d) as applied to consular reports of birth abroad. After Zivotofsky brought suit, the District Court dismissed his case, reasoning that it presented a nonjusticiable political question and that Zivotofsky lacked standing. App. 28–39. The Court of Appeals for the District of Columbia Circuit reversed on the standing issue, Zivotofsky v. Secretary of State, 444 F. 3d 614, 617–619 (2006), but later affirmed the District Court’s political question determination. See Zivotofsky v. Secretary of State, 571 F. 3d 1227, 1228 (2009). This Court granted certiorari, vacated the judgment, and remanded the case. Whether §214(d) is constitutional, the Court held, is not a question reserved for the politi-cal branches. In reference to Zivotofsky’s claim the Court observed “the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional”—not whether Jerusalem is, in fact, part of Israel. Zivotofsky v. Clinton, supra, at___ (slip op., at 7). On remand the Court of Appeals held the statute unconstitutional. It determined that “the President exclusively holds the power to determine whether to recognize a foreign sovereign,” 725 F. 3d, at 214, and that “section 214(d) directly contradicts a carefully considered exercise of the Executive branch’s recognition power.” Id., at 217. This Court again granted certiorari. 572 U. S. ___ (2014). II In considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 –638 (1952) (concurring opinion). The framework divides exercises of Presidential power into three categories: First, when “the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id., at 635. Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Id., at 637. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Ibid. To succeed in this third category, the President’s asserted power must be both “exclusive” and “conclusive” on the issue. Id., at 637–638. In this case the Secretary contends that §214(d) in-fringes on the President’s exclusive recognition power by “requiring the President to contradict his recognition posi-tion regarding Jerusalem in official communications with foreign sovereigns.” Brief for Respondent 48. In so doing the Secretary acknowledges the President’s power is “at its lowest ebb.” Youngstown, 343 U. S., at 637. Because the President’s refusal to implement §214(d) falls into Justice Jackson’s third category, his claim must be “scrutinized with caution,” and he may rely solely on powers the Constitution grants to him alone. Id., at 638. To determine whether the President possesses the exclusive power of recognition the Court examines the Constitution’s text and structure, as well as precedent and history bearing on the question. A Recognition is a “formal acknowledgement” that a particular “entity possesses the qualifications for statehood” or “that a particular regime is the effective government of a state.” Restatement (Third) of Foreign Relations Law of the United States §203, Comment a, p. 84 (1986). It may also involve the determination of a state’s territorial bounds. See 2 M. Whiteman, Digest of International Law §1, p. 1 (1963) (Whiteman) (“[S]tates may recognize or decline to recognize territory as belonging to, or under the sovereignty of, or having been acquired or lost by, other states”). Recognition is often effected by an express “written or oral declaration.” 1 J. Moore, Digest of International Law §27, p. 73 (1906) (Moore). It may also be implied—for example, by concluding a bilateral treaty or by sending or receiving diplomatic agents. Ibid.; I. Brownlie, Prin-ciples of Public International Law 93 (7th ed. 2008) (Brownlie). Legal consequences follow formal recognition. Recognized sovereigns may sue in United States courts, see Guaranty Trust Co. v. United States, 304 U. S. 126, 137 (1938) , and may benefit from sovereign immunity when they are sued, see National City Bank of N. Y. v. Republic of China, 348 U. S. 356 –359 (1955). The actions of a recognized sovereign committed within its own territory also receive deference in domestic courts under the act of state doctrine. See Oetjen v. Central Leather Co., 246 U. S. 297 –303 (1918). Recognition at international law, furthermore, is a precondition of regular diplomatic relations. 1 Moore §27, at 72. Recognition is thus “useful, even necessary,” to the existence of a state. Ibid. Despite the importance of the recognition power in foreign relations, the Constitution does not use the term “recognition,” either in Article II or elsewhere. The Secretary asserts that the President exercises the recognition power based on the Reception Clause, which directs that the President “shall receive Ambassadors and other public Ministers.” Art. II, §3. As Zivotofsky notes, the Reception Clause received little attention at the Constitutional Convention. See Reinstein, Recognition: A Case Study on the Original Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 860–862 (2011). In fact, during the ratification debates, Alexander Hamilton claimed that the power to receive ambassadors was “more a matter of dignity than of authority,” a ministerial duty largely “without consequence.” The Federalist No. 69, p. 420 (C. Rossiter ed. 1961). At the time of the founding, however, prominent international scholars suggested that receiving an ambassador was tantamount to recognizing the sovereignty of the sending state. See E. de Vattel, The Law of Nations §78, p. 461 (1758) (J. Chitty ed. 1853) (“[E]very state, truly possessed of sovereignty, has a right to send ambassadors” and “to contest their right in this instance” is equivalent to “contesting their sovereign dignity”); see also 2 C. van Bynkershoek, On Questions of Public Law 156–157 (1737) (T. Frank ed. 1930) (“Among writers on public law it is usually agreed that only a sovereign power has a right to send ambassadors”); 2 H. Grotius, On the Law of War and Peace 440–441 (1625) (F. Kelsey ed. 1925) (discussing the duty to admit ambassadors of sovereign powers). It is a logical and proper inference, then, that a Clause directing the President alone to receive ambassadors would be understood to acknowledge his power to recognize other nations. This in fact occurred early in the Nation’s history when President Washington recognized the French Revolutionary Government by receiving its ambassador. See A. Hamilton, Pacificus No. 1, in The Letters of Pacificus and Helvidius 5, 13–14 (1845) (reprint 1976) (President “acknowledged the republic of France, by the reception of its minister”). After this incident the import of the Reception Clause became clear—causing Hamilton to change his earlier view. He wrote that the Reception Clause “includes th[e power] of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognised, or not.” See id., at 12; see also 3 J. Story, Commentaries on the Constitution of the United States §1560, p. 416 (1833) (“If the executive receives an ambassador, or other minister, as the representative of a new nation . . . it is an acknowledgment of the sovereign authority de facto of such new nation, or party”). As a result, the Reception Clause provides support, although not the sole authority, for the President’s power to recognize other nations. The inference that the President exercises the recognition power is further supported by his additional Article II powers. It is for the President, “by and with the Advice and Consent of the Senate,” to “make Treaties, provided two thirds of the Senators present concur.” Art. II, §2, cl. 2. In addition, “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors” as well as “other public Ministers and Consuls.” Ibid. As a matter of constitutional structure, these additional powers give the President control over recognition decisions. At international law, recognition may be effected by different means, but each means is dependent upon Presidential power. In addition to receiving an ambassador, recognition may occur on “the conclusion of a bilateral treaty,” or the “formal initiation of diplomatic relations,” including the dispatch of an ambassador. Brownlie 93; see also 1 Moore §27, at 73. The President has the sole power to negotiate treaties, see United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319 (1936) , and the Senate may not conclude or ratify a treaty without Presidential action. The President, too, nominates the Nation’s ambassadors and dispatches other diplomatic agents. Congress may not send an ambassador without his involvement. Beyond that, the President himself has the power to open diplomatic channels simply by engaging in direct diplo-macy with foreign heads of state and their ministers. The Constitution thus assigns the President means to effect recognition on his own initiative. Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation. Because these specific Clauses confer the recognition power on the President, the Court need not consider whether or to what extent the Vesting Clause, which provides that the “executive Power” shall be vested in the President, provides further support for the President’s action here. Art. II, §1, cl. 1. The text and structure of the Constitution grant the President the power to recognize foreign nations and governments. The question then becomes whether that power is exclusive. The various ways in which the President may unilaterally effect recognition—and the lack of any similar power vested in Congress—suggest that it is. So, too, do functional considerations. Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal. Recognition is a topic on which the Nation must “ ‘speak . . . with one voice.’ ” American Ins. Assn. v. Garamendi, 539 U. S. 396, 424 (2003) (quoting Crosby v. National Foreign Trade Council, 530 U. S. 363, 381 (2000) ). That voice must be the President’s. Between the two political branches, only the Executive has the characteristic of unity at all times. And with unity comes the ability to exercise, to a greater degree, “[d]ecision, activity, secrecy, and dispatch.” The Federalist No. 70, p. 424 (A. Hamilton). The President is capable, in ways Congress is not, of engaging in the delicate and often secret diplomatic contacts that may lead to a decision on recognition. See, e.g., United States v. Pink, 315 U. S. 203, 229 (1942) . He is also better positioned to take the decisive, unequivocal action necessary to recognize other states at international law. 1 Oppenheim’s International Law §50, p. 169 (R. Jennings & A. Watts eds., 9th ed. 1992) (act of recognition must “leave no doubt as to the intention to grant it”). These qualities explain why the Framers listed the traditional avenues of recognition—receiving ambassadors, making treaties, and sending ambassadors—as among the President’s Article II powers. As described in more detail below, the President since the founding has exercised this unilateral power to recognize new states—and the Court has endorsed the practice. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 410 (1964) ; Pink, supra, at 229; Williams v. Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Texts and treatises on international law treat the President’s word as the final word on recognition. See, e.g., Restatement (Third) of Foreign Relations Law §204, at 89 (“Under the Constitution of the United States the President has exclusive authority to recognize or not to recognize a foreign state or government”); see also L. Henkin, Foreign Affairs and the U. S. Constitution 43 (2d ed. 1996) (“It is no longer questioned that the President does not merely perform the ceremony of receiving foreign ambassadors but also determines whether the United States should recognize or refuse to recognize a foreign government”). In light of this author-ity all six judges who considered this case in the Court of Appeals agreed that the President holds the exclusive recognition power. See 725 F. 3d, at 214 (“[W]e conclude that the President exclusively holds the power to determine whether to recognize a foreign sovereign”); Zivotofsky, 571 F. 3d, at 1231 (“That this power belongs solely to the President has been clear from the earliest days of the Republic”); id., at 1240 (Edwards, J., concurring) (“The Executive has exclusive and unreviewable authority to recognize foreign sovereigns”). It remains true, of course, that many decisions affecting foreign relations—including decisions that may determine the course of our relations with recognized countries—require congressional action. Congress may “regulate Commerce with foreign Nations,” “establish an uniform Rule of Naturalization,” “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” “declare War,” “grant Letters of Marque and Reprisal,” and “make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, §8. In addition, the President cannot make a treaty or appoint an ambassador without the approval of the Senate. Art. II, §2, cl. 2. The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds. Art. I, §8, cl. 1. Under basic separation-of-powers principles, it is for the Congress to enact the laws, including “all Laws which shall be necessary and proper for carrying into Execution” the powers of the Federal Government. §8, cl. 18. In foreign affairs, as in the domestic realm, the Constitution “enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Although the President alone effects the formal act of recognition, Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. If Congress disagrees with the President’s recognition policy, there may be consequences. Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress. In practice, then, the President’s recognition determination is just one part of a political process that may require Congress to make laws. The President’s exclusive recognition power encompasses the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds. Albeit limited, the exclusive recognition power is essential to the conduct of Presidential duties. The formal act of recognition is an executive power that Congress may not qualify. If the President is to be effective in negotiations over a formal recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that precise question. A clear rule that the formal power to recognize a foreign government subsists in the President therefore serves a necessary purpose in diplomatic relations. All this, of course, underscores that Congress has an important role in other aspects of foreign policy, and the President may be bound by any number of laws Congress enacts. In this way ambition counters ambition, ensuring that the democratic will of the people is observed and respected in foreign affairs as in the domestic realm. See The Federalist No. 51, p. 322 (J. Madison). B No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends. In part that is because, until today, the political branches have resolved their disputes over questions of recognition. The relevant cases, though providing important instruction, address the division of recognition power between the Federal Government and the States, see, e.g., Pink, 315 U. S. 203 , or between the courts and the political branches, see, e.g., Banco Nacional de Cuba, 376 U. S., at 410—not between the President and Congress. As the parties acknowledge, some isolated statements in those cases lend support to the position that Congress has a role in the recognition process. In the end, however, a fair reading of the cases shows that the President’s role in the recognition process is both central and exclusive. During the administration of President Van Buren, in a case involving a dispute over the status of the Falkland Islands, the Court noted that “when the executive branch of the government” assumes “a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department.” Williams, 13 Pet., at 420. Once the President has made his determination, it “is enough to know, that in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union.” Ibid. Later, during the 1930’s and 1940’s, the Court addressed issues surrounding President Roosevelt’s decision to recognize the Soviet Government of Russia. In United States v. Belmont, 301 U. S. 324 (1937) , and Pink, 315 U. S. 203 , New York state courts declined to give full effect to the terms of executive agreements the President had concluded in negotiations over recognition of the Soviet regime. In particular the state courts, based on New York public policy, did not treat assets that had been seized by the Soviet Government as property of Russia and declined to turn those assets over to the United States. The Court stated that it “may not be doubted” that “recognition, establishment of diplomatic relations, . . . and agreements with respect thereto” are “within the competence of the President.” Belmont, 301 U. S., at 330. In these matters, “the Executive ha[s] authority to speak as the sole organ of th[e] government.” Ibid. The Court added that the President’s authority “is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition.” Pink, supra, at 229; see also Guaranty Trust Co., 304 U. S., at 137–138 (The “political department[’s] . . . action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts”). Thus, New York state courts were required to respect the executive agreements. It is true, of course, that Belmont and Pink are not direct holdings that the recognition power is exclusive. Those cases considered the validity of executive agreements, not the initial act of recognition. The President’s determination in those cases did not contradict an Act of Congress. And the primary issue was whether the executive agreements could supersede state law. Still, the language in Pink and Belmont, which confirms the President’s competence to determine questions of recognition, is strong support for the conclusion that it is for the President alone to determine which foreign governments are legitimate. Banco Nacional de Cuba contains even stronger statements regarding the President’s authority over recognition. There, the status of Cuba’s Government and its acts as a sovereign were at issue. As the Court explained, “Political recognition is exclusively a function of the Executive.” 376 U. S., at 410. Because the Executive had recognized the Cuban Government, the Court held that it should be treated as sovereign and could benefit from the “act of state” doctrine. See also Baker v. Carr, 369 U. S. 186, 213 (1962) (“[I]t is the executive that determines a person’s status as representative of a foreign government”); National City Bank of N. Y., 348 U. S., at 358 (“The status of the Republic of China in our courts is a matter for determination by the Executive and is outside the competence of this Court”). As these cases illustrate, the Court has long considered recognition to be the exclusive prerogative of the Executive. The Secretary now urges the Court to define the executive power over foreign relations in even broader terms. He contends that under the Court’s precedent the President has “exclusive authority to conduct diplomatic relations,” along with “the bulk of foreign-affairs powers.” Brief for Respondent 18, 16. In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes United States v. Curtiss-Wright Export Corp., which described the President as “the sole organ of the federal government in the field of international relations.” 299 U. S., at 320. This Court declines to acknowledge that unbounded power. A formulation broader than the rule that the President alone determines what nations to formally recognize as legitimate—and that he consequently controls his statements on matters of recognition—presents different issues and is unnecessary to the resolution of this case. The Curtiss-Wright case does not extend so far as the Secretary suggests. In Curtiss-Wright, the Court considered whether a congressional delegation of power to the President was constitutional. Congress had passed a joint resolution giving the President the discretion to prohibit arms sales to certain militant powers in South America. The resolution provided criminal penalties for violation of those orders. Id., at 311–312. The Court held that the delegation was constitutional, reasoning that Congress may grant the President substantial authority and discretion in the field of foreign affairs. Id., at 315–329. Describing why such broad delegation may be appropriate, the opinion stated: “In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, ‘The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.’ [10 Annals of Cong.] 613. ” Id., at 319. This description of the President’s exclusive power was not necessary to the holding of Curtiss-Wright—which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss-Wright did not hold that the President is free from Congress’ lawmaking power in the field of internationalrelations. The President does have a unique role in communi-cating with foreign governments, as then-Congressman John Marshall acknowledged. See 10 Annals of Cong. 613 (1800) (cited in Curtiss-Wright, supra, at 319). But whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law. In a world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491 –532 (2008); Youngstown, 343 U. S., at 589; Little v. Barreme, 2 Cranch 170, 177–179 (1804); Glennon, Two Views of Presidential Foreign Affairs Power: Little v. Barreme or Curtiss-Wright? 13 Yale J. Int’l L. 5, 19–20 (1988); cf. Dames & Moore v. Regan, 453 U. S. 654 –681 (1981). It is not for the President alone to determine the whole content of the Nation’s foreign policy. That said, judicial precedent and historical practice teach that it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. Recognition is an act with immediate and powerful significance for international relations, so the President’s position must be clear. Congress cannot require him to contradict his own statement regarding a determination of formal recognition. Zivotofsky’s contrary arguments are unconvincing. The decisions he relies upon are largely inapposite. This Court’s cases do not hold that the recognition power is shared. Jones v. United States, 137 U. S. 202 (1890) , and Boumediene v. Bush, 553 U. S. 723 (2008) , each addressed the status of territories controlled or acquired by the United States—not whether a province ought to be recognized as part of a foreign country. See also Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) (“[D]etermination of [American] sovereignty over an area is for the legislative and executive departments”). And no one disputes that Congress has a role in determining the status of United States territories. See U. S. Const., Art. IV, §3, cl. 2 (Congress may “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). Other cases describing a shared power address the recognition of Indian tribes—which is, similarly, a distinct issue from the recognition of foreign countries. See Cherokee Nation v. Georgia, 5 Pet. 1 (1831). To be sure, the Court has mentioned both of the political branches in discussing international recognition, but it has done so primarily in affirming that the Judiciary is not responsible for recognizing foreign nations. See Oetjen, 246 U. S., at 302 (“ ‘Who is the sovereign, de jure or de facto, of a territory is not a judicial, but is a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges’ ” (quoting Jones, supra, at 212)); United States v. Palmer, 3 Wheat. 610, 643 (1818) (“[T]he courts of the union must view [a] newly constituted government as it is viewed by the legislative and executive departments of the government of the United States”). This is consistent with the fact that Congress, in the ordinary course, does support the President’s recognition policy, for instance by confirming an ambassador to the recognized foreign government. Those cases do not cast doubt on the view that the Executive Branch determines whether the United States will recognize foreign states and governments and their territorial bounds. C Having examined the Constitution’s text and this Court’s precedent, it is appropriate to turn to accepted understandings and practice. In separation-of-powers cases this Court has often “put significant weight upon historical practice.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014) (slip op., at 6) (emphasis deleted). Here, history is not all on one side, but on balance it provides strong support for the conclusion that the recognition power is the President’s alone. As Zivotofsky argues, certain historical incidents can be interpreted to support the position that recognition is a shared power. But the weight of historical evidence supports the opposite view, which is that the formal determination of recognition is a power to be exercised only by the President. The briefs of the parties and amici, which have been of considerable assistance to the Court, give a more complete account of the relevant history, as do the works of scholars in this field. See, e.g., Brief for Respondent 26–39; Brief for Petitioner 34–57; Brief for American Jewish Committee as Amicus Curiae 6–24; J. Goebel, The Recognition Policy of the United States 97–170 (1915) (Goebel); 1 Moore §§28–58, 74–164; Reinstein, Is the President’s Recognition Power Exclusive? 86 Temp. L. Rev. 1, 3–50 (2013). But even a brief survey of the major historical examples, with an emphasis on those said to favor Zivotofsky, establishes no more than that some Presidents have chosen to cooperate with Congress, not that Congress itself has exercised the recognition power. From the first Administration forward, the President has claimed unilateral authority to recognize foreign sovereigns. For the most part, Congress has acquiesced in the Executive’s exercise of the recognition power. On occasion, the President has chosen, as may often be prudent, to consult and coordinate with Congress. As Judge Tatel noted in this case, however, “the most striking thing” about the history of recognition “is what is absent from it: a situation like this one,” where Congress has enacted a statute contrary to the President’s formal and considered statement concerning recognition. 725 F. 3d, at 221 (concurring opinion). The first debate over the recognition power arose in 1793, after France had been torn by revolution. See Prakash & Ramsey, The Executive Power over Foreign Affairs, 111 Yale L. J. 231, 312 (2001). Once the Revolutionary Government was established, Secretary of State Jefferson and President Washington, without consulting Congress, authorized the American Ambassador to resume relations with the new regime. See Letter to Gouverneur Morris (Mar. 12, 1793), in 25 Papers of Thomas Jefferson 367, 367–368 (J. Catanzariti ed. 1992); Goebel 99–104. Soon thereafter, the new French Government proposed to send an ambassador, Citizen Genet, to the United States. See id., at 105. Members of the President’s Cabinet agreed that receiving Genet would be a binding and public act of recognition. See Opinion on the Treaties with France (Apr. 28, 1793), in 25 Papers of Thomas Jefferson, at 608, 612 (“The reception of the Minister at all . . . is an ackno[w]le[d]gement of the legitimacy of their government”); see also Letter from A. Hamilton to G. Washington (Cabinet Paper) (Apr. 1793), in 4 Works of Alexander Hamilton 369, 369–396 (H. Lodge ed. 1904). They de-cided, however, both that Genet should be received and that consultation with Congress was not necessary. See T. Jefferson, Anas (Apr. 18, 1793), in 1 Writings of Thomas Jefferson 226, 227 (P. Ford ed. 1892); Cabinet Opinion on Washington’s Questions on Neutrality and the Alliance with France (Apr. 19, 1793), in 25 Papers of Thomas Jefferson, at 570. Congress expressed no disagreement with this position, and Genet’s reception marked the Nation’s first act of recognition—one made by the President alone. See Prakash, supra, at 312–313. The recognition power again became relevant when yet another revolution took place—this time, in South America, as several colonies rose against Spain. In 1818, Speakerof the House Henry Clay announced he “intended mov-ing the recognition of Buenos Ayres and probably of Chile.” Goebel 121. Clay thus sought to appropriate money “ ‘[f ]or one year’s salary’ ” for “ ‘a Minister’ ” topresent-day Argentina. 32 Annals of Cong. 1500 (1818). President Monroe, however, did not share that view. Although Clay gave “one of the most remarkable speeches of his career,” his proposed bill was defeated. Goebel 123; 32 Annals of Cong. 1655. That action has been attributed, in part, to the fact that Congress agreed the recognition power rested solely with the President. Goebel 124; see, e.g., 32 Annals of Cong. 1570 (statement of Rep. Alexander Smyth) (“[T]he acknowledgment of the independence of a new Power is an exercise of Executive authority; consequently, for Congress to direct the Executive how he shall exercise this power, is an act of usurpation”). Four years later, after the President had decided to recognize the South American republics, Congress did pass a resolution, on his request, appropriating funds for “such missions to the independent nations on the American continent, as the President of the United States may deem proper.” Act of May 4, 1822, ch. 52, 3Stat. 678. A decade later, President Jackson faced a recognition crisis over Texas. In 1835, Texas rebelled against Mexico and formed its own government. See Goebel 144–147. But the President feared that recognizing the new government could ignite a war. See A. Jackson, To the Senate and House of Representatives of the United States (Dec. 21, 1836), in 3 Messages and Papers of the Presidents 265, 266–267 (J. Richardson ed. 1899). After Congress urged him to recognize Texas, see Cong. Globe, 24th Cong., 1st Sess., 453 (1836); H. R. Rep. No. 854, 24th Cong., 1st Sess. (1836), the President delivered a message to the Legislature. He concluded there had not been a “deliberate inquiry” into whether the President or Congress possessed the recognition power. See A. Jackson, in 3 Messages and Papers of the Presidents, at 267. He stated, however, “on the ground of expediency, I am disposed to concur” with Congress’ preference regarding Texas. Ibid. In response Congress appropriated funds for a “diplomatic agent to be sent to the Republic of Texas, whenever the President of the United States . . . shall deem it expedient to appoint such minister.” Act of Mar. 3, 1837, 5Stat. 170. Thus, although he cooperated with Congress, the President was left to execute the formal act of recognition. President Lincoln, too, sought to coordinate with Congress when he requested support for his recognition of Liberia and Haiti. In his first annual message to Congress he said he could see no reason “why we should persevere longer in withholding our recognition of the independence and sovereignty of Hayti and Liberia.” Lincoln’s First Annual Message to Congress (Dec. 3, 1861), in 6 Messages and Papers of the Presidents 44, 47. Nonetheless, he was “[u]nwilling” to “inaugurate a novel policy in regard to them without the approbation of Congress.” Ibid. In response Congress concurred in the President’s recognition determination and enacted a law appropriating funds to appoint diplomatic representatives to the two countries—leaving, as usual, the actual dispatch of ambassadors and formal statement of recognition to the President. Act of June 5, 1862, 12Stat. 421. Three decades later, the branches again were able to reach an accord, this time with regard to Cuba. In 1898, an insurgency against the Spanish colonial government was raging in Cuba. President McKinley determined to ask Congress for authorization to send armed forces to Cuba to help quell the violence. See 31 Cong. Rec. 3699–3702 (1898). Although McKinley thought Spain was to blame for the strife, he opposed recognizing either Cuba or its insurgent government. Id., at 3701. At first, the House proposed a resolution consistent with McKinley’s wishes. Id., at 3810. The Senate countered with a resolution that authorized the use of force but that did recognize both Cuban independence and the insurgent government. Id., at 3993. When the Senate’s version reached the House, the House again rejected the language recognizing Cuban independence. Id., at 4017. The resolution went to Conference, which, after debate, reached a compromise. See Reinstein, 86 Temp. L. Rev., at 40–41. The final resolution stated “the people of the Island of Cuba are, and of right ought to be, free and independent,” but made no mention of recognizing a new Cuban Government. Act of Apr. 20, 1898, 30Stat. 738. Accepting the compromise, the President signed the joint resolution. See Reinstein, 86 Temp. L. Rev., at 41. For the next 80 years, “[P]residents consistently recognized new states and governments without any serious opposition from, or activity in, Congress.” Ibid.; see 2 Whiteman §§6–60, at 133–242 (detailing over 50 recognition decisions made by the Executive). The next debate over recognition did not occur until the late 1970’s. It concerned China. President Carter recognized the People’s Republic of China (PRC) as the government of China, and derecognized the Republic of China, located on Taiwan. See S. Kan, Cong. Research Serv., China/Taiwan: Evolution of the “One China” Policy—Key Statements from Washington, Beijing, and Taipei 1, 10 (Oct. 10, 2014). As to the status of Taiwan, the President “acknowledge[d] the Chinese position” that “Taiwan is part of China,” id., at 39 (text of U. S.–PRC Joint Communique on the Establishment of Diplomatic Relations (Jan. 1, 1979)), but he did not accept that claim. The President proposed a new law defining how the United States would conduct business with Taiwan. See Hearings on Taiwan Legislation before the House Committee on Foreign Affairs, 96th Cong., 1st Sess., 2–6 (1979) (statement of Warren Christopher, Dep-uty Secretary of State). After extensive revisions, Congress passed, and the President signed, the Taiwan Relations Act, 93Stat. 14 (1979) (codified as amended at 22 U. S. C. §§3301–3316). The Act (in a simplified summary) treated Taiwan as if it were a legally distinct entity from China—an entity with which the United States intended to maintain strong ties. See, e.g., §§3301, 3303(a), (b)(1), (b)(7). Throughout the legislative process, however, no one raised a serious question regarding the President’s exclusive authority to recognize the PRC—or to decline to grant formal recognition to Taiwan. See, e.g., 125 Cong. Rec. 6709 (1979) (statement of Sen. Jacob Javits) (“Neither bill [proposed by either Chamber] sought to reestablish official relations between the United States and the Republic of China on Taiwan; Congress . . . does not have the author-ity to do that even if it wanted to do so”). Rather, Congress accepted the President’s recognition determination as a completed, lawful act; and it proceeded to outline the trade and policy provisions that, in its judgment, were appropriate in light of that decision. This history confirms the Court’s conclusion in the instant case that the power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone. For the most part, Congress has respected the Executive’s policies and positions as to formal recognition. At times, Congress itself has defended the President’s constitutional prerogative. Over the last 100 years, there has been scarcely any debate over the President’s power to recognize foreign states. In this respect the Legislature, in the narrow context of recognition, on balance has acknowledged the importance of speaking “with one voice.” Crosby, 530 U. S., at 381. The weight of historical evidence indicates Congress has accepted that the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency. III As the power to recognize foreign states resides in the President alone, the question becomes whether §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem. See Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977) (action unlawful when it “prevents the Executive Branch from accomplishing its constitutionally assigned functions”). Section 214(d) requires that, in a passport or consular report of birth abroad, “the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel” for a “United States citizen born in the city of Jerusalem.” 116Stat. 1366. That is, §214(d) requires the President, through the Secretary, to identify citizens born in Jerusalem who so request as being born in Israel. But according to the President, those citizens were not born in Israel. As a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem. In this way, §214(d) “directly contradicts” the “carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem.” 725 F. 3d, at 217, 216. If the power over recognition is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also that he may maintain that determination in his and his agent’s statements. This conclusion is a matter of both common sense and necessity. If Congress could command the President to state a recognition position inconsistent with his own, Congress could override the President’s recognition determination. Under international law, recognition may be effected by “written or oral declaration of the recognizing state.” 1 Moore §27, at 73. In addition an act of recognition must “leave no doubt as to the intention to grant it.” 1 Oppenheim’s International Law §50, at 169. Thus, if Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. As Justice Jackson wrote in Youngstown, when a Presidential power is “exclusive,” it “disabl[es] the Congress from acting upon the subject.” 343 U. S., at 637–638 (concurring opinion). Here, the subject is quite narrow: The Executive’s exclusive power extends no further than his formal recognition determination. But as to that determination, Congress may not enact a law that directly contradicts it. This is not to say Congress may not express its disagreement with the President in myriad ways. For example, it may enact an embargo, decline to confirm an ambassador, or even declare war. But none of these acts would alter the President’s recognition decision. If Congress may not pass a law, speaking in its own voice, that effects formal recognition, then it follows that it may not force the President himself to contradict his earlier statement. That congressional command would not only prevent the Nation from speaking with one voice but also prevent the Executive itself from doing so in conducting foreign relations. Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State. See Urtetiqui v. D’Arcy, 9 Pet. 692, 699 (1835) (a passport “from its nature and object, is addressed to foreign powers” and “is to be considered . . . in the character of a political document”). As a result, it is unconstitu-tional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition. See 725 F. 3d, at 224 (Tatel, J., concurring). The Secretary’s position on this point has been consistent: He will not place information in the place-of-birth section of a passport that contradicts the President’s recognition policy. See 7 FAM §1383. If a citizen objects to the country listed as sovereign over his place of birth, then the Secretary will accommodate him by listing the city or town of birth rather than the country. See id., §1383.6. But the Secretary will not list a sovereign that contradicts the President’s recognition policy in a passport. Thus, the Secretary will not list “Israel” in a passport as the country containing Jerusalem. The flaw in §214(d) is further underscored by the undoubted fact that that the purpose of the statute was to infringe on the recognition power—a power the Court now holds is the sole prerogative of the President. The statute is titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” §214, 116Stat. 1365. The House Conference Report proclaimed that §214 “contains four provisions related to the recognition of Jerusalem as Israel’s capital.” H. R. Conf. Rep. No. 107–671, p. 123 (2002). And, indeed, observers interpreted §214 as altering United States policy regarding Jerusalem—which led to protests across the region. See supra, at 4. From the face of §214, from the legislative history, and from its reception, it is clear that Congress wanted to express its displeasure with the President’s policy by, among other things, commanding the Executive to contradict his own, earlier stated position on Jerusalem. This Congress may not do. It is true, as Zivotofsky notes, that Congress has substantial authority over passports. See Haig v. Agee, 453 U. S. 280 (1981); Zemel v. Rusk, 381 U. S. 1 (1965) ; Kent v. Dulles, 357 U. S. 116 (1958) . The Court does not question the power of Congress to enact passport legislation of wide scope. In Kent v. Dulles, for example, the Court held that if a person’s “ ‘liberty’ ” to travel “is to be regulated” through a passport, “it must be pursuant to the law-making functions of the Congress.” See id., at 129. Later cases, such as Zemel v. Rusk and Haig v. Agee, also proceeded on the assumption that Congress must authorize the grounds on which passports may be approved or denied. See Zemel, supra, at 7–13; Haig, supra, at 289–306. This is consistent with the extensive lawmaking power the Constitution vests in Congress over the Nation’s foreign affairs. The problem with §214(d), however, lies in how Congress exercised its authority over passports. It was an improper act for Congress to “aggrandiz[e] its power at the expense of another branch” by requiring the President to contradict an earlier recognition determination in an official document issued by the Executive Branch. Freytag v. Commissioner, 501 U. S. 868, 878 (1991) . To allow Congress to control the President’s communication in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself. As a result, the statute is unconstitutional. * * * In holding §214(d) invalid the Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. This case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Congress cannot command the President to contradict an earlier recognition determination in the issuance of passports. The judgment of the Court of Appeals for the District of Columbia Circuit is Affirmed.

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 . SUPREME COURT OF THE UNITED STATES Syllabus zivotofsky, by his parents and guardians, zivotofsky et ux. v. kerry, secretary of state certiorari to the united states court of appeals for the district of columbia circuit No. 13–628. Argued November 3, 2014—Decided June 8, 2015 Petitioner Zivotofsky was born to United States citizens living in Jerusalem. Pursuant to §214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, his mother asked American Embassy officials to list his place of birth as “Israel” on, inter alia, his passport. Section 214(d) states for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” The Embassy officials refused to list Zivotofsky’s place of birth as “Israel” on his passport, citing the Executive Branch’s longstanding position that the United States does not recognize any country as having sovereignty over Jerusalem. Zivotofsky’s parents brought suit on his behalf in federal court, seeking to enforce §214(d). Ultimately, the D. C. Circuit held the statute unconstitutional, concluding that it contradicts the Executive Branch’s exclusive power to recognize foreign sovereigns. Held: 1. The President has the exclusive power to grant formal recognition to a foreign sovereign. . (a) Where, as here, the President’s action is “incompatible with the expressed or implied will of Congress,” the President “can rely [for his authority] only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (Jackson, J., concurring). His asserted power must be both “exclusive” and “conclusive” on the issue, id., at 637–638, and he may rely solely on powers the Constitution grants to him alone, id., at 638. To determine whether the President’s power of recognition is exclusive, this Court examines the Constitution’s text and structure and relevant precedent and history. . (b) The Constitution’s text and structure grant the President the power to recognize foreign nations and governments. The Reception Clause directs that the President “shall receive Ambassadors and other public Ministers,” Art. II, §3. And at the time of the founding, receiving an ambassador was considered tantamount to recognizing the sending state’s sovereignty. It is thus logical and proper to infer that the Reception Clause would be understood to acknowledge the President’s power to recognize other nations. This inference is further supported by the President’s additional Article II powers: to negotiate treaties and to nominate the Nation’s ambassadors and dispatch other diplomatic agents. Though ratifying a treaty and confirming an ambassador require congressional approval, Congress lacks authority to initiate the actions without the President’s involvement. The President, unlike Congress, also has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. The Constitution thus assigns the President, not Congress, means to effect recognition on his own initiative. Functional considerations also suggest that the President’s recognition power is exclusive. The Nation must “speak . . . with one voice” regarding which governments are legitimate in the eyes of the United States and which are not, American Insurance Assn. v. Garamendi, 539 U. S. 396 , and only the Executive has the characteristic of unity at all times. Unlike Congress, the President is also capable of engaging in the delicate and often secret diplomatic contacts that may lead to a recognition decision, see, e.g., United States v. Pink, 315 U. S. 203 , and is better positioned to take the decisive, unequivocal action necessary to recognize other states at international law. The President has also exercised unilateral recognition power since the founding, a practice endorsed by this Court, see, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 . Under basic separation-of-powers principles, Congress, which has the central role in making laws, see Art. I, §8, cl. 18, does have substantial authority regarding many policy determinations that precede and follow an act of recognition. The President’s recognition determination is thus only one part of a political process. . (b) A fair reading of relevant precedent illustrates that this Court has long considered recognition to be the exclusive prerogative of the Executive. See, e.g., Williams v. Suffolk Ins. Co., 13 Pet. 415, 420; United States v. Belmont, 301 U. S. 324 ; United States v. Pink, supra, at 229; Banco Nacional de Cuba v. Sabbatino, supra, at 410; National City Bank of N. Y. v. Republic of China, 348 U. S. 356 . United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , does not support a broader definition of the Executive’s power over foreign relations that would permit the President alone to determine the whole content of the Nation’s foreign policy. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. See, e.g., Medellín v. Texas, 552 U. S. 491 –532. Nonetheless, it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate, and his position must be clear. . (c) The weight of historical evidence also indicates Congress has accepted that the recognition power is exclusive to the Presidency. Cf. NLRB v. Noel Canning, 573 U. S. ___. Since the first Administration, the President has claimed unilateral authority to recognize foreign sovereigns. And Congress, for the most part, has acquiesced, generally respecting the Executive’s policies and positions on formal recognition and even defending the President’s constitutional prerogative. . 2. Because the power to recognize foreign states resides in the President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem. See Nixon v. Administrator of General Services, 433 U. S. 425 . The provision forces the President, through the Secretary of State, to identify, upon request, citizens born in Jerusalem as being born in Israel when, as a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem. If the recognition power is to mean anything, it must mean that the President not only makes the initial, formal recognition determination but also may maintain that determination in his and his agent’s statements. Under international law, recognition may be effected by written or oral declaration. In addition, an act of recognition must leave no doubt as to the intention to grant it. Thus, if Congress could alter the President’s statements on matters of recognition or force him to contradict them, Congress in effect would exercise the recognition power. An “exclusive” Presidential power “disabl[es] the Congress from acting upon the subject.” Youngstown, supra, at 638 (Jackson, J., concurring). If Congress may not pass a law, speaking in its own voice, effecting formal recognition, then it may not force the President, through §214(d), to contradict his prior recognition determination in an official document issued by the Secretary of State. See Urtetiqui v. D’Arcy, 9 Pet. 692, 698. Section 214(d)’s flaw is further underscored by the fact that the statute’s purpose was to infringe on the President’s exclusive recognition power. While Congress may have power to enact passport legislation of wide scope, it may not “aggrandiz[e] its power at the expense of another branch” by requiring the President to contradict an earlier recognition determination in an official Executive Branch document. Freytag v. Commissioner, 501 U. S. 868 . . 725 F. 3d 197, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part. Roberts, C. J., filed a dissenting opinion, in which Alito, J., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Alito, J., joined.

In 1948, President Truman formally recognized Israel in a signed statement of recognition. However, in contrast to a consistent policy of formal recognition of Israel, neither President Bush nor any later United States President has issued an official statement or declaration acknowledging any country's sovereignty over Jerusalem. Instead, the Executive Branch has maintained that the status of Jerusalem should be decided not unilaterally but in consultation with all concerned. Petitioner was born to United States citizens living in Jerusalem, and his mother visited the American Embassy in Tel Aviv to request both a passport and a consular report of birth abroad for her son. The Embassy clerks explained that, pursuant to State Department policy, the passport would list only the city or town of birth. Petitioner's parents objected and, as his guardians, brought suit in Federal District Court, seeking to enforce §214(d) of the Immigration and Nationality Act of 1952, which allows a United States citizen born in Jerusalem to direct the President and his Secretary of State, when issuing his passport, to state that his place of birth is "Israel.” Petitioner claims the right to have the name of Israel recorded in his passport. The District Court dismissed the suit on the ground that petitioner lacked standing to present a question of constitutional standing. The Court of Appeals affirmed. Held: The judgment is affirmed. ;; 614 F.2d 1227. (a) The President exclusively holds the power to determine whether to recognize a foreign sovereign. . (b) The text and structure of the Constitution grant the President the authority to recognize foreign nations and governments, and the Constitution does not use the term recognition, either in Article II or elsewhere. Although the President alone effects the formal act of recognition, Congress' powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the recognition itself. Recognition is an act with immediate and powerful significance for international relations, and Congress cannot require him to contradict his own statement regarding recognition. In practice, however, the President must make the specific decision of what foreign power he will recognize as legitimate, both for the Nation as a whole and for the purpose of making his own position clear within the context of recognition in discussions and negotiations with foreign nations. A clear rule that the formal power to recognize foreign government subsists in the President therefore serves a necessary purpose in diplomatic relations. Congress has an important role in other aspects of foreign policy, and may be bound by any number of laws Congress enacts. See, e.g., United States v. Curtiss-Wright Export Corp.,; Kent v. Dulles, 357 U. S. 116; Zemel v. Rusk,,. The Vesting Clause, which provides that the "executive Power" shall be vested by the President, does not provide further support for the President's action here, since Congress, by itself, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation. Moreover, the various ways in which the President may unilaterally effect recognition --and the lack of any similar power vested in Congress --suggest that it is exclusive to the President. This Court does not question the substantial powers of Congress over foreign affairs in general or passports in particular. Rather, this case is confined solely to the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds. Because these specific Clauses confer the President exclusive power on him, the Court need not consider whether or to what extent that power is exclusive. It is for Congress alone to determine the whole content of the Nation's foreign policy. P.. (c) No single precedent resolves the question whether the President has exclusive recognition authority and, if so, how far that power extends. In part that is because, until today, the political branches have resolved their disputes over recognition. Texts and treatises on international law treat the President as the final word on recognition, and, in the end, a fair reading of the cases shows that Congress wanted to express its displeasure with the President’s policy by, among other things, commanding the Executive to contradict its own, earlier stated position on Jerusalem. Here, Congress has substantial authority over passports, and this author-ity supports the conclusion that the President holds the exclusive recognition power.. 725 F. 3d 197, affirmed.

2015_14-1382

https://www.oyez.org/cases/2015/14-1382

. Federal law permits federal courts to resolve certain nonfederal controversies between “citizens” of different States. This rule is easy enough to apply to humans, but can become metaphysical when applied to legal entities. This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members. I This action began as a typical state-law controversy, one involving a contract dispute and an underground food-storage warehouse fire. A group of corporations whose food perished in that 1991 fire continues to seek compensation from the warehouse’s owner, now known as Americold Realty Trust. After the corporations filed their latest suit in Kansas court, Americold removed the suit to the Federal District Court for the District of Kansas. The District Court accepted jurisdiction and resolved the dispute in favor of Americold. On appeal, however, the Tenth Circuit asked for supplemental briefing on whether the District Court’s exercise of jurisdiction was appropriate. The parties responded that the District Court possessed jurisdiction because the suit involved “citizens of different States.” 28 U. S. C. §§1332(a)(1), 1441(b). The Tenth Circuit disagreed. The court considered the corporate plaintiffs citizens of the States where they were chartered and had their principal places of business: Delaware, Nebraska, and Illinois. See ConAgra Foods, Inc. v. Americold Logistics, LLC, 776 F. 3d 1175, 1182 (2015); §1332(c)(1) (specifying the citizenship of corporations for jurisdictional purposes). The court applied a different test to determine Americold’s citizenship because Americold is a “real estate investment trust,” not a corporation. Distilling this Court’s precedent, the Tenth Circuit reasoned that the citizenship of any “non-corporate artificial entity” is determined by considering all of the entity’s “members,” which include, at minimum, its shareholders. Id., at 1180–1181 (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990) ). As there was no record of the citizenship of Americold’s shareholders, the court concluded that the parties failed to demonstrate that the plaintiffs were “citizens of different States” than the defendants. See Strawbridge v. Curtiss, 3 Cranch 267 (1806). We granted certiorari to resolve confusion among the Courts of Appeals regarding the citizenship of unincorporated entities. 576 U. S. ___ (2015). We now affirm. II Exercising its powers under Article III, the First Congress granted federal courts jurisdiction over controversies between a “citizen” of one State and “a citizen of another State.” 1Stat. 78. For a long time, however, Congress failed to explain how to determine the citizenship of a nonbreathing entity like a business association. In the early 19th century, this Court took that silence literally, ruling that only a human could be a citizen for jurisdictional purposes. Bank of United States v. Deveaux, 5 Cranch 61, 86–91 (1809). If a “mere legal entity” like a corporation were sued, the relevant citizens were its “members,” or the “real persons who come into court” in the entity’s name. Id., at 86, 91. This Court later carved a limited exception for corporations, holding that a corporation itself could be considered a citizen of its State of incorporation. See Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558 (1844). Congress etched this exception into the U. S. Code, adding that a corporation should also be considered a citizen of the State where it has its principal place of business. 28 U. S. C. §1332(c) (1958 ed.). But Congress never expanded this grant of citizenship to include artificial entities other than corporations, such as joint-stock companies or limited partnerships. For these unincorporated entities, we too have “adhere[d] to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of ‘all [its] members.’ ” Carden, 494 U. S., at 195–196 (quoting Chapman v. Barney, 129 U. S. 677, 682 (1889) ). Despite our oft-repetition of the rule linking unincorporated entities with their “members,” we have never expressly defined the term. But we have equated an association’s members with its owners or “ ‘the several persons composing such association.’ ” Carden, 494 U. S., at 196 (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 456 (1900) ). Applying this principle with reference to specific States’ laws, we have identified the members of a joint-stock company as its shareholders, the members of a partnership as its partners, the members of a union as the workers affiliated with it, and so on. See Carden, 494 U. S., at 189–190 (citing Chapman, 129 U. S., at 682; Great Southern, 177 U. S., at 457; and Steelworkers v. R. H. Bouligny, Inc., 382 U. S. 145, 146 (1965) ). This case asks us to determine the citizenship of Americold Realty Trust, a “real estate investment trust” organized under Maryland law. App. 93. As Americold is not a corporation, it possesses its members’ citizenship. Nothing in the record designates who Americold’s members are. But Maryland law provides an answer. In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which prop-erty is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders. III Americold disputes this conclusion. It cites a case called Navarro Savings Assn. v. Lee, 446 U. S. 458 (1980) , to argue that anything called a “trust” possesses the citizenship of its trustees alone, not its shareholder beneficiaries as well. As we have reminded litigants before, however, “Navarro had nothing to do with the citizenship of [a] ‘trust.’ ” Carden, 494 U. S., at 192–193. Rather, Navarro reaffirmed a separate rule that when a trustee files a lawsuit in her name, her jurisdictional citizenship is the State to which she belongs—as is true of any natural person. 446 U. S., at 465. This rule coexists with our discussion above that when an artificial entity is sued in its name, it takes the citizenship of each of its members. That said, Americold’s confusion regarding the citizenship of a trust is understandable and widely shared. See Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F. 3d 192, 201–206 (CA3 2007) (discussing various approaches among the Circuits). The confusion can be explained, perhaps, by tradition. Traditionally, a trust was not considered a distinct legal entity, but a “fiduciary relationship” between multiple people. Klein v. Bryer, 227 Md. 473, 476–477, 177 A. 2d 412, 413 (1962); Restatement (Second) of Trusts §2 (1957). Such a relationship was not a thing that could be haled into court; legal proceedings involving a trust were brought by or against the trustees in their own name. Glenn v. Allison, 58 Md. 527, 529 (1882); Deveaux, 5 Cranch, at 91. And when a trustee files a lawsuit or is sued in her own name, her citizenship is all that matters for diversity purposes. Navarro, 446 U. S., at 462–466. For a traditional trust, therefore, there is no need to determine its membership, as would be true if the trust, as an entity, were sued. Many States, however, have applied the “trust” label to a variety of unincorporated entities that have little in common with this traditional template. Maryland, for example, treats a real estate investment trust as a “separate legal entity” that itself can sue or be sued. Md. Corp. & Assns. Code Ann. §§8–102(2), 8–301(2). So long as such an entity is unincorporated, we apply our “oft-repeated rule” that it possesses the citizenship of all its members. Carden, 494 U. S., at 195. But neither this rule nor Navarro limits an entity’s membership to its trustees just because the entity happens to call itself a trust. We therefore decline to apply the same rule to an unincorporated entity sued in its organizational name that applies to a human trustee sued in her personal name. We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule. * * * For these reasons, the judgment of the Court of Appeals is Affirmed.

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 . SUPREME COURT OF THE UNITED STATES Syllabus AMERICOLD REALTY TRUST v. CONAGRA FOODS, INC., et al. certiorari to the united states court of appeals for the tenth circuit No. 14–1382. Argued January 19, 2016—Decided March 7, 2016 Respondents, corporate citizens of Delaware, Nebraska, and Illinois, sued petitioner Americold Realty Trust, a “real estate investment trust” organized under Maryland law, in a Kansas court. Americold removed the suit to Federal District Court based on diversity-of-citizenship jurisdiction. See 28 U. S. C. §§1332(a)(1), 1441(b). The District Court accepted jurisdiction and ruled in Americold’s favor. On appeal, the Tenth Circuit held that the District Court lacked jurisdiction to hear the suit. Since Americold was not a corporation, the court reasoned, its citizenship for diversity jurisdiction purposes should be based on the citizenship of its members, which included its shareholders. Because no record of those shareholders’ citizenship existed, diversity was not proved. Held: For purposes of diversity jurisdiction, Americold’s citizenship is based on the citizenship of its members, which include its shareholders. . (a) Historically, the relevant citizens for jurisdictional purposes in a suit involving a “mere legal entity” were that entity’s “members,” or the “real persons who come into court” in the entity’s name. Bank of United States v. Deveaux, 5 Cranch 61, 86, 91. But for the limited exception of jurisdictional citizenship for corporations, see Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558, this Court continues to “adhere to [the] oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of ‘all [its] members,’ ” Carden v. Arkoma Associates, 494 U. S. 185 . Applying the rule here, Americold possesses the citizenship of all its members, who, under Maryland law, include its shareholders. See, e.g., Md. Corp. & Assns. Code Ann. §8–101(c). . (b) Americold argues that anything called a “trust” possesses the citizenship of its trustees alone. Traditionally, a trust was considered a “fiduciary relationship” between multiple people and could not be haled into court; hence, legal proceedings involving a trust were brought by or against the trustees in their own name, Deveaux, 5 Cranch, at 91. Americold confuses the traditional trust with the variety of unincorporated entities that many States have given the “trust” label. Under Maryland law, the real estate investment trust at issue is treated as a “separate legal entity” that can sue or be sued. §§8–102(2), 8–301(2). Despite what such an entity calls itself, so long as it is unincorporated, this Court will apply the “oft-repeated rule” that it possesses the citizenship of all its members. . 776 F. 3d 1175, affirmed. Sotomayor, J., delivered the opinion for a unanimous Court.

A group of corporations whose food perished in a fire continues to seek compensation from the warehouse's owner, now known as Americold Realty Trust. After the corporations removed the suit to the Federal District Court for the District of Kansas, the District Court accepted jurisdiction and resolved the dispute in favor of Americold. However, the Court of Appeals disagreed, reasoning that the citizenship of any nonbreathing entity like a business association is determined by considering all of the entity's members, which include, at minimum, its shareholders. The court concluded that the parties failed to demonstrate that the plaintiffs were "citizens of different States" than the defendants. Held: The citizenship of an inanimate creature of Maryland law, regardless of whether it is a corporation or a joint-stock company, does not, for purposes of diversity jurisdiction, include its members. Thus, for diversity jurisdiction purposes, Americold members include their shareholders. Navarro Savings Assn. v. Lee,, reaffirmed a separate rule that when a trustee files a lawsuit in her name, her jurisdictional citizenship is the State to which she belongs, as is true of any natural person. This rule coexists with this Court's earlier ruling that only a human can be a citizen for jurisdictional purposes. Navarro, supra, at. 446 U. S. 458. . 761 U.S. ___ (Cranch 267) affirmed.

2015_14-770

https://www.oyez.org/cases/2015/14-770

.[1]* A provision of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U. S. C. §8772, makes available for postjudgment execution a set of assets held at a New York bank for Bank Markazi, the Central Bank of Iran. The assets would partially satisfy judgments gained in separate actions by over 1,000 victims of terrorist acts sponsored by Iran. The judgments remain unpaid. Section 8772 is an unusual statute: It designates a particular set of assets and renders them available to satisfy the liability and damages judgments underlying a consoli-dated enforcement proceeding that the statute identifies by the District Court’s docket number. The question raised by petitioner Bank Markazi: Does §8772 violate the separation of powers by purporting to change the law for, and directing a particular result in, a single pending case? Section 8772, we hold, does not transgress constraints placed on Congress and the President by the Constitution. The statute, we point out, is not fairly portrayed as a “one-case-only regime.” Brief for Petitioner 27. Rather, it covers a category of postjudgment execution claims filed by numerous plaintiffs who, in multiple civil actions, obtained evidence-based judgments against Iran together amounting to billions of dollars. Section 8772 subjects the designated assets to execution “to satisfy any judgment” against Iran for damages caused by specified acts of terrorism. §8772(a)(1) (emphasis added). Congress, our decisions make clear, may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative. Adding weight to our decision, Congress passed, and the President signed, §8772 in furtherance of their stance on a matter of foreign policy. Action in that realm warrants respectful review by courts. The Executive has histori-cally made case-specific sovereign-immunity determinations to which courts have deferred. And exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty. In accord with the courts below, we perceive in §8772 no violation of separation-of-powers principles, and no threat to the independence of the Judiciary. I A We set out here statutory provisions relevant to this case. American nationals may file suit against state sponsors of terrorism in the courts of the United States. See 28 U. S. C. §1605A. Specifically, they may seek “money damages . . . against a foreign state for personal injury or death that was caused by” acts of terrorism, including “torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support” to terrorist activities. §1605A(a)(1). This authorization—known as the “terrorism exception”—is among enumerated excep- tions prescribed in the Foreign Sovereign Immunities Act of 1976 (FSIA) to the general rule of sovereign immunity.[2] Victims of state-sponsored terrorism, like others proceeding under an FSIA exception, may obtain a judgment against a foreign state on “establish[ing] [their] claim[s] . . . by evidence satisfactory to the court.” §1608(e). After gaining a judgment, however, plaintiffs proceeding under the terrorism exception “have often faced practical and legal difficulties” at the enforcement stage. Brief for United States as Amicus Curiae 2. Subject to stated excep-tions, the FSIA shields foreign-state property from execution. §1609. When the terrorism exception was adopted, only foreign-state property located in the United States and “used for a commercial activity” was available for the satisfaction of judgments. §1610(a)(7), (b)(3). Further limiting judgment-enforcement prospects, the FSIA shields from execution property “of a foreign central bank or monetary authority held for its own account.” §1611(b)(1). To lessen these enforcement difficulties, Congress enacted the Terrorism Risk Insurance Act of 2002 (TRIA), which authorizes execution of judgments obtained under the FSIA’s terrorism exception against “the blocked assets of [a] terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party).” §201(a), 116Stat. 2337, note following 28 U. S. C. §1610. A “blocked asset” is any asset seized by the Executive Branch pursuant to either the Trading with the Enemy Act (TWEA), 40Stat. 411, 50 U. S. C. App. 1 et seq., or the International Emergency Economic Powers Act (IEEPA), 91Stat. 1625, 50 U. S. C. §1570 et seq. See TRIA §201(d)(2). Both measures, TWEA and IEEPA, authorize the President to freeze the assets of “foreign enemy state[s]” and their agencies and instrumentalities. Brief for United States as Amicus Curiae 25. These blocking regimes “put control of foreign assets in the hands of the President so that he may dispose of them in the manner that best furthers the United States’ foreign-relations and national-security interests.” Ibid. (internal quotation marks omitted).[3] Invoking his authority under the IEEPA, the President, in February 2012, issued an Executive Order blocking “[a]ll property and interests in property of any Iranian financial institution, including the Central Bank of Iran, that are in the United States.” Exec. Order No. 13599, 3 CFR 215 (2012 Comp.). The availability of these assets for execution, however, was contested.[4] To place beyond dispute the availability of some of the Executive Order No. 13599-blocked assets for satisfaction of judgments rendered in terrorism cases, Congress passed the statute at issue here: §502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 126Stat. 1258, 22 U. S. C. §8772. Enacted as a freestanding measure, not as an amendment to the FSIA or the TRIA,[5] §8772 provides that, if a court makes specified findings, “a financial asset . . . shall be subject to execution . . . in order to sat-isfy any judgment to the extent of any compensatory dam-ages awarded against Iran for damages for personal injury or death caused by” the acts of terrorism enumerated in the FSIA’s terrorism exception. §8772(a)(1). Section 8772(b) defines as available for execution by holders of terrorism judgments against Iran “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings.” Before allowing execution against an asset described in §8772(b), a court must determine that the asset is: “(A) held in the United States for a foreign securities intermediary doing business in the United States; “(B) a blocked asset (whether or not subsequently unblocked) . . . ; and “(C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran . . . .” §8772(a)(1). In addition, the court in which execution is sought must determine “whether Iran holds equitable title to, or the beneficial interest in, the assets . . . and that no other person possesses a constitutionally protected interest in the assets . . . under the Fifth Amendment to the Constitution of the United States.” §8772(a)(2). B Respondents are victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members. See App. to Pet. for Cert. 52a–53a; Brief for Respondents 6. Numbering more than 1,000, respondents rank within 16 discrete groups, each of which brought a lawsuit against Iran pursuant to the FSIA’s terrorism exception. App. to Brief for Respondents 1a–2a. All of the suits were filed in United States District Court for the District of Columbia.[6] Upon finding a clear evidentiary basis for Iran’s liability to each suitor, the court entered judgments by default. See, e.g., Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46, 49 (2003). The majority of respondents sought redress for injuries suffered in connection with the 1983 bombing of the U. S. Marine barracks in Beirut, Lebanon. App. to Pet. for Cert. 21a.[7] “Together, [respondents] have obtained billions of dollars in judgments against Iran, the vast majority of which remain unpaid.” Id., at 53a.[8] The validity of those judgments is not in dispute. Id., at 55a. To enforce their judgments, the 16 groups of respondents first registered them in the United States District Court for the Southern District of New York. See 28 U. S. C. §1963 (“A judgment . . . may be registered . . . in any other district . . . . A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”). They then moved under Federal Rule of Civil Procedure 69 for turnover of about $1.75 billion in bond assets held in a New York bank account—assets that, respondents alleged, were owned by Bank Markazi. See App. to Pet. for Cert. 52a–54a, 60a, and n. 1; Second Amended Complaint in No. 10–CIV–4518 (SDNY), p. 6.[9] This turnover proceeding began in 2008 when the terrorism judgment holders in Peterson, 264 F. Supp. 2d 46, filed writs of execution and the District Court restrained the bonds. App. to Pet. for Cert. 14a–15a, 62a. Other groups of terrorism judgment holders—some of which had filed their own writs of execution against the bonds—were joined in No. 10–CIV–4518, the Peterson enforcement proceeding, through a variety of procedural mechanisms.[10] It is this consolidated judgment-enforcement proceed-ing and assets restrained in that proceeding that §8772 addresses. Although the enforcement proceeding was initiated prior to the issuance of Executive Order No. 13599 and the enactment of §8772, the judgment holders updated their motions in 2012 to include execution claims under §8772. Plaintiffs’ Supplemental Memorandum of Law in Support of Their Motion for Partial Summary Judgment in No. 10–CIV–4518 (SDNY).[11] Making the findings necessary under §8772, the District Court ordered the requested turn-over. App. to Pet. for Cert. 109a.[12] In reaching its decision, the court reviewed the financial history of the assets and other record evidence showing that Bank Markazi owned the assets. See id., at 111a–113a, and n. 17. Since at least early 2008, the court recounted, the bond assets have been held in a New York account at Citibank directly controlled by Clearstream Banking, S. A. (Clearstream), a Luxembourg-based company that serves “as an intermediary between financial institutions worldwide.” Id., at 56a–57a (internal quotation makes omitted). Initially, Clearstream held the assets for Bank Markazi and deposited interest earned on the bonds into Bank Markazi’s Clearstream account. At some point in 2008, Bank Markazi instructed Clearstream to position another intermediary—Banca UBAE, S. p. A., an Italian bank—between the bonds and Bank Markazi. Id., at 58a–59a. Thereafter, Clearstream deposited interest payments in UBAE’s account, which UBAE then remitted to Bank Markazi. Id., at 60a–61a.[13] Resisting turnover of the bond assets, Bank Markazi and Clearstream, as the District Court observed, “filled the proverbial kitchen sink with arguments.” Id., at 111a. They argued, inter alia, the absence of subject-matter and personal jurisdiction, id., at 73a–104a, asserting that the blocked assets were not assets “of” the Bank, see supra, at 4, n. 3, and that the assets in question were located in Luxembourg, not New York, App. to Pet. for Cert. 100a. Several of their objections to execution became irrelevant following enactment of §8772, which, the District Court noted, “sweeps away . . . any . . . federal or state law impediments that might otherwise exist, so long as the appropriate judicial determination is made.” Id., at 73a; §8772(a)(1) (Act applies “notwithstanding any other provision of law”). After §8772’s passage, Bank Markazi changed its defense. It conceded that Iran held the requisite “equitable title to, or beneficial interest in, the assets,” §8772(a)(2)(A), but maintained that §8772 could not withstand inspection under the separation-of-powers doctrine. See Defendant Bank Markazi’s Supplemental Memorandum of Law in Opposition to Plaintiffs’ Motion for Partial Summary Judgment in No. 10–CIV–4518 (SDNY), pp. 1–3, 10–16.[14] “[I]n passing §8772,” Bank Markazi argued, “Congress effectively dictated specific factual findings in connection with a specific litigation—invading the province of the courts.” App. to Pet. for Cert. 114a. The District Court disagreed. The ownership determinations §8772 required, see supra, at 8–9, the court said, “[were] not mere fig leaves,” for “it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha[d] some form of beneficial or equitable interest.” App. to Pet. for Cert. 115a. Observing from the voluminous filings that “[t]here [was] . . . plenty . . . to [litigate],” the court described §8772 as a measure that “merely chang[es] the law applicable to pending cases; it does not usurp the adjudicative function assigned to federal courts.” Ibid. (internal quotation marks omitted). Further, the court reminded, “Iran’s liability and its required payment of damages was . . . established years prior to the [enactment of §8772]”; “[a]t issue [here] is merely execution [of judgments] on assets present in this district.” Id., at 116a.[15] The Court of Appeals for the Second Circuit unanimously affirmed. Peterson v. Islamic Republic of Iran, 758 F. 3d 185 (2014).[16] On appeal, Bank Markazi again argued that §8772 violates the separation of powers “by compelling the courts to reach a predetermined result in this case.” Id., at 191. In accord with the District Court, the Second Circuit responded that “§8772 does not compel judicial findings [or results] under old law”; “rather, it retroac-tively changes the law applicable in this case, a permissible exercise of legislative authority.” Ibid. Congress may so prescribe, the appeals court noted, “even when the result under the revised law is clear.” Ibid. To consider the separation-of-powers question Bank Markazi presents, we granted certiorari, 576 U. S. ___ (2015), and now affirm.[17] II Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the “province and duty . . . to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177 (1803). Necessarily, that endowment of authority blocks Congress from “requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218 (1995) . Congress, no doubt, “may not usurp a court’s power to interpret and apply the law to the [circum-stances] before it,” Brief for Former Senior Officials of the Office of Legal Counsel as Amici Curiae 3, 6, for “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret that rule,” Marbury, 1 Cranch, at 177.[18] And our decisions place off limits to Congress “vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.” Plaut, 514 U. S., at 218 (citing Hayburn’s Case, 2 Dall. 409 (1792), and, e.g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 114 (1948) ). Congress, we have also held, may not “retroactively comman[d] the federal courts to reopen final judgments.” Plaut, 514 U. S., at 219. A Citing United States v. Klein, 13 Wall. 128 (1872), Bank Markazi urges a further limitation. Congress treads impermissibly on judicial turf, the Bank maintains, when it “prescribe[s] rules of decision to the Judicial Department . . . in [pending] cases.” Id., at 146. According to the Bank, §8772 fits that description. Brief for Petitioner 19, 43. Klein has been called “a deeply puzzling decision,” Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L. J. 2537, 2538 (1998).[19] More recent decisions, however, have made it clear that Klein does not inhibit Congress from “amend[ing] applicable law.” Robertson v. Seattle Audubon Soc., 503 U. S. 429, 441 (1992) ; see id., at 437–438; Plaut, 514 U. S., at 218 (Klein’s “prohibition does not take hold when Congress ‘amend[s] applicable law.’ ” (quoting Robertson, 503 U. S., at 441)). Section 8772, we hold, did just that. Klein involved Civil War legislation providing that persons whose property had been seized and sold in wartime could recover the proceeds of the sale in the Court of Claims upon proof that they had “never given any aid or comfort to the present rebellion.” Ch. 120, §3, 12Stat. 820; see Klein, 13 Wall., at 139. In 1863, President Lincoln pardoned “persons who . . . participated in the . . . rebellion” if they swore an oath of loyalty to the United States. Presidential Proclamation No. 11, 13Stat. 737. One of the persons so pardoned was a southerner named Wilson, whose cotton had been seized and sold by Government agents. Klein was the administrator of Wilson’s estate. 13 Wall., at 132. In United States v. Padelford, 9 Wall. 531, 543 (1870), this Court held that the recipient of a Presidential pardon must be treated as loyal, i.e., the pardon operated as “a complete substitute for proof that [the recipient] gave no aid or comfort to the rebellion.” Thereafter, Klein prevailed in an action in the Court of Claims, yielding an award of $125,300 for Wilson’s cotton. 13 Wall., at 132. During the pendency of an appeal to this Court from the Court of Claims judgment in Klein, Congress enacted a statute providing that no pardon should be admissible as proof of loyalty. Moreover, acceptance of a pardon without disclaiming participation in the rebellion would serve as conclusive evidence of disloyalty. The statute directed the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon. 16Stat. 235; R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 323, n. 29 (7th ed. 2015) (Hart and Wechsler). Affirming the judgment of the Court of Claims, this Court held that Congress had no authority to “impai[r] the effect of a pardon,” for the Constitution entrusted the pardon power “[t]o the executive alone.” Klein, 13 Wall., at 147. The Legislature, the Court stated, “cannot change the effect of . . . a pardon any more than the executive can change a law.” Id., at 148. Lacking authority to impair the pardon power of the Executive, Congress could not “direc[t] [a] court to be instrumental to that end.” Ibid. In other words, the statute in Klein infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon—standards Congress was powerless to prescribe. See id., at 146–147; Robertson, 503 U. S., at 438 (Congress may not “compe[l] . . . findings or results under old law”).[20] Bank Markazi, as earlier observed, supra, at 13, argues that §8772 conflicts with Klein. The Bank points to a statement in the Klein opinion questioning whether “the legislature may prescribe rules of decision to the Judicial Department . . . in cases pending before it.” 13 Wall., at 146. One cannot take this language from Klein “at face value,” however, “for congressional power to make valid statutes retroactively applicable to pending cases has often been recognized.” Hart and Wechsler 324. See, e.g., United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). As we explained in Landgraf v. USI Film Products, 511 U. S. 244, 267 (1994) , the restrictions that the Constitution places on retroactive legislation “are of limited scope”: “The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, §10, cl. 1, prohibits States from passing . . . laws ‘impairing the Obligation of Contracts.’ The Fifth Amendment’s Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a ‘public use’ and upon payment of ‘just compensation.’ The prohibitions on ‘Bills of Attainder’ in Art. I, §§ 9–10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute’s prospective application under the Clause ‘may not suffice’ to warrant its retroactive application.” Id., at 266–267 (citation and footnote omitted). “Absent a violation of one of those specific provisions,” when a new law makes clear that it is retroactive, the arguable “unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give [that law] its intended scope.” Id., at 267–268. So yes, we have affirmed, Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases. See Plaut, 514 U. S., at 226. Any lingering doubts on that score have been dispelled by Robertson, 503 U. S., at 441, and Plaut, 514 U. S., at 218. Bank Markazi argues most strenuously that §8772 did not simply amend pre-existing law. Because the judicial findings contemplated by §8772 were “foregone conclusions,” the Bank urges, the statute “effectively” directed certain factfindings and specified the outcome under the amended law. See Brief for Petitioner 42, 47. See also post, at 12–13. Recall that the District Court, closely monitoring the case, disagreed. Supra, at 10–11; App. to Pet. for Cert. 115a (“[The] determinations [required by §8772] [were] not mere fig leaves,” for “it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha[d] some form of beneficial or equitable interest.”).[21] In any event, a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. “When a plaintiff brings suit to enforce a legal obligation it is not any less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment, because the plaintiff’s claim is uncontested or incontestable.” Pope v. United States, 323 U. S. 1, 11 (1944) . In Schooner Peggy, 1 Cranch, at 109–110, for example, this Court applied a newly ratified treaty that, by requiring the return of captured property, effectively permitted only one possible outcome. And in Robertson, 503 U. S., at 434–435, 438–439, a statute replaced governing environmental-law restraints on timber harvesting with new legislation that permitted harvesting in all but certain designated areas. Without inquiring whether the new statute’s application in pending cases was a “foregone conclusio[n],” Brief for Petitioner 47, we upheld the legislation because it left for judicial determination whether any particular actions violated the new prescription. In short, §8772 changed the law by establishing new substantive standards, entrusting to the District Court application of those standards to the facts (contested or uncontested) found by the court. Resisting this conclusion, The Chief Justice compares §8772 to a hypothetical “law directing judgment for Smith if the court finds that Jones was duly served with notice of the proceedings.” Post, at 12–13.[22] Of course, the hypothesized law would be invalid—as would a law directing judgment for Smith, for instance, if the court finds that the sun rises in the east. For one thing, a law so cast may well be irrational and, therefore, unconstitutional for reasons distinct from the separation-of-powers issues considered here. See, e.g., infra, at 21, n. 27. For another, the law imagined by the dissent does what Robertson says Congress cannot do: Like a statute that directs, in “Smith v. Jones,” “Smith wins,” supra, at 12–13, n. 17, it“compel[s] . . . findings or results under old law,” for itfails to supply any new legal standard effectuating the lawmakers’ reasonable policy judgment, 503 U. S., at 438.[23] By contrast, §8772 provides a new standard clarifying that, if Iran owns certain assets, the victims of Iran-sponsored terrorist attacks will be permitted to execute against those assets. Applying laws implementing Congress’ policy judgments, with fidelity to those judgments, is commonplace for the Judiciary. B Section 8772 remains “unprecedented,” Bank Markazi charges, because it “prescribes a rule for a single pending case—identified by caption and docket number.” Brief for Petitioner 17.[24] The amended law in Robertson, however, also applied to cases identified by caption and docket number, 503 U. S., at 440, and was nonetheless upheld. Moreover, §8772, as already described, see supra, at 6–8, facilitates execution of judgments in 16 suits, together encompassing more than 1,000 victims of Iran-sponsored terrorist attacks.[25] Although consolidated for administrative purposes at the execution stage,[26] the judgment-execution claims brought pursuant to Federal Rule of Civil Procedure 69 were not independent of the original actions for damages and each claim retained its separate character. See Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 –835, n. 10 (1988) (postjudgment garnishment action brought under Rule 69 is part of the “process to enforce a judgment,” not a new suit (alteration omitted and emphasis deleted)); 10 Cyclopedia of Federal Procedure §36:8, p. 385 (3 ed. 2010) (“Proceedings in execution are proceedings in the action itself . . . .”); 9A C. Wright & A. Miller, Federal Practice and Procedure §2382, p. 10 (3d ed. 2008) (“[A]ctions do not lose their separate identity because of consolidation.”).[27] The Bank’s argument is further flawed, for it rests on the assumption that legislation must be generally applic-able, that “there is something wrong with particularized legislative action.” Plaut, 514 U. S., at 239, n. 9. We have found that assumption suspect: “While legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action. Private bills in Congress are still common, and were even more so in the days before establishment of the Claims Court. Even laws that impose a duty or liability upon a single individ-ual or firm are not on that account invalid—or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that [the Clause] requires not merely ‘singling out’ but also punishment, see, e.g., United States v. Lovett, 328 U. S. 303 –318 (1946), [or] a case [holding] that Congress may legislate ‘a legitimate class of one,’ Nixon v. Administrator of General Services, 433 U. S. 425, 472 (1977) .” Ibid.[28] This Court and lower courts have upheld as a valid exercise of Congress’ legislative power diverse laws that governed one or a very small number of specific subjects. E.g., Regional Rail Reorganization Act Cases, 419 U. S. 102 –161 (1974) (upholding Act that applied to specific railroads in a single region); Pope, 323 U. S., at 9–14 (upholding special Act giving a contractor the right to recover additional compensation from the Government); The Clinton Bridge, 10 Wall. 454, 462–463 (1870) (upholding Act governing a single bridge); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 430–432 (1856) (similar); Biodiversity Assoc. v. Cables, 357 F. 3d 1152, 1156, 1164–1171 (CA10 2004) (upholding law that abro- gated specific settlement agreement between U. S. Forest Service and environmental groups); SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F. 3d 662, 667, 674–675 (CA9 2002) (upholding law that effectively applied to a single oil tanker); National Coalition To Save Our Mall v. Norton, 269 F. 3d 1092, 1097 (CADC 2001) (upholding law that applied to a single memorial). C We stress, finally, that §8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper. See, e.g., Zivotofsky v. Kerry, 576 U. S. ___, ___ (2015) (slip op., at 19). In furtherance of their authority over the Nation’s foreign relations, Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States. See Dames & Moore v. Regan, 453 U. S. 654 –674, 679–681 (1981) (describing this history). In pursuit of foreign policy objectives, the political branches have regulated specific foreign-state assets by, inter alia, blocking them or governing their availability for attachment. See supra, at 3–4 (describing the TWEA and the IEEPA); e.g., Dames & Moore, 453 U. S., at 669–674. Such measures have never been rejected as invasions upon the Article III judicial power. Cf. id., at 674 (Court resists the notion “that the Federal Government as a whole lacked the power” to “nullif[y] . . . attachments and orde[r] the transfer of [foreign-state] assets.”).[29] Particularly pertinent, the Executive, prior to the enactment of the FSIA, regularly made case-specific determinations whether sovereign immunity should be recognized, and courts accepted those determinations as binding. See Republic of Austria v. Altmann, 541 U. S. 677 –691 (2004); Ex parte Peru, 318 U. S. 578 –590 (1943). As this Court explained in Republic of Mexico v. Hoffman, 324 U. S. 30, 35 (1945) , it is “not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immu-nity on new grounds which the government has not seen fit to recognize.” This practice, too, was never perceived as an encroachment on the federal courts’ jurisdiction. See Dames & Moore, 453 U. S., at 684–685 (“[P]rior to the enactment of the FSIA [courts would not have] reject[ed] as an encroachment on their jurisdiction the President’s determination of a foreign state’s sovereign immunity.”). Enacting the FSIA in 1976, Congress transferred from the Executive to the courts the principal responsibility for determining a foreign state’s amenability to suit. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 –489 (1983). But it remains Congress’ prerogative to alter a foreign state’s immunity and to render the alteration dispositive of judicial proceedings in progress. See Republic of Iraq v. Beaty, 556 U. S. 848 –857, 865 (2009). By altering the law governing the attachment of particular property belonging to Iran, Congress acted comfortably within the political branches’ authority over foreign sovereign immunity and foreign-state assets. * * * For the reasons stated, we are satisfied that §8772—a statute designed to aid in the enforcement of federal-court judgments—does not offend “separation of powers principles . . . protecting the role of the independent Judiciary within the constitutional design.” Miller v. French, 530 U. S. 327, 350 (2000) . The judgment of the Court of Appeals for the Second Circuit is therefore Affirmed.Notes 1 * Justice Thomas joins all but Part II–C of this opinion. 2 The FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country” and renders a foreign government “presumptively immune from the jurisdiction of United States courts unless one of the Act’s express exceptions to sovereign immunity applies.” OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___ (2015) (slip op., at 3) (internal quotation marks omitted); see 28 U. S. C. §1330(a) (conferring jurisdiction over “any claim . . . with respect to which the foreign state is not entitled to immunity”); §1604 (on “[i]mmunity of a foreign state from jurisdiction”). 3 Again expanding the availability of assets for postjudgment execution, Congress, in 2008, amended the FSIA to make available for execution the property (whether or not blocked) of a foreign state sponsor of terrorism, or its agency or instrumentality, to satisfy a judgment against that state. See §1083 of the National Defense Authorization Act for Fiscal Year 2008, 122Stat. 341, 28 U. S. C. §1610(g). Section 1610(g) does not take precedence over “any other provision of law,” as the TRIA does. See TRIA §201(a). Hence, the FSIA’s central-bank immunity provision, see supra, at 3, limits §1610(g), but not the TRIA. 4 As a defense to execution, Bank Markazi contended that the blocked assets were not assets “of” Bank Markazi. See TRIA §201(a). Referring to state property law, Bank Markazi asserted that the assets were “of” a financial intermediary which held them in the United States on Bank Markazi’s behalf. See App. to Pet. for Cert. 96a–100a. 5 Title 22 U. S. C. §8772(a)(1) applies “notwithstanding any other provision of law, including any provision of law relating to sovereign immunity, and preempt[s] any inconsistent provision of State law.” 6 The 16 judgments include: Wultz v. Islamic Republic of Iran, 864 F. Supp. 2d 24 (DC 2012); Murphy v. Islamic Republic of Iran, 740 F. Supp. 2d 51 (DC 2010); Valore v. Islamic Republic of Iran, 700 F. Supp. 2d 52 (DC 2010) (granting judgment in consolidation of four actions at issue here: Valore, No. 1:03–cv–01959; Bonk v. Islamic Republic of Iran, No. 1:08–cv–01273; Spencer v. Islamic Republic of Iran, No. 1:06–cv–00750; and Arnold v. Islamic Republic of Iran, No. 1:06–cv–00516); Estate of Brown v. Islamic Republic of Iran, No. 1:08–cv–00531 (D DC, Feb. 1, 2010); Acosta v. Islamic Republic of Iran, 574 F. Supp. 2d 15 (DC 2008); Beer v. Islamic Republic of Iran, 574 F. Supp. 2d 1 (DC 2008); Kirschenbaum v. Islamic Republic of Iran, 572 F. Supp. 2d 200 (DC 2008); Levin v. Islamic Republic of Iran, 529 F. Supp. 2d 1 (DC 2007); Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (DC 2006); Estate of Bland v. Islamic Republic of Iran, No. 1:05–cv–02124 (D DC, Dec. 6, 2006); Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90 (DC 2006); Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258 (DC 2003) (awarding judgment in both the Rubin action, Rubin v. Islamic Republic of Iran, No. 1:01–cv–01655, the plaintiffs of which are respondents here, and the Campuzano action, the plaintiffs of which are not); Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46 (DC 2003). Three additional groups of plaintiffs with claims against Iran were voluntarily dismissed from the instant litigation after “informing the [District Court] that none of the plaintiffs in those actions ha[d] obtained judgments for damages against Iran.” App. to Pet. for Cert. 19a. 7 “At approximately 6:25 a.m. Beirut time, . . . [a] truck crashed through a . . . barrier and a wall of sandbags, and entered the barracks. When the truck reached the center of the barracks, the bomb in the truck detonated. . . .” Peterson, 264 F. Supp. 2d, at 56 (footnote omitted). “As a result of the Marine barracks explosion, 241 servicemen were killed . . . .” Id., at 58. The United States has long recognized Iran’s complicity in this attack. See H. R. Rep. No. 104–523, pt. 1, p. 9 (1996) (“After an Administration determination of Iran’s involvement in the bombing of the Marine barracks in Beirut in October 1983, Iran was placed on the U. S. list of state sponsors of terrorism on January 19, 1984.”). 8 Some of these 16 judgments awarded compensatory and punitive damages. See, e.g., Wultz, 864 F. Supp. 2d, at 42; Acosta, 574 F. Supp. 2d, at 31. Both §201(a) of the TRIA and §8772(a)(1) permit execution only “to the extent of any compensatory damages.” 9 Federal Rule of Civil Procedure 69(a)(1) provides: “A money judgment is enforced by writ of execution . . . . The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.” 10 Some moved to intervene; others became part of the proceeding by way of an interpleader motion filed by Citibank. App. to Pet. for Cert. 15a, 52a–53a, n. 1; Third-Party Petition Alleging Claims in the Nature of Interpleader in No. 10–CIV–4518 (SDNY), pp. 12–14. One group of respondents intervened much later than the others, in 2013, after §8772’s enactment. See App. to Pet. for Cert. 18a–19a. 11 Before §8772’s enactment, respondents’ execution claims relied on the TRIA. Even earlier, i.e., prior to Executive Order No. 13599, which blocked the assets and thereby opened the door to execution under the 12 In April 2012, the last of the bonds matured, leaving only “cash associated with the bonds” still restrained in the New York bank account. App. to Pet. for Cert. 61a. 13 Citibank is a “neutral stakeholder,” seeking only “resolution of ownership of [the] funds.” App. to Pet. for Cert. 54a (internal quotation marks omitted). UBAE did not contest turnover of the $1.75 billion in assets at issue here (though it disputed the District Court’s personal jurisdiction in anticipation of other execution claims not now before us). See Memorandum of Law in Support of Banca UBAE, S. p. A.’s Opposition to the Plaintiffs’ Motion for Partial Summary Judgment in No. 10–CIV–4518 (SDNY), pp. 1–2. 14 In addition, Bank Markazi advanced one argument not foreclosed by §8772’s text, and another that, at least in Bank Markazi’s estimation, had not been rendered irrelevant by §8772. First, Bank Markazi argued that the availability of the assets for execution was a nonjusticiable political question because execution threatened to interfere with European blocking regulations. App. to Pet. for Cert. 92a–94a. Second, the Bank urged that execution would violate U. S. treaty obligations to Iran. See Defendant Bank Markazi’s Supplemental Memorandum of Law in Opposition to Plaintiffs’ Motion for Partial Summary Judgment in No. 10–CIV–4518 (SDNY), pp. 2–3, 21–25. The District Court found these arguments unavailing. The matter was justiciable, the court concluded, because §8772’s enactment demonstrated that the political branches were not troubled about interference with European blocking regulations. App. to Pet. for Cert. 94a–96a. And treaty provisions interposed no bar to enforcement of §8772 because, the court reiterated, §8772 displaces “any” inconsistent provision of law, treaty obligations 15 Bank Markazi and Clearstream unsuccessfully sought to defeat turnover on several other constitutional grounds: the Bill of Attainder, Ex post facto, Equal Protection, and Takings Clauses. See id., at 115a–119a. Those grounds are no longer pressed. 16 Clearstream and UBAE settled with respondents before the Second Circuit’s decision. Peterson v. Islamic Republic of Iran, 758 F. 3d 185, 189 (2014). 17 Respondents suggest that we decide this case on the ground that §201(a) of the TRIA independently authorizes execution against the assets here involved, instead of reaching the constitutional question petitioner raises regarding §8772. Brief for Respondents 53. The Court of Appeals, however, did not “resolve th[e] dispute under the TRIA,” 758 F. 3d, at 189, nor do we. This Court generally does not decide issues unaddressed on first appeal—especially where, as here, the matter falls outside the question presented and has not been thoroughly briefed before us. 18 Consistent with this limitation, respondents rightly acknowledged 19 See also id., at 323 (calling Klein a “delphic opinion”); Tyler, The Story of Klein: The Scope of Congress’s Authority to Shape the Jurisdiction of the Federal Courts, in Federal Courts Stories 87 (V. Jackson & J. Resnik eds. 2010) (calling Klein “baffl[ing]”) (Tyler). 20 Given the issue before the Court—Presidential pardons Congress sought to nullify by withdrawing federal-court jurisdiction—commentators have rightly read Klein to have at least this contemporary significance: Congress “may not exercise [its authority, including its power to regulate federal jurisdiction,] in a way that requires a federal court to act unconstitutionally.” Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L. J. 2537, 2549 (1998). See also Tyler 112 (“Congress may not employ the courts in a way that forces them to become active participants in violating the Constitution.”). 21 The District Court understandably concluded that §8772 left it “plenty . . . to adjudicate.” App. to Pet. for Cert. 115a. For one, the statute did not define its key terms, “beneficial interest” and “equitable title.” To arrive at fitting definitions, the District Court consulted legal dictionaries and precedent. See id., at 111a–112a; Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op, at 7) (Interpretation of statutes “is a familiar judicial exercise.”). Further, §8772 required the District Court to determine whether the Bank owned the assets in question. §8772(a)(2)(A). Clearstream contended that there were triable issues as to whether Bank Markazi was the owner of the blocked assets. App. to Pet. for Cert. 37a–39a, 111a. The court rejected that contention, finding that Clearstream and UBAE were merely account holders, maintaining the assets “on behalf of” the Bank. Id., at 112a–113a; see id., at 38a–39a. Next, §8772 required the court to determine whether any party, other than the Bank, possessed a “constitutionally protected interest” in the assets. §8772(a)(2)(B). Clearstream argued that it had such an interest, but the court disagreed. App. to Pet. for Cert. 117a–118a (determining that Clearstream had no constitutionally protected “investment-backed expectatio[n]” in the assets). Finally, prior to the statute’s enactment, Bank Markazi and Clearstream had argued that the assets in question were located in Luxembourg, not New York. Supra, at 10. Leaving the issue for court resolution, Congress, in §8772(a)(1), required the District Court to determine whether the assets were “held in the United States.” 22 Recall, again, that respondents are judgment creditors who prevailed on the merits of their respective cases. Section 8772 serves to facilitate their ability to collect amounts due to them from assets of the judgment debtor. 23 The dissent also analogizes §8772 to a law that makes “conclusive” one party’s flimsy evidence of a boundary line in a pending property dispute, notwithstanding that the governing law ordinarily provides that an official map establishes the boundary. Post, at 1. Section 8772, however, does not restrict the evidence on which a court may rely in making the required findings. A more fitting analogy for depicting §8772’s operation might be: In a pending property dispute, the parties contest whether an ambiguous statute makes a 1990 or 2000 county map the relevant document for establishing boundary lines. To clarify the matter, the legislature enacts a law specifying that the 2000 map supersedes the earlier map. 24 At oral argument, Bank Markazi clarified that its argument extended beyond a single pending case, encompassing as well “a limited category of cases.” Tr. of Oral Arg. 5. See also id., at 57–58. 25 Section 8772’s limitation to one consolidated proceeding operates unfairly, Bank Markazi suggests, because other judgment creditors “would be subject to a completely different rule” if they “sought to execute against the same assets” outside No. 10–CIV–4518. Brief for 26 District courts routinely consolidate multiple related matters for a single decision on common issues. See, e.g., Securities Investor Protection Corp. v. Bernard L. Madoff Inv. Securities LLC, 476 B. R. 715, 717 (SDNY 2012) (deciding several legal questions arising in over 80 cases concerning “the massive Ponzi scheme perpetrated by Bernard L. Madoff”). 27 Questioning this understanding of the proceedings below, The Chief Justice emphasizes that many of the judgment creditors were joined in the Peterson enforcement proceeding by interpleader. See post, at 8, n. 1. That is true, supra, at 8, n. 9, but irrelevant. As explained above, execution proceedings are continuations of merits proceedings, not new lawsuits. Thus, the fact that many creditors joined by interpleader motion did not transform execution claims in 16 separate suits into “a single case.” Post, at 8, n. 1. 28 Laws narrow in scope, including “class of one” legislation, may violate the Equal Protection Clause if arbitrary or inadequately justified. Village of Willowbrook v. Olech, 528 U. S. 562, 564 (2000) (per curiam) (internal quotation marks omitted); New Orleans v. Dukes, 427 U. S. 297 –306 (1976) (per curiam). 29 The Chief Justice correctly notes that the Court in Dames & Moore v. Regan, 453 U. S. 654, 661 (1981) , urged caution before extending its analysis to “other situations” not presented in that case. Post, at 15. Much of the Court’s cause for concern, however, was the risk that the ruling could be construed as license for the broad exercise of unilat-

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 . SUPREME COURT OF THE UNITED STATES Syllabus BANK MARKAZI, aka CENTRAL BANK OF IRAN v. PETERSON et al. certiorari to the united states court of appeals for the second circuit No. 14–770. Argued January 13, 2016—Decided April 20, 2016 American nationals may seek money damages from state sponsors of terrorism in the courts of the United States. See 28 U. S. C. §1605A. Prevailing plaintiffs, however, often face practical and legal difficulties enforcing their judgments. To place beyond dispute the availability of certain assets for satisfaction of judgments rendered in terrorism cases against Iran, Congress enacted the Iran Threat Reduction and Syria Human Rights Act of 2012. As relevant here, the Act makes a designated set of assets available to satisfy the judgments underlying a consolidated enforcement proceeding which the statute identifies by the District Court’s docket number. 22 U. S. C. §8772. Section 8772(a)(2) requires a court, before allowing execution against these assets, to determine, inter alia, “whether Iran holds equitable title to, or the beneficial interest in, the assets.” Respondents—more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members—rank within 16 discrete groups, each of which brought suit against Iran. To enforce judgments they obtained by default, the 16 groups moved for turnover of about $1.75 billion in bond assets held in a New York bank account—assets that, respondents alleged, were owned by Bank Markazi, the Central Bank of Iran. The turnover proceeding began in 2008. In 2012, the judgment holders updated their motions to include execution claims under §8772. Bank Markazi maintained that §8772 could not withstand inspection under the separation-of-powers doctrine, contending that Congress had usurped the judicial role by directing a particular result in the pending enforcement proceeding. The District Court disagreed, concluding that §8772 permissibly changed the law applicable in a pending litigation. The Second Circuit affirmed. Held: Section 8772 does not violate the separation of powers. . (a) Article III of the Constitution establishes an independent Judiciary with the “province and duty . . . to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. Necessarily, that endowment of authority blocks Congress from “requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 . Although Article III bars Congress from telling a court how to apply pre-existing law to particular circumstances, Robertson v. Seattle Audubon Soc., 503 U. S. 429 –439, Congress may amend a law and make the amended prescription retroactively applicable in pending cases, Landgraf v. USI Film Products, 511 U. S. 244 –268; United States v. Schooner Peggy, 1 Cranch 103, 110. In United States v. Klein, 13 Wall. 128, 146, this Court enigmatically observed that Congress may not “prescribe rules of decision to the Judicial Department . . . in [pending] cases.” More recent decisions have clarified that Klein does not inhibit Congress from “amend[ing] applicable law.” Robertson, 503 U. S., at 441; Plaut, 514 U. S., at 218. Section 8772 does just that: It requires a court to apply a new legal standard in a pending postjudgment enforcement proceeding. No different result obtains because, as Bank Markazi argues, the outcome of applying §8772 to the facts in the proceeding below was a “foregone conclusio[n].” Brief for Petitioner 47. A statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. See Pope v. United States, 323 U. S. 1 . . (b) Nor is §8772 invalid because, as Bank Markazi further objects, it prescribes a rule for a single, pending case identified by caption and docket number. The amended law upheld in Robertson also applied to cases identified in the statute by caption and docket number. 503 U. S., at 440. Moreover, §8772 is not an instruction governing one case only: It facilitates execution of judgments in 16 suits. While consolidated for administrative purposes at the execution stage, the judgment-execution claims were not independent of the original actions for damages and each retained its separate character. In any event, the Bank’s argument rests on the flawed assumption that legislation must be generally applicable. See Plaut, 514 U. S., at 239, n. 9. This Court and lower courts have upheld as a valid exercise of Congress’ legislative power laws governing one or a very small number of specific subjects. . (c) Adding weight to this decision, §8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper. Measures taken by the political branches to control the disposition of foreign-state property, including blocking specific foreign-state assets or making them available for attachment, have never been rejected as invasions upon the Article III judicial power. Cf. Dames & Moore v. Regan, 453 U. S. 654 . Notably, before enactment of the Foreign Sovereign Immunities Act, the Executive regularly made case-specific determinations whether sovereign immunity should be recognized, and courts accepted those determinations as binding. See, e.g., Republic of Austria v. Altmann, 541 U. S. 677 –691. This practice, too, was never perceived as an encroachment on the federal courts’ jurisdiction. Dames & Moore, 453 U. S., at 684–685. . 758 F. 3d 185, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Alito, and Kagan, JJ., joined, and in all but Part II–C of which Thomas, J., joined. Roberts, C. J., filed a dissenting opinion, in which Sotomayor, J., joined.

Section 8772 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Act) makes available for postjudgment execution a set of assets held at a bank for Bank Markazi, the Central Bank of Iran. The assets would partially satisfy judgments gained in separate actions by over 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members. In addition, the court in which execution is sought must determine whether Iran holds equitable title to, or the beneficial interest in, the assets, and that no other person possesses a constitutionally protected interest in the assets. The District Court entered judgments by default, and the Court of Appeals affirmed. Held: Section 8772 does not violate the separation of powers by purporting to change the law for, and directing a particular result in, a single pending case. . (a) Section8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper. Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States. However, in furtherance of their authority over the Nation's foreign relations, Congress and President have periodically intervened in cases of alleged invasions of the Executive Branch or in pursuit of specific objectives. Cf. United States v. Klein, 13 Wall. 128; KENNEDY v. STEVENS, J.,; Peterson v. Islamic Republic of Iran, 264 F. Supp. 2d 46. More recent decisions have made it clear that Klein does not inhibit Congress from enacting applicable law. See, e.g., Dames & Moore v. Regan, 453 U. S. 654, 654; id. at 323. Moreover, the Act does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. By altering the law governing the attachment of particular property belonging to Iran, Congress acted comfortably within the Political Branch of Government's authority over foreign sovereign immunity and such assets. Pp. (b) Nor does §8772 offend the separation-of-powers principle, which prevents Congress fromrequir[ing] federal courts to exercise the judicial power in a manner that Article III forbids. Under the Act, Congress may not usurp a court's power to interpret and apply the law to thecircumstances before it, and may not retroactively comman[t] a court to be instrumental to that end. This Court generally does not decide issues unaddressed on first appeal, especially where, as here, the matter falls outside the question presented and has not been thoroughly briefed before it. P.. (c) The Act establishes an independent Judiciary, and renders a foreign governmentpresumptively immune from the jurisdiction of United States courts unless one of the Act's express exceptions to sovereign immunity applies. Such an exception does not conflict with Klein, since it provides a new standard clarifying that, if Iran owns certain assets, the victims of Iranian-sponsored terrorist attacks will be permitted to execute against those assets. Applying laws implementing Congress' policy judgments, with fidelity to those judgments, is commonplace for the Judiciary. Nor does the Act violate the Due Process Clause of the Fourteenth Amendment when it fails to validate retroactive legislation. Since Congress has never intended retroactive application of civil legislation, it may have lacked sufficient justification for its prohibition when it enacted specific, outcome-altering legislation in pending civil cases. Although legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action, and Congress has long recognized that it is powerless to direct the result without altering the legal standards governing the effect of a pardon.... in any event, a statute may not be retroactively applicable to pending cases, since Congress, in enacting the Act in 1976, transferred from the Executive to the courts the principal responsibility for determining a foreign state's amenability to suit, and it remains Congress' prerogative to render the alteration dispositive of judicial proceedings in progress. Furthermore, by altering the Act so that it applies to a single consolidated proceeding in a single case, Congress performed comfortably within its political branches' authority over such matters, entrusting to the District Court application of those standards to the facts (contested or uncontested) found by the court. Thus, §877 2 does not offend the Equal Protection Clause.. 758 F. 3d 185, affirmed. Respondents 53, who joined all but Part II-C of this opinion, joined by others, concurred in the judgment. They argued, inter alia, that the blocked assets were not assets of the Bank, that they were assets that the Bank did not own, nor that the block assets were assets of any party, other than the Bank

2015_14-1457

https://www.oyez.org/cases/2015/14-1457

. The Sixth Amendment to the U. S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Does the Sixth Amendment’s speedy trial guarantee apply to the sentencing phase of a criminal prosecution? That is the sole question this case presents. We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his Sixth Amendment challenge. I Ordered to appear in court on domestic assault charges, Brandon Betterman failed to show up and was therefore charged with bail jumping. 378 Mont. 182, 184, 342 P. 3d 971, 973 (2015). After pleading guilty to the bail-jumping charge, he was jailed for over 14 months awaiting sentence on that conviction. Id., at 184–185, 342 P. 3d, at 973–974. The holdup, in large part, was due to institutional delay: the presentence report took nearly five months to complete; the trial court took several months to deny two presentence motions (one seeking dismissal of the charge on the ground of delay); and the court was slow in setting a sentencing hearing. Id., at 185, 195, 342 P. 3d, at 973–974, 980. Betterman was eventually sentenced to seven years’ imprisonment, with four of those years suspended. Id., at 185, 342 P. 3d, at 974. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed. The Montana Supreme Court affirmed his conviction and sentence, ruling that the Sixth Amendment’s Speedy Trial Clause does not apply to postconviction, presentencing delay. Id., at 188–192, 342 P. 3d, at 975–978. We granted certiorari, 577 U. S. ___ (2015), to resolve a split among courts over whether the Speedy Trial Clause applies to such delay.[1] Holding that the Clause does not apply to delayed sentencing, we affirm the Montana Supreme Court’s judgment. II Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. In the first stage—before arrest or indictment, when the suspect remains at liberty—statutes of limitations provide the primary protection against delay, with the Due Process Clause as a safeguard against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U. S. 783, 789 (1977) ; see id., at 795, n. 17 (Due ProcessClause may be violated, for instance, by prosecutorial delay that is “tactical” or “reckless” (internal quotation marks omitted)). The Sixth Amendment’s Speedy Trial Clause homes in on the second period: from arrest or indictment through conviction. The constitutional right, our precedent holds, does not attach until this phase begins, that is, when a defendant is arrested or formally accused. United States v. Marion, 404 U. S. 307 –321 (1971). Today we hold that the right detaches upon conviction, when this second stage ends.[2] Prior to conviction, the accused is shielded by the presumption of innocence, the “bedrock[,] axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” Reed v. Ross, 468 U. S. 1, 4 (1984) (internal quotation marks omitted). The Speedy Trial Clause implements that presumption by “prevent[ing] undue and oppressive incarceration prior to trial, . . . minimiz[ing] anxiety and concern accompanying public accusation[,] and . . . limit[ing] the possibilities that long delay will impair the ability of an accused to defend himself.” Marion, 404 U. S., at 320 (internal quotation marks omitted). See also Barker v. Wingo, 407 U. S. 514 –533 (1972). As a measure protecting the presumptively innocent, the speedy trial right—like other similarly aimed measures—loses force upon conviction. Compare In re Winship, 397 U. S. 358, 364 (1970) (requiring “proof beyond a reasonable doubt of every fact necessary to constitute the crime”), with United States v. O’Brien, 560 U. S. 218, 224 (2010) (“Sentencing factors . . . can be proved . . . by a preponderance of the evidence.”). Compare also 18 U. S. C. §3142(b) (bail presumptively available for accused awaiting trial) with §3143(a) (bail presumptively unavailable for those convicted awaiting sentence). Our reading comports with the historical understanding. The speedy trial right, we have observed, “has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215) . . . .” Klopfer v. North Carolina, 386 U. S. 213, 223 (1967) . Regarding the Framers’ comprehension of the right as it existed at the founding, we have cited Sir Edward Coke’s Institutes of the Laws of England. See id., at 223–225, and nn. 8, 12–14, 18. Coke wrote that “the innocent shall not be worn and wasted by long imprisonment, but . . . speedily come to his tria[l].” 1 E. Coke, Second Part of the Institutes of the Laws of England 315 (1797) (emphasis added). Reflecting the concern that a presumptively innocent person should not languish under an unresolved charge, the Speedy Trial Clause guarantees “the accused” “the right to a speedy . . . trial.” U. S. Const., Amdt. 6 (emphasis added). At the founding, “accused” described a status preceding “convicted.” See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 322 (1769) (commenting on process in which “persons accused of felony . . . were tried . . . and convicted” (emphasis added)). And “trial” meant a discrete episode after which judgment (i.e., sentencing) would follow. See, e.g., id., at 368 (“We are now to consider the next stage of criminal prosecution, after trial and conviction are past . . . : which is that of judgment.”).[3] This understanding of the Sixth Amendment language—“accused” as distinct from “convicted,” and “trial” as separate from “sentencing”—endures today. See, e.g., Black’s Law Dictionary 26 (10th ed. 2014) (defining “accused” as “a person who has been arrested and brought before a magistrate or who has been formally charged” (emphasis added)); Fed. Rule Crim. Proc. 32 (governing “Sentencing and Judgment,” the rule appears in the chapter on “Post-Conviction Procedures,” which follows immediately after the separate chapter headed “Trial”).[4] This Court’s precedent aligns with the text and history of the Speedy Trial Clause. Detaining the accused pretrial, we have said, disadvantages him, and the imposition is “especially unfortunate” as to those “ultimately found to be innocent.” Barker, 407 U. S., at 532–533. And in Marion, 404 U. S., at 320, addressing “the major evils protected against by the speedy trial guarantee,” we observed: “Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.” We acknowledged in Marion that even pre-arrest—a stage at which the right to a speedy trial does not arise—the passage of time “may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself.” Id., at 321. Nevertheless, we determined, “this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper [arrest or charge triggered] context.” Id., at 321–322. Adverse consequences of postconviction delay, though subject to other checks, see infra, at 10–11, are similarly outside the purview of the Speedy Trial Clause.[5] The sole remedy for a violation of the speedy trial right—dismissal of the charges, see Strunk v. United States, 412 U. S. 434, 440 (1973) ; Barker, 407 U. S., at 522—fits the preconviction focus of the Clause. It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. Betterman concedes that a dismissal remedy ordinarily would not be in order once a defendant has been convicted. See Tr. of Oral Arg. 5–6; cf. Bozza v. United States, 330 U. S. 160, 166 (1947) (“[A]n error in passing the sentence” does not permit a convicted defendant “to escape punishment altogether.”).[6] The manner in which legislatures have implemented the speedy trial guarantee matches our reading of the Clause. Congress passed the Speedy Trial Act of 1974, 18 U. S. C. §3161 et seq., “to give effect to the sixth amendment right.” United States v. MacDonald, 456 U. S. 1 , n. 7 (1982) (quoting S. Rep. No. 93–1021, p. 1 (1974)). “The more stringent provisions of the Speedy Trial Act have mooted much litigation about the requirements of the Speedy Trial Clause . . . .” United States v. Loud Hawk, 474 U. S. 302 , n. 1 (1986) (citation omitted). With certain exceptions, the Act directs—on pain of dismissal of the charges, §3162(a)—that no more than 30 days pass between arrest and indictment, §3161(b), and that no more than 70 days pass between indictment and trial, §3161(c)(1). The Act says nothing, however, about the period between conviction and sentencing, suggesting that Congress did not regard that period as falling within the Sixth Amendment’s compass. Numerous state analogs similarly impose precise time limits for charging and trial; they, too, say nothing about sentencing.[7] Betterman asks us to take account of the prevalence of guilty pleas and the resulting scarcity of trials in today’s justice system. See Lafler v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 11) (“[C]riminal justice today is for the most part a system of pleas, not a system of trials.”). The sentencing hearing has largely replaced the trial as the forum for dispute resolution, Betterman urges. Therefore, he maintains, the concerns supporting the right to a speedy trial now recommend a speedy sentencing hear-ing. The modern reality, however, does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause. And factual disputes, if any there be, at sentencing, do not go to the question of guilt;they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and maximums. Moreover, a central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)–(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048–1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.[8] Indeed, many—if not most—disputes are resolved, not at the hearing itself, but rather through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) (“Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries.”); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) (“[T]oday’s sentencing hearings . . . rubber-stamp plea-bargained sentences.”). As we have explained, at the third phase of thecriminal-justice process, i.e., between conviction and sentencing, the Constitution’s presumption-of-innocence-protective speedy trial right is not engaged.[9] That does not mean, however, that defendants lack any protection against undue delay at this stage. The primary safeguard comes from statutes and rules. The federal rule on point directs the court to “impose sentence without unnecessary delay.” Fed. Rule Crim. Proc. 32(b)(1). Many States have provisions to the same effect,[10] and some States prescribe numerical time limits.[11] Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay. See supra, at 3. After conviction, a defendant’s due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair. But because Betterman advanced no due process claim here, see supra, at 1, we express no opinion on how he might fare under that more pliable standard. See, e.g., United States v. $8,850, 461 U. S. 555 –565 (1983).[12] * * * The course of a criminal prosecution is composed of discrete segments. During the segment between accusation and conviction, the Sixth Amendment’s Speedy Trial Clause protects the presumptively innocent from long enduring unresolved criminal charges. The Sixth Amendment speedy trial right, however, does not extend beyond conviction, which terminates the presumption of innocence. The judgment of the Supreme Court of Montana is therefore Affirmed.Notes 1 Compare Burkett v. Cunningham, 826 F. 2d 1208, 1220 (CA3 1987); Juarez-Casares v. United States, 496 F. 2d 190, 192 (CA5 1974); Ex parte Apicella, 809 So. 2d 865, 869 (Ala. 2001); Gonzales v. State, 582 P. 2d 630, 632 (Alaska 1978); Jolly v. State, 358 Ark. 180, 191, 189 S. W. 3d 40, 45 (2004); Trotter v. State, 554 So. 2d 313, 316 (Miss. 1989), superseded by statute on other grounds, Miss. Code Ann. §99–35–101 (2008); Commonwealth v. Glass, 526 Pa. 329, 334, 586 A. 2d 369, 371 (1991); State v. Leyva, 906 P. 2d 910, 912 (Utah 1995); and State v. Dean, 148 Vt. 510, 513, 536 A. 2d 909, 912 (1987) (Speedy Trial Clause applies to sentencing delay), with United States v. Ray, 578 F. 3d 184, 198–199 (CA2 2009); State v. Drake, 259 N. W. 2d 862, 866 (Iowa 1977), abrogated on other grounds by State v. Kaster, 469 N. W. 2d 671, 673 (Iowa 1991); State v. Pressley, 290 Kan. 24, 29, 223 P. 3d 299, 302 (2010); State v. Johnson, 363 So. 2d 458, 460 (La. 1978); 378 Mont. 182, 192, 342 P. 3d 971, 978 (2015) (case below); and Ball v. Whyte, 170 W. Va. 417, 418, 294 S. E. 2d 270, 271 (1982) (Speedy Trial Clause does not apply to sentencing delay). 2 We reserve the question whether the Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing stage, facts that could increase the prescribed sentencing range are determined (e.g., capital cases in which eligibility for the death penalty hinges on aggravating factor findings). Nor do we decide whether the right reattaches upon renewed prosecution following a defendant’s successful appeal, when he again enjoys the presumption of innocence. 3 As Betterman points out, at the founding, sentence was often imposed promptly after rendition of a verdict. Brief for Petitioner 24–26. But that was not invariably the case. For the court’s “own convenience, or on cause shown, [sentence could be] postpone[d] . . . to a future day or term.” 1 J. Bishop, Criminal Procedure §1291, p. 767 (3d ed. 1880) (footnote omitted). See also 1 J. Chitty, A Practical Treatise on the Criminal Law 481 (1819) (“The sentence . . . is usually given immediately after the conviction, but the court may adjourn to another day and then give judgment.”). 4 We do not mean to convey that provisions of the Sixth Amendment protecting interests other than the presumption of innocence are inapplicable to sentencing. In this regard, we have held that the right to defense counsel extends to some postconviction proceedings. See Mempa v. Rhay, 389 U. S. 128 –137 (1967). 5 Smith v. Hooey, 393 U. S. 374 (1969) , on which Betterman relies, is not to the contrary. There we concluded that a defendant, though already convicted and imprisoned on one charge, nevertheless has a right to be speedily brought to trial on an unrelated charge. Id., at 378. “[T]here is reason to believe,” we explained in Smith, “that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large.” Id., at 379. Smith is thus consistent with comprehension of the Speedy Trial Clause as protective of the presumptively innocent. 6 Betterman suggests that an appropriate remedy for the delay in his case would be reduction of his sentence by 14 months—the time between his conviction and sentencing. See Tr. of Oral Arg. 6. We have not read the Speedy Trial Clause, however, to call for a flexible or tailored remedy. Instead, we have held that violation of the right demands termination of the prosecution. 7 See, e.g., Alaska Rule Crim. Proc. 45 (2016); Ark. Rules Crim. Proc. 28.1 to 28.3 (2015); Cal. Penal Code Ann. §1382 (West 2011); Colo. Rev. Stat. §18–1–405 (2015); Conn. Rules Crim. Proc. 43–39 to 43–42 (2016); Fla. Rule Crim. Proc. 3.191 (2016); Haw. Rule Crim. Proc. 48 (2016); Ill. Comp. Stat., ch. 725, §5/103–5 (West 2014); Ind. Rule Crim. Proc. 4 (2016); Iowa Rule Crim. Proc. 2.33 (2016); Kan. Stat. Ann. §22–3402 (2014 Cum. Supp.); La. Code Crim. Proc. Ann., Art. 701 (West Cum. Supp. 2016); Mass. Rule Crim. Proc. 36 (2016); Neb. Rev. Stat. §§29–1207, 29–1208 (2008); Nev. Rev. Stat. §178.556 (2013); N. Y. Crim. Proc. Law Ann. §30.30 (West Cum. Supp. 2016); Ohio Rev. Code Ann. §§2945.71 to 2945.73 (Lexis 2014); Ore. Rev. Stat. §§135.745, 135.746, 135.748, 135.750, 135.752 (2015); Pa. Rule Crim. Proc. 600 (2016); S. D. Codified Laws §23A–44–5.1 (Cum. Supp. 2015); Va. Code Ann. §19.2–243 (2015); Wash. Rule Crim. Proc. 3.3 (2016); Wis. Stat. §971.10 (2011–2012); Wyo. Rule Crim. Proc. 48 (2015). 8 “In federal prosecutions,” the Solicitor General informs us, “the median time between conviction and sentencing in 2014 was 99 days.” Brief for United States as Amicus Curiae 31, n. 5. A good part of this time no doubt was taken up by the drafting and review of a presentence report. See Fed. Rule Crim. Proc. 32(c)–(g) (detailing presentence-report process). 9 It is true that during this period the defendant is often incarcerated. See, e.g., §3143(a) (bail presumptively unavailable for convicted awaiting sentence). Because postconviction incarceration is considered punishment for the offense, however, a defendant will ordinarily earn time-served credit for any period of presentencing detention. See §3585(b); A. Campbell, Law of Sentencing §9:28, pp. 444–445, and n. 4 (3d ed. 2004) (“[State c]rediting statutes routinely provide that any period of time during which a person was incarcerated in relation to a given offense be counted toward satisfaction of any resulting sentence.”). That such detention may occur in a local jail rather than a prison is of no constitutional moment, for a convicted defendant has no right to serve his sentence in the penal institution he prefers. See Meachum v. Fano, 427 U. S. 215 –225 (1976). 10 See, e.g., Alaska Rule Crim. Proc. 32(a) (2016); Colo. Rule Crim. Proc. 32(b)(1) (2015); Del. Super. Ct. Crim. Rule 32(a)(1) (2003); Fla. Rule Crim. Proc. 3.720 (2016); Haw. Rule Penal Proc. 32(a) (2016); Kan. Stat. Ann. §22–3424(c) (2014 Cum. Supp.); Ky. Rule Crim. Proc. 11.02(1) (2016); La. Code Crim. Proc. Ann., Art. 874 (West 2016); Me. Rule Crim. Proc. 32(a)(1) (2015); Mass. Rule Crim. Proc. 28(b) (2016); Mich. Ct. Rule 6.425(E)(1) (2011); Mo. Sup. Ct. Rule 29.07(b)(1) (2011); Mont. Code Ann. §46–18–115 (2015); Nev. Rev. Stat. §176.015(1) (2013); N. H. Rule Crim. Proc. 29(a)(1) (2016); N. J. Ct. Rule 3:21–4(a) (2016); N. Y. Crim. Proc. Law Ann. §380.30(1) (West Cum. Supp. 2016); N. D. Rule Crim. Proc. 32(a)(1) (2011); Ohio Rule Crim. Proc. 32(A) (2013); R. I. Super. Ct. Rule 32(a)(1) (2015); S. D. Codified Laws §23A–27–1 (Cum. Supp. 2015); Vt. Rule Crim. Proc. 32(a)(1) (2010); Va. Sup. Ct. Rule 3A:17.1(b) (2012); W. Va. Rule Crim. Proc. 32(a) (2006); Wyo. Rule Crim. Proc. 32(c)(1) (2015). 11 See, e.g., Ariz. Rule Crim. Proc. 26.3(a)(1) (2011); Ark. Rule Crim. Proc. 33.2 (2015); Cal. Penal Code Ann. §1191 (West 2015); Ind. Rule Crim. Proc. 11 (2016); N. M. Rule Crim. Proc. 5–701(B) (2016); Ore. Rev. Stat. §137.020(3) (2015); Pa. Rule Crim. Proc. 704(A)(1) (2016); Tenn. Code Ann. §40–35–209(a) (2014); Utah Rule Crim. Proc. 22(a) (2015); Wash. Rev. Code §9.94A.500(1) (2016 Cum. Supp.). These sentencing provisions are separate from state analogues to the Speedy Trial Act. See supra, at 8, and n. 7. 12 Relevant considerations may include the length of and reasons for delay, the defendant’s diligence in requesting expeditious sentencing, and prejudice.

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 . SUPREME COURT OF THE UNITED STATES Syllabus BETTERMAN v. MONTANA certiorari to the supreme court of montana No. 14–1457. Argued March 28, 2016—Decided May 19, 2016 Petitioner Brandon Betterman pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced to seven years’ imprisonment, with four of the years suspended. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed, but the Montana Supreme Court affirmed the conviction and sentence, ruling that the Sixth Amendment’s Speedy Trial Clause does not apply to postconviction, presentencing delay. Held: The Sixth Amendment’s speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. . (a) Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay geared to each particular phase. P. 3. (b) Statutes of limitations provide the primary protection against delay in the first stage, when the suspect remains at liberty, with the Due Process Clause safeguarding against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U. S. 783 . P. 3. (c) The Speedy Trial Clause right attaches when the second phase begins, that is, upon a defendant’s arrest or formal accusation. United States v. Marion, 404 U. S. 307 –321. The right detaches upon conviction, when this second stage ends. Before conviction, the accused is shielded by the presumption of innocence, Reed v. Ross, 468 U. S. 1 , which the Speedy Trial Clause implements by minimizing the likelihood of lengthy incarceration before trial, lessening the anxiety and concern associated with a public accusation, and limiting the effects of long delay on the accused’s ability to mount a defense, Marion, 404 U. S., at 320. The Speedy Trial Clause thus loses force upon conviction. This reading comports with the historical understanding of the speedy trial right. It “has its roots at the very foundation of our English law heritage,” Klopfer v. North Carolina, 386 U. S. 213 , and it was the contemporaneous understanding of the Sixth Amendment’s language that “accused” described a status preceding “convicted” and “trial” meant a discrete episode after which judgment (i.e., sentencing) would follow. The Court’s precedent aligns with the text and history of the Speedy Trial Clause. See Barker v. Wingo, 407 U. S. 514 –533. Just as the right to speedy trial does not arise prearrest, Marion, 404 U. S., at 320–322, adverse consequences of postconviction delay are outside the purview of the Speedy Trial Clause. The sole remedy for a violation of the speedy trial right—dismissal of the charges—fits the preconviction focus of the Clause, for it would be an unjustified windfall to remedy sentencing delay by vacating validly obtained convictions. This reading also finds support in the federal Speedy Trial Act of 1974 and numerous state analogs, which impose time limits for charging and trial but say nothing about sentencing. The prevalence of guilty pleas and the resulting scarcity of trials in today’s justice system do not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause. Moreover, a central feature of contemporary sentencing—the preparation and review of a presentence investigation report—requires some amount of wholly reasonable presentencing delay. . (d) Although the Constitution’s presumption-of-innocence-protective speedy trial right is not engaged in the sentencing phase, statutes and rules offer defendants recourse. Federal Rule of Criminal Procedure 32(b)(1), for example, directs courts to “impose sentence without unnecessary delay.” Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay. Because Betterman advanced no due process claim here, however, the Court expresses no opinion on how he might fare under that more pliable standard. . 378 Mont. 182, 342 P. 3d 971, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion, in which Alito, J., joined. Sotomayor, J., filed a concurring opinion.

The Sixth Amendment guarantees the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. . 378 Mont. 182, 184, 342 P. 3d 971, affirmed. BRENNAN, J., wrote the opinion of the Court, in which DOUGLAS, WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, post, p.. POWELL and STEVENS, JJ, took no part in the consideration or decision of the case. FOURTH FOURTH APPELLATE SECOND CIRCUIT Petitioner Betterman advanced only a Sixth Amendment speedy trial claim, and thus did not preserve a due process challenge. The Montana Supreme Court affirmed his conviction and sentence, ruling that the Sixth Amendment's Speedy trial Clause applies to postconviction, presentencing delay. P.. Held: 1. The Sixth Amendment guarantee of a speedy trial detaches upon conviction, when the second stage of a criminal prosecution ends. That stage of the criminal prosecution is composed of discrete segments. During that segment between accusation and conviction, the Sixth amendment guarantees the presumptively innocent from long enduring unresolved charges, and the guarantees of that right do not extend beyond conviction, which terminates the presumption of innocence.. (a) The modern reality does not bear on the presumption-of-innocence protection at the heart of the Clause, and factual disputes, if any there be, at sentencing do not go to the question of guilt;they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and maximums. Moreover, a central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence report. This aspect of the system requires some amount of wholly reasonable presentencing delay, since many problems are resolved, not at the hearing itself, but rather through the presentence-report process. In federal prosecutions, the median time between conviction and sentencing in 2014 was 99 days. A good part of this time no doubt was taken up by the drafting and review of a currentence report, and a few days later, the defendant was often incarcerated. Nor does the right reattaches upon renewed prosecution following a defendant's successful appeal, when he again enjoys the presumption of innocence, since such detention may occur in a local jail rather than in a federal prison. Cf. United States v. Marion, 404 U. S. 307-321. Pp. 468. (b) Betterman suggests that an appropriate remedy for the delay in his case would be reduction of his sentence by 14 months, the time between his conviction and sentencing, since that violation of the right demands termination of the prosecution. His reading comports with the historical understanding that the speedy trial right comes from the Constitution, which directs the primary rule against undue delay, and that the Constitution directs the courts to safeguard the presumption against undue charges at the point of conviction. As at the preconviction stage, due process serves as a backstop against exorbitant delay. See, e.g., Smith v. Hooey, 466 U.S. 434, 440 (1973) (emphasis added).. 2. The Due Process Clause is protective of the presumption that a defendant, though already convicted and imprisoned on one charge, nevertheless has a right to be speedily brought to trial on an unrelated charge. It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. However, Congress has not read that Clause to call for a flexible or tailored remedy. Instead, it has held that violating the right to liberty, while diminished, demands termination the prosecution, and, in this case, that violation demands termination. Although the legislative history indicates that Congress regarded the statutory time limits for charging and trial as reasonable, it does not follow that such a violation would occur in bifurcated proceedings in which, at the sentencing stage, facts that could increase the prescribed sentencing range are determined, such as capital cases in which eligibility for the death penalty hinges on aggravating factor findings. Here, the sentencing period is 99 days, which is the median for all federal prosecutions. While the defendant is often incarcerated, the fact that he has no right to serve his sentence does not mean that his right extends to another day or term, since he prefers to serve no sentence immediately after conviction, rather than to another. in

2015_14-1468

https://www.oyez.org/cases/2015/14-1468

.Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches.IThe problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driving: An American Dilemma 57 (1989) (Jacobs). New Jersey enacted what was perhaps the Nation’s first drunk-driving law in 1906, 1906 N. J. Laws pp. 186, 196, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecutors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (1966) (Donigan). As one early case put it, “[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is necessary for some witness to prove that some one or more of these effects were perceptible to him.” State v. Noble, 119 Ore. 674, 677, 250 P. 833, 834 (1926).The 1930’s saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coincidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes—A Historical Review, 8 For. Sci. Rev. 13, 20, 33 (1996) (Jones). The American Medical Association and the National Safety Council set up committees to study the problem and ultimately concluded that a driver with a BAC of 0.15% or higher could be presumed to be inebriated. Donigan 21–22. In 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. 1939 Ind. Acts p. 309; Jones 21. Other States soon followed and then, in response to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%. Don-igan 22–23. Later, States moved away from mere presumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BAC or higher was per se illegal. Jacobs 69–70.Enforcement of laws of this type obviously requires the measurement of BAC. One way of doing this is to analyze a sample of a driver’s blood directly. A technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a separate laboratory for measurement of its alcohol concentration. See 2 R. Erwin, Defense of Drunk Driving Cases §§17.03–17.04 (3d ed. 2015) (Erwin). Although it is possible for a subject to be forcibly immobilized so that a sample may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps “to avoid violent confrontations.” South Dakota v. Neville, 459 U. S. 553,559 (1983).The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person’s breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the “Drunkometer,” was invented and first sold in the 1930’s. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject’s breath alcohol concentration and by extension, BAC, from this figure. Id., at 303–304. A more practical machine, called the “Breathalyzer,” came into common use beginning in the 1950’s, relying on the same basic scientific principles. 3 Erwin §22.01, at 22–3; Jones 34.Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin §18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver §7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed. Reg. 35747 (2012); 2 Erwin §18.07; Jones 38; see also California v. Trombetta,467 U. S. 479,489 (1984).Measurement of BAC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? Alcohol Breath Testing, 325 British Medical J. 1403 (2002) (Berger). Typically the test subject must blow air into the device “ ‘for a period of several seconds’ ” to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device’s accuracy. Trombetta, supra, at 481; see also 2 Erwin §21.04[2][b](L), at 21–14 (describing the Intoxilyzer 4011 device as requiring a 12-second exhalation, although the subject may take a new breath about halfway through).Modern breath test machines are designed to capture so-called “deep lung” or alveolar air. Trombetta, supra, at 481. Air from the alveolar region of the lungs provides the best basis for determining the test subject’s BAC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and breath. 2 Erwin §18.01[2][a], at 18–7.When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 1403; 2 Erwin §18A.03[2], at 18A–14. Most evidentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer’s patrol vehicle or in special mobile testing facilities. NHTSA, A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008).Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for States to find a way of securing such cooperation.[1] So-called “implied consent” laws were enacted to achieve this result. They provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. Donigan 177. The first such law was enacted by New York in 1953, and many other States followed suit not long thereafter. Id., at 177–179. In 1962, the Uniform Vehicle Code also included such a provision. Id., at 179. Today, “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.” Missouri v. McNeely, 569 U. S. ___, ___ (2013) (plurality opinion) (slip op., at 18). Suspension or revocation of the motorist’s driver’s license remains the standard legal consequence of refusal. In addition, evidence of the motorist’s refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution. See ibid.In recent decades, the States and the Federal Government have toughened drunk-driving laws, and those efforts have corresponded to a dramatic decrease in alcohol-related fatalities. As of the early 1980’s, the number of annual fatalities averaged 25,000; by 2014, the most recent year for which statistics are available, the number had fallen to below 10,000. Presidential Commission on Drunk Driving 1 (Nov. 1983); NHTSA, Traffic Safety Facts, 2014 Data, Alcohol-Impaired Driving 2 (No. 812231, Dec. 2015) (NHTSA, 2014 Alcohol-Impaired Driving). One legal change has been further lowering the BAC standard from 0.10% to 0.08%. See 1 Erwin, §2.01[1], at 2–3 to 2–4. In addition, many States now impose increased penalties for recidivists and for drivers with a BAC level that exceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. N. D. Cent. Code Ann. §39–08–01(5)(a)(1) (Supp. 2015); §39–20–04.1(1). But an offender with a BAC of 0.16% or higher must spend at least two days in jail. §39–08–01(5)(a)(2). In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists. §§39–08–01(5)(b)–(d).Many other States have taken a similar approach, but this new structure threatened to undermine the effectiveness of implied consent laws. If the penalty for driving with a greatly elevated BAC or for repeat violations exceeds the penalty for refusing to submit to testing, motorists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States—2011 Update 1 (No. 811881, Mar. 2014). In North Dakota, the refusal rate for 2011 was a representative 21%. Id.,at 2. Minnesota’s was below average, at 12%. Ibid.To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. Minnesota has taken this approach for decades. See 1989 Minn. Laws p. 1658; 1992 Minn. Laws p. 1947. And that may partly explain why its refusal rate now is below the national average. Minnesota’s rate is also half the 24% rate reported for 1988, the year before its first criminal refusal law took effect. See Ross, Simon, Cleary, Lewis, & Storkamp, Causes and Consequences of Implied Consent Refusal, 11 Alcohol, Drugs and Driving 57, 69 (1995). North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family’s 5- and 9-year-old boys.[2] 2013 N. D. Laws pp. 1087–1088 (codified at §§39–08–01(1)–(3)). The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTSA, Refusal of Intoxication Testing, at 20.IIAPetitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield’s eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. At the trooper’s request, Birchfield agreed to take several field sobriety tests and performed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper’s directions.Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assessment of the driver’s BAC. See, e.g., Berger 1403. Because the reliability of these preliminary or screening breath tests varies, many jurisdictions do not permit their numerical results to be admitted in a drunk-driving trial as evidence of a driver’s BAC. See generally 3 Erwin §24.03[1]. In North Dakota, results from this type of test are “used only for determining whether or not a further test shall be given.” N. D. Cent. Code Ann. §39–20–14(3). In Birchfield’s case, the screening test estimated that his BAC was 0.254%, more than three times the legal limit of 0.08%. See §39–08–01(1)(a).The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again advised him of his obligation under North Dakota law to undergo BAC testing, and informed him, as state law requires, see §39–20–01(3)(a), that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment of at least one year and one day (for serial offenders). §39–08–01(5). These criminal penalties apply to blood, breath, and urine test refusals alike. See §§39–08–01(2), 39–20–01, 39–20–14.Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. State v. Birchfield, Crim. No. 30–2013–CR–00720 (Dist. Ct. Morton Cty., N. D., Jan. 27, 2014). This time he also pleaded guilty—to a misde-meanor violation of the refusal statute—but his plea wasa conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. Cf. §39–08–01(5)(b). The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been served), 1 year of unsupervised probation, $1,750 in fine and fees, and mandatory participation in a sobriety program and in a substance abuse evaluation. App. to Pet. for Cert. in No. 14–1468, p. 20a.On appeal, the North Dakota Supreme Court affirmed. 2015 ND 6, 858 N. W. 2d 302. The court found support for the test refusal statute in this Court’s McNeely plurality opinion, which had spoken favorably about “acceptable ‘legal tools’ with ‘significant consequences’ for refusing to submit to testing.” 858 N. W. 2d, at 307 (quoting McNeely, 569 U. S., at ___ (slip op., at 18)).BOn August 5, 2012, Minnesota police received a report of a problem at a South St. Paul boat launch. Three apparently intoxicated men had gotten their truck stuck in the river while attempting to pull their boat out of the water. When police arrived, witnesses informed them that a man in underwear had been driving the truck. That man proved to be William Robert Bernard, Jr., petitioner in the second of these cases. Bernard admitted that he had been drinking but denied driving the truck (though he was holding its keys) and refused to perform any field sobriety tests. After noting that Bernard’s breath smelled of alcohol and that his eyes were bloodshot and watery, officers arrested Bernard for driving while impaired.Back at the police station, officers read Bernard Minnesota’s implied consent advisory, which like North Dakota’s informs motorists that it is a crime under state law to refuse to submit to a legally required BAC test. See Minn. Stat. §169A.51, subd. 2 (2014). Aside from noncriminal penalties like license revocation, §169A.52, subd. 3, test refusal in Minnesota can result in criminal penalties ranging from no more than 90 days’ imprisonment and up to a $1,000 fine for a misdemeanor violation to seven years’ imprisonment and a $14,000 fine for repeat offenders, §169A.03, subd. 12; §169A.20, subds. 2–3; §169A.24, subd. 2; §169A.27, subd. 2.The officers asked Bernard to take a breath test. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. 859 N. W. 2d 762, 765, n. 1 (Minn. 2015) (case below). First-degree refusal carries the highest maximum penalties and a mandatory minimum 3-year prison sentence. §169A.276, subd. 1.The Minnesota District Court dismissed the charges on the ground that the warrantless breath test demanded of Bernard was not permitted under the Fourth Amendment. App. to Pet. for Cert. in No. 14–1470, pp. 48a, 59a. The Minnesota Court of Appeals reversed, id., at 46a, and the State Supreme Court affirmed that judgment. Based on the longstanding doctrine that authorizes warrantless searches incident to a lawful arrest, the high court concluded that police did not need a warrant to insist on a test of Bernard’s breath. 859 N. W. 2d, at 766–772. Two justices dissented. Id., at 774–780 (opinion of Page and Stras, JJ.).CA police officer spotted our third petitioner, Steve Michael Beylund, driving the streets of Bowman, North Dakota, on the night of August 10, 2013. The officer saw Beylund try unsuccessfully to turn into a driveway. In the process, Beylund’s car nearly hit a stop sign before coming to a stop still partly on the public road. The officer walked up to the car and saw that Beylund had an empty wine glass in the center console next to him. Noticing that Beylund also smelled of alcohol, the officer asked him to step out of the car. As Beylund did so, he struggled to keep his balance.The officer arrested Beylund for driving while impaired and took him to a nearby hospital. There he read Beylund North Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. See N. D. Cent. Code Ann. §39–20–01(3)(a). Unlike the other two petitioners in these cases, Beylund agreed to have his blood drawn and analyzed. A nurse took a blood sample, which revealed a blood alcohol concentration of 0.250%, more than three times the legal limit.Given the test results, Beylund’s driver’s license was suspended for two years after an administrative hearing. Beylund appealed the hearing officer’s decision to a North Dakota District Court, principally arguing that his consent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime. The District Court rejected this argument, and Beylund again appealed.The North Dakota Supreme Court affirmed. In response to Beylund’s argument that his consent was insufficiently voluntary because of the announced criminal penalties for refusal, the court relied on the fact that its then-recent Birchfield decision had upheld the constitutionality of those penalties. 2015 ND 18, ¶¶14–15, 859 N. W. 2d 403, 408–409. The court also explained that it had found consent offered by a similarly situated motorist to be voluntary, State v. Smith, 2014 ND 152, 849 N. W. 2d 599. In that case, the court emphasized that North Dakota’s implied consent advisory was not misleading because it truthfully related the penalties for refusal. Id., at 606.We granted certiorari in all three cases and consolidated them for argument, see 577 U. S. ___ (2015), in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream.IIIAs our summary of the facts and proceedings in these three cases reveals, the cases differ in some respects. Petitioners Birchfield and Beylund were told that they were obligated to submit to a blood test, whereas petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal. Beylund complied with the demand for a blood sample, and his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level.Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. See, e.g., Conn. Gen. Stat. §54–33d (2009); Fla. Stat. §933.15 (2015); N. J. Stat. Ann. §33:1–63 (West 1994);18 U. S. C. §1501; cf. Bumper v. North Carolina,391 U. S. 543,550 (1968) (“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search”). And by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment.IVThe 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.”The Amendment thus prohibits “unreasonable searches,” and our cases establish that the taking of a blood sam-ple or the administration of a breath test is a search.See Skinner v. Railway Labor Executives’ Assn.,489 U. S. 602–617 (1989); Schmerber v. California,384 U. S. 757–768 (1966). The question, then, is whether the warrantless searches at issue here were reasonable. See Vernonia School Dist. 47J v. Acton,515 U. S. 646,652 (1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness’ ”).“[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained.” Kentucky v. King,563 U. S. 452,459 (2011); see also California v. Acevedo,500 U. S. 565,581 (1991) (Scalia, J., concur-ring in judgment) (“What [the text] explicitly states regard-ing warrants is by way of limitation upon their issuance rather than requirement of their use”). But “this Court has inferred that a warrant must [usually] be secured.” King, 563 U. S., at 459. This usual requirement, however, is subject to a number of exceptions. Ibid.We have previously had occasion to examine whether one such exception—for “exigent circumstances”—applies in drunk-driving investigations. The exigent circum-stances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Michigan v. Tyler,436 U. S. 499,509 (1978). It permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence. King, supra, at 460.In Schmerber v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. 384 U. S., at 758. The Court concluded that the officer “might reasonably have believed that he was confronted with an emergency” that left no time to seek a warrant because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops.” Id., at 770. On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth Amendment violation even though the warrantless blood draw took place over the driver’s objection. Id., at 770–772.More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U. S. ___, where the State of Missouri was seeking a per se rule 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.” Id., at ___ (opinion of the Court) (slip op., at 8). We disagreed, emphasizing that Schmerber had adopted a case-specific analysis depending on “all of the facts and circumstances of the particular case.” 569 U. S., at ___ (slip op., at 8). We refused to “depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State.” Id., at ___ (slip op., at 9).While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case-specific” fashion. Id., at ___, n. 3 (slip op., at 7, n. 3). One of these, as the McNeely opinion recognized, is the long-established rule that a warrantless search may be conducted incident to a lawful arrest. See ibid. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances. Id., at ___ (slip op., at 5). Neither did any of the Justices who wrote separately. See id., at ___–___ (Kennedy, J., concurring in part)(slip op., at 1–2); id., at ___–___ (Roberts, C. J., concurring in part and dissenting in part) (slip op., at 1–11); id., at ___–___ (Thomas, J., dissenting) (slip op., at 1–8).In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.VAThe search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation’s founding, it was recognized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person. An 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth Amendment’s adoption:“[A] thorough search of the felon is of the utmost consequence to your own safety, and the benefit of the public, as by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of.” The Conductor Generalis 117 (J. Parker ed. 1788) (reprinting S. Welch, Observations on the Office of Constable 19 (1754)).One Fourth Amendment historian has observed that, prior to American independence, “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.” W. Cuddihy, The Fourth Amendment: Origins and Original Meaning: 602–1791, p. 420 (2009).No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that “the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 1789 can not be doubted.” Id., at 752; see also T. Taylor, Two Studies in Constitutional Interpretation 28–29, 39, 45 (1969); Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 401 (1995).Few reported cases addressed the legality of such searches before the 19th century, apparently because the point was not much contested. In the 19th century, the subject came up for discussion more often, but court decisions and treatises alike confirmed the searches’ broad acceptance. E.g., Holker v. Hennessey, 141 Mo. 527, 539–540, 42 S. W. 1090, 1093 (1897); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519 (1891); Thatcher v. Weeks, 79 Me. 547, 548–549, 11 A. 599 (1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); F. Wharton, Criminal Pleading and Practice §60, p. 45 (8th ed. 1880); 1 J. Bishop, Criminal Procedure §211, p. 127 (2d ed. 1872).When this Court first addressed the question, we too confirmed (albeit in dicta) “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 evidence of crime.” Weeks v. United States,232 U. S. 383,392 (1914). The exception quickly became a fixture in our Fourth Amendment case law. But in the decades that followed, we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile. See, e.g., United States v. Lefkowitz,285 U. S. 452,464 (1932) (forbidding “unrestrained” search of room where arrest was made); Harris v. United States,331 U. S. 145,149,152 (1947) (permitting complete search of arrestee’s four-room apartment); United States v. Rabinowitz,339 U. S. 56–65 (1950) (permitting complete search of arrestee’s office).We attempted to clarify the law regarding searches incident to arrest in Chimel v. California,395 U. S. 752,754 (1969), a case in which officers had searched the arrestee’s entire three-bedroom house. Chimel endorsed a general rule that arresting officers, in order to prevent the arrestee from obtaining a weapon or destroying evidence, could search both “the person arrested” and “the area ‘within his immediate control.’ ” Id., at 763. “[N]o comparable justification,” we said, supported “routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Ibid.Four years later, in United States v. Robinson,414 U. S. 218 (1973), we elaborated on Chimel’s meaning. We noted that the search-incident-to-arrest rule actually comprises “two distinct propositions”: “The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” 414 U. S., at 224. After a thorough review of the relevant common law history, we repudiated “case-by-case adjudication” of the question whether an arresting officer had the authority to carry out a search of the arrestee’s person. Id., at 235. The permissibility of such searches, we held, does not depend on whether a search of a particular arrestee is likely to protect officer safety or evidence: “The 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, the mere “fact of the lawful arrest” justifies “a full search of the person.” Ibid. In Robinson itself, that meant that police had acted permissibly in searching inside a package of cigarettes found on the man they arrested. Id., at 236.Our decision two Terms ago in Riley v. California, 573 U. S. ___ (2014), reaffirmed “Robinson’s categorical rule” and explained how the rule should be applied in situations that could not have been envisioned when the Fourth Amendment was adopted. Id., at ___ (slip op., at 9). Riley concerned a search of data contained in the memory of a modern cell phone. “Absent more precise guidance from the founding era,” the Court wrote, “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.’ ” Ibid.Blood and breath tests to measure blood alcohol concentration are not as new as searches of cell phones, but here, as in Riley, the founding era does not provide any definitive guidance as to whether they should be allowed incident to arrest.[3] Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and . . . the degree to which [they are] needed for the promotion of legitimate governmental interests.’ ” Ibid.BWe begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn.1Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489 U. S., at 626. That remains so today.First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. As Minnesota describes its version of the breath test, the process requires the arrestee to blow continuously for 4 to 15 seconds into a straw-like mouthpiece that is connected by a tube to the test machine. Brief for Respondent in No. 14–1470, p. 20. Independent sources describe other breath test devices in essentially the same terms. See supra, at 5. The effort is no more demanding than blowing up a party balloon.Petitioner Bernard argues, however, that the process is nevertheless a significant intrusion because the arrestee must insert the mouthpiece of the machine into his or her mouth. Reply Brief in No. 14–1470, p. 9. But there is nothing painful or strange about this requirement. The use of a straw to drink beverages is a common practice and one to which few object.Nor, contrary to Bernard, is the test a significant intrusion because it “does not capture an ordinary exhalation of the kind that routinely is exposed to the public” but instead “ ‘requires a sample of “alveolar” (deep lung) air.’ ” Brief for Petitioner in No. 14–1470, p. 24. Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs. The air that humans exhale is not part of their bodies. Exhalation is a natural process—indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test. See gener-ally J. Hall, Guyton and Hall Textbook of Medical Physiology 519–520 (13th ed. 2016).In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as significant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DNA sample by rubbing a swab on the inside of a person’s cheek as a “negligible” intrusion. Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 8). We have also upheld scraping underneath a suspect’s fingernails to find evidence of a crime, calling that a “very limited intrusion.” Cupp v. Murphy,412 U. S. 291,296 (1973). A breath test is no more intrusive than either of these procedures.Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification pur-poses, 569 U. S., at ___ (slip op., at 5), the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police.Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. See Skinner, supra, at 625 (breath test involves “a minimum of . . . embarrassment”). The act of blowing into a straw is not inherently embarrassing, nor are evidentiary breath tests administered in a manner that causes embarrassment. Again, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. See supra, at 5. Moreover, once placed under arrest, the individual’s expectation of privacy is necessarily diminished. Maryland v. King, supra, at ___–___ (slip op., at 24–25).For all these reasons, we reiterate what we said in Skinner: A breath test does not “implicat[e] significant privacy concerns.” 489 U. S., at 626.2Blood tests are a different matter. They “require piercing the skin” and extract a part of the subject’s body. Skinner, supra, at 625; see also McNeely, 569 U. S., at ___ (opinion of the Court) (slip op., at 4) (blood draws are “a compelled physical intrusion beneath [the defendant’s] skin and into his veins”); id., at ___ (opinion of Roberts, C. J.) (slip op., at 9) (blood draws are “significant bodily intrusions”). And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. See id., at ___ (plurality opinion) (slip op., at 16) (citing Schmerber, 384 U. S., at 771). Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States’ implied consent laws, including Minnesota’s, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take. See 1 Erwin §4.06; Minn. Stat. §169A.51, subd. 3.In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested.CHaving assessed the impact of breath and blood testing on privacy interests, we now look to the States’ asserted need to obtain BAC readings for persons arrested for drunk driving.1The States and the Federal Government have a “paramount interest . . . in preserving the safety of . . . public highways.” Mackey v. Montrym,443 U. S. 1,17 (1979). Although the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the statistics are still staggering. See, e.g., NHTSA, Traffic Safety Facts 1995—Overview 2 (No. 95F7, 1995) (47,087 fatalities, 3,416,000 injuries in 1988); NHTSA, Traffic Safety Facts, 2014 Data, Summary of Motor Vehicle Crashes 1 (No. 812263, May 2016) (Table 1) (29,989 fatalities, 1,648,000 injuries in 2014).Alcohol consumption is a leading cause of traffic fatalities and injuries. During the past decade, annual fatalities in drunk-driving accidents ranged from 13,582 deaths in 2005 to 9,865 deaths in 2011. NHTSA, 2014 Alcohol-Impaired Driving 2. The most recent data report a total of 9,967 such fatalities in 2014—on average, one death every 53 minutes. Id., at 1. Our cases have long recognized the “carnage” and “slaughter” caused by drunk drivers. Neville, 459 U. S., at 558; Breithaupt v. Abram,352 U. S. 432,439 (1957).Justice Sotomayor’s partial dissent suggests that States’ interests in fighting drunk driving are satisfied once suspected drunk drivers are arrested, since such arrests take intoxicated drivers off the roads where they might do harm. See post, at 9 (opinion concurring in part and dissenting in part). But of course States are not solely concerned with neutralizing the threat posed by a drunk driver who has already gotten behind the wheel. They also have a compelling interest in creating effective “deterrent[s] to drunken driving” so such individuals make responsible decisions and do not become a threat to others in the first place. Mackey, supra, at 18.To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the Federal Government have taken the series of steps that we recounted earlier. See supra, at 2–8. We briefly recapitulate. After pegging inebriation to a specific level of blood alcohol, States passed implied consent laws to induce motorists to submit to BAC testing. While these laws originally provided that refusal to submit could result in the loss of the privilege of driving and the use of evidence of refusal in a drunk-driving prosecution, more recently States and the Federal Government have concluded that these consequences are insufficient. In particular, license suspension alone is unlikely to persuade the most dangerous offenders, such as those who drive with a BAC significantly above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions. NHTSA, Implied Consent Refusal Impact, pp. xvii, 83 (No. 807765, Sept. 1991); NHTSA, Use of Warrants for Breath Test Refusal 1 (No. 810852, Oct. 2007). The laws at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incentive to cooperate in such cases, and we conclude that they serve a very important function.2Petitioners and Justice Sotomayor contend that the States and the Federal Government could combat drunk driving in other ways that do not have the same impact on personal privacy. Their arguments are unconvincing.The chief argument on this score is that an officer making an arrest for drunk driving should not be allowed to administer a BAC test unless the officer procures a search warrant or could not do so in time to obtain usable test results. The governmental interest in warrantless breath testing, Justice Sotomayor claims, turns on “ ‘whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.’ ” Post, at 3–4 (quoting Camara v. Municipal Court of City and County of San Francisco,387 U. S. 523,533 (1967)).This argument contravenes our decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules. In Robinson, for example, no one claimed that the object of the search, a package of cigarettes, presented any danger to the arresting officer or was at risk of being destroyed in the time that it would have taken to secure a search warrant. The Court nevertheless upheld the constitutionality of a warrantless search of the package, concluding that a categorical rule was needed to give police adequate guidance: “A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” 414 U. S., at 235; cf. Riley, 573 U. S., at ___ (slip op., at 22) (“If 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” (brackets, ellipsis, and internal quotation marks omitted)).It is not surprising, then, that the language Justice Sotomayor quotes to justify her approach comes not from our search-incident-to-arrest case law, but a case that addressed routine home searches for possible housing code violations. See Camara, 387 U. S., at 526. Camara’s express concern in the passage that the dissent quotes was “whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement.” Id., at 533 (emphasis added). Camara did not explain how to apply an existing exception, let alone the long-established exception for searches incident to a lawful arrest, whose applicability, as Robinson and Riley make plain, has never turned on case-specific variables such as how quickly the officer will be able to obtain a warrant in the particular circumstances he faces.In advocating the case-by-case approach, petitioners and Justice Sotomayor cite language in our McNeely opinion. See Brief for Petitioner in No. 14–1468, p. 14; post, at 12. But McNeely concerned an exception to the warrant requirement—for exigent circumstances—that always requires case-by-case determinations. That was the basis for our decision in that case. 569 U. S., at ___ (slip op.,at 9). Although Justice Sotomayor contends that the categorical search-incident-to-arrest doctrine and case-by-case exigent circumstances doctrine are actually parts of a single framework, post, at 6–7, and n. 3, in McNeely the Court was careful to note that the decision did not address any other exceptions to the warrant requirement, 569 U. S., at ___, n. 3 (slip op., at 7, n. 3).Petitioners and Justice Sotomayor next suggest that requiring a warrant for BAC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts. But of course the same argument could be made about searching through objects found on the arrestee’s possession, which our cases permit even in the absence of a warrant. What about the cigarette package in Robinson? What if a motorist arrested for drunk driving has a flask in his pocket? What if a motorist arrested for driving while under the influence of marijuana has what appears to be a mari-juana cigarette on his person? What about an unmarked bottle of pills?If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment, as it appears the dissent would do, see post, at 12–14, the impact on the courts would be considerable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 2014. FBI, Uniform Crime Report, Crime in the United States, 2014, Arrests 2 (Fall 2015). Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, see, e.g., Fed. Rule Crim. Proc. 41(b); N. D. Rule Crim. Proc. 41(a) (2016–2017), and in rural areas, some districts may have only a small number of judicial officers.North Dakota, for instance, has only 51 state district judges spread across eight judicial districts.[4] Those judges are assisted by 31 magistrates, and there are no magistrates in 20 of the State’s 53 counties.[5] At any given location in the State, then, relatively few state officials have authority to issue search warrants.[6] Yet the State, with a population of roughly 740,000, sees nearly 7,000 drunk-driving arrests each year. Office of North Dakota Attorney General, Crime in North Dakota, 2014, pp. 5, 47 (2015). With a small number of judicial officers authorized to issue warrants in some parts of the State, the burden of fielding BAC warrant applications 24 hours per day, 365 days of the year would not be the light burden that petitioners and Justice Sotomayor suggest.In light of this burden and our prior search-incident-to-arrest precedents, petitioners would at a minimum have to show some special need for warrants for BAC testing. It is therefore appropriate to consider the benefits that such applications would provide. Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is probable cause to believe that evidence will be found. See, e.g., Riley, 573 U. S., at ___ (slip op., at 5). Second, if the magistrate finds probable cause, the warrant limits the intrusion on privacy by specifying the scope of the search—that is, the area that can be searched and the items that can be sought. United States v. Chadwick,433 U. S. 1,9 (1977), abrogated on other grounds, Acevedo,500 U. S. 565.How well would these functions be performed by the warrant applications that petitioners propose? In order to persuade a magistrate that there is probable cause for a search warrant, the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that the motorist’s blood alcohol level is over the limit. As these three cases suggest, see Part II, supra, the facts that establish probable cause are largely the same from one drunk-driving stop to the next and consist largely of the officer’s own characterization of his or her observations—for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge such characterizations.As for the second function served by search warrants—delineating the scope of a search—the warrants in question here would not serve that function at all. In every case the scope of the warrant would simply be a BAC test of the arrestee. Cf. Skinner, 489 U. S., at 622 (“[I]n 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”). For these reasons, requiring the police to obtain a warrant in every case would impose a substantial burden but no commensurate benefit.Petitioners advance other alternatives to warrantless BAC tests incident to arrest, but these are poor substitutes. Relying on a recent NHTSA report, petitioner Birchfield identifies 19 strategies that he claims would be at least as effective as implied consent laws, including high-visibility sobriety checkpoints, installing ignition interlocks on repeat offenders’ cars that would disable their operation when the driver’s breath reveals a sufficiently high alcohol concentration, and alcohol treatment programs. Brief for Petitioner in No. 14–1468, at 44–45. But Birchfield ignores the fact that the cited report describes many of these measures, such as checkpoints, as significantly more costly than test refusal penalties. NHTSA, A. Goodwin et al., Countermeasures That Work: A Highway Safety Countermeasures Guide for State Highway Safety Offices, p. 1–7 (No. 811727, 7th ed. 2013). Others, such as ignition interlocks, target only a segment of the drunk-driver population. And still others, such as treatment programs, are already in widespread use, see id., at 1–8, including in North Dakota and Minnesota. Moreover, the same NHTSA report, in line with the agency’s guidance elsewhere, stresses that BAC test refusal penalties would be more effective if the consequences for refusal were made more severe, including through the addition of criminal penalties. Id., at 1–16 to 1–17.3Petitioner Bernard objects to the whole idea of analyzing breath and blood tests as searches incident to arrest. That doctrine, he argues, does not protect the sort of governmental interests that warrantless breath and blood tests serve. On his reading, this Court’s precedents permit a search of an arrestee solely to prevent the arrestee from obtaining a weapon or taking steps to destroy evidence. See Reply Brief in No. 14–1470, at 4–6. In Chimel, for example, the Court derived its limitation for the scope of the permitted search—“the area into which an arrestee might reach”—from the principle that officers may reasonably search “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 763. Stopping an arrestee from destroying evidence, Bernard argues, is critically different from preventing the loss of blood alcohol evidence as the result of the body’s metabolism of alcohol, a natural process over which the arrestee has little control. Reply Brief in No. 14–1470, at 5–6.The distinction that Bernard draws between an arrestee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense. In both situations the State is justifiably concerned that evidence may be lost, and Bernard does not explain why the cause of the loss should be dispositive. And in fact many of this Court’s post-Chimel cases have recognized the State’s concern, not just in avoiding an arrestee’s intentional destruction of evidence, but in “evidence preservation” or avoiding “the loss of evidence” more generally. Riley, 573 U. S., at ___ (slip op., at 8); see also Robinson, 414 U. S., at 234 (“the need to preserve evidence on his person”); Knowles v. Iowa,525 U. S. 113–119 (1998) (“the need to discover and preserve evidence;” “the concern for destruction or loss of evidence” (emphasis added)); Virginia v. Moore,553 U. S. 164,176 (2008) (the need to “safeguard evidence”). This concern for preserving evidence or preventing its loss readily encompasses the inevitable metabolization of alcohol in the blood.Nor is there any reason to suspect that Chimel’s use of the word “destruction,” 395 U. S., at 763, was a deliberate decision to rule out evidence loss that is mostly beyond the arrestee’s control. The case did not involve any evidence that was subject to dissipation through natural processes, and there is no sign in the opinion that such a situation was on the Court’s mind.Bernard attempts to derive more concrete support for his position from Schmerber. In that case, the Court stated that the “destruction of evidence under the direct control of the accused” is a danger that is not present “with respect to searches involving intrusions beyond the body’s surface.” 384 U. S., at 769. Bernard reads this to mean that an arrestee cannot be required “to take a chemical test” incident to arrest, Brief for Petitioner in No. 14–1470, at 19, but by using the term “chemical test,” Bernard obscures the fact that Schmerber’s passage was addressed to the type of test at issue in that case, namely a blood test. The Court described blood tests as “searches involving intrusions beyond the body’s surface,” and it saw these searches as implicating important “interests in human dignity and privacy,” 384 U. S., at 769–770. Al-though the Court appreciated as well that blood tests “in-volv[e] virtually no risk, trauma, or pain,” id., at 771, its point was that such searches still impinge on far more sensitive interests than the typical search of the person of an arrestee. Cf. supra, at 22–23. But breath tests, unlike blood tests, “are not invasive of the body,” Skinner, 489 U. S., at 626 (emphasis added), and therefore the Court’s comments in Schmerber are inapposite when it comes to the type of test Bernard was asked to take. Schmerber did not involve a breath test, and on the question of breath tests’ legality, Schmerber said nothing.Finally, Bernard supports his distinction using a passage from the McNeely opinion, which distinguishes between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner.” 569 U. S., at ___ (slip op., at 10); see Reply Brief in No. 14–1470, at 5–6. Bernard fails to note the issue that this paragraph addressed. McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, and as previously discussed, that exception has always been understood to involve an evaluation of the particular facts of each case. Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in Robinson and repeated in McNeely itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a particular case.[7]Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without awarrant.Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests?One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car safely. See Brief for New Jersey et al. as Amici Curiae 9; Brief for United States as Amicus Curiae 6. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not. See McNeely, 569 U. S., at ___–___ (slip op., at 22–23).A blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly resists, but many States reasonably prefer not to take this step. See, e.g., Neville, 459 U. S., at 559–560. North Dakota, for example, tells us that it generally opposes this practice because of the risk of dangerous altercations between police officers and arrestees in rural areas where the arresting officer may not have backup. Brief for Respondent in No. 14–1468, p. 29. Under current North Dakota law, only in cases involving an accident that results in death or serious injury may blood be taken from arrestees who resist. Compare N. D. Cent. Code Ann. §§39–20–04(1), 39–20–01, with §39–20–01.1.It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be.A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing, e.g., Andrews v. Turner, 52 Ohio St. 2d 31, 36–37, 368 N. E. 2d 1253, 1256–1257 (1977); In re Kunneman, 501 P. 2d 910, 910–911 (Okla. Civ. App. 1972); see generally 1 Erwin §4.08[2] (collecting cases), and it may be prosecuted as such. And again, a warrant for a blood test may be sought.Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.[8]VIHaving concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argument that such tests are justified based on the driver’s legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte,412 U. S. 218,219 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines,569 U. S. 1, ___–___ (2013) (slip op., at 6–7); Marshall v. Barlow’s, Inc.,436 U. S. 307,313 (1978). Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___ (plural-ity opinion) (slip op., at 18); Neville, supra, at 560. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal more severely would present a different issue. Brief for Respondent in No. 14–1468, at 33–34. Borrowing from our Fifth Amendment jurisprudence, the United States suggests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving and entail penalties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21–27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since reasonableness is always the touchstone of Fourth Amendment analysis, see Brigham City v. Stuart,547 U. S. 398,403 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.VIIOur remaining task is to apply our legal conclusions to the three cases before us.Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State’s interests in acquiring evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified a warrantless search. Cf. McNeely, 569 U. S., at ___–___ (slip op., at 20–23). Unable to see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must bereversed.Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not con-tested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.Unlike the other petitioners, Beylund was not prose-cuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntariness of consent to a search must be “determined from the totality of all the circumstances,” Schneckloth, supra, at 227, we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.[9]We accordingly reverse the judgment of the North Da-kota Supreme Court in No. 14–1468 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the Minnesota Supreme Court in No. 14–1470. And we vacate the judgment of the North Dakota Supreme Court in No. 14–1507 and remand the case for further proceedings not inconsistent with this opinion.It is so ordered.Notes1 In addition, BAC may be determined by testing a subject’s urine, which also requires the test subject’s cooperation. But urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one.2 See Smith, Moving From Grief to Action: Two Families Push for Stronger DUI Laws in N. D., Bismarck Tribune, Feb. 2, 2013, p. 1A; Haga, Some Kind of Peace: Parents of Two Young Boys Killed in Campground Accident Urge for Tougher DUI Penalties in N. D., Grand Forks Herald, Jan. 15, 2013, pp. A1–A2.3 At most, there may be evidence that an arrestee’s mouth could be searched in appropriate circumstances at the time of the founding. See W. Cuddihy, Fourth Amendment: Origins and Original Meaning: 602–1791, p. 420 (2009). Still, searching a mouth for weapons or contraband is not the same as requiring an arrestee to give up breath or blood.4 See North Dakota Supreme Court, All District Judges, http://www.ndcourts.gov/court/districts/judges.htm (all Internet materials as last visited June 21, 2016).5 See North Dakota Supreme Court, Magistrates, http://www.ndcourts.gov/court/counties/magistra/members.htm.6 North Dakota Supreme Court justices apparently also have author-ity to issue warrants statewide. See ND Op. Atty. Gen. 99–L–132, p. 2 (Dec. 30, 1999). But we highly doubt that they regularly handle search-warrant applications, much less during graveyard shifts.7 Justice Sotomayor objects to treating warrantless breath tests as searches incident to a lawful arrest on two additional grounds.8 Justice Thomas partly dissents from this holding, calling any distinction between breath and blood tests “an arbitrary line in the sand.” Post, at 3 (opinion concurring in judgment in part and dissenting in part). Adhering to a position that the Court rejected in McNeely, Justice Thomas would hold that both breath and blood tests are constitutional with or without a warrant because of the natural metabolization of alcohol in the bloodstream. Post, at 3–5. Yet Justice Thomas does not dispute our conclusions that blood draws are more invasive than breath tests, that breath tests generally serve state interests in combating drunk driving as effectively as blood tests, and that our decision in Riley calls for a balancing of individual privacy interests and legitimate state interests to determine the reasonableness of the category of warrantless search that is at issue. Contrary to Justice Thomas’s contention, this balancing does not leave law enforcement officers or lower courts with unpredictable rules, because it is categorical and not “case-by-case,” post, at 3. Indeed, today’s decision provides very clear guidance that the Fourth Amendment allows warrantless breath tests, but as a general rule does not allow warrantless blood draws, incident to a lawful drunk-driving arrest.9 If the court on remand finds that Beylund did not voluntarily consent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U. S. ___, ___–___ (2014) (slip op., at 8–10), and the evidence is offered in an administrative rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott,524 U. S. 357–364 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 14–1507, pp. 13–14.

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.SUPREME COURT OF THE UNITED STATESSyllabusBIRCHFIELD v. NORTH DAKOTAcertiorari to the supreme court of north dakotaNo. 14–1468. Argued April 20, 2016—Decided June 23, 2016[1]To fight the serious harms inflicted by drunk drivers, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) exceeding a specified level. BAC is typically determined through a direct analysis of a blood sample or by using a machine to measure the amount of alcohol in a person’s breath. To help secure drivers’ cooperation with such testing, the States have also enacted “implied consent” laws that require drivers to submit to BAC tests. Originally, the penalty for refusing a test was suspension of the motorist’s license. Over time, however, States have toughened their drunk-driving laws, imposing harsher penalties on recidivists and drivers with particularly high BAC levels. Because motorists who fear these increased punishments have strong incentives to reject testing, some States, including North Dakota and Minnesota, now make it a crime to refuse to undergo testing.In these cases, all three petitioners were arrested on drunk-driving charges. The state trooper who arrested petitioner Danny Birchfield advised him of his obligation under North Dakota law to undergo BAC testing and told him, as state law requires, that refusing to submit to a blood test could lead to criminal punishment. Birchfield refused to let his blood be drawn and was charged with a misdemeanor violation of the refusal statute. He entered a conditional guilty plea but argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The State District Court rejected his argument, and the State Supreme Court affirmed.After arresting petitioner William Robert Bernard, Jr., Minnesota police transported him to the station. There, officers read him Minnesota’s implied consent advisory, which like North Dakota’s informs motorists that it is a crime to refuse to submit to a BAC test. Bernard refused to take a breath test and was charged with test refusal in the first degree. The Minnesota District Court dismissed the charges, concluding that the warrantless breath test was not permitted under the Fourth Amendment. The State Court of Appeals reversed, and the State Supreme Court affirmed.The officer who arrested petitioner Steve Michael Beylund took him to a nearby hospital. The officer read him North Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. Beylund agreed to have his blood drawn. The test revealed a BAC level more than three times the legal limit. Beylund’s license was suspended for two years after an administrative hearing, and on appeal, the State District Court rejected his argument that his consent to the blood test was coerced by the officer’s warning. The State Supreme Court affirmed.Held:1. The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. .(a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives’ Assn.,489 U. S. 602–617; Schmerber v. California,384 U. S. 757–768. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3. .(b) The search-incident-to-arrest doctrine has an ancient pedigree that predates the Nation’s founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere “fact of the lawful arrest” justifies “a full search of the person.” United States v. Robinson,414 U. S. 218. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. In Riley v. California, 573 U. S. ___, the Court considered how to apply the doctrine to searches of an arrestee’s cell phone. Because founding era guidance was lacking, the Court determined “whether to exempt [the] 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.’ ” Id., at ___. The same mode of analysis is proper here because the founding era provides no definitive guidance on whether blood and breath tests should be allowed incident to arrest. .(c) The analysis begins by considering the impact of breath and blood tests on individual privacy interests. .(1) Breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489 U. S., at 626. The physical intrusion is almost negligible. The tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. Requiring an arrestee to insert the machine’s mouthpiece into his or her mouth and to exhale “deep lung” air is no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek, Maryland v. King, 569 U. S. ___, ___, or scraping underneath a suspect’s fingernails, Cupp v. Murphy,412 U. S. 291. Breath tests, unlike DNA samples, also yield only a BAC reading and leave no biological sample in the government’s possession. Finally, participation in a breath test is not likely to enhance the embarrassment inherent in any arrest. .(2) The same cannot be said about blood tests. They “require piercing the skin” and extract a part of the subject’s body, Skinner, supra, at 625, and thus are significantly more intrusive than blowing into a tube. A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. .(d) The analysis next turns to the States’ asserted need to obtain BAC readings. .(1) The States and the Federal Government have a “paramount interest . . . in preserving [public highway] safety,” Mackey v. Montrym,443 U. S. 1; and States have a compelling interest in creating “deterrent[s] to drunken driving,” a leading cause of traffic fatalities and injuries, id., at 18. Sanctions for refusing to take a BAC test were increased because consequences like license suspension were no longer adequate to persuade the most dangerous offenders to agree to a test that could lead to severe criminal sanctions. By making it a crime to refuse to submit to a BAC test, the laws at issue provide an incentive to cooperate and thus serve a very important function. .(2) As for other ways to combat drunk driving, this Court’s decisions establish that an arresting officer is not obligated to obtain a warrant before conducting a search incident to arrest simply because there might be adequate time in the particular circumstances to obtain a warrant. The legality of a search incident to arrest must be judged on the basis of categorical rules. See e.g., Robinson, supra, at 235. McNeely, supra, at ___, distinguished. Imposition of a warrant requirement for every BAC test would likely swamp courts, given the enormous number of drunk-driving arrests, with little corresponding benefit. And other alternatives—e.g., sobriety checkpoints and ignition interlock systems—are poor substitutes. .(3) Bernard argues that warrantless BAC testing cannot be justified as a search incident to arrest because that doctrine aims to prevent the arrestee from destroying evidence, while the loss of blood alcohol evidence results from the body’s metabolism of alcohol, a natural process not controlled by the arrestee. In both instances, however, the State is justifiably concerned that evidence may be lost. The State’s general interest in “evidence preservation” or avoiding “the loss of evidence,” Riley, supra, at ___, readily encompasses the metabolization of alcohol in the blood. Bernard’s view finds no support in Chimel v. California, 395 U. S. 752, Schmerber, 384 U. S., at 769, or McNeely, supra, at ___. .(e) Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable—e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious—nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation. .2. Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. .3. These legal conclusions resolve the three present cases. Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search that he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. Because there appears to be no other basis for a warrantless test of Birchfield’s blood, he was threatened with an unlawful search and unlawfully convicted for refusing that search. Bernard was criminally prosecuted for refusing a warrantless breath test. Because that test was a permissible search incident to his arrest for drunk driving, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Beylund submitted to a blood test after police told him that the law required his submission. The North Dakota Supreme Court, which based its conclusion that Beylund’s consent was voluntary on the erroneous assumption that the State could compel blood tests, should reevaluate Beylund’s consent in light of the partial inaccuracy of the officer’s advisory. .No. 14–1468, 2015 ND 6, 858 N. W. 2d 302, reversed and remanded; No. 14–1470, 859 N. W. 2d 762, affirmed; No. 14–1507, 2015 ND 18, 859 N. W. 2d 403, vacated and remanded.Alito, J., delivered the opinion of the Court, in which Roberts, C. J, and Kennedy, Breyer, and Kagan, JJ., joined. Sotomayor, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.Notes1 Together with No. 14–1470, Bernard v. Minnesota, on certiorari to the Supreme Court of Minnesota, and No. 14–1507, Beylund v. Levi, Director, North Dakota Department of Transportation, also on certiorari to the Supreme Court of North Dakota.

To combat the problem of drunk-driving, some States enacted laws making it a crime to drive with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver's BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has what are termedimplied consent laws, which impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State's drunk-drivers laws. Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State, and North Dakota has not presented any case-specific information to suggest that the exigent circumstances exception would have justified the warrantless search. The judgment affirming his conviction must be vacated, and the case is remanded for further proceedings not inconsistent with this opinion. No. 14-1468, 859 N. W. 2d 302, and No. 14–1470, affirmed. (a) The search-incident-to-arrest doctrine does not justify warrantless taking of a blood sample incident to a lawful arrest for drunk driving. The impact of breath and blood testing on privacy is slight, and need for BAC testing is great. . (b) There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. A search is not justified based on the driver's legally implied consent to submit to such a test. Such a requirement is subject to a number of exceptions. See, e.g., United States v. Robinson,414 U. S. 218, supra, at 459; cf. McNeely v. Illinois,,. In the Fourth Amendment setting, this standard does not differ in substance from the one that this Court applies, since reasonableness is always the touchstone of Fourth Amendment analysis, see id., at ___ (slip op., at 5). And applying this standard, this Court concludes that motorists cannot be deemed to consented to submit to a blood test on pain of committing a criminal offense. Cf. Riley v. California, 573 U.S. ___. Here, where the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the search of the arrestee, the warrant in question here would not serve that function at all. In every case, the scope of the warrant would simply be a BAC test of the arrestedee. Moreover, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. P.. (c) The warrantless searches demanded in these cases were reasonable, since they are significantly less intrusive than blood tests and, in most cases, amply serve law enforcement interests. Neither respondents nor their amici dispute the effectiveness of breath tests in measuring BAC. They do not explain why the cause of the loss should be dispositive, since the breath test is capable of revealing only one bit of information, the amount of alcohol in the subject's breath, and thus requires less driver participation. Similarly, participation in the breath testing is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. Nor is the use of a straw to drink beverages a significant intrusion, since it is significantly more intrusive than blowing into a tube. Furthermore, the fact that breath tests are not nearly as intrusive as breath tests turns on whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search, and since, in many States, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation. Although, in some States, police have other measures at their disposal when they have reason to suspect that a motorist may be under the influence of some other substance, nothing prevents the police from seeking a warrant for a blood blood test when there was sufficient time to do so in the particular circumstances or from relying on an exigent circumstance exception that always requires case-by-case determinations. This Court will engage in the same mode of analysis as it does in terms of analysis of the evidence as to probable cause and probable cause. See McNeely, supra at ___. Pp. 489. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without awarrant. See id.,, at ___, n. 3. However, they

2015_14-844

https://www.oyez.org/cases/2015/14-844

. This case concerns the payment of filing fees for civil actions commenced by prisoners in federal courts. Until 1996, indigent prisoners, like other indigent persons, could file a civil action without paying any filing fee. See 28 U. S. C. §1915(a)(1). In the Prison Litigation Reform Act of 1995 (PLRA), 110Stat. 1321–66, Congress placed several limitations on prisoner litigation in federal courts. Among those limitations, Congress required prisoners qualified to proceed in forma pauperis nevertheless to pay an initial partial filing fee. That fee is statutorily set as “20 percent of the greater of” the average monthly deposits in the prisoner’s account or the average monthly balance of the account over the preceding six months. §1915(b)(1). Thereafter, to complete payment of the filing fee, prisoners must pay, in monthly installments, “20 percent of the preceding month’s income credited to the prisoner’s account.” §1915(b)(2). The initial partial filing fee may not be exacted if the prisoner has no means to pay it, §1915(b)(4), and no monthly installments are required unless the prisoner has more than $10 in his account, §1915(b)(2). It is undisputed that the initial partial filing fee is to be assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. In contest here is the calculation of subsequent monthly installment payments. Petitioner Antoine Bruce urges a per-prisoner approach under which he would pay 20 percent of his monthly income regardless of the number of cases he has filed. The Government urges, and the court below followed, a per-case approach under which a prisoner would pay 20 percent of his monthly income for each case he has filed. Courts of Appeals have divided on which of these two approaches §1915(b)(2) orders.[1] To resolve the conflict, we granted certiorari. 576 U. S. ___ (2015). We hold that monthly installment payments, like the initial partial payment, are to be assessed on a per-case basis. Nothing in §1915’s current design supports treating a prisoner’s second or third action unlike his first lawsuit. I A In 1892, Congress enacted the in forma pauperis (IFP) statute, now codified at 28 U. S. C. §1915, “to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v. Williams, 490 U. S. 319, 324 (1989) . Reacting to “a sharp rise in prisoner litigation,” Woodford v. Ngo, 548 U. S. 81, 84 (2006) , Congress in 1996 enacted the PLRA, which installed a variety of measures “designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good,” Coleman v. Tollefson, 575 U. S. ___, ___ (2015) (slip op., at 3) (quoting Jones v. Bock, 549 U. S. 199, 204 (2007) ; alteration in original). Among those measures, Congress required prisoners to pay filing fees for the suits or appeals they launch. The provisions on fee payment, set forth in §1915(b), read: “(1) . . . [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of— “(A) the average monthly deposits to the prisoner’s account; or “(B) the average monthly balance in the prisoner’s account for the 6-month period immediately preceding the filing of the complaint or notice of appeal. “(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.” The monthly installment scheme described in §1915(b)(2) also applies to costs awarded against prisoners when they are judgment losers. §1915(f)(2)(B). To further contain prisoner litigation, the PLRA introduced a three-strikes provision: Prisoners whose suits or appeals are dismissed three or more times as frivolous, malicious, or failing to state a claim on which relief may be granted are barred from proceeding IFP “unless the prisoner is under imminent danger of serious physical injury.” §1915(g). In other words, for most three strikers, all future filing fees become payable in full upfront. Congress included in its 1996 overhaul of §1915 a safety-valve provision to ensure that the fee requirementswould not bar access to the courts: “In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” §1915(b)(4). B Petitioner Antoine Bruce, a federal inmate serving a 15-year sentence, is a frequent litigant.[2] In the instant case, Bruce challenges his placement in a special management unit at the Federal Correctional Institution in Talladega, Alabama. Pinson v. Samuels, 761 F. 3d 1, 3–4 (CADC 2014).[3] Bruce had previously incurred filing-fee obligations in other cases and maintained that the monthly filing-fee payments for this case would not become due until those prior obligations were satisfied. Id., at 4, 7. The Court of Appeals for the District of Columbia Circuit, whose decision is before us for review, rejected Bruce’s argument. Id., at 8–10. Bruce must make monthly filing-fee payments in this case, the court held, simultaneously with such payments in earlier commenced cases. Id., at 8. We agree with the appeals court that §1915(b)(2) calls for simultaneous, not sequential, recoupment of multiple filing fees. II The IFP statute does not explicitly address whether multiple filing fees (after the initial partial payment) should be paid simultaneously or sequentially. Bruce and the Government present competing interpretations. A In support of the per-prisoner approach, Bruce relies principally on what he sees as a significant contrast between the singular “clerk” and the plural “fees” as those nouns appear in 28 U. S. C. §1915(b)(2). That provision requires payments to be forwarded “to the clerk of the court . . . until the filing fees are paid.” Ibid. (empha-sis added). Even when more than one filing fee isowed, Bruce contends, the statute instructs that only one clerk will receive payment each month; in other words,fee payments are to be made sequentially rather than simultaneously. The initial partial payment, which is charged on a per-case basis, plus the three-strikes provision, Bruce urges, together suffice to satisfy the PLRA’s purpose, which is to “force prisoners to think twice about the case and not just file reflexively,” 141 Cong. Rec. 14572 (1995) (remarks of Sen. Kyl). The additional economic disincentive that the per-case approach would occasion, Bruce asserts, could excessively encumber access to federal courts. Furthermore, Bruce points out, the per-case approach breaks down when a prisoner incurs more than five obligations. Nothing will be left in the account to pay the sixth fee, Bruce observes. Necessarily, therefore, its payment will be entirely deferred. Why treat the second obligation unlike the sixth, Bruce asks. Isn’t the statute sensibly read to render all monthly payments sequential? Bruce notes in this regard that, under the per-case approach, his ability to use his account to purchase amenities will be progressively curtailed; indeed, the account might be reduced to zero upon his filing or joining a fifth case. Finally, Bruce argues, administrative difficulties counsel against the per-case approach. Costs could dwarf the monetary yield if prisons, under a per-case regime, were obliged to send as many as five checks to five different courts each month. And the problems faced by state-prison officials—who sometimes must choose which of several claims on a prisoner’s income (e.g., child-support, medical copayments) should take precedence—would be exacerbated under a system demanding simultaneous payment of multiple litigation charges. B The Government emphasizes that §1915 as a whole has a single-case focus, providing instructions for each case. It would be anomalous, the Government urges, to treat paragraph (b)(1)’s initial partial payment, which Bruce concedes is directed at a single case, differently than paragraph (b)(2)’s subsequent monthly payments. The two paragraphs, the Government observes, are linked by paragraph (b)(2)’s opening clause: “After payment of the initial partial filing fee.” The per-case approach, the Government adds, better comports with the purpose of the PLRA to deter frivolous suits. See Newlin v. Helman, 123 F. 3d 429, 436 (CA7 1997) (Easterbrook, J.) (“Otherwise a prisoner could file multiple suits for the price of one, postponing payment of the fees for later-filed suits until after the end of imprisonment (and likely avoiding them altogether [because fees are often uncollectable on a prisoner’s release]).”), overruled in part on other grounds by Lee v. Clinton, 209 F. 3d 1025 (CA7 2000), and Walker v. O’Brien, 216 F. 3d 626 (CA7 2000). The Government further observes that the generally small size of the initial partial fee—here, $0.64, App. to Pet. for Cert. 21a—provides scant disincentive, on its own, for multiple filings. Responding to Bruce’s observation that, for a prisoner with more than five charges, even the per-case approach resorts to sequential payments, the Government agrees, but tells us that this scenario arises infrequently. “[M]ost prisoners,” the Government states, “would accrue three strikes (and therefore be required to pay the full filing fees upfront) by the time they incurred the obligation for their sixth case.” Brief for Respondents 29. Finally, answering Bruce’s concern that the per-case approach could leave a prisoner without money for amenities, the Government points out that prisons “are constitutionally bound to provide inmates with adequate food, clothing, shelter, and medical care,” id., at 48 (citing Farmer v. Brennan, 511 U. S. 825, 832 (1994) ), and must furnish “ ‘paper and pen to draft legal documents’ and ‘stamps to mail them,’ ” Brief for Respondents 48 (quoting Bounds v. Smith, 430 U. S. 817, 824, 825 (1977) ). More-over, the Government notes, the Federal Bureau of Prisons (BOP) “goes beyond those requirements,” providing inmates “articles necessary for maintaining personal hygiene,” and free postage “not only for legal mailings but also to enable the inmate to maintain community ties.” Brief for Respondents 48, n. 21 (internal quotation marks omitted). III The Circuits following the per-case approach, we conclude, better comprehend the statute. Just as §1915(b)(1) calls for assessment of “an initial partial filing fee” each time a prisoner “brings a civil action or files an appeal” (emphasis added), so its allied provision, §1915(b)(2), triggered immediately after, calls for “monthly payments of 20 percent of the preceding month’s income” simultaneously for each action pursued. The other two paragraphs of §1915(b) confirm that the subsection as a whole is written from the perspective of a single case. See §1915(b)(3) (imposing a ceiling on fees permitted “for the commencement of a civil action or an appeal” (emphasis added)); §1915(b)(4) (protecting the right to “brin[g] a civil action or appea[l] a civil or criminal judgment” (emphasis added)). There is scant indication that the statute’s perspective shifts partway through paragraph (2).[4] Bruce’s extratextual points do not warrant a departure from the interpretation suggested by the text and context. The per-case approach more vigorously serves the statutory objective of containing prisoner litigation, while the safety-valve provision, see supra, at 4, ensures against denial of access to federal courts. Bruce’s administrability concerns carry little weight given reports from several States that the per-case approach is unproblematic. See Brief for State of Michigan et al. as Amici Curiae 18–20. * * * For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit is Affirmed.Notes 1 Compare Atchison v. Collins, 288 F. 3d 177, 181 (CA5 2002) (per curiam); Newlin v. Helman, 123 F. 3d 429, 436 (CA7 1997), overruled in part on other grounds by Lee v. Clinton, 209 F. 3d 1025 (CA7 2000), and Walker v. O’Brien, 216 F. 3d 626 (CA7 2000); Lefkowitz v. Citi-Equity Group, Inc., 146 F. 3d 609, 612 (CA8 1998); Christensen v. Big Horn Cty. Bd. of Cty. Comm’rs, 374 Fed. Appx. 821, 829–833 (CA10 2010); and Pinson v. Samuels, 761 F. 3d 1, 7–10 (CADC 2014) (case below) (adopting per-case approach), with Whitfield v. Scully, 241 F. 3d 264, 276–277 (CA2 2001); Siluk v. Merwin, 783 F. 3d 421, 427–436 (CA3 2015); and Torres v. O’Quinn, 612 F. 3d 237, 241–248 (CA4 2010) (adopting per-prisoner approach). 2 At oral argument, Bruce’s counsel informed the Court that Bruce had framed or joined 19 prison-litigation cases, although “the last seven or so have not been filed . . . because [Bruce] had had three strikes by the 12th.” Tr. of Oral Arg. 23. See Brief for Respondents 40 (stating that Bruce filed three new lawsuits during the pendency of his case before this Court). 3 The Court of Appeals construed the pleadings in this case as a petition for a writ of mandamus. 761 F. 3d, at 3. We assume without deciding that a mandamus petition qualifies as a “civil action” or “appeal” for purposes of 28 U. S. C. §1915(b). 4 Use of the plural “fees” in that paragraph does not persuade us otherwise. Congress has been less than meticulous in its employment of the singular “fee” and the plural “fees,” sometimes using those words interchangeably. See, e.g., 28 U. S. C. §1930(a) (“The parties commencing a case under title 11 shall pay to the clerk . . . the following filing fees: [enumerating several options]. In addition to the filing fee paid to the clerk, [an additional fee shall be paid].” (emphasis added)); 42 U. S. C. §1988(b) (“[T]he court . . . may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer . . . such officer shall not be held liable for any costs, including attorney’s fees . . . .” (emphasis added)). See also Dictionary Act, 1 U. S. C. §1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise—words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular . . . .”).

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 . SUPREME COURT OF THE UNITED STATES Syllabus BRUCE v. SAMUELS et al. certiorari to the united states court of appeals for the district of columbia circuit No. 14–844. Argued November 4, 2015—Decided January 12, 2016 The Prison Litigation Reform Act of 1995 provides that prisoners qualified to proceed in forma pauperis (IFP) must nonetheless pay an initial partial filing fee, set as “20 percent of the greater of” the average monthly deposits in the prisoner’s account or the average monthly balance of the account over the preceding six months. 28 U. S. C. §1915(b)(1). They must then pay the remainder of the fee in monthly installments of “20 percent of the preceding month’s income credited to the prisoner’s account.” §1915(b)(2). The initial partial fee is assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. The initial payment may not be exacted if the prisoner has no means to pay it, §1915(b)(4), and no monthly installments are required unless the prisoner has more than $10 in his account, §1915(b)(2). In contest here is the calculation of subsequent monthly installment payments when more than one fee is owed. Petitioner Antoine Bruce, a federal inmate and a frequent litigant, argued that the monthly filing-fee payments do not become due until filing-fee obligations previously incurred in other cases are satisfied. The D. C. Circuit disagreed, holding that Bruce’s monthly payments were due simultaneously with monthly payments in the earlier cases. Held: Section 1915(b)(2) calls for simultaneous, not sequential, recoupment of multiple monthly installment payments. . (a) Bruce and the Government present competing interpretations of the IFP statute, which does not explicitly address how multiple filing fees should be paid. In urging a per-prisoner approach under which he would pay 20 percent of his monthly income regardless of the number of cases he has filed, Bruce relies principally on the contrast between the singular “clerk” and the plural “fees” as those nouns appear in §1915(b)(2), which requires payments to be forwarded “to the clerk of the court . . . until the filing fees are paid.” Even when more than one filing fee is owed, Bruce contends, §1915(b)(2) instructs that only one clerk will receive payment each month. In contrast, the Government urges a per-case approach. Emphasizing that §1915 as a whole has a single-case focus, providing instructions for each case, the Government contends that it would be anomalous to treat paragraph (b)(1)’s initial partial payment, admittedly directed at a single case, differently than paragraph (b)(2)’s subsequent monthly payments. . (b) Section 1915’s text and context support the per-case approach. Just as §1915(b)(1) calls for assessment of “an initial partial filing fee” each time a prisoner “brings a civil action or files an appeal” (emphasis added), so its allied provision, §1915(b)(2), calls for monthly 20 percent payments simultaneously for each action pursued. Section 1915(b)(3), which imposes a ceiling on fees permitted “for the commencement of a civil action or an appeal” (emphasis added), and §1915(b)(4), which protects the right to bring “a civil action or appea[l] a . . . judgment” (emphasis added), confirm that subsection (b) as a whole is written from the perspective of a single case. . 761 F. 3d 1, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court.

In the Prison Litigation Reform Act of 1995 (PLRA), 28 U.S. C. §1915(b)(1) requires prisoners qualified to proceed in forma pauperis nevertheless to pay an initial partial filing fee, which is statutorily set as 20 percent of the greater of the average monthly deposits in the prisoner's account or the monthly balance of the account over the preceding six months. To complete payment of the fee, prisoners must pay, in monthly installments, 20% of the preceding month�s income credited to the prisoner�s account. The initial partial payment is to be assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. In this case, petitioner Bruce, a frequent litigant, challenges his placement in a special management unit at the Federal Correctional Institution in Talladega, Alabama. Pinson v. Samuels, 761 F. 3d 1, 3, (CADC 2014). The Court of Appeals for the District of Columbia Circuit rejected Bruce's argument that, under the per-prisoner approach, monthly installment payments, like the partial payment, are to be separately assessed. Held: 1. There is no merit to Bruce's contention that, since the statute does not explicitly address whether multiple filing fees should be paid simultaneously or sequentially, it comports with the requirements of the Public Policy Act of the Civil Rights of indigent litigants (Pursuant to which he is a party) to file a civil action or appeal, the statute calls for simultaneous, not sequential, recoupment of multiple filing fees. . (a) The language of the statute and the context do not warrant a departure from the interpretation suggested by the text and context. There is scant indication that the statute's perspective shifts partway through paragraph (2) of the pleadings, and Bruce's extratextual points are not warranting departure from that interpretation. Moreover, use of the plural fee clause in that paragraph does not support the view that, even when more than one filing fee isowed, only one clerk will receive payment each month. P.. (b) Use of the singular fee clause does not persuade this Court that Congress has been less than meticulous in its employment of those words interchangeably, and that, in determining the meaning of any Act of Congress, unless the context indicates otherwise,words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular.... (c) The pleadings in this case do not constitute a petition for a writ of mandamus, since they are not entitled to that kind of relief, but are merely petitions for writs of administrability. See, e.g., Woodford v. Ngo, 548 U. S. 81, 84. Accordingly, they should be construed as petitions for mandamus. This Court assumes without deciding that a mandamus petition qualifies as a "civil action" or an "appeal" for purposes of the provision in question, and accordingly better comprehends the statute. However, the Circuits following that approach better comprehend the statute, since, just as the first paragraph calls for assessment of the initial partial fee each time a prisoner brings a suit or files an appeal, so its allied provision, §1916(b), triggered immediately after, calls for monthly payments of 20 percent of the following month's income simultaneously for each action pursued. Similarly, the other two paragraphs confirm that the subsection as a whole is written from the perspective of a single case. Cf. Atchison v. Collins, 288 F.3d 177,  731 F.2d 1210, overruled. (d) There is nothing in the statute to indicate that the legislative history of the period in question supports treating a prisoner's second or third action unlike his first lawsuit, and thus Bruce has little weight given reports from several States that the per case approach is unproblematic. It is anomalous that a single-case filing fee has to be linked to each case of a particular case in order to deter frivolous suits or to deter malicious suits. Also anomalous is the fact that the filing fee clause is linked to a single filing clause linked to the second partial fee. And it is likely that, for a prisoner with more than five charges, even the same partial fee resorts to sequential payments, and this scenario arises infrequently. Furthermore, the generally small size of a partial fee (here, $0.64, App. to Pet. for Cert. 21a) provides scant disincentive, on its own, for multiple filings. Finally, it is not necessary to decide that the three-strikes provision qualifies as an appeal or anappeal, since prisons are constitutionally bound to provide inmates with adequate food, clothing, shelter, and medical care,

2015_14-857

https://www.oyez.org/cases/2015/14-857

. Is an unaccepted offer to satisfy the named plaintiff’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists. This case presents a second question. The claim in suit concerns performance of the petitioner’s contract with the Federal Government. Does the sovereign’s immunity from suit shield the petitioner, a private enterprise, as well? We hold that the petitioner’s status as a Government contractor does not entitle it to “derivative sovereign immunity,” i.e., the blanket immunity enjoyed by the sovereign. I The Telephone Consumer Protection Act (TCPA or Act) 48Stat. 1064, 47 U. S. C. §227(b)(1)(A)(iii), prohibits any person, absent the prior express consent of a telephone-call recipient, from “mak[ing] any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a paging service [or] cellular telephone service.” A text message to a cellular telephone, it is undisputed, qualifies as a “call” within the compass of §227(b)(1)(A)(iii). 768 F. 3d 871, 874 (CA9 2014). For damages occasioned by conduct violating the TCPA, §227(b)(3) authorizes a private right of action. A plaintiff successful in such an action may recover her “actual monetary loss” or $500 for each violation, “whichever is greater.” Damages may be trebled if “the defendant willfully or knowingly violated” the Act. Petitioner Campbell-Ewald Company (Campbell) is a nationwide advertising and marketing communications agency. Beginning in 2000, the United States Navy engaged Campbell to develop and execute a multimedia recruiting campaign. In 2005 and 2006, Campbell proposed to the Navy a campaign involving text messages sent to young adults, the Navy’s target audience, encouraging them to learn more about the Navy. The Navy approved Campbell’s proposal, conditioned on sending the messages only to individuals who had “opted in” to receipt of marketing solicitations on topics that included service in the Navy. App. 42. In final form, the message read: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [ phone number].” 768 F. 3d, at 873. Campbell then contracted with Mindmatics LLC, which generated a list of cellular phone numbers geared to the Navy’s target audience—namely, cellular phone users between the ages of 18 and 24 who had consented to receiving solicitations by text message. In May 2006, Mindmatics transmitted the Navy’s message to over 100,000 recipients. Respondent Jose Gomez was a recipient of the Navy’s recruiting message. Alleging that he had never consented to receiving the message, that his age was nearly 40, and that Campbell had violated the TCPA by sending the message (and perhaps others like it), Gomez filed a class-action complaint in the District Court for the Central District of California in 2010. On behalf of a nationwide class of individuals who had received, but had not consented to receipt of, the text message, Gomez sought treble statutory damages, costs, and attorney’s fees, also an injunction against Campbell’s involvement in unsolicited messaging. App. 16–24. Prior to the agreed-upon deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. App. to Pet. for Cert. 52a–61a.[1] Campbell offered to pay Gomez his costs, excluding attorney’s fees, and $1,503 per message for the May 2006 text message and any other text message Gomez could show he had received, thereby satisfying his personal treble-damages claim. Id., at 53a. Campbell also proposed a stipulated injunction in which it agreed to be barred from sending text messages in violation of the TCPA. The proposed injunction, however, denied liability and the allegations made in the complaint, and disclaimed the existence of grounds for the imposition of an injunction. Id., at 56a. The settlement offer did not include attorney’s fees, Campbell observed, because the TCPA does not provide for an attorney’s-fee award. Id., at 53a. Gomez did not accept the settlement offer and allowed Campbell’s Rule 68 submission to lapse after the time, 14 days, specified in the Rule. Campbell thereafter moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. No Article III case or controversy remained, Campbell urged, because its offer mooted Gomez’s individual claim by providing him with complete relief. Gomez had not moved for class certification before his claim became moot, Campbell added, so the putative class claims also became moot. The District Court denied Campbell’s motion. 805 F. Supp. 2d 923 (CD Cal. 2011).[2] Gomez was not dilatory in filing his certification request, the District Court determined; consequently, the court noted, the class claims would “relat[e] back” to the date Gomez filed the complaint. Id., at 930–931. After limited discovery, Campbell moved for summary judgment on a discrete ground. The U. S. Navy enjoys the sovereign’s immunity from suit under the TCPA, Campbell argued. The District Court granted the motion. Relying on our decision in Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940) , the court held that, as a contractor acting on the Navy’s behalf, Campbell acquired the Navy’s immunity. No. CV 10–02007DMG (CD Cal., Feb. 22, 2013), App. to Pet. for Cert. 22a–34a, 2013 WL 655237.The Court of Appeals for the Ninth Circuit reversed the summary judgment entered for Campbell. 768 F. 3d 871. The appeals court disagreed with the District Court’s ruling on the immunity issue, but agreed that Gomez’s case remained live. Concerning Gomez’s individual claim, the Court of Appeals relied on its then-recent decision in Diaz v. First American Home Buyers Protection Corp., 732 F. 3d 948 (2013). Diaz held that “an unaccepted Rule 68 offer that would fully satisfy a plaintiff’s [individual] claim is insufficient to render th[at] claim moot.” Id., at 950. As to the class relief Gomez sought, the Ninth Circuit held that “an unaccepted Rule 68 offer of judgment—for the full amount of the named plaintiff’s individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” 768 F. 3d, at 875 (quoting Pitts v. Terrible Herbst, Inc., 653 F. 3d 1081, 1091–1092 (CA9 2011)). Next, the Court of Appeals held that Campbell was not entitled to “derivative sovereign immunity” under this Court’s decision in Yearsley or on any other basis. 768 F. 3d, at 879–881. Vacating the District Court’s judg-ment, the Ninth Circuit remanded the case for further proceedings.[3] We granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff’s claim, thereby depriving federal courts of Article III jurisdiction. Compare Bais Yaakov v. Act, Inc., 798 F. 3d 46, 52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F. 3d 309, 315 (CA5 2015); Chapman v. First Index, Inc., 796 F. 3d 783, 787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F. 3d 195, 200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F. 3d 698, 703 (CA11 2014); Diaz, 732 F. 3d, at 954–955 (holding that an unaccepted offer does not render a plaintiff’s claim moot), with Warren v. Sessoms & Rogers, P. A., 676 F. 3d 365, 371 (CA4 2012); O’Brien v. Ed Donnelly Enterprises, Inc., 575 F. 3d 567, 574–575 (CA6 2009); Weiss v. Regal Collections, 385 F. 3d 337, 340 (CA3 2004) (holding that an unaccepted offer can moot a plaintiff’s claim). We granted review as well to resolve the federal contractor immunity question Campbell’s petition raised. 575 U. S. ___ (2015). II Article III of the Constitution limits federal-court jurisdiction to “cases” and “controversies.” U. S. Const., Art. III, §2. We have interpreted this requirement to demand that “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U. S. 395, 401 (1975) ). “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis HealthCare Corp., 569 U. S., at ___ (slip op., at 4) (quoting Lewis v. Continental Bank Corp., 494 U. S. 472 –478 (1990)). A case becomes moot, however, “only when it is impossible for a court to grant any effectual relief what-ever to the prevailing party.” Knox v. Service Employees, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 6) (internal quotation marks omitted). In Genesis HealthCare, the Court considered a collective action brought by Laura Symczyk, a former employee of Genesis HealthCare Corp. Symczyk sued on behalf of herself and similarly situated employees for alleged violations of the Fair Labor Standards Act of 1938, 29 U. S. C. §201 et seq. In that case, as here, the defendant served the plaintiff with an offer of judgment pursuant to Rule 68 that would have satisfied the plaintiff’s individual dam-ages claim. 569 U. S., at ___ (slip op., at 2). Also as here, the plaintiff allowed the offer to lapse by failing to respond within the time specified in the Rule. Ibid. But unlike the case Gomez mounted, Symczyk did not dispute in the lower courts that Genesis HealthCare’s offer mooted her individual claim. Id., at ___ (slip op., at 5). Because of that failure, the Genesis HealthCare majority refused to rule on the issue. Instead, the majority simply assumed, without deciding, that an offer of complete relief pursuant to Rule 68, even if unaccepted, moots a plaintiff’s claim. Ibid. Having made that assumption, the Court proceeded to consider whether the action remained justiciable on the basis of the collective-action allegations alone. Absent a plaintiff with a live individual case, the Court concluded, the suit could not be maintained. Id., at ___ (slip op., at 6). Justice Kagan, writing in dissent, explained that she would have reached the threshold question and would have held that “an unaccepted offer of judgment cannot moot a case.” Id., at ___ (slip op., at 3). She reasoned: “When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law student learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U. S. 149, 151 (1886) . Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, unmooted.” Ibid. We now adopt Justice Kagan’s analysis, as has every Court of Appeals ruling on the issue post Genesis HealthCare.[4] Accordingly, we hold that Gomez’s complaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim. As earlier recounted, see supra, at 3–4, Gomez commenced an action against Campbell for violation of the TCPA, suing on behalf of himself and others similarly situated. Gomez sought treble statutory damages and an injunction on behalf of a nationwide class, but Campbell’s settlement offer proposed relief for Gomez alone, and it did not admit liability. App. to Pet. for Cert. 58a. Gomez rejected Campbell’s settlement terms and the offer of judgment. Under basic principles of contract law, Campbell’s settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. See Genesis HealthCare, 569 U. S., at ___ (Kagan, J., dissenting) (slip op., at 3). Absent Gomez’s acceptance, Campbell’s settlement offer remained only a proposal, binding neither Campbell nor Gomez. See App. to Pet. for Cert. 59a (“Please advise whether Mr. Gomez will accept [Campbell’s] offer . . . .”). Having rejected Campbell’s settlement bid, and given Campbell’s continuing denial of liability, Gomez gained no entitlement to the relief Campbell previously offered. See Eliason v. Henshaw, 4 Wheat. 225, 228 (1819) (“It is an undeniable principle of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation upon the former, until it is accepted by the latter . . . .”). In short, with no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. The Federal Rule in point, Rule 68, hardly supports the argument that an unaccepted settlement offer can moot a complaint. An offer of judgment, the Rule provides, “is considered withdrawn” if not accepted within 14 daysof its service. Fed. Rule Civ. Proc. 68(a), (b). The sole built-in sanction: “If the [ultimate] judgment . . . is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Rule 68(d). In urging that an offer of judgment can render a controversy moot, Campbell features a trio of 19th-century railroad tax cases: California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893) , Little v. Bowers, 134 U. S. 547 (1890) , and San Mateo County v. Southern Pacific R. Co., 116 U. S. 138 (1885) . None of those decisions suggests that an unaccepted settlement offer can put a plaintiff out of court. In San Pablo, California had sued to recover state and county taxes due from a railroad. In response, the railroad had not merely offered to pay the taxes in question. It had actually deposited the full amount demanded in a California bank in the State’s name, in accord with a California statute that “extinguished” the railroad’s tax obligations upon such payment. 149 U. S., at 313–314. San Pablo thus rested on California’s substantive law, which required the State to accept a taxpayer’s full payment of the amount in controversy. San Mateo and Little similarly involved actual payment of the taxes for which suit was brought. In all three cases, the railroad’s payments had fully satisfied the asserted tax claims, and so extinguished them. San Mateo, 116 U. S., at 141–142; Little, 134 U. S., at 556.[5] In contrast to the cases Campbell highlights, when the settlement offer Campbell extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint, which Campbell opposed on the merits, stood wholly unsatisfied. Because Gomez’s individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified, see Sosna v. Iowa, 419 U. S. 393, 399 (1975) , a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted. The Chief Justice’s dissent asserts that our decision transfers authority from the federal courts and “hands it to the plaintiff.” Post, at 10. Quite the contrary. The dissent’s approach would place the defendant in the driver’s seat. We encountered a kindred strategy in U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18 (1994) . The parties in Bancorp had reached a voluntary settlement while the case was pending before this Court. Id., at 20. The petitioner then sought vacatur of the Court of Appeals’ judgment, contending that it should be relieved from the adverse decision on the ground that the settlement made the dispute moot. The Court rejected this gambit. Id., at 25. Similarly here, Campbell sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept. In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case, so the District Court retained jurisdiction to adjudicate Gomez’s complaint. That ruling suffices to decide this case. We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical. III The second question before us is whether Campbell’s status as a federal contractor renders it immune from suit for violating the TCPA by sending text messages to unconsenting recipients. The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity. Brief for Peti-tioner 2; Brief for Respondent 43. Do federal contractors share the Government’s unqualified immunity from liability and litigation? We hold they do not. “[G]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.” Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583 (1943) . That immunity, however, unlike the sovereign’s, is not absolute. See id., at 580–581. Campbell asserts “derivative sovereign immunity,” Brief for Petitioner 35, but can offer no authority for the notion that private persons performing Government work acquire the Government’s embracive immunity. When a contractor violates both federal law and the Government’s explicit instructions, as here alleged, no “derivative immunity” shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of our decisions support its “derivative immunity” defense: Yearsley, 309 U. S. 18 , and Filarsky v. Delia, 566 U. S. ___ (2012). In Yearsley, a landowner asserted a claim for damages against a private company whose work building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff’s land. We held that the contractor was not answerable to the landowner. “[T]he work which the contractor had done in the river bed,” we observed, “was all authorized and directed by the Government of the United States” and “performed pursuant to the Act of Congress.” 309 U. S., at 20 (internal quotation marks omitted). Where the Government’s “authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress,” we explained, “there is no liability on the part of the contractor” who simply performed as the Government directed. Id., at 20–21.[6] The Court contrasted with Yearsley cases in which a Government agent had “exceeded his authority” or the authority “was not validly conferred”; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. Id., at 21.[7] In Filarsky, we considered whether a private attorney temporarily retained by a municipal government as an investigator could claim qualified immunity in an action brought under 42 U. S. C. §1983. Finding no distinction in the common law “between public servants and private individuals engaged in public service,” we held that the investigator could assert “qualified immunity” in the lawsuit. 566 U. S., at ___, ___ (slip op., at 8, 5). Qualified immunity reduces the risk that contractors will shy away from government work. But the doctrine is bounded in a way that Campbell’s “derivative immunity” plea is not. “Qualified immunity may be overcome . . . if the defendant knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit.” Id., at ___ (Ginsburg, J., concurring) (slip op., at 1) (citing Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) ). Campbell does not here contend that the TCPA’s requirements or the Navy’s instructions failed to qualify as “clearly established.” At the pretrial stage of litigation, we construe the record in a light favorable to the party seeking to avoid summary disposition, here, Gomez. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986) . In opposition to summary judgment, Gomez presented evidence that the Navy authorized Campbell to send text messages only to individuals who had “opted in” to receive solicitations. App. 42–44; 768 F. 3d, at 874. A Navy representative noted the importance of ensuring that the message recipient list be “kosher” (i.e., that all recipients had consented to receiving messages like the recruiting text), and made clear that the Navy relied on Campbell’s representation that the list was in compliance. App. 43. See also ibid. (noting that Campbell itself encouraged the Navy to use only an opt-in list in order to meet national and local law requirements). In short, the current record reveals no basis for arguing that Gomez’s right to remain message-free was in doubt or that Campbell complied with the Navy’s instructions. We do not overlook that subcontractor Mindmatics, not Campbell, dispatched the Navy’s recruiting message to unconsenting recipients. But the Federal Communications Commission has ruled that, under federal common-law principles of agency, there is vicarious liability for TCPA violations. In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574 (2013). The Ninth Circuit deferred to that ruling, 768 F. 3d, at 878, and we have no cause to question it. Campbell’s vicarious liability for Mindmatics’ conduct, however, in no way advances Campbell’s contention that it acquired the sovereign’s immunity from suit based on its contract with the Navy. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Federal Rule of Civil Procedure 68 provides, in relevant part: 2 Because Campbell had already answered the complaint, the District Court construed Campbell’s motion as a request for summary judgment. 805 F. Supp. 2d, at 927, n. 2. 3 The Court of Appeals stayed its mandate pending proceedings in this Court. App. to Pet. for Cert. 62a–63a. 4 See Bais Yaakov v. Act, Inc., 798 F. 3d 46, 51–52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F. 3d 309, 314–315 (CA5 2015); Chapman v. First Index, Inc., 796 F. 3d 783, 786–787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F. 3d 195, 199–200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F. 3d 698, 702–703 (CA11 2014); Diaz v. First American Home Buyers Corp., 732 F. 3d 948, 953–955 (CA9 2013). 5 In addition to California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893) , The Chief Justice maintains, two recent decisions of the Court support its position: Alvarez v. Smith, 558 U. S. 87 (2009) , and Already, LLC v. Nike, Inc., 568 U. S. ___ (2013). See post, at 6–9 (dissenting opinion). The Court’s reasoning in those opinions, however, is consistent with our decision in this case. In Alvarez, the Court found moot claims for injunctive and declaratory relief in relation to cars and cash seized by the police. Through separate state-court proceedings, the State had “returned all the cars that it seized,” and the plaintiff-property owners had “either forfeited any relevant cash or ha[d] accepted as final the State’s return of some of it.” 558 U. S., at 89, 95–96. Alvarez thus resembles the railroad tax cases described above: The Alvarez plaintiffs had in fact received all the relief they could claim, all “underlying property disputes” had ended, id., at 89, and as the complaint sought “only declaratory and injunctive relief, not damages,” id., at 92, no continuing controversy remained. 6 If there had been a taking of the plaintiff’s property, the Courtnoted, “a plain and adequate remedy” would be at hand, i.e., recovery from the United States of “just compensation.” Yearsley, 309 U. S., at 21. 7 We disagree with the Court of Appeals to the extent that it described Yearsley as “establish[ing] a narrow rule regarding claims arising out of property damage caused by public works projects.” 768 F. 3d, at 879. Critical in Yearsley was not the involvement of public works, but the contractor’s performance in compliance with all federal directions.

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 . SUPREME COURT OF THE UNITED STATES Syllabus CAMPBELL-EWALD CO. v. GOMEZ certiorari to the united states court of appeals for the ninth circuit No. 14–857. Argued October 14, 2015—Decided January 20, 2016 The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had “opted in” to receipt of marketing solicitations on topics that included Navy service. Campbell’s subcontractor Mindmatics LLC generated a list of cellular phone numbers for consenting 18- to 24-year-old users and then transmitted the Navy’s message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages and, at age 40, was not in the Navy’s targeted age group. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA), 47 U. S. C. §227(b)(1)(A)(iii), which prohibits “using any automatic dialing system” to send a text message to a cellular telephone, absent the recipient’s prior express consent. He sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell’s involvement in unsolicited messaging. Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez’s individual claim by providing him with complete relief. Next, Campbell urged that Gomez’s failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well. The District Court denied the motion. After limited discovery, the District Court granted Campbell’s motion for summary judgment. Relying on Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 , the court held that Campbell, as a contractor acting on the Navy’s behalf, acquired the Navy’s sovereign immunity from suit under the TCPA. The Ninth Circuit reversed. It agreed that Gomez’s case remained live but concluded that Campbell was not entitled to “derivative sovereign immunity” under Yearsley or on any other basis. Held: 1. An unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case, so the District Court retained jurisdiction to adjudicate Gomez’s complaint. Article III’s “cases” and “controversies” limitation requires that “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed,” Arizonans for Official English v. Arizona, 520 U. S. 43 (internal quotation marks omitted), but a case does not become moot as “long as the parties have a concrete interest, however small,” in the litigation’s outcome, Chafin v. Chafin, 568 U. S. ___, ___ (internal quotation marks omitted). Gomez’s complaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim. Under basic principles of contract law, Campbell’s settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. With no settlement offer operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. Neither Rule 68 nor the 19th-century railroad tax cases California v. San Pablo & Tulare R. Co., 149 U. S. 308 , Little v. Bowers, 134 U. S. 547 , and San Mateo County v. Southern Pacific R. Co., 116 U. S. 138 , support the argument that an unaccepted settlement offer can moot a complaint. . 2. Campbell’s status as a federal contractor does not entitle it to immunity from suit for its violation of the TCPA. Unlike the United States and its agencies, federal contractors do not enjoy absolute immunity. A federal contractor who simply performs as directed by the Government may be shielded from liability for injuries caused by its conduct. See Yearsley, 309 U. S., at 20–21. But no “derivative immunity” exists when the contractor has “exceeded [its] authority” or its authority “was not validly conferred.” Id., at 21. The summary judgment record includes evidence that the Navy authorized Campbell to send text messages only to individuals who had “opted in” to receive solicitations, as required by the TCPA. When a contractor violates both federal law and the Government’s explicit instructions, as alleged here, no immunity shields the contractor from suit. . 768 F. 3d 871, affirmed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Scalia and Alito, JJ., joined. Alito, J., filed a dissenting opinion.

The Telephone Consumer Protection Act (TCPA or Act) prohibits any person, absent the prior express consent of a telephone-call recipient, from making a telephone call from any automatic telephone dialing system to any telephone number assigned to a paging service. For damages occasioned by conduct violating the Act, a plaintiff may recover her actual monetary loss or $500 for each violation. Damages may be trebled if the defendant willfully or knowingly violated the Act. Petitioner Campbell-Ewald Co. (Campbell) is a nationwide advertising and marketing agency engaged in developing and executing a recruiting campaign for the United States Navy. Respondent Gomez, a recipient of the Navy recruiting message, filed a class-action complaint in the District Court, alleging that he had never consented to receiving the message, that his age was nearly 40, and that Campbell had violated the TCPA by sending the message. Gomez did not accept the settlement offer, and allowed Campbell's Rule 68 submission to lapse after the time specified in the Rule. The District Court denied Campbell a motion for summary judgment on the ground that, as a contractor acting on the Navy's behalf, Campbell acquired the Navy-signified immunity from suit under the FTC. The Court of Appeals reversed, holding that an unaccepted Rule 68 offer of judgment, for the full amount of the named plaintiff's individual claim and made before he filed a motion for class certification, does not moot a class action. Held: Campbell is not immune from suit for violating the FTC by sending text messages to unconsenting recipients. . (a) The status of a Government contractor does not entitle it to "derivative sovereign immunity," i.e., the blanket immunity enjoyed by the sovereign. When a contractor violates both federal law and the Government's explicit instructions, no such immunity shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of its decisions support its claim: Yearsley v. San Pablo & Tulare R. Co.,; Filarsky v. Delia, 566 U. S. ___ (2012)). . (b) The current record reveals no basis for arguing that Gomez had a right to remain message-free was in doubt or that Campbell complied with the Navy instructions. Moreover, Campbell can offer no authority for the notion that private persons performing Government work acquire the Government-s embracive immunity. Where the Government has authority to carry out the project, validly conferred, there is no liability on the part of the contractor who simply performed as the Government directed. The doctrine is bounded in a way that Campbell's plea is not. Qualified immunity reduces the risk that contractors will shy away from government work. See Yearsley, supra, at ___, ___ (slip op., at 5). Gomez failed to meet his pretrial pretrial burden of showing that his claim was not mooted by the expired settlement offer. P.. (c) At least in light of the disposition of Gomez, the Government, as well as Gomez, failed to pass on the merits of Gomez and Gomez. Gomez has a substantial stake in the litigation Gomez had begun on behalf of himself and others in the class action, and Gomez gained no entitlement to the relief Campbell previously offered. Absent Gomez's acceptance, Campbell's settlement offer remained only a proposal, binding neither Gomez nor Gomez. A case becomes moot only when it is impossible for a court to grant any effectual relief what-ever to the prevailing party. Furthermore, the Federal Communications Commission (FCC) has ruled that, under federal common-law principles of agency, vicarious liability for TCPA violations is not available. In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, the Ninth Circuit deferred to that ruling, and the court has no cause to question it, since Campbell asserts neither its assertion of absolute immunity nor its authority for attributing such immunity to private persons doing Government work. See, e.g., Brady v. Roosevelt S.S. Co. 317, 575, 583, 585, 586, which, in urging that a nonaccepted settlement offer can render a controversy moot, features a trio of 19th-century railroad tax cases. Although some of those decisions support Campbell's claim that a private person performing such work acquire such immunity, none of them suggests that such an offer can put a plaintiff out of court. Viewed in contrast to the cases Campbell highlights, when a settlement offer extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint, which the FTC opposed on his merits, stood wholly unsatisfied. Because Gomez had already answered the FTC complaint, the FTC, on remand pending this Court, construed Campbell's motion as a request for a summary judgment. That Court stayed its mandate pending further proceedings in this Court. App. to Pet. for Cert. 62a-63a. 4

2015_14-1375

https://www.oyez.org/cases/2015/14-1375

. This case involves the interpretation of a statutory provision allowing district courts to award attorney’s fees to defendants in employment discrimination actions. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., which prohibits discrimination in employment, a district court may award attorney’s fees to “the prevailing party.” §2000e–5(k). The Court of Appeals for the Eighth Circuit held that a Title VII defendant prevails only by obtaining a “ruling on the merits.” 774 F. 3d 1169, 1179 (2014); Marquart v. Lodge 837, Machinists and Aerospace Workers, 26 F. 3d 842, 851–852 (1994). This Court disagrees with that conclusion. The Court now holds that a favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed. I Title VII of the Civil Rights Act of 1964 authorizes an award of attorney’s fees in certain circumstances. The statute provides that “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” §2000e–5(k). Before deciding whether an award of attorney’s fees is appropriate in a given case, then, a court must determine whether the party seeking fees has prevailed in the litigation. Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 789 (1989) ; Hensley v. Eckerhart, 461 U. S. 424, 433 (1983) . Congress has included the term “prevailing party” in various fee-shifting statutes, and it has been the Court’s approach to interpret the term in a consistent manner. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598 , and n. 4 (2001). The Court has said that the “touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.” Texas State Teachers Assn., supra, at 792–793. This change must be marked by “judicial imprimatur.” Buckhannon, 532 U. S., at 605. The Court has explained that, when a plaintiff secures an “enforceable judgmen[t] on the merits” or a “court-ordered consent decre[e],” that plaintiff is the prevailing party because he has received a “judicially sanctioned change in the legal relationship of the par-ties.” Id., at 604–605. The Court, however, has not set forth in detail how courts should determine whether a defendant has prevailed. Although the Court has not articulated a precise test for when a defendant is a prevailing party, in the Title VII context it has addressed how defendants should be treated under the second part of the inquiry—whether the district court should exercise its discretion to award fees to the prevailing party. When a defendant is the prevailing party on a civil rights claim, the Court has held, district courts may award attorney’s fees if the plaintiff’s “claim was frivolous, unreasonable, or groundless,” or if “the plaintiff continued to litigate after it clearly became so.” Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422 (1978) ; see also id., at 421. The Court of Appeals’ determination of the first part of the fee-shifting inquiry—whether petitioner is a prevailing party—presents the central issue in this case. Before addressing this question, however, a discussion of the facts and complex procedural history is warranted. II Petitioner CRST is a trucking company that employs a team driving system under which two employees share driving duties on a single truck. CRST requires its drivers to graduate from the company’s training program before becoming a certified driver. Part of that training is a 28-day over-the-road trip with a veteran driver. In 2005, a new driver named Monika Starke filed a charge of discrimination with the Equal Employment Opportunity Commission (Commission) alleging that two male trainers sexually harassed her during her over-the-road training trip. The Commission’s receipt of a charge of an unlawful workplace practice starts Title VII’s “detailed, multi-step procedure through which the Commission enforces the statute’s prohibition on employment discrimination.” Mach Mining, LLC v. EEOC, 575 U. S. ___, ___ (2015) (slip op., at 1). Under §706 of Title VII, the Commission first must inform the employer about the charge and the details of the allegations. 42 U. S. C. §2000e–5(b). The Commission next must investigate the allegation. Ibid. If the agency “determines after such investigation that there is not reasonable cause to believe that the charge is true,” it shall dismiss the charge and notify the parties. Ibid. At that point, the Commission is no longer involved, and the aggrieved individual may sue the employer in his or her own name. §2000e–5(f)(1). If, on the other hand, the Commission determines that there is reasonable cause to believe that a Title VII violation did occur, it “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). Only if the agency’s attempt at conciliation fails may it file a court action in its own name on behalf of the aggrieved person who brought the charge. §2000e–5(f)(1). Following these procedures, the Commission notified CRST of Starke’s charge and requested information regarding Starke’s allegations. In response CRST denied any wrongdoing. During the investigation, the Commission discovered that four other women had filed formal charges against the company with the Commission. The Commission then sent CRST several followup requests. It asked if CRST had received other allegations of harassment, demanded contact information for any women who were instructed by the trainers Starke accused of harassment, and sought “detailed contact information for” CRST’s dispatchers and female drivers. EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 667 (CA8 2012). Over a year and a half after Starke filed her charge, the Commission sent CRST a letter of determination informing the company that the Commission had found reason-able cause to believe that CRST subjected Starke and “a class of employees and prospective employees to sexual harassment” and offering to conciliate. App. 811. Counsel for the Commission and for CRST discussed conciliation, but were unable to reach an agreement, and the Commission promptly notified the company that, in the agency’s view, the conciliation efforts had failed. In September 2007 the Commission, in its own name, filed suit against CRST under §706 of Title VII. It alleged that CRST subjected Starke and “[o]ther similarly situated . . . employees of CRST . . . to sexual harassment and a sexually hostile and offensive work environment” in violation of §§703(a) and 704(a) of Title VII, 42 U. S. C. §§2000e–2 and 2000e–3. App. 794–795. The Commission is allowed to “seek specific relief for a group of aggrieved individuals [under §706] without first obtaining class certification pursuant to” Federal Rule of Civil Procedure 23, because that rule “is not applicable to” a §706 enforcement action. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 –334 (1980). The Commission sought to enjoin CRST from engaging in discriminatory employment practices and to obtain an order requiring CRST to take proactive steps to remedy and prevent sex-based discrimination in the workplace. The Commission also sought damages and costs. During discovery, the Commission identified over 250 allegedly aggrieved women—far more than the Commission had forecast. CRST filed a motion for an order to show cause, alleging that the Commission “did not have a good-faith basis” for seeking relief on behalf of all the women. EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402, *10 (ND Iowa, Aug. 13, 2009). The District Court did not strike any allegedly aggrieved persons at that time, although it did note its concern “that CRST still might unfairly face a ‘moving target’ of prospective plaintiffs as discovery winds down and trial approaches.” Ibid. (alteration and internal quotation marks omitted). The District Court proceeded to dispose of the Commission’s claims in a series of orders responsive to various motions filed by CRST. Section 707 of Title VII authorizes the Commission to bring a claim “that any person or group of persons is engaged in a pattern or practice” of illegal sex-based discrimination. See 42 U. S. C. §2000e–6. In the early stage of this litigation the Commission “made clear to the [district] court and CRST that it believe[d] CRST had engaged in ‘a pattern or practice’ of tolerating sexual harassment.” Order in No. 07–CV–95 (ND Iowa), Doc. 197, p. 25. CRST sought summary judgment on the Commission’s perceived pattern-or-practice claim. The District Court granted the motion. The court explained that, although courts have allowed the Commission to use a pattern-or-practice theory when litigating a §706 claim, the Commission did not plead a violation of §707 or use the phrase “pattern or practice” in its complaint. Id., at 24–25. Instead, the “[Commission’s] Complaint reads as if the [Commission] were asserting a prototypical §706 action.” Ibid. But, the court noted, CRST did not argue that the Commission failed to state a pattern-or-practice claim in the complaint; and the court presumed that CRST would not have sought summary judgment on a claim “it does not believe to exist.” Id., at 26. Because both parties accepted that the claim was live, “the court assume[d] without deciding that this is a sexual harassment pattern or practice case.” Ibid. After reviewing the parties’ arguments, the court held that the Commission had “not established a pattern or practice of tolerating sexual harassment” and dismissed with prejudice the assumed pattern-or-practice claim. Id., at 67. The court, as a final matter, advised that “[n]othing in this opinion . . . should be construed as a final ruling on the individual claims of sexual harassment that the [Commission] presses in this action.” Ibid. Next, the District Court ruled in several orders that the Commission’s claims on behalf of all but 67 of the women were barred on a variety of grounds. The court had previously dismissed claims on behalf of nearly 100 women as a discovery sanction due to the Commission’s failure to produce the women for deposition. In rejecting the Commission’s other claims, the court relied on (1) the expiration of the statute of limitations; (2) judicial estoppel; (3) the employee’s failure to report the alleged harassment in a timely fashion; (4) CRST’s prompt and effective response to reports of harassment; and (5) the lack of severity or pervasiveness of the alleged harassment. The District Court then barred the Commission from seeking relief for the remaining 67 women on the ground that the Commission had not satisfied its §706 presuit requirements before filing the lawsuit. The court concluded that the suit was “one of those exceptionally rare” cases where the Commission “wholly abandoned its statutory duties” to investigate and conciliate. CRST Van Expedited, Inc., 2009 WL 2524402, at *16. The court noted, how-ever, that it “expresse[d] no view as to whether the [Commission’s] investigation, determination and conciliation of Starke’s Charge would be sufficient to support a pattern[-]or-practice lawsuit.” Ibid., n. 21. The District Court then dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for attorney’s fees. CRST filed a motion for attorney’s fees. After describing how it disposed of the Commission’s claims piece by piece, the District Court held that the Commission’s failure to satisfy its presuit obligations for its claims on behalf of the final 67 women was “unreasonable,” and that an award of attorney’s fees was therefore appropriate. App. 140. The court awarded CRST over $4 million in attorney’s fees. Id., at 173–174. The Commission appealed the District Court’s order dismissing the claims on behalf of the 67 women that the District Court rejected for failure to satisfy Title VII’s presuit requirements as well as the District Court’s dismissal of some of the Commission’s other claims. As relevant here, the Court of Appeals held that the District Court’s dismissal of the 67 claims for a lack of investigation and conciliation was proper. The Commission, according to the Court of Appeals, “did not reasonably investigate the class allegations of sexual harassment during a reasonable investigation of the charge,” but rather used “discovery in the resulting lawsuit as a fishing expedition to uncover more violations.” CRST Van Expedited, Inc., 679 F. 3d, at 676 (internal quotation marks omitted). The Commission in fact “did not investigate the specific allegations of any of the 67 allegedly aggrieved persons . . . until after the Complaint was filed.” Ibid. (internal quotation marks omitted). The Court of Appeals affirmed the District Court’s dismissal of almost all of the other claims on which the Commission had appealed, reversing only the claims on behalf of Starke and one other employee—Tillie Jones— for reasons not material to the question at issue here. Like the District Court before it, the Court of Appeals declined to comment on whether the presuit investigation and attempted conciliation would have been sufficient to support a pattern-or-practice claim. The Court of Appeals also vacated, without prejudice, the attorney’s fees award. “In light of our reversals” of the District Court’s summary-judgment orders with respect to Starke and Jones, the court reasoned, “CRST is no longer a ‘prevailing’ defendant because the [Commission] still asserts live claims against it.” Id., at 694–695. Judge Murphy dissented from the court’s holding that the Commission had failed to satisfy its obligation to investigate and conciliate the final 67 claims, arguing that the Commission did not need to “complete its presuit duties for each individual alleged victim of discrimination when pursuing a class claim.” Id., at 695. After the case was remanded, the Commission withdrew its claim on behalf of Jones and settled its claim on behalf of Starke. The Commission thus had no claims left. The company again moved for attorney’s fees, and the District Court again awarded CRST more than $4 million in fees. The court first concluded “that this case contained multiple and distinct claims for relief,” thereby rejecting the Commission’s contention that it had brought a single claim on which it had prevailed. 2013 WL 3984478, *9 (ND Iowa, Aug. 1, 2013). Noting that the defendant does not have to prevail on every claim in a suit to obtain attorney’s fees, see Fox v. Vice, 563 U. S. 826 (2011) , the court then determined the claims on which CRST had prevailed. Applying Circuit precedent requiring a ruling on the merits of a claim before a defendant can be considered a prevailing party, the court found that CRST did not prevail on the claims that were dismissed because of the Commission’s failure to produce many of the allegedly aggrieved women for deposition. The court also found that CRST had not prevailed on the merits with respect to a handful of the Commission’s other claims. The court found that CRST did prevail, however, on the Commission’s pattern-or-practice claim and on the claims on behalf of over 150 of the allegedly aggrieved women, including the 67 claims dismissed because of the Commission’s failure to satisfy its presuit requirements. The court held that its dismissal of those 67 claims was a ruling on the merits because the Commission’s obligation to investigate and conciliate “is not a jurisdictional prerequisite; rather, it is an ingredient of the [Commission’s] claim.” 2013 WL 3984478, at *10. The court further concluded that an award of attorney’s fees was appropriate because the Commission’s failure to investigate and conciliate those 67 claims was unreasonable, as were the pattern-or-practice claim and the other claims on which it prevailed. The Commission appealed, and the Court of Appeals again reversed and remanded. The Court of Appeals first agreed with the District Court that the Commission brought many individual claims, not just a single claim. The Court of Appeals disagreed, however, with the District Court’s conclusion that CRST could recover attorney’s fees for the pattern-or-practice claim. The Commission did not allege a pattern-or-practice claim in its complaint, the Court of Appeals noted, and the District Court had “merely assumed without deciding that the [Commission]brought a pattern-or-practice claim.” 774 F. 3d, at 1179. The Court of Appeals concluded that the District Court erred by awarding fees “based on a purported” claim. Ibid. The Court of Appeals, bound by its own precedent in Marquart, then held that before a defendant can be deemed to have prevailed and to be eligible for fees there must have been a favorable “ ‘judicial determination . . . on the merits.’ ” 774 F. 3d, at 1179 (quoting Marquart, 26 F. 3d, at 852). A merits-based disposition is necessary, the court reasoned, because “ ‘[p]roof that a plaintiff’s case is frivolous, unreasonable, or groundless is not possible without a judicial determination of the plaintiff’s case on the merits.’ ” 774 F. 3d, at 1179 (quoting Marquart, supra, at 852). A case has not been decided on the merits, according to the Court of Appeals, if the defendant secured a “dismissal for lack of subject matter jurisdiction, on res judicata grounds, . . . on statute-of-limitations grounds,” or for something similar. 774 F. 3d, at 1179. The Court of Appeals distinguished “claim elements,” on the one hand, from “jurisdictional prerequisites or nonjurisdictional prerequisites to filing suit,” on the other. Id., at 1180. As relevant here, the court held that because Title VII’s presuit requirements are not elements of a Title VII claim, the dismissal of the claims regarding the 67 women on the ground that the Commission failed to investigate or conciliate was not a ruling on the merits, and CRST did not prevail on those claims. Id., at 1181. As a result, the court concluded, CRST was “not entitled to an award of attorneys’ fees on such claims.” Ibid. The Court of Appeals also criticized the District Court for “mak[ing] a universal finding that all of the [Commission’s] claims were without foundation,” instead of laying out “particularized findings . . . as to each individual claim upon which it granted summary judgment on the merits to CRST.” Id., at 1183. Such findings are necessary, the court reasoned, to avoid providing the defendant with “ ‘compensation for any fees that he would have paid in the absence of the frivolous claims.’ ” Ibid. (quoting Fox, supra, at 841). In particular, the court found it “problematic” that the District Court’s blanket finding included “(1) the purported pattern-or-practice claim and (2) the claims dismissed for the [Commission’s] failure to satisfy its presuit obligations.” 774 F. 3d, at 1183. The District Court was ordered to undertake a proper, particularized inquiry on remand. By precluding the defendant from recovering attorney’s fees when the claims in question have been dismissed because the Commission failed to satisfy its presuit obligations, the decision of the Court of Appeals conflicts with the decisions of three other Courts of Appeals. See EEOC v. Propak Logistics, Inc., 746 F. 3d 145, 152–154 (CA4 2014); EEOC v. Asplundh Tree Expert Co., 340 F. 3d 1256, 1261 (CA11 2003); EEOC v. Pierce Packing Co., 669 F. 2d 605, 608–609 (CA9 1982). This Court granted certiorari. 577 U. S. ___ (2015). III A The Court of Appeals held that CRST did not prevail on the claims brought on behalf of 67 women because the District Court’s disposition of these claims for failure to investigate and conciliate was not a ruling on the merits. In this Court the Commission now takes the position that the court erred by applying an on-the-merits requirement. Brief for Respondent 29 (“[A]sking whether a judgment is ‘on the merits’ in some abstract sense risks confusion”); Tr. of Oral Arg. 30 (“We have abandoned the Eighth Circuit’s view that you need a disposition on the merits”). This Court agrees and now holds that a defendant need not obtain a favorable judgment on the merits in order to be a “prevailing party.” Common sense undermines the notion that a defendant cannot “prevail” unless the relevant disposition is on the merits. Plaintiffs and defendants come to court with different objectives. A plaintiff seeks a material alteration in the legal relationship between the parties. A defendant seeks to prevent this alteration to the extent it is in the plaintiff’s favor. The defendant, of course, might prefer a judgment vindicating its position regarding the substantive merits of the plaintiff’s allegations. The defendant has, however, fulfilled its primary objective whenever the plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s decision. The defendant may prevail even if the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason. There is no indication that Congress intended that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on the merits. The congressional policy regarding the exercise of district court discretion in the ultimate decision whether to award fees does not distinguish between merits-based and non-merits-based judgments. Rather, as the Court explained in Christiansburg Garment Co. v. EEOC, one purpose of the fee-shifting provision is “to deter the bringing of lawsuits without foundation.” 434 U. S., at 420 (internal quotation marks omitted); see also Fox, 563 U. S., at 836 (noting, in the context of 42 U. S. C. §1988’s closely related provision, that Congress wanted “to relieve defendants of the burdens associated with fending off frivolous litigation”). The Court, therefore, has interpreted the statute to allow prevailing defendants to recover whenever the plaintiff’s “claim was frivolous, unreasonable, or groundless.” Christiansburg, supra, at 422. It would make little sense if Congress’ policy of “sparing defendants from the costs of frivolous litigation,” Fox, supra, at 840, depended on the distinction between merits-based and non-merits-based frivolity. Congress must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant’s favor, whether on the merits or not. Imposing an on-the-merits requirement for a defendant to obtain prevailing party status would undermine that congressional policy by blocking a whole category of defendants for whom Congress wished to make fee awards available. Christiansburg itself involved a defendant’s request for attorney’s fees in a case where the District Court had rejected the plaintiff’s claim for a nonmerits reason. That case involved a claim under Title VII, as originally enacted, which did not give the Commission the authority to sue in its own name on behalf of an aggrieved person. Rosa Helm had filed a charge of discrimination against Christiansburg Garment Co. with the Commission in 1968. A few years later, the Commission determined that its conciliation efforts had failed and told Helm of her right to sue Christiansburg, which she did not exercise. Then in 1972, Congress amended Title VII to allow the Commission to sue in its own name on behalf of an aggrieved person, including where the employee’s charge was “pending with the Commission” when the amendments took effect. Equal Employment Opportunity Act of 1972, §14, 86Stat. 103. The Commission sued Christiansburg based on Helm’s charge, but the District Court granted summary judgment to the defendant on the ground that the charge was not pending on the amendments’ effective date. EEOC v. Christiansburg Garment Co., 376 F. Supp. 1067, 1073–1074 (WD Va. 1974). This Court was asked “what standard should inform a district court’s discretion in deciding whether to award attorney’s fees to a successful defendant in a Title VII action.” Christiansburg, 434 U. S., at 417 (emphasis deleted). If a ruling on the merits were necessary for the defendant to prevail and be eligible for attorney’s fees, the lack of a ruling on the merits would have been dispositive to this Court’s analysis. But the Court said nothing to suggest that the fact that the ruling was not on the merits ended the inquiry. Its reasoning was to the contrary. This Court noted with approval that the District Court had applied the correct standard and found that the “Commission’s statutory interpretation of §14 of the 1972 amendments was not frivolous.” Id., at 424 (internal quotation marks omitted). Various Courts of Appeals likewise have applied the Christiansburg standard when claims were dismissed for nonmerits reasons. A plaintiff’s claim may be frivolous, unreasonable, or groundless if the claim is barred by state sovereign immunity, C. W. v. Capistrano Unified School Dist., 784 F. 3d 1237, 1247–1248 (CA9 2015), or is moot, Propak Logistics, 746 F. 3d, at 152. See also Brief for Petitioner 33–34 (collecting Courts of Appeals cases in which the defendant received attorney’s fees and the District Court’s judgment was not on the merits). In cases like these, significant attorney time and expenditure may have gone into contesting the claim. Congress could not have intended to bar defendants from obtaining attorney’s fees in these cases on the basis that, although the litigation was resolved in their favor, they were nonetheless not prevailing parties. Neither the text of the fee-shifting statute nor the policy which underpins it counsels in favor of adopting the Court of Appeals’ on-the-merits requirement. B Having abandoned its defense of the Court of Appeals’ reasoning, the Commission now urges this Court to hold that a defendant must obtain a preclusive judgment in order to prevail. The Court declines to decide this issue, however. The Commission changed its argument between the certiorari and merits stages. As a result, the Commission may have forfeited the preclusion argument by not raising it earlier. The Commission’s failure to articulate its preclusion theory before the eleventh hour has resulted in inadequate briefing on the issue. The Commission and CRST dispute, moreover, whether the District Court’s judgment was in fact preclusive. Compare Brief for Respondent 38–45 with Reply Brief 8–13. The Court leaves these legal and factual issues for the Court of Appeals to consider in the first instance. The Commission submits the Court should affirm on the alternative ground that, even if CRST is a prevailing party, the Commission’s position that it had satisfied its presuit obligations was not frivolous, unreasonable, or groundless. The Commission acknowledges that the Court of Appeals has not decided this issue, but nevertheless invokes the Court’s authority to affirm “on any ground properly raised below.” Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463 , n. 20 (1979); see Brief for Respondent 4950. In light of this case’s intricate procedural history, see supra, at 3–11, this is not an appropriate case to reach and settle this fact-sensitive issue. It has been over 10 years since Starke first filed her charge and close to 9 years since the Commission filed its complaint. The dispute over the award of attorney’s fees has continued over much of that period and is still unresolved. When it appeared the litigation was coming to a close in the District Court, the trial judge considered this a case in which attorney’s fees should be assessed against the Commission. The Court of Appeals then made the rulings it considered proper in response, and there were further proceedings in the trial court and once again on appeal. Against this background of protracted and expensive litigation on the fee issue, the Court is aware of the need to resolve the outstanding issues without unnecessary delay. As the Court has noted in earlier cases, “the determination of fees ‘should not result in a second major litigation.’ ” Fox, 563 U. S., at 838 (quoting Hensley, 461 U. S., at 437). It is not prudent, however, for the Court to attempt to resolve all the pending issues under the circumstances here. It is not the Court’s usual practice to adjudicate either legal or predicate factual questions in the first instance. See Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (noting “that this is a court of final review and not first view” (internal quotation marks omitted)). That precept is applicable here, especially in light of the extensive record in the case and the Commission’s change in its position. This Court is confident that the Court of Appeals, and, if necessary, the District Court, will resolve the case by taking any proper steps to expedite its resolution in a manner consistent with their own procedures and their responsibilities in other pending cases. 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 . SUPREME COURT OF THE UNITED STATES Syllabus CRST VAN EXPEDITED, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION certiorari to the united states court of appeals for the eighth circuit No. 14–1375. Argued March 28, 2016—Decided May 19, 2016 Petitioner CRST, a trucking company using a system under which two employees share driving duties on a single truck, requires its drivers to graduate from the company’s training program before becoming a certified driver. In 2005, new driver Monika Starke filed a charge with the Equal Employment Opportunity Commission (Commission), alleging that she was sexually harassed by two male trainers during the road-trip portion of her training. Following the procedures set out in Title VII of the Civil Rights Act of 1964, see 42 U. S. C. §2000e–5(b), the Commission informed CRST about the charge and investigated the allegation, ultimately informing CRST that it had found reasonable cause to believe that CRST subjected Starke and “a class of employees and prospective employees to sexual harassment” and offering to conciliate. In 2007, having determined that conciliation had failed, the Commission, in its own name, filed suit against CRST under §706 of Title VII. During discovery, the Commission identified over 250 allegedly aggrieved women. The District Court, however, dismissed all of the claims, including those on behalf of 67 women, which, the court found, were barred on the ground that the Commission had not adequately investigated or attempted to conciliate its claims on their behalf before filing suit. The District Court then dismissed the suit, held that CRST is a prevailing party, and invited CRST to apply for attorney’s fees. CRST filed a motion for attorney’s fees. The District Court awarded the company over $4 million in fees. The Eighth Circuit reversed the dismissal of only two claims—on behalf of Starke and one other employee—but that led it to vacate, without prejudice, the attorney’s fees award. On remand, the Commission settled the claim on behalf of Starke and withdrew the other. CRST again sought attorney’s fees, and the District Court again awarded it more than $4 million, finding that CRST had prevailed on the claims for over 150 of the allegedly aggrieved women, including the 67 claims dismissed because of the Commission’s failure to satisfy its presuit requirements. The Eighth Circuit reversed and remanded once more. It held that a Title VII defendant can be a “prevailing party” only by obtaining a “ruling on the merits,” and that the District Court’s dismissal of the claims was not a ruling on the merits. Held: A favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party. . (a) Common sense undermines the notion that a defendant cannot “prevail” unless the relevant disposition is on the merits. A plaintiff seeks a material alteration in the legal relationship between the parties. But a defendant seeks to prevent an alteration in the plaintiff’s favor, and that objective is fulfilled whenever the plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s decision, i.e., even if the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason. There is no indication that Congress intended that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on the merits. Title VII’s fee-shifting statute allows prevailing defendants to recover whenever the plaintiff’s “claim was frivolous, unreasonable, or groundless.” Christiansburg Garment Co. v. EEOC, 434 U. S. 412 . Congress thus must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant’s favor, whether on the merits or not. Christiansburg itself involved a defendant’s request for attorney’s fees in a case where the District Court had rejected the plaintiff’s claim for a non-merits reason. Various Courts of Appeals likewise have applied the Christiansburg standard when claims were dismissed for nonmerits reasons. . (b) The Court declines to decide the argument, raised by the Commission for the first time during the merits stage of this case, whether a defendant must obtain a preclusive judgment in order to prevail. The Commission’s failure to articulate its preclusion theory earlier has resulted in inadequate briefing on the issue, and the parties dispute whether the District Court’s judgment was in fact preclusive. The Commission also submits that the Court should affirm on the alternative ground that, even if CRST is a prevailing party, the Commission’s position that it had satisfied its presuit obligations was not frivolous, unreasonable, or groundless. These matters are left for the Eighth Circuit to consider in the first instance. It is not this Court’s usual practice to adjudicate either legal or predicate factual questions in the first instance, see Adarand Constructors, Inc. v. Mineta, 534 U. S. 103 , and that is the proper course here, given the extensive record in this case and the Commission’s change of position between the certiorari and merits stages. . 774 F. 3d 1169, vacated and remanded. Kennedy, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

Under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment, a district court may award attorney’s fees to the prevailing party. Under §2000e-5(k), which authorizes district courts to award attorney's fees in certain circumstances, the Equal Employment Opportunity Commission (EEOC) is allowed to seek specific relief for a group of aggrieved individuals under §706 without first obtaining class certification pursuant to Federal Rule of Civil Procedure 23, because that rule is not applicable to a §706 enforcement action. The EEOC, in its own name, filed suit in Federal District Court against petitioner, alleging that the EEOC subjected certain allegedly aggrieved women to sexual harassment and a sexually hostile work environment in violation of §§703(a) and 704(a). The District Court dismissed the suit, holding that petitioner was a prevailing party, and invited it to apply for attorney's fees. After the case was remanded, petitioner withdrew its claim on behalf of one of the women and settled its claim for the other on the ground that it had not satisfied its §706 presuit requirements before filing the lawsuit. However, the court barred petitioner from seeking relief for the remaining women because the District Court's disposition of the claims for failure to investigate and conciliate was not a ruling on the merits, and the Court of Appeals vacated the attorney-s fees award. Held: A favorable ruling on the merits is not a necessary predicate to find that a defendant has prevailed. Marquart v. Lodge 837, Machinists and Aerospace Workers, 26 F. 3d 842, 851–852 (CA8, 2013). This Court disagrees with the conclusion that a Title VII defendant prevails only by obtaining a court-ruling. See, e.g., Marquart, supra, at 652. Here, the Court has not articulated a precise test for when a defendant is a prevailing party in the Title VII context, but has addressed how defendants should be treated under the second part of the inquiry (whether the district court should exercise its discretion to award fees) -- whether the district courts should award attorney's fees to prevailing parties. In this case, however, the courts below have not set forth in detail how courts should determine whether a plaintiff has prevailed, but have used a variety of procedures to determine the proper disposition of a claim. . 74 F.3d 1169, vacated and remanded. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p..

2015_15-446

https://www.oyez.org/cases/2015/15-446

. The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., creates a process called “inter partes review.” That review process allows a third party to ask the U. S. Patent and Trademark Office to reexamine the claims in analready-issued patent and to cancel any claim that the agency finds to be unpatentable in light of prior art. See §102 (requiring “novel[ty]”); §103 (disqualifying claims that are “obvious”). We consider two provisions of the Act. The first says: “No Appeal.—The determination by the Director [of the Patent Office] whether to institute an inter partes review under this section shall be final and non-appealable.” §314(d). Does this provision bar a court from considering whether the Patent Office wrongly “determin[ed] . . . to institute an inter partes review,” ibid., when it did so on grounds not specifically mentioned in a third party’s review request? The second provision grants the Patent Office the authority to issue “regulations . . . establishing and governing inter partes review under this chapter.” §316(a)(4). Does this provision authorize the Patent Office to issue a regulation stating that the agency, in inter partes review, “shall [construe a patent claim according to] its broadest reasonable construction in light of the specification of the patent in which it appears”? 37 CFR §42.100(b) (2015). We conclude that the first provision, though it may not bar consideration of a constitutional question, for example, does bar judicial review of the kind of mine-run claim at issue here, involving the Patent Office’s decision to institute inter partes review. We also conclude that the second provision authorizes the Patent Office to issue the regulation before us. See, e.g., United States v. Mead Corp., 533 U. S. 218, 229 (2001) ; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984) . I A An inventor obtains a patent by applying to the Patent Office. A patent examiner with expertise in the relevant field reviews an applicant’s patent claims, considers the prior art, and determines whether each claim meets the applicable patent law requirements. See, e.g., 35 U. S. C. §§101, 102, 103, 112. Then, the examiner accepts a claim, or rejects it and explains why. See §132(a). If the examiner rejects a claim, the applicant can resubmit a narrowed (or otherwise modified) claim, which the examiner will consider anew, measuring the new claim against the same patent law requirements. If the exam-iner rejects the new claim, the inventor typically has yet another chance to respond with yet another amended claim. Ultimately, the Patent Office makes a final decision allowing or rejecting the application. The applicant may seek judicial review of any final rejection. See §§141(a), 145. For several decades, the Patent Office has also possessed the authority to reexamine—and perhaps cancel—a patent claim that it had previously allowed. In 1980, for example, Congress enacted a statute providing for “ex parte reexamination.” Act to Amend the Patent and Trademark Laws, 35 U. S. C. §301 et seq. That statute (which remains in effect) gives “[a]ny person at any time” the right to “file a request for reexamination” on the basis of certain prior art “bearing on the patentability” of an already-issued patent. §§301(a)(1), 302. If the Patent Office concludes that the cited prior art raises “a substantial new question of patentability,” the agency can reexamine the patent. §303(a). And that reexamination can lead the Patent Office to cancel the patent (or some of its claims). Alternatively, the Director of the Patent Office can, on her “own initiative,” trigger such a proceeding. Ibid. And, as with examination, the patent holder can seek judicial review of an adverse final decision. §306. In 1999 and 2002, Congress enacted statutes that established another, similar procedure, known as “inter partes reexamination.” Those statutes granted third parties greater opportunities to participate in the Patent Office’s reexamination proceedings as well as in any appeal of a Patent Office decision. See, e.g., American Inventors Protection Act of 1999, §297 et seq. (2006 ed.) (superseded). In 2011, Congress enacted the statute before us. That statute modifies “inter partes reexamination,” which it now calls “inter partes review.” See H. R. Rep. No. 112–98, pt. 1, pp. 46–47 (2011) (H. R. Rep.). Like inter partes reexamination, any third party can ask the agency to initiate inter partes review of a patent claim. But the new statute has changed the standard that governs the Patent Office’s institution of the agency’s process. Instead of requiring that a request for reexamination raise a “substantial new question of patentability,” it now requires that a petition show “a reasonable likelihood that” the challenger “would prevail.” Compare §312(a) (2006 ed.) (repealed) with §314(a) (2012 ed.). The new statute provides a challenger with broader participation rights. It creates within the Patent Office a Patent Trial and Appeal Board (Board) composed of administrative patent judges, who are patent lawyers and former patent examiners, among others. §6. That Board conducts the proceedings, reaches a conclusion, and sets forth its reasons. See ibid. The statute sets forth time limits for completing this review. §316(a)(11). It grants the Patent Office the authority to issue rules. §316(a)(4). Like its predecessors, the statute authorizes judicial review of a “final written decision” canceling a patent claim. §319. And, the statute says that the agency’s initial decision “whether to institute an inter partes review” is “final and nonappealable.” §314(d); compare ibid. with §§312(a), (c) (2006 ed.)(repealed) (the “determination” that a petition forinter partes reexamination “raise[s]” “a substantial new question of patentability” is “final and non-appealable”), and §303(c) (2012 ed.) (similar in respect to ex partereexamination). B In 2002, Giuseppe A. Cuozzo applied for a patent covering a speedometer that will show a driver when he is driving above the speed limit. To understand the basic idea, think of the fact that a white speedometer needle will look red when it passes under a translucent piece of red glass or the equivalent (say, red cellophane). If you attach a piece of red glass or red cellophane to a speedometer beginning at 65 miles per hour, then, when the white needle passes that point, it will look red. If we attach the red glass to a plate that can itself rotate, if we attach the plate to the speedometer, if we connect the plate to a Global Positioning System (GPS) receiver, and if we enter onto a chip or a disk all the speed limits on all the Nation’s roads, then the GPS can signal where the car is, the chip or disk can signal the speed limit at that place, and the plate can rotate to the right number on the speedometer. Thus, if the speed limit is 35 miles per hour, then the white speedometer needle will pass under the red plate at 35, not 65, and the driver will know if he is driving too fast. In 2004, the Patent Office granted the patent. See U. S. Patent No. 6,778,074 (Cuozzo Patent). The Appendix contains excerpts from this patent, offering a less simplified (and more technical) description. C Petitioner Cuozzo Speed Technologies, LLC (Cuozzo), now holds the rights to the Cuozzo Patent. In 2012, Garmin International, Inc., and Garmin USA, Inc., filed a petition seeking inter partes review of the Cuozzo Patent’s 20 claims. Garmin backed up its request by stating, for example, that the invention described in claim 17 was obvious in light of three prior patents, the Aumayer, Evans, and Wendt patents. U. S. Patent No. 6,633,811; U. S. Patent No. 3,980,041; and U. S. Patent No. 2,711,153. Cf. Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U. S. 275, 280 (1944) (Black, J., dissenting) (“[S]omeone, somewhere, sometime, made th[is] discovery [but] I cannot agree that this patentee is that discoverer”). The Board agreed to reexamine claim 17, as well as claims 10 and 14. The Board recognized that Garmin had not expressly challenged claim 10 and claim 14 on the same obviousness ground. But, believing that “claim 17 depends on claim 14 which depends on claim 10,” the Board reasoned that Garmin had “implicitly” challenged claims 10 and 14 on the basis of the same prior inventions, and it consequently decided to review all three claims together. App. to Pet. for Cert. 188a. After proceedings before the Board, it concluded that claims 10, 14, and 17 of the Cuozzo Patent were obvious in light of the earlier patents to which Garmin had referred. The Board explained that the Aumayer patent “makes use of a GPS receiver to determine . . . the applicable speed limit at that location for display,” the Evans patent “describes a colored plate for indicating the speed limit,” and the Wendt patent “describes us[ing] a rotatable pointer for indicating the applicable speed limit.” Id., at 146a–147a. Anyone, the Board reasoned, who is “not an automaton”—anyone with “ordinary skill” and “ordinary creativity”—could have taken the automated approach suggested by the Aumayer patent and applied it to the manually adjustable signals described in the Evans and Wendt patents. Id., at 147a. The Board also concluded that Cuozzo’s proposed amendments would not cure this defect, id., at 164a–166a, and it consequently denied Cuozzo’s motion to amend its claims. Ultimately, it ordered claims 10, 14, and 17 of the Cuozzo Patent canceled, id., at 166a. Cuozzo appealed to the United States Court of Appeals for the Federal Circuit. Cuozzo argued that the Patent Office improperly instituted inter partes review, at least in respect to claims 10 and 14, because the agency found that Garmin had only implicitly challenged those two claims on the basis of the Aumayer, Evans, and Wendt patents, while the statute required petitions to set forth the grounds for challenge “with particularity.” §312(a)(3). Cuozzo also argued that the Board, when construing the claims, improperly used the interpretive standard set forth in the Patent Office’s regulation (i.e., it gave those claims their “broadest reasonable construction,” 37 CFR §42.100(b)), when it should have applied the standard that courts normally use when judging a patent’s validity (i.e., it should have given those claims their “ordinary meaning . . . as understood by a person of skill in the art,” Phillips v. AWH Corp., 415 F. 3d 1303, 1314 (CA Fed. 2005)(en banc)). A divided panel of the Court of Appeals rejected both arguments. First, the panel majority pointed out that 35 U. S. C. §314(d) made the decision to institute inter partes review “nonappealable.” In re Cuozzo Speed Technologies, LLC, 793 F. 3d 1268, 1273 (CA Fed. 2015) (internal quotation marks omitted). Second, the panel majority affirmed the application of the broadest reasonable construction standard on the ground (among others) that the regulation was a reasonable, and hence lawful, exercise of the Patent Office’s statutorily granted rulemaking authority. Id., at 1278–1279; see §314(a)(4). By a vote of 6 to 5, the Court of Appeals denied Cuozzo’s petition for rehearing en banc. In re Cuozzo Speed Technologies, LLC, 793 F. 3d 1297, 1298 (CA Fed. 2015). We granted Cuozzo’s petition for certiorari to review these two questions. II Like the Court of Appeals, we believe that Cuozzo’s contention that the Patent Office unlawfully initiated its agency review is not appealable. For one thing, that is what §314(d) says. It states that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.) For another, the legal dispute at issue is an ordinary dispute about the application of certain relevant patent statutes concerning the Patent Office’s decision to institute inter partes review. Cuozzo points to a related statutory section, §312, which says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied. See 793 F. 3d, at 1281. In our view, the “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more. §314(d). Moreover, a contrary holding would undercut one important congressional objective, namely, giving the Patent Office significant power to revisit and revise earlier patent grants. See H. R. Rep., at 45, 48 (explaining that the statute seeks to “improve patent quality and restore confidence in the presumption of validity that comes with issued patents”); 157 Cong. Rec. 9778 (2011) (remarks of Rep. Goodlatte) (noting that inter partes review “screen[s] out bad patents while bolstering valid ones”). We doubt that Congress would have granted the Patent Office this authority, including, for example, the ability to continue proceedings even after the original petitioner settles and drops out, §317(a), if it had thought that the agency’s final decision could be unwound under some minor statutory technicality related to its preliminary decision to institute inter partes review. Further, the existence of similar provisions in this, and related, patent statutes reinforces our conclusion. See §319 (limiting appellate review to the “final written decision”); §312(c) (2006 ed.) (repealed) (the “determination” that a petition for inter partes reexamination “raise[s]” a “substantial new question of patentability” is “final and non-appealable”); see also §303(c) (2012 ed.); In re Hiniker Co., 150 F. 3d 1362, 1367 (CA Fed. 1998) (“Section 303 . . . is directed toward the [Patent Office’s] authority to institute a reexamination, and there is no provision granting us direct review of that decision”). The dissent, like the panel dissent in the Court of Appeals, would limit the scope of the “No Appeal” provision to interlocutory appeals, leaving a court free to review the initial decision to institute review in the context of the agency’s final decision. Post, at 1, 5 (Alito, J., concurring in part and dissenting in part); 793 F. 3d, at 1291 (Newman, J., dissenting). We cannot accept this interpretation. It reads into the provision a limitation (to interlocutory decisions) that the language nowhere mentions and that is unnecessary. The Administrative Procedure Act already limits review to final agency decisions. 5 U. S. C. §704. The Patent Office’s decision to initiate inter partes review is “preliminary,” not “final.” Ibid. And the agency’s decision to deny a petition is a matter committed to the Patent Office’s discretion. See §701(a)(2); 35 U. S. C. §314(a) (no mandate to institute review); see also post, at 9, and n. 6. So, read as limited to such preliminary and discretionary decisions, the “No Appeal” provision would seem superfluous. The dissent also suggests that its approach is a “familiar practice,” consistent with other areas of law. Post, at 8. But the kind of initial determination at issue here—that there is a “reasonable likelihood” that the claims are unpatentable on the grounds asserted—is akin to decisions which, in other contexts, we have held to be unreviewable. See Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 8) (“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”). We recognize the “strong presumption” in favor of judicial review that we apply when we interpret statutes, including statutes that may limit or preclude review. Mach Mining, LLC v. EEOC, 575 U. S. ___, ___ (2015) (slip op., at 4) (internal quotation marks omitted). This presumption, however, may be overcome by “ ‘clear and convincing’ ” indications, drawn from “specific language,” “specific legislative history,” and “inferences of intent drawn from the statutory scheme as a whole,” that Congress intended to bar review. Block v. Community Nutrition Institute, 467 U. S. 340 –350 (1984). That standard is met here. The dissent disagrees, and it points to Lindahl v. Office of Personnel Management, 470 U. S. 768 (1985) , to support its view that, in light of this presumption, §314(d) should be read to permit judicial review of any issue bearing on the Patent Office’s preliminary decision to institute inter partes review. See post, at 4–5. Lindahl is a case about the judicial review of disability determinations for federal employees. We explained that a statute directing the Office of Personnel Management to “ ‘determine questions of disability,’ ” and making those decisions “ ‘final,’ ” “ ‘conclusive,’ ” and “ ‘not subject to review,’ ” barred a court from revisiting the “factual underpinnings of . . . disability determinations”—though it permitted courts to consider claims alleging, for example, that the Office of Personnel Management “ ‘substantial[ly] depart[ed] from important procedural rights.’ ” 470 U. S., at 771, 791. Thus, Lindahl’s interpretation of that statute preserved the agency’s primacy over its core statutory function in accord with Congress’ intent. Our interpretation of the “No Appeal” provision here has the same effect. Congress has told the Patent Office to determine whether inter partes review should proceed, and it has made the agency’s decision “final” and “nonappealable.” §314(d). Our conclusion that courts may not revisit this initial determination gives effect to this statutory command. Moreover, Lindahl’s conclusion was consistent with prior judicial practice in respect to those factual agency determinations, and legislative history “strongly suggest[ed]” that Congress intended to preserve this prior practice. Id., at 780. These features, as explained above, also support our interpretation: The text of the “No Appeal” provision, along with its place in the overall statutory scheme, its role alongside the Administrative Procedure Act, the prior interpretation of similar patent statutes, and Congress’ purpose in crafting inter partes review, all point in favor of precluding review of the Patent Office’s institution decisions. Nevertheless, in light of §314(d)’s own text and the presumption favoring review, we emphasize that our interpretation applies where the grounds for attacking the decision to institute inter partes review consist of questions that are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review. See §314(d) (barring appeals of “determinations . . . to initiate an inter partes review under this section” (emphasis added)). This means that we need not, and do not, decide the precise effect of §314(d) on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond “this section.” Cf. Johnson v. Robison, 415 U. S. 361, 367 (1974) (statute precluding review of “any question of law or fact under any law administered by the Veterans’ Administration” does not bar review of constitutional challenges (emphasis deleted and internal quotation marks omitted)); Traynor v. Turnage, 485 U. S. 535 –545 (1988) (that same statute does not bar review of decisions made under different statutes enacted at other times). Thus, contrary to the dissent’s suggestion, we do not categorically preclude review of a final decision where a petition fails to give “sufficient notice” such that there is a due process problem with the entire proceeding, nor does our interpretation enable the agency to act outside its statutory limits by, for example, canceling a patent claim for “indefiniteness under §112” in inter partes review. Post, at 10–13. Such “shenanigans” may be properly reviewable in the context of §319 and under the Administrative Procedure Act, which enables reviewing courts to “set aside agency action” that is “contrary to constitutional right,” “in excess of statutory jurisdiction,” or “arbitrary [and] capricious.” Compare post, at 13, with 5 U. S. C. §§706(2)(A)–(D). By contrast, where a patent holder merely challenges the Patent Office’s “determin[ation] that the information presented in the petition . . . shows that there is a reasonable likelihood” of success “with respect to at least 1 of the claims challenged,” §314(a), or where a patent holder grounds its claim in a statute closely related to that decision to institute inter partes review, §314(d) bars judicial review. In this case, Cuozzo’s claim that Garmin’s petition was not pleaded “with particularity” under §312 is little more than a challenge to the Patent Office’s conclusion, under §314(a), that the “information presented in the petition” warranted review. Cf. United States v. Williams, 504 U. S. 36, 54 (1992) (“A complaint about the quality or adequacy of the evidence can always be recast as a complaint that the . . . presentation was ‘incomplete’ or ‘misleading’ ”). We therefore conclude that §314(d) bars Cuozzo’s efforts to attack the Patent Office’s determination to institute inter partes review in this case. III Cuozzo further argues that the Patent Office lacked the legal authority to issue its regulation requiring the agency, when conducting an inter partes review, to give apatent claim “its broadest reasonable construction in light of the specification of the patent in which it appears.” 37 CFR §42.100(b). Instead, Cuozzo contends that the Patent Office should, like the courts, give claims their “ordinary meaning . . . as understood by a person of skill in the art.” Phillips, 415 F. 3d, at 1314. The statute, however, contains a provision that grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.” 35 U. S. C. §316(a)(4). The Court of Appeals held that this statute gives the Patent Office the legal author-ity to issue its broadest reasonable construction regulation. We agree. A We interpret Congress’ grant of rulemaking authority in light of our decision in Chevron U. S. A. Inc., 467 U. S. 837 . Where a statute is clear, the agency must follow the statute. Id., at 842–843. But where a statute leaves a “gap” or is “ambigu[ous],” we typically interpret it as granting the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute. Mead Corp., 533 U. S., at 229; Chevron U. S. A. Inc., supra, at 843. The statute contains such a gap: No statutory provision unambiguously directs the agency to use one standard or the other. And the statute “express[ly] . . . authoriz[es] [the Patent Office] to engage in the process of rulemaking” to address that gap. Mead Corp., supra, at 229. Indeed, the statute allows the Patent Office to issue rules “governing inter partes review,” §316(a)(4), and the broadest reasonable construction regulation is a rule that governs inter partes review. Both the dissenting judges in the Court of Appeals and Cuozzo believe that other ordinary tools of statutory interpretation, INS v. Cardoza-Fonseca, 480 U. S. 421 , and n. 12 (1987), lead to a different conclusion. The dissenters, for example, point to cases in which the Circuit interpreted a grant of rulemaking authority in a different statute, §2(b)(2)(A), as limited to procedural rules. See, e.g., Cooper Technologies Co. v. Dudas, 536 F. 3d 1330, 1335 (CA Fed. 2008). These cases, however, as we just said, interpret a different statute. That statute does not clearly contain the Circuit’s claimed limitation, nor is its language the same as that of §316(a)(4). Section 2(b)(2)(A) grants the Patent Office authority to issue “regulations” “which . . . shall govern . . . proceedings in the Office” (emphasis added), but the statute before us, §316(a)(4), does not refer to “proceedings”—it refers more broadly to regulations “establishing and governing inter partes review.” The Circuit’s prior interpretation of §2(b)(2)(A) cannot magically render unambiguous the different language in the different statute before us. Cuozzo and its supporting amici believe we will reach a different conclusion if we carefully examine the purpose of inter partes review. That purpose, in their view, is to modify the previous reexamination procedures and to replace them with a “ ‘trial, adjudicatory in nature.’ ” Brief for Petitioner 26 (quoting Google Inc. v. Jongerius Panoramic Techs., LLC, IPR 2013–00191, Paper No. 50, p. 4 (PTAB, Feb. 13, 2014))). They point out that, under the statute, an opposing party can trigger inter partes review. Parties can engage in “discovery of relevant evidence,” including “deposition[s], . . . affidavits or declarations” as well as anything “otherwise necessary in the interest of justice.” §316(a)(5). Parties may present “factual evidence and expert opinions” to support their arguments. §316(a)(8). The challenger bears the burden of proving unpatentability. §318(e). And, after oral argument before a panel of three of the Board’s administrative patent judges, it issues a final written decision. §§6, 316(a)(10), 318. Perhaps most importantly, a decision to cancel a patent normally has the same effect as a district court’s determination of a patent’s invalidity. In light of these adjudicatory characteristics, which make these agency proceedings similar to court proceedings, Congress, in Cuozzo’s view, must have designed inter partes review as a “surrogate for court proceedings.” Brief for Petitioner 28. Cuozzo points to various sources of legislative history in support of its argument. See H. R. Rep., at 48 (Inter partes review is a “quick and cost effective alternativ[e] to litigation”); id., at 46–47 (“The Act converts inter partes reexamination from an examinational to an adjudicative proceeding”); see also S. Rep. No.110–259, p. 20 (2008) (Inter partes review is “a quick, inexpensive, and reliable alternative to district court litigation”); 157 Cong. Rec. 3429–3430 (2011) (remarks of Sen. Kyl) (“Among the reforms that are expected to expedite these proceedings [is] the shift from an examinational to an adjudicative model”). And, if Congress intended to create a “surrogate” for court proceedings, why would Congress not also have intended the agency to use the claim construction standard that district courts apply (namely, the ordinary meaning standard), rather than the claim construction standard that patent examiners apply (namely, the broadest reasonable construction standard)? The problem with Cuozzo’s argument, however, is that, in other significant respects, inter partes review is less like a judicial proceeding and more like a specialized agency proceeding. Parties that initiate the proceeding need not have a concrete stake in the outcome; indeed, they may lack constitutional standing. See §311(a); cf. Consumer Watchdog v. Wisconsin Alumni Research Foundation, 753 F. 3d 1258, 1261–1262 (CA Fed. 2014). As explained above, challengers need not remain in the proceeding; rather, the Patent Office may continue to conduct an inter partes review even after the adverse party has settled. §317(a). Moreover, as is the case here, the Patent Office may intervene in a later judicial proceeding to defend its decision—even if the private challengers drop out. And the burden of proof in inter partes review is different than in the district courts: In inter partes review, the challenger (or the Patent Office) must establish unpatentability “by a preponderance of the evidence”; in district court, a challenger must prove invalidity by “clear and convincing evidence.” Compare §316(e) with Microsoft Corp. v. i4i Ltd. Partnership, 564 U. S. 91, 95 (2011) . Most importantly, these features, as well as inter partes review’s predecessors, indicate that the purpose of the proceeding is not quite the same as the purpose of district court litigation. The proceeding involves what used to be called a reexamination (and, as noted above, a cousin of inter partes review, ex parte reexamination, 35 U. S. C. §302 et seq., still bears that name). The name and accompanying procedures suggest that the proceeding offers a second look at an earlier administrative grant of a patent. Although Congress changed the name from “reexamination” to “review,” nothing convinces us that, in doing so, Congress wanted to change its basic purposes, namely, to reexamine an earlier agency decision. Thus, in addition to helping resolve concrete patent-related disputes among parties, inter partes review helps protect the public’s “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) ; see H. R. Rep., at 39–40 (Inter partes review is an “efficient system for challenging patents that should not have issued”). Finally, neither the statutory language, its purpose, or its history suggest that Congress considered what standard the agency should apply when reviewing a patent claim in inter partes review. Cuozzo contends that §301(d), explaining that the Patent Office should “determine the proper meaning of a patent claim,” reinforces its conclusion that the ordinary meaning standard should apply. But viewed against a background of language and practices indicating that Congress designed a hybrid proceeding, §301(d)’s reference to the “proper meaning” of a claim is ambiguous. It leaves open the question of which claim construction standard is “proper.” The upshot is, whether we look at statutory language alone, or that language in context of the statute’s purpose, we find an express delegation of rulemaking authority, a “gap” that rules might fill, and “ambiguity” in respect to the boundaries of that gap. Mead Corp., 533 U. S., at 229; see Chevron U. S. A. Inc., 467 U. S., at 843. We consequently turn to the question whether the Patent Office’s regulation is a reasonable exercise of its rulemakingauthority. B We conclude that the regulation represents a reasonable exercise of the rulemaking authority that Congress delegated to the Patent Office. For one thing, construing a patent claim according to its broadest reasonable construction helps to protect the public. A reasonable, yet unlawfully broad claim might discourage the use of the invention by a member of the public. Because an exam-iner’s (or reexaminer’s) use of the broadest reasonable construction standard increases the possibility that the examiner will find the claim too broad (and deny it), use of that standard encourages the applicant to draft narrowly. This helps ensure precision while avoiding overly broad claims, and thereby helps prevent a patent from tying up too much knowledge, while helping members of the public draw useful information from the disclosed invention and better understand the lawful limits of the claim. See §112(a); Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 10); see also In re Yamamoto, 740 F. 2d 1569, 1571 (CA Fed. 1984). For another, past practice supports the Patent Office’s regulation. See 77 Fed. Reg. 48697 (2012). The Patent Office has used this standard for more than 100 years. 793 F. 3d, at 1276. It has applied that standard in proceedings, which, as here, resemble district court litigation. See Bamberger v. Cheruvu, 55 USPQ 2d 1523, 1527 (BPAI 1998) (broadest reasonable construction standard applies in interference proceedings); Brief for Generic Pharmaceutical Association et al. as Amici Curiae 7–16 (describing similarities between interference proceedings and adjudicatory aspects of inter partes review); see also In re Yamamoto, supra, at 1571 (broadest reasonable construction standard applies in reexamination). It also applies that standard in proceedings that may be consolidated with a concurrent inter partes review. See 77 Fed. Reg. 48697–48698. Cuozzo makes two arguments in response. First, Cuozzo says that there is a critical difference between the Patent Office’s initial examination of an application to determine if a patent should issue, and this proceeding, in which the agency reviews an already-issued patent. In an initial examination of an application for a patent the examiner gives the claim its broadest reasonable construction. But if the patent examiner rejects the claim, then, as described above, Part I–A, supra, the applicant has a right to amend and resubmit the claim. And the examiner and applicant may repeat this process at least once more. This system—broad construction with a chance to amend—both protects the public from overly broad claims and gives the applicant a fair chance to draft a precise claim that will qualify for patent protection. In inter partes review, however, the broadest reasonable construction standard may help protect certain public interests, but there is no absolute right to amend any challenged patent claims. This, Cuozzo says, is unfair to the patent holder. The process however, is not as unfair as Cuozzo suggests. The patent holder may, at least once in the process, make a motion to do just what he would do in the examination process, namely, amend or narrow the claim. §316(d) (2012 ed.). This opportunity to amend, together with the fact that the original application process may have presented several additional opportunities to amend the patent, means that use of the broadest reasonable construction standard is, as a general matter, not unfair to the patent holder in any obvious way. Cuozzo adds that, as of June 30, 2015, only 5 out of 86 motions to amend have been granted. Brief for Petitioner 30; see Tr. of Oral Arg. 30 (noting that a sixth motion had been granted by the time of oral argument in this case). But these numbers may reflect the fact that no amendment could save the inventions at issue, i.e., that the patent should have never issued at all. To the extent Cuozzo’s statistical argument takes aim at the manner in which the Patent Office has exercised its authority, that question is not before us. Indeed, in this particular case, the agency determined that Cuozzo’s proposed amendment “enlarge[d],” rather than narrowed, the challenged claims. App. to Pet. for Cert. 165a–166a; see §316(d)(3). Cuozzo does not contend that the decision not to allow its amendment is “arbitrary” or “capricious,” or “otherwise [un]lawful.” 5 U. S. C. §706(2)(a). Second, Cuozzo says that the use of the broadest reasonable construction standard in inter partes review, together with use of an ordinary meaning standard in district court, may produce inconsistent results and cause added confusion. A district court may find a patent claim to be valid, and the agency may later cancel that claim in its own review. We recognize that that is so. This possibility, however, has long been present in our patent system, which provides different tracks—one in the Patent Office and one in the courts—for the review and adjudication of patent claims. As we have explained above, inter partes review imposes a different burden of proof on the challenger. These different evidentiary burdens mean that the possibility of inconsistent results is inherent to Congress’ regulatory design. Cf. One Lot Emerald Cut Stones v. United States, 409 U. S. 232 –238 (1972) ( per curiam). Moreover, the Patent Office uses the broadest reasonable construction standard in other proceedings, including interference proceedings (described above), which may implicate patents that are later reviewed in district court. The statute gives the Patent Office the power to consolidate these other proceedings with inter partes review. To try to create uniformity of standards would consequently prove difficult. And we cannot find unreasonable the Patent Office’s decision to prefer a degree of inconsistency in the standards used between the courts and the agency, rather than among agency proceedings. See 77 Fed. Reg. 48697–48698. Finally, Cuozzo and its supporting amici offer various policy arguments in favor of the ordinary meaning standard. The Patent Office is legally free to accept or reject such policy arguments on the basis of its own reasoned analysis. Having concluded that the Patent Office’s regulation, selecting the broadest reasonable construction standard, is reasonable in light of the rationales described above, we do not decide whether there is a better alternative as a policy matter. That is a question that Congress left to the particular expertise of the Patent Office. * * * For the reasons set forth above, we affirm the judgment of the Court of Appeals for the Federal Circuit. It is so ordered. APPENDIX SPEED LIMIT INDICATOR AND METHOD FOR DISPLAYING SPEED AND THE RELEVANT SPEED LIMIT Figure 1 * * * Figure 4 * * * DESCRIPTION OF THE CURRENT EMBODIMENT “In FIG. 1, a new and improved speed limit indicator and method for displaying speed and the relevant speed limit 10 . . . is illustrated . . . . More particularly, the speed limit indicator and method for displaying speed and the relevant speed limit 10 has a speedometer 12 mounted on a dashboard 26. [The] [s]peedometer 12 has a backplate 14 made of plastic, speed denoting markings 16 painted on [that] backplate 14, a colored display 18 made of a red plastic filter, and a plastic needle 20 rotably mounted in the center of [the] backplate 14. A [GPS] receiver 22 is positioned adjacent to the speedometer 12. Other gauges 24 typically present on a dashboard 26 are shown. . . . . . “[I]n FIG. 4, a new and improved speed limit indicator and method for displaying speed and the relevant speed limit 10 . . . is illustrated . . . . More particularly, the speed limit indicator and method for displaying speed and the relevant speed limit 10 has a backplate 14, colored display 18, housing 28, and axle 30. . . . . . “I claim: . . . . . “10. A speed limit indicator comprising: “a [GPS] receiver; “a display controller connected to said [GPS] receiver, wherein said display controller adjusts a colored display in response to signals from said [GPS] receiver to continu-ously update the delineation of which speed readings are in violation of the speed limit at a vehicle’s present location; and “a speedometer integrally attached to said colored display. . . . . . “14. The speed limit indicator as defined in claim 10, wherein said colored display is a colored filter. . . . . . “17. The speed limit indicator as defined in claim 14, wherein said display controller rotates said colored filter independently of said speedometer to continuously update the delineation of which speed readings are in violation of the speed limit at a vehicles present location.” Cuozzo Patent.

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 . SUPREME COURT OF THE UNITED STATES Syllabus CUOZZO SPEED TECHNOLOGIES, LLC v. LEE, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OFFICE certiorari to the united states court of appeals for the federal circuit No. 15–446. Argued April 25, 2016—Decided June 20, 2016 The Leahy-Smith America Invents Act creates an agency procedure called “inter partes review” that allows a third party to ask the U. S. Patent and Trademark Office to reexamine the claims in an already-issued patent and to cancel any claim that the agency finds to be unpatentable in light of prior art. The Act, as relevant here, provides that the Patent Office’s decision “whether to institute an inter partes review . . . shall be final and non-appealable,” 35 U. S. C. §314(d), and grants the Patent Office authority to issue “regulations . . . establishing and governing inter partes review,” §316(a)(4). A Patent Office regulation issued pursuant to that authority provides that, during inter partes review, a patent claim “shall be given its broadest reasonable construction in light of the specification of the patent in which it appears.” 37 CFR §42.100(b). In 2012, Garmin International, Inc., and Garmin USA, Inc., sought inter partes review of all 20 claims of a patent held by petitioner Cuozzo Speed Technologies, LLC, asserting, among other things, that claim 17 was obvious in light of three prior patents. The Patent Office agreed to review claim 17. It also decided to reexamine claims 10 and 14 on that same ground because it determined those claims to be logically linked to the obviousness challenge to claim 17. The Patent Office, through its Patent Trial and Appeal Board, concluded that the claims were obvious in light of prior art, denied for reasons of futility Cuozzo’s motion to amend the claims, and canceled all three claims. Cuozzo appealed to the Federal Circuit. Cuozzo claimed that the Patent Office improperly instituted inter partes review with respect to claims 10 and 14, and it alleged that the Board improperly used the “broadest reasonable construction” standard to interpret the claims rather than the standard used by courts, which gives claims their “ordinary meaning . . . as understood by a person of skill in the art,” Phillips v. AWH Corp., 415 F. 3d 1303, 1314. The Federal Circuit rejected both arguments. It reasoned that §314(d) made the Patent Office’s decision to institute inter partes review “nonappealable,” and it concluded that the Patent Office’s regulation was a reasonable exercise of the agency’s rulemaking authority. Held: 1. Section 314(d) bars Cuozzo’s challenge to the Patent Office’s decision to institute inter partes review. . (a) The text of §314(d) expressly states that the Patent Office’s determinations whether to institute inter partes review “shall be final and nonappealable.” Moreover, construing §314(d) to permit judicial review of the Patent Office’s preliminary decision to institute inter partes review undercuts the important congressional objective of giving the agency significant power to revisit and revise earlier patent grants. Past practice in respect to related proceedings, including the predecessor to inter partes review, also supports the conclusion that Congress did not intend for courts to review these initial determinations. Finally, reading §314(d) as limited to interlocutory appeals would render the provision largely superfluous in light of the Administrative Procedure Act. . (b) The “strong presumption” favoring judicial review, Mach Mining, LLC v. EEOC, 575 U. S. ___, ___, is overcome here by these “ ‘clear and convincing’ ” indications that Congress intended to bar review, Block v. Community Nutrition Institute, 467 U. S. 340 . Given that presumption, however, the interpretation adopted here applies to cases in which the challenge is to the Patent Office’s determination “to initiate an inter partes review under this section,” or where the challenge consists of questions closely tied to the application and interpretation of statutes related to that determination. Cuozzo’s claim does not implicate a constitutional question, nor does it present other questions of interpretation that reach well beyond “this section” in terms of scope and impact. Rather, Cuozzo’s allegation that Garmin’s petition did not plead “with particularity” the challenge to claims 10 and 14 as required by §312 is little more than a challenge to the Patent Office’s conclusion under §314(a) that the “information presented in the petition” warranted review. . 2. The Patent Office regulation requiring the Board to apply the broadest reasonable construction standard to interpret patent claims is a reasonable exercise of the rulemaking authority granted to the Patent Office by statute. . (a) Where a statute leaves a gap or is ambiguous, this Court typically interprets a congressional grant of rulemaking authority as giving the agency leeway to enact rules that are reasonable in light of the text, nature, and purpose of the statute. United States v. Mead Corp., 533 U. S. 218 ; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –843. Here, the statute grants the Patent Office the authority to issue regulations “governing inter partes review,” and no statutory provision unambiguously mandates a particular claim construction standard. The Patent Office’s rulemaking authority is not limited to procedural regulations. Analogies to interpretations of other congressional grants of rulemaking authority in other statutes, which themselves do not unambiguously contain a limitation to procedural rules, cannot magically render unambiguous the different language in the different statutory grant of rulemaking authority at issue. The nature and purpose of inter partes review does not unambiguously require the Patent Office to apply one particular claim construction standard. Cuozzo’s contention that the purpose of inter partes review—to establish trial-like procedures for reviewing previously issued patents—supports the application of the ordinary meaning standard ignores the fact that in other significant respects, inter partes review is less like a judicial proceeding and more like a specialized agency proceeding. This indicates that Congress designed a hybrid proceeding. The purpose of inter partes review is not only to resolve patent-related disputes among parties, but also to protect the public’s “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 . Neither the statute’s language, nor its purpose, nor its legislative history suggests that Congress decided what standard should apply in inter partes review. . (b) The regulation is a reasonable exercise of the Patent Office’s rulemaking authority. The broadest reasonable construction standard helps ensure precision in drafting claims and prevents a patent from tying up too much knowledge, which, in turn, helps members of the public draw useful information from the disclosed invention and understand the lawful limits of the claim. The Patent Office has used this standard for more than 100 years and has applied it in proceedings which, as here, resemble district court litigation. Cuozzo’s two arguments in response are unavailing. Applying the broadest reasonable construction standard in inter partes review is not, as Cuozzo suggests, unfair to a patent holder, who may move to amend at least once in the review process, and who has had several opportunities to amend in the original application process. And though the application of one standard in inter partes review and another in district court proceedings may produce inconsistent outcomes, that structure is inherent to Congress’ regulatory design, and it is also consistent with past practice, as the patent system has long provided different tracks for the review and adjudication of patent claims. The Patent Office’s regulation is reasonable, and this Court does not decide whether a better alternative exists as a matter of policy. . 793 F. 3d 1268, affirmed. Breyer, J., delivered the opinion for a unanimous Court with respect to Parts I and III, and the opinion of the Court with respect to Part II, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and dissenting in part, in which Sotomayor, J., joined.

The Leahy-Smith America Invents Act (Act) creates a process called inter partes review that allows a third party to ask the U. S. Patent and Trademark Office to reexamine the claims in an analready-issued patent and to cancel any claim that the agency finds to be unpatentable in light of prior art. The Act also grants the Patent Office the authority to issue regulations establishing and governing such regulations. Under 35 U.S. C. §316(d), a patent examiner with expertise in the relevant field reviews an applicant's patent claims, considers the prior art, and determines whether each claim meets the applicable patent law requirements. If the examiner rejects a claim, the applicant can resubmit a narrowed (or otherwise modified) claim, which the examiner will consider anew, measuring the new claim against the same patent law requirement. If the examiner rejects a new claim, he typically has yet another chance to respond with yet another amended claim. Ultimately, the patent Office granted the patent to petitioner Cuozzo Speed Technologies, LLC (Cuozzo), who now holds the rights to the patent. In 2012, Garmin International, Inc., and Garmin USA, Inc. filed a petition seeking inter parte review of the patent's 20 claims. Garmin backed up its request by stating, inter alia, that the invention described in claim 17 was obvious in the light of three prior patents, the Aumayer, Evans, and Wendt patents. It also backed up this request by noting that the patent described in 18 claims was obvious in light of three of the prior patents to which it had referred. Moreover, it reasoned that anyone who is not an automaton could have taken the automated approach suggested by one of the earlier patents and applied it to the manually adjustable signals described in the Evans, Wendt, and Vuozzo patents, and that anyone could have used it to apply it to manually-adjustable signals in those patents. The Patent Office ordered claims 10, 14, and 17 canceled, and the Court of Appeals affirmed the application of the broadest reasonable construction standard set forth in the regulation. Held: The judgment is affirmed. 793 F. 3d 1297, affirmed by a vote of 6 to 5. MR. JUSTICE BLACK delivered the opinion of the Court with respect to Parts I, II, III, IV, and V, concluding that: 1. This Court has jurisdiction to review the decision to institute inter partses review. . (a) Where a statute leaves a gap or is ambiguous in terms of meaning or purpose, it typically is interpreted as granting the agency leeway to enact rules that are reasonable in the text, nature, and purpose of the statute. However, in this case, §314(d) authorizes this interpretation. Although the Administrative Procedure Act already limits review to final agency decisions, §311(a)(4) applies where the grounds for attacking that decision consist of questions that are closely tied to the application and interpretation of statutes related to that decision. Cf. Lindahl v. United States,,. Here, the legal dispute at issue is an ordinary dispute about the patent application, rather than a patent decision. See, e.g., Mach Mining, LLC v. EEOC, 575 F.2d 1316, and n. 12. P.. (b) The regulation represents a reasonable exercise of the rulemaking authority that Congress delegated to the Office. For one thing, construing a patent claim according to its broadest reasonable construction helps to protect the public. A reasonable, yet unlawfully broad claim might discourage the use of the invention by a member of the public, since an exam-iner's (or reexaminer) use of such a standard increases the possibility that the examiner (or Patent Office) will find the claim too broad (and deny it) and encourages the applicant to draft narrowly. This helps ensure precision while avoiding overly broad claims, and thereby helps prevent a patent from tying up too much knowledge, while helping members of the general public draw useful information from the disclosed invention and better understand the lawful limits of the claim. Moreover, past practice supports the regulation, as well as the patent office and its supporting amici. But the kind of initial determination at issue here is akin to decisions that, in other contexts, this Court has held to be unreviewable. See Kaley v. 571 U. s. ___, ___ (2014) (slip op., at 8). The name and accompanying procedures suggest that the proceeding offers a second look at an earlier administrative grant of a patent, and nothing convinces this Court that Congress changed the name of the statutory scheme to reflect its purpose in doing so.... . 2. The patent Office has authority under §314 (d) to issue its regulation requiring the agency, when conducting a review, to give apatent claim

2015_15-458

https://www.oyez.org/cases/2015/15-458

. In this case, a jury returned a legally impermissible verdict. The trial judge did not realize the error until shortly after he excused the jury. He brought the jury back and ordered them to deliberate again to correct the mistake. The question before us is whether a federal district court can recall a jury it has discharged, or whether the court can remedy the error only by ordering a new trial. This Court now holds that a federal district court has the inherent power to rescind a jury discharge order and recall a jury for further deliberations after identifying an error in the jury’s verdict. Because the potential of tainting jurors and the jury process after discharge is extraordinarily high, however, this power is limited in duration and scope, and must be exercised carefully to avoid any potential prejudice. I Petitioner Rocky Dietz was driving through an intersection in Bozeman, Montana, when Hillary Bouldin ran the red light and T-boned Dietz. As a result of the accident, Dietz suffered injuries to his lower back that caused him severe pain. He sought physical therapy, steroid injections, and other medications to treat his pain. Dietz sued Bouldin for negligence. Bouldin removed the case to Federal District Court. See 28 U. S. C. §§1332, 1441. At trial, Bouldin admitted that he was at fault for the accident and that Dietz was injured as a result. Bouldin also stipulated that Dietz’ medical expenses of $10,136 were reasonable and necessary as a result of the collision. The only disputed issue at trial for the jury to resolve was whether Dietz was entitled to damages above $10,136. During deliberations, the jury sent the judge a note asking: “ ‘Has the $10,136 medical expenses been paid; and if so, by whom?’ ” App. 36. The court discussed the note with the parties’ attorneys and told them he was unsure whether the jurors understood that their verdict could not be less than that stipulated amount, and that a mistrial would be required if the jury did not return a verdict of at least $10,136. The judge, however, with the consent of both parties, told the jury that the information they sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages. The judge thanked the jury for its service and ordered them “discharged,” telling the jurors they were “free to go.” App. to Pet. for Cert. 25a. The jurors gathered their things and left the courtroom. A few minutes later, the court ordered the clerk to bring the jurors back. Speaking with counsel outside the jury’s presence, the court explained that it had “just stopped the jury from leaving the building,” after realizing that the $0 verdict was not “legally possible in view of stipulated damages exceeding $10,000.” Id., at 26a. The court suggested two alternatives: (1) order a new trial or (2) reempanel the jurors, instructing them to award at least the stipulated damages, and ordering them to deliberate anew. Dietz’ attorney objected to reempaneling the discharged jurors, arguing that the jury was no longer capable of returning a fair and impartial verdict. The court reiter-ated that none of the jurors had left the building, and asked the clerk whether any had even left the floor where the courtroom was located. The clerk explained that only one juror had left the building to get a hotel receipt and bring it back. Before the jurors returned, the judge told the parties that he planned to order the jury to deliberate again and reach a different verdict. The judge explained that he would “hate to just throw away the money and time that’s been expended in this trial.” Id., at 28a. When the jurors returned to the courtroom, the judge questioned them as a group and confirmed that they had not spoken to anyone about the case. The judge explained to the jurors the mistake in not awarding the stipulated damages. He informed the jurors that he was reempaneling them and would ask them to start over with clarifying instructions. He asked the jurors to confirm that they understood their duty and to return the next morning to deliberate anew. The next day, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed. 794 F. 3d 1093 (2015). The court held that a district court could reempanel the jury shortly after dismissal as long as during the period of dismissal, the jurors were not exposed to any outside influences that would compromise their ability to reconsider the verdict fairly. This Court granted Dietz’ petition for a writ of certiorari to resolve confusion in the Courts of Appeals on whether and when a federal district court has the authority to recall a jury after discharging it. 577 U. S. ___ (2016). See Wagner v. Jones, 758 F. 3d 1030, 1034–1035 (CA8 2014), cert. denied, 575 U. S. ___ (2015); United States v. Figueroa, 683 F. 3d 69, 72–73 (CA3 2012); United States v. Rojas, 617 F. 3d 669, 677–678 (CA2 2010); United States v. Marinari, 32 F. 3d 1209, 1214 (CA7 1994); Summers v. United States, 11 F. 2d 583, 585–587 (CA4 1926). II A The Federal Rules of Civil Procedure set out many of the specific powers of a federal district court. But they are not all encompassing. They make no provision, for example, for the power of a judge to hear a motion in limine,[1] a motion to dismiss for forum non conveniens,[2] or many other standard procedural devices trial courts around the country use every day in service of Rule 1’s paramount command: the just, speedy, and inexpensive resolution of disputes. Accordingly, this Court has long recognized that a district court possesses inherent powers that are “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U. S. 626 –631 (1962); see also United States v. Hudson, 7 Cranch 32, 34 (1812). Al-though this Court has never precisely delineated the outer boundaries of a district court’s inherent powers, the Court has recognized certain limits on those powers. First, the exercise of an inherent power must be a “reasonable response to the problems and needs” confronting the court’s fair administration of justice. Degen v. United States, 517 U. S. 820 –824 (1996). Second, the exercise of an inherent power cannot be contrary to any express grant of or limitation on the district court’s power contained in a rule or statute. See id., at 823; Fed. Rule Civ. Proc. 83(b) (districts courts can “regulate [their] practice in any manner consistent with federal law”); see, e.g., Bank of Nova Scotia v. United States, 487 U. S. 250, 254 (1988) (holding that a district court cannot invoke its inherent power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a)). These two principles—an inherent power must be a reasonable response to a specific problem and the power cannot contradict any express rule or statute—support the conclusion that a district judge has a limited inherent power to rescind a discharge order and recall a jury in a civil case where the court discovers an error in the jury’s verdict. First, rescinding a discharge order and recalling the jury can be a reasonable response to correcting an error in the jury’s verdict in certain circumstances. In the normal course, when a court recognizes an error in a verdict before it discharges the jury, it has the express power to give the jury a curative instruction and order them to continue deliberating. See Fed. Rule Civ. Proc. 51(b)(3) (“The court . . . may instruct the jury at any time before the jury is discharged”); 4 L. Sand et al., Modern Federal Jury Instructions–Civil ¶78.01, Instruction 78–10, p. 78–31 (2015) (Sand) (when a jury returns an inconsistent verdict, “[r]esubmitting the verdict . . . to resolve the inconsistencies is often the preferable course”). The decision to recall a jury to give them what would be an identical predischarge curative instruction could be, depending on the circumstances, similarly reasonable. This conclusion is buttressed by this Court’s prior cases affirming a district court’s inherent authority in analogous circumstances. For example, the Court has recognized that a district court ordinarily has the power to modify or rescind its orders at any point prior to final judgment in a civil case. Marconi Wireless Telegraph Co. of America v. United States, 320 U. S. 1 –48 (1943); see also Fed. Rule Civ. Proc. 54(b) (district court can revise partial final judgment order absent certification of finality); Fernandez v. United States, 81 S. Ct. 642, 644, 5 L. Ed. 2d 683 (1961) (Harlan, J., in chambers) (district court has inherent power to revoke order granting bail). Here, the District Court rescinded its order discharging the jury before it issued a final judgment. Rescinding the discharge order restores the legal status quo before the court dismissed the jury. The District Court is thus free to reinstruct the jury under Rule 51(b)(3). This Court has also held that district courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases. See, e.g., Landis v. North American Co., 299 U. S. 248, 254 (1936) (district court has inherent power to stay proceedings pending resolution of parallel actions in other courts); Link, 370 U. S., at 631–632 (district court has inherent power to dismiss case sua sponte for failure to prosecute); Chambers v. NASCO, Inc., 501 U. S. 32, 44 (1991) (district court has inherent power to vacate judgment procured by fraud); United States v. Morgan, 307 U. S. 183 –198 (1939) (district court has inherent power to stay disbursement of funds until revised payments are finally adjudicated). This Court’s recognition of these other inherent powers designed to resolve cases expeditiously is consistent with recognizing an inherent power to recall a discharged jury and reempanel the jurors with curative instructions. Compared to the alternative of conducting a new trial, recall can save the parties, the court, and society the costly time and litigation expense of conducting a new trial with a new set of jurors. Second, rescinding a discharge order to recall a jury does not violate any other rule or statute. Rule 51(b)(3) states that a court “may instruct the jury at any time before the jury is discharged.” A judge obviously cannot instruct a jury that is discharged—it is no longer there. But there is no implicit limitation in Rule 51(b)(3) that prohibits a court from rescinding its discharge order and reassembling the jury. See Link, 370 U. S., at 630 (holding that Rule 41(b)’s allowance for a party to move to dismiss for failure to prosecute did not implicitly abrogate the court’s power to dismiss sua sponte). Other rules dealing with postverdict remedies such as a motion for a new trial or a motion for judgment notwithstanding the verdict, see Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A), similarly do not place limits on a court’s ability to rescind a prior order discharging a jury. Accordingly, a federal district court can rescind a discharge order and recall a jury in a civil case as an exercise of its inherent powers. B Just because a district court has the inherent power to rescind a discharge order does not mean that it is appropriate to use that power in every case. Because the exercise of an inherent power in the interest of promoting efficiency may risk undermining other vital interests related to the fair administration of justice, a district court’s inherent powers must be exercised with restraint. See Chambers, 501 U. S., at 44 (“Because of their very potency, inherent powers must be exercised with restraint and discretion”). The inherent power to rescind a discharge order and recall a dismissed jury, therefore, must be carefully circumscribed, especially in light of the guarantee of an impartial jury that is vital to the fair administration of justice. This Court’s precedents implementing this guarantee have noted various external influences that can taint a juror. E.g., Remmer v. United States, 347 U. S. 227, 229 (1954) (“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial”). Parties can accordingly ask that a juror be excused during trial for good cause, Fed. Rule Civ. Proc. 47(c), or challenge jury verdicts based on improper extraneous influences such as prejudicial information not admitted into evidence, comments from a court employee about the defendant, or bribes offered to a juror, Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (citing Tanner v. United States, 483 U. S. 107, 117 (1987) ); see also Mattox v. United States, 146 U. S. 140 –150 (1892) (external prejudicial information); Parker v. Gladden, 385 U. S. 363, 365 (1966) (per curiam) (bailiff comments on defendant); Remmer, 347 U. S., at 228–230 (bribe offered to juror). The potential for taint looms even larger when a jury is reassembled after being discharged. While discharged, jurors are freed from instructions from the court requiring them not to discuss the case with others outside the jury room and to avoid external prejudicial information. See, e.g., 4 Sand ¶71.02 (standard instruction to avoid extraneous influences); see also id., ¶71.01, Instructions 71–12 to 71–14 (avoid publicity). For example, it is not uncommon for attorneys or court staff to talk to jurors postdischarge for their feedback on the trial. See 1 K. O’Malley et al., Federal Jury Practice and Instructions §9:8 (6th ed. 2006) (debating appropriateness of practice). Any suggestion of prejudice in recalling a discharged jury should counsel a district court not to exercise its inherent power. A district court that is considering whether it should rescind a discharge order and recall a jury to correct an error or instead order a new trial should, of course, determine whether any juror has been directly tainted—for example, if a juror discusses the strength of the evidence with nonjurors or overhears others talking about the strength of the evidence. But the court should also take into account at least the following additional factors that can indirectly create prejudice in this context, any of which standing alone could be dispositive in a particular case. First, the length of delay between discharge and recall. The longer the jury has been discharged, the greater the likelihood of prejudice. Freed from the crucible of the jury’s group decisionmaking enterprise, discharged jurors may begin to forget key facts, arguments, or instructions from the court. In taking off their juror “hats” and returning to their lives, they may lose sight of the vital collective role they played in the impartial administration of justice. And they are more likely to be exposed to potentially prejudicial sources of information or discuss the case with others, even if they do not realize they have done so or forget when questioned after being recalled by the court. How long is too long is left to the discretion of the district court, but it could be as short as even a few minutes, depending on the case. Second, whether the jurors have spoken to anyone about the case after discharge. This could include court staff, attorneys and litigants, press and sketch artists, witnesses, spouses, friends, and so on. Even apparently innocu-ous comments about the case from someone like a courtroom deputy such as “job well done” may be sufficient to taint a discharged juror who might then resist reconsidering her decision. Third, the reaction to the verdict. Trials are society’s way of channeling disputes into fair and impartial resolutions. But these disputes can be bitter and emotional. And, depending on the case, those emotions may be broadcasted to the jury in response to their verdict. Shock, gasps, crying, cheers, and yelling are common reactions to a jury verdict—whether as a verdict is announced in the courtroom or seen in the corridors after discharge. In such a case, there is a high risk that emotional reactions will cause jurors to begin to reconsider their decision and ask themselves, “Did I make the right call?” Of course, this concern would be present even in a decision to reinstruct the jury to fix an error after the verdict is announced but before they are discharged. See Fed. Rule Civ. Proc. 51(b)(3). Even so, after discharging jurors from their obligations and the passage of time, a judge should be reluctant to reempanel a jury that has witnessed emotional reactions to its verdict. In considering these and any other relevant factors, courts should also ask to what extent just-dismissed jurors accessed their smartphones or the internet, which provide other avenues for potential prejudice. It is a now-ingrained instinct to check our phones whenever possible. Immediately after discharge, a juror could text something about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter. Prejudice can come through a whisper or a byte. Finally, we caution that our recognition here of a court’s inherent power to recall a jury is limited to civil cases only. Given additional concerns in criminal cases, such as attachment of the double jeopardy bar, we do not address here whether it would be appropriate to recall a jury after discharge in a criminal case. See Smith v. Massachusetts, 543 U. S. 462 –474 (2005). Applying these factors, the District Court here did not abuse its discretion by rescinding its discharge order and recalling the jury to deliberate further. The jury was out for only a few minutes after discharge. Only one juror may have left the courthouse, apparently to retrieve a hotel receipt. The jurors did not speak to any person about the case after discharge. There is no indication in the record that this run-of-the-mill civil case—where the parties agreed that the defendant was liable and disputed damages only—generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. There was no apparent potential for prejudiceby recalling the jury here. III Dietz asks us to impose a categorical bar on reempaneling a jury after it has been discharged. He contends that, at common law, a jury once discharged could never be brought back together again. Accordingly, he argues, without a “ ‘long unquestioned’ power” of courts recalling juries, a federal district court lacks the inherent power to rescind a discharge order. See Carlisle v. United States, 517 U. S. 416 –427 (1996) (district court lacked inherent authority to grant untimely motion for judgment of acquittal). We disagree. Even assuming that the common-law tradition is as clear as Dietz contends, but see, e.g., Prussel v. Knowles, 5 Miss. 90, 95–97 (1839) (allowing postdischarge recall), the common law is less helpful to understanding modern civil trial practice. At common law, any error in the process of rendering a verdict, no matter how technical or inconsequential, could be remedied only by ordering a new trial. But modern trial practice did away with this system, replacing it with the harmless-error standard now embodied in Rule 61. See Kotteakos v. United States, 328 U. S. 750, 758, 760 (1946) (recognizing predecessor statute to Rule 61 codified the “salutary pol-icy” of “substitu[ing] judgment for automatic . . . rules”). Jury practice itself no longer follows the strictures of the common law. The common law required that juries be sequestered from the rest of society until they reached a verdict. Tellier, Separation or Dispersal of Jury in Civil Case After Submission, 77 A. L. R. 2d 1086 (1961). This generally meant no going home at night, no lunch breaks, no dispersing at all until they reached a verdict. Id., §2; see also Lester v. Stanley, 15 F. Cas. 396, 396–397 (No. 8,277) (Conn. 1808) (Livingston, Circuit Justice) (following common law). Courts are no longer required to impose these requirements on juries in order to prevent possible prejudice. See Nebraska Press Assn. v. Stuart, 427 U. S. 539, 554 (1976) (cases requiring sequestration to avoid trial publicity “are relatively rare”); Drake v. Clark, 14 F. 3d 351, 358 (CA7 1994) (“Sequestration is an extreme measure, one of the most burdensome tools of the many available to assure a fair trial”). Accordingly, while courts should not think they are generally free to discover new inherent powers that are contrary to civil practice as recognized in the common law, see Carlisle, 517 U. S., at 426–427, the advent of modern federal trial practice limits the common law’s relevance as to the specific question whether a judge can recall a just-discharged jury. Dietz also argues that the nature of a jury’s deliberative process means that something about the jury is irrevocably broken once the jurors are told they are free to go. According to Dietz, with their bond broken, the jurors cannot be brought back together again as a “jury.” In other words, once a jury is discharged, a court can never put the jury back together again by rescinding its discharge order—legally or metaphysically. We reject this “Humpty Dumpty” theory of the jury. Juries are of course an integral and special part of the American system of civil justice. Our system cannot function without the dedication of citizens coming together to perform their civic duty and resolve disputes. But there is nothing about the jury as an entity that ceases to exist simply because the judge tells the jury that they are excused from further service. A discharge order is not a magical invocation. It is an order, like any other order. And, like any order, it can be issued by mistake. All judges make mistakes. (Even us.) See Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J., concurring in judgment) (“We are not final because we are infallible, but we are infallible only because we are final”). There is no benefit to imposing a rule that says that as soon as a jury is free to go a judge categorically cannot rescind that order to correct an easily identified and fixable mistake, even as the jurors are still in the courtroom collecting their things. Dietz does not suggest the Court adopt a magic-words rule, but instead urges the adoption of a “functional” discharge test based on whether the jurors remain within the “presence and control” of the district court, where control is limited to the courtroom itself. Tr. of Oral Arg. 5–7. Similarly, the dissent suggests that it is the chance “to mingle with bystanders” that creates a discharge that cannot be undone. Post, at 1–2 (opinion of Thomas, J.) (internal quotation marks and brackets omitted). These tests do not avoid the problems that Dietz and the dissent identify with a prejudice inquiry. Under a courtroom test, what if a juror has one foot over the line? What if she just stepped out to use the restroom? Under a courthouse test, what if she is just outside the doors? Reached her car in the parking lot? Under a bystander test, is a courtroom deputy in the jury room a mingling bystander? There is no good reason to prefer a test based on geography or identity over an inquiry focused on potential prejudice. Finally, Dietz argues that the District Court in this case erred by questioning the discharged jurors as a group before reempaneling them instead of questioning each and every juror individually. While individual questioning could be the better practice in many circumstances, Dietz’ attorney raised no objection to this part of the court’s process. We decline to review this forfeited objection. See Fed. Rule Civ. Proc. 46. * * * Federal district courts have a limited inherent power to rescind a discharge order and recall a jury in a civil case. District courts should exercise this power cautiously and courts of appeals should review its invocation carefully. That was done here. The judgment of the Court of Appeals for the Ninth Circuit is therefore Affirmed.Notes 1 Luce v. United States, 469 U. S. 38 , n. 4 (1984). 2 Gulf Oil Corp. v. Gilbert, 330 U. S. 501 –508 (1947).

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 . SUPREME COURT OF THE UNITED STATES Syllabus DIETZ v. BOULDIN certiorari to the united states court of appeals for the ninth circuit No. 15–458. Argued April 26, 2016—Decided June 9, 2016 Petitioner Rocky Dietz sued respondent Hillary Bouldin for negligence for injuries suffered in an automobile accident. Bouldin removed the case to Federal District Court. At trial, Bouldin admitted liability and stipulated to damages of $10,136 for Dietz’ medical expenses. The only disputed issue remaining was whether Dietz was entitled to more. During deliberations, the jury sent the judge a note asking whether Dietz’ medical expenses had been paid and, if so, by whom. Although the judge was concerned that the jury may not have understood that a verdict of less than the stipulated amount would require a mistrial, the judge, with the parties’ consent, responded only that the information being sought was not relevant to the verdict. The jury returned a verdict in Dietz’ favor but awarded him $0 in damages. After the verdict, the judge discharged the jury, and the jurors left the courtroom. Moments later, the judge realized the error in the $0 verdict and ordered the clerk to bring back the jurors, who were all in the building—including one who may have left for a short time and returned. Over the objection of Dietz’ counsel and in the interest of judicial economy and efficiency, the judge decided to recall the jury. After questioning the jurors as a group, the judge was satisfied that none had spoken about the case to anyone and ordered them to return the next morning. After receiving clarifying instructions, the reassembled jury returned a verdict awarding Dietz $15,000 in damages. On appeal, the Ninth Circuit affirmed. Held: A federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury’s verdict. The District Court did not abuse that power here. . (a) The inherent powers that district courts possess “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” Link v. Wabash R. Co., 370 U. S. 626 –631, have certain limits. The exercise of an inherent power must be a “reasonable response to the problems and needs” confronting the court’s fair administration of justice and cannot be contrary to any express grant of, or limitation on, the district court’s power contained in a rule or statute. Degen v. United States, 517 U. S. 820 –824. These two principles support the conclusion here. First, rescinding a discharge order and recalling the jury can be a reasonable response to correcting an error in the jury’s verdict in certain circumstances, and is similar in operation to a district court’s express power under Federal Rule of Civil Procedure 51(b)(3) to give the jury a curative instruction and order them to continue deliberating to correct an error in the verdict before discharge. Other inherent powers possessed by district courts, e.g., a district court’s inherent power to modify or rescind its orders before final judgment in a civil case, see Marconi Wireless Telegraph Co. of America v. United States, 320 U. S. 1 –48, or to manage its docket and courtroom with a view toward the efficient and expedient resolution of cases, see Landis v. North American Co., 299 U. S. 248 , also support this conclusion. Second, rescinding a discharge order to recall a jury does not violate any other rule or statute. No implicit limitation in Rule 51(b)(3) prohibits a court from rescinding its discharge order and reassembling the jury. Nor are such limits imposed by other rules dealing with postverdict remedies. See, e.g., Fed. Rules Civ. Proc. 50(b), 59(a)(1)(A). . (b) This inherent power must be carefully circumscribed, especially in light of the guarantee of an impartial jury. Because discharge releases a juror from the obligations to avoid discussing the case outside the jury room and to avoid external prejudicial information, the potential that a jury reassembled after being discharged might be tainted looms large. Thus, any suggestion of prejudice should counsel a district court not to exercise its inherent power. The court should determine whether any juror has been directly tainted and should also take into account additional factors that can indirectly create prejudice, which at a minimum, include the length of delay between discharge and recall, whether the jurors have spoken to anyone about the case after discharge, and any emotional reactions to the verdict witnessed by the jurors. Courts should also ask to what extent just-dismissed jurors accessed their smartphones or the internet. Applying those factors here, the District Court did not abuse its discretion. The jury was out for only a few minutes, and, with the exception of one juror, remained inside the courthouse. The jurors did not speak to any person about the case after discharge. And, there is no indication in the record that the verdict generated any kind of emotional reaction or electronic exchanges or searches that could have tainted the jury. . (c) Dietz’ call for a categorical bar on reempaneling a jury after discharge is rejected. Even assuming that at common law a discharged jury could never be brought back, the advent of modern federal trial practice limits the common law’s relevance as to the specific question raised here. There is no benefit to imposing a rule that says that as soon as a jury is free to go a judge categorically cannot rescind that order to correct an easily identified and fixable mistake. And Dietz’ “functional” discharge test, which turns on whether the jurors remain within the district court’s “presence and control,” i.e., within the courtroom, raises similar problems. . 794 F. 3d 1093; affirmed. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined.

Petitioner Dietz was injured when his car T-boned him. As a result of the accident, he sought physical therapy, steroid injections, and other medication to treat his pain. Petitioner removed the case to Federal District Court, which removed it to the Federal Circuit Court. At trial, Bouldin admitted that he was at fault for the accident and that petitioner was injured as a result. The judge, with the consent of both parties, told the jury that the information they sought was not relevant to the verdict. The jury returned a verdict in Dietz' favor but awarded him $0 in damages, and the judge thanked the jury for its service and ordered them to leave the courtroom. A few minutes later, the court ordered the clerk to bring the jurors back, explaining that it had stopped the jury from leaving the building after realizing that the $0 verdict was not legally possible in view of stipulated damages exceeding $10,000. When the jurors returned to the courtroom, the judge questioned them as a group and confirmed that they had not spoken to anyone about the case. He then informed them that he would reempanel them, instructing them to award at least the stipulated amount, and ordering them to deliberate anew. The court then reassembled the jury and reassembled it. The Court of Appeals affirmed.Held: A federal district court has the inherent power to rescind a jury discharge order and recall a jury in a civil case, and can remedy the error only by ordering a new trial. . (a) A district court possesses inherent powers that aregoverned not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. First, the exercise of an inherent power must be a reasonable response to a specific problem and the power cannot contradict any express Rule or statute. Second, rescinding a discharge order to recall a jury does not violate any other rule, statute, or regulation. The exercise of such power cannot be contrary to any express grant of or limitation on the district court's power contained in a Rule or Stat. 52(a). This conclusion is buttressed by prior decisions affirming a district court with prior authority to modify its final judgment in any civil case. See, e.g., Link v. Wabash R. Co., 370 U. S. 820-824 (1996). The inherent power also must be carefully circumscribed, especially in light of the guarantee of an impartial jury that is vital to the fair administration of justice. Here, the District Court did not err by questioning the discharged jurors individually before reempaneling them. While individual questioning could be the better practice in many circumstances, the attorney raised no objection to this part of the court's process. Accordingly, this Court declines to review the objection. Federal district courts have a limited inherent power under Fed. Rule Civ. Proc. 51(b)(3) and other rules dealing with postverdict remedies, such as a motion for a New trial or a motion for judgment notwithstanding the verdict, as an exercise of their inherent powers. Just because a district courts has such power does not mean that it is appropriate to use that power in every case, but rather, because of its inherent power in the interest of promoting efficiency, it must be exercised with restraint. Cf. Remmer v. United States, 347 U.S. 227, 229; 4 L. Sand et al., Modern Federal Jury Instructions-Civil ¶78.01, Instruction 78–10, p. 78–31 (Sand) (Sand). There is no good reason to prefer a test based on geography or identity over an inquiry focused on potential prejudice. Furthermore, the nature of a jury's deliberative process means that something about the jury is irrevocably broken once the jurors are told they are free to go. Once a jury is discharged, a court can never put the jury back together again by rescinding its discharge order, eitherlegally or metaphysically. Dietz argues that, at common law, a jury once discharged could never be brought back again, and that, therefore, without a long unquestioned power of courts recalling juries, a federal district court lacks the inherent power to do so. Pp. 462-542. (b) The fact that the common-law tradition is as clear as Dietz contends, but is less helpful to understanding modern civil trial practice, does not limit the limits on the inherent powers an inherent court has to exercise to resolve cases expeditiously. Determining whether a juror has been directly tainted by the discharge order is a task that the court should exercise cautiously, and courts of appeals should review its invocation carefully. That was done here. P.. 793 F.94, affirmed.

2015_14-462

https://www.oyez.org/cases/2015/14-462

. The Federal Arbitration Act states that a “written provision” in a contract providing for “settle[ment] by arbitration” of “a controversy . . . arising out of” that “contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. We here consider a California court’s refusal to enforce an arbitration provision in a contract. In our view, that decision does not rest “upon such grounds as exist . . . for the revocation of any contract,” and we consequently set that judgment aside. I DIRECTV, Inc., the petitioner, entered into a service agreement with its customers, including respondents Amy Imburgia and Kathy Greiner. Section 9 of that contract provides that “any Claim either of us asserts will be resolved only by binding arbitration.” App. 128. It then sets forth a waiver of class arbitration, stating that “[n]either you nor we shall be entitled to join or consolidate claims in arbitration.” Id., at 128–129. It adds that if the “law of your state” makes the waiver of class arbitration unenforceable, then the entire arbitration provision “is unenforceable.” Id., at 129. Section 10 of the contract states that §9, the arbitration provision, “shall be governed by the Federal Arbitration Act.” Ibid. In 2008, the two respondents brought this lawsuit against DIRECTV in a California state court. They seek damages for early termination fees that they believe violate California law. After various proceedings not here relevant, DIRECTV, pointing to the arbitration provision, asked the court to send the matter to arbitration. The state trial court denied that request, and DIRECTVappealed. The California Court of Appeal thought that the critical legal question concerned the meaning of the contractual phrase “law of your state,” in this case the law of California. Does the law of California make the contract’s class-arbitration waiver unenforceable? If so, as the contract provides, the entire arbitration provision is unenforceable. Or does California law permit the parties to agree to waive the right to proceed as a class in arbitration? If so, the arbitration provision is enforceable. At one point, the law of California would have made the contract’s class-arbitration waiver unenforceable. In 2005, the California Supreme Court held in Discover Bank v. Superior Court, 36 Cal. 4th 148, 162–163, 113 P. 3d 1100, 1110, that a “waiver” of class arbitration in a “consumer contract of adhesion” that “predictably involve[s] small amounts of damages” and meets certain other criteria not contested here is “unconscionable under California law and should not be enforced.” See Cohen v. DirecTV, Inc., 142 Cal. App. 4th 1442, 1446–1447, 48 Cal. Rptr. 3d 813, 815–816 (2006) (holding a class-action waiver similar to the one at issue here unenforceable pursuant to Discover Bank); see also Consumers Legal Remedies Act, Cal. Civ. Code Ann. §§1751, 1781(a) (West 2009) (invalidating class-action waivers for claims brought under that statute). But in 2011, this Court held that California’s Discover Bank rule “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ” embodied in the Federal Arbitration Act. AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 352 (2011) (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941) ); see Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899, 923–924, 353 P. 3d 741, 757 (2015) (holding that Concepcion applies to the Consumers Legal Remedies Act to the extent that it would have the same effect as Discover Bank). The Fed-eral Arbitration Act therefore pre-empts and invalidates that rule. 563 U. S., at 352; see U. S. Const., Art. VI, cl. 2. The California Court of Appeal subsequently held in this case that, despite this Court’s holding in Concepcion, “the law of California would find the class action waiver unenforceable.” 225 Cal. App. 4th 338, 342, 170 Cal. Rptr. 3d 190, 194 (2014). The court noted that Discover Bank had held agreements to dispense with class-arbitration procedures unenforceable under circumstances such as these. 225 Cal. App. 4th, at 341, 170 Cal. Rptr. 3d, at 194. It conceded that this Court in Concepcion had held that the Federal Arbitration Act invalidated California’s rule. 225 Cal. App. 4th, at 341, 170 Cal. Rptr. 3d, at 194. But it then concluded that this latter circumstance did not change the result—that the “class action waiver is unenforceable under California law.” Id., at 347, 170 Cal. Rptr. 3d, at 198. In reaching that conclusion, the Court of Appeal referred to two sections of California’s Consumers Legal Remedies Act, §§1751, 1781(a), rather than Discover Bank itself. See 225 Cal. App. 4th, at 344, 170 Cal. Rptr. 3d, at 195. Section 1751 renders invalid any waiver of the right under §1781(a) to bring a class action for violations of that Act. The Court of Appeal thought that applying “state law alone” (that is, those two sections) would render unenforceable the class-arbitration waiver in §9 of the contract. Id., at 344, 170 Cal. Rptr. 3d, at 195. But it nonetheless recognized that if it applied federal law “then the class action waiver is enforceable and any state law to the contrary is preempted.” Ibid. As far as those sections apply to class-arbitration waivers, they embody the Discover Bank rule. The California Supreme Court has recognized as much, see Sanchez, supra, at 923–924, 353 P. 3d, at 757, and no party argues to the contrary. See Supp. Brief for Respondents 2 (“The ruling in Sanchez tracks respondents’ position precisely”). We shall consequently refer to the here-relevant rule as the Discover Bank rule. The court reasoned that just as the parties were free in their contract to refer to the laws of different States or different nations, so too were they free to refer to California law as it would have been without this Court’s holding invalidating the Discover Bank rule. The court thought that the parties in their contract had done just that. And it set forth two reasons for believing so. First, §10 of the contract, stating that the Federal Arbitration Act governs §9 (the arbitration provision), is a general provision. But the provision voiding arbitration if the “law of your state” would find the class-arbitration waiver unenforceable is a specific provision. The court believed that the specific provision “ ‘is paramount to’ ” and must govern the general. 225 Cal. App. 4th, at 344, 170 Cal. Rptr. 3d, at 195 (quoting Prouty v. Gores Technology Group, 121 Cal. App. 4th 1225, 1235, 18 Cal. Rptr. 3d 178, 185–186 (2004); brackets omitted). Second, the court said that “ ‘a court should construe ambiguous language against the interest of the party that drafted it.’ ” 255 Cal. App. 4th, at 345, 170 Cal. Rptr. 3d, at 196 (quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 62 (1995) ). DIRECTV had drafted the language; to void the arbitration provision was against its interest. Hence the arbitration provision was void. The Court of Appeal consequently affirmed the trial court’s denial of DIRECTV’s motion to enforce the arbitration provision. The California Supreme Court denied discretionary review. App. to Pet. for Cert. 1a. DIRECTV then filed a petition for a writ of certiorari, noting that the Ninth Circuit had reached the opposite conclusion on precisely the same interpretive question decided by the California Court of Appeal. Murphy v. DirecTV, Inc., 724 F. 3d 1218, 1226–1228 (2013). We granted the petition. II No one denies that lower courts must follow this Court’s holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” Howlett v. Rose, 496 U. S. 356, 371 (1990) ; cf. Khan v. State Oil Co., 93 F. 3d 1358, 1363–1364 (CA7 1996), vacated, 522 U. S. 3 (1997) . The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”). While all accept this elementary point of law, that point does not resolve the issue in this case. As the Court of Appeal noted, the Federal Arbitration Act allows parties to an arbitration contract considerable latitude to choose what law governs some or all of its provisions, including the law governing enforceability of a class-arbitration waiver. 225 Cal. App. 4th, at 342–343, 170 Cal. Rptr. 3d, at 194. In principle, they might choose to have portions of their contract governed by the law of Tibet, the law of pre-revolutionary Russia, or (as is relevant here) the law of California including the Discover Bank rule and irrespective of that rule’s invalidation in Concepcion. The Court of Appeal decided that, as a matter of contract law, the parties did mean the phrase “law of your state” to refer to this last possibility. Since the interpretation of a contract is ordinarily a matter of state law to which we defer, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474 (1989) , we must decide not whether its decision is a correct statement of California law but whether (assuming it is) that state law is consistent with the Federal Arbitration Act. III Although we may doubt that the Court of Appeal has correctly interpreted California law, we recognize that California courts are the ultimate authority on that law. While recognizing this, we must decide whether the decision of the California court places arbitration contracts “on equal footing with all other contracts.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006) . And in doing so, we must examine whether the Court of Appeal’s decision in fact rests upon “grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. That is to say, we look not to grounds that the California court might have offered but rather to those it did in fact offer. Neither this approach nor our result “steps beyond Concepcion” or any other aspect of federal arbitration law. See post, at 9 (Ginsburg, J., dissenting) (hereinafter the dissent). We recognize, as the dissent points out, post, at 4, that when DIRECTV drafted the contract, the parties likely believed that the words “law of your state” included California law that then made class-arbitration waivers unenforceable. But that does not answer the legal question before us. That is because this Court subsequently held in Concepcion that the Discover Bank rule was invalid. Thus the underlying question of contract law at the time the Court of Appeal made its decision was whether the “law of your state” included invalid California law. We must now decide whether answering that question in the affirmative is consistent with the Federal Arbitration Act. After examining the grounds upon which the Court of Appeal rested its decision, we conclude that California courts would not interpret contracts other than arbitration contracts the same way. Rather, several considerations lead us to conclude that the court’s interpretation of this arbitration contract is unique, restricted to that field. First, we do not believe that the relevant contract language is ambiguous. The contract says that “[i]f . . . the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire Section 9 [the arbitration section] is unenforceable.” App. 129. Absent any indication in the contract that this language is meant to refer to invalid state law, it presumably takes its ordinary meaning: valid state law. Indeed, neither the parties nor the dissent refer us to any contract case from California or from any other State that in-terprets similar language to refer to state laws authoritatively held to be invalid. While we recognize that the dissent believes this phrase to be “ambiguous,” post, at 7, 9, or “anomalous,” post, at 10, we cannot agree with that characterization. Second, California case law itself clarifies any doubt about how to interpret the language. The California Supreme Court has held that under “general contract principles,” references to California law incorporate the California Legislature’s power to change the law retroactively. See Doe v. Harris, 57 Cal. 4th 64, 69–70, 302 P. 3d 598, 601–602 (2013) (holding that plea agreements, which are governed by general contract principles, are “ ‘ “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws” ’ ” (quoting People v. Gipson, 117 Cal. App. 4th 1065, 1070, 12 Cal. Rptr. 3d 478, 481 (2004))). And judicial construction of a statute ordinarily applies retroactively. Rivers v. Roadway Express, Inc., 511 U. S. 298 –313 (1994). As far as we are aware, the principle of California law announced in Harris, not the Court of Appeal’s decision here, would ordinarily govern the scope of phrases such as “law of your state.” Third, nothing in the Court of Appeal’s reasoning suggests that a California court would reach the same interpretation of “law of your state” in any context other than arbitration. The Court of Appeal did not explain why parties might generally intend the words “law of your state” to encompass “invalid law of your state.” To the contrary, the contract refers to “state law” that makes the waiver of class arbitration “unenforceable,” while an in-valid state law would not make a contractual provision unenforceable. Assuming—as we must—that the court’s reasoning is a correct statement as to the meaning of “law of your state” in this arbitration provision, we can find nothing in that opinion (nor in any other California case) suggesting that California would generally interpret words such as “law of your state” to include state laws held invalid because they conflict with, say, federal labor statutes, federal pension statutes, federal antidiscrimination laws, the Equal Protection Clause, or the like. Even given our assumption that the Court of Appeal’s conclusion is correct, its conclusion appears to reflect the subject matter at issue here (arbitration), rather than a general principle that would apply to contracts using similar language but involving state statutes invalidated by other federal law. Fourth, the language used by the Court of Appeal focused only on arbitration. The court asked whether “law of your state” “mean[s] ‘the law of your state to the extent it is not preempted by the [Federal Arbitration Act],’ or ‘the law of your state without considering the preemptive effect, if any of the [Federal Arbitration Act].’ ” 225 Cal. App. 4th, at 344, 170 Cal. Rptr. 3d, at 195. Framing the question in such terms, rather than in generally applicable terms, suggests that the Court of Appeal could well have meant that its holding was limited to the specific subject matter of this contract—arbitration. Fifth, the Court of Appeal reasoned that invalid state arbitration law, namely the Discover Bank rule, maintained legal force despite this Court’s holding in Concepcion. The court stated that “[i]f we apply state law alone . . . to the class action waiver, then the waiver is unenforceable.” 225 Cal. App. 4th, at 344, 170 Cal. Rptr. 3d, at 195. And at the end of its opinion it reiterated that “[t]he class action waiver is unenforceable under California law, so the entire arbitration agreement is unenforceable.” Id., at 347, 170 Cal. Rptr. 3d, at 198. But those statements do not describe California law. See Concepcion, 563 U. S., at 344, 352; Sanchez, 61 Cal. 4th, at 923–924, 353 P. 3d, at 757. The view that state law retains independent force even after it has been authoritatively invalidated by this Court is one courts are unlikely to accept as a general matter and to apply in other contexts. Sixth, there is no other principle invoked by the Court of Appeal that suggests that California courts would reach the same interpretation of the words “law of your state”in other contexts. The court said that the phrase “lawof your state” constitutes “ ‘a specific exception’ ” to the agreement’s “ ‘general adoption of the [Federal Arbitration Act].’ ” 225 Cal. App. 4th, at 344, 170 Cal. Rptr. 3d, at 195. But that tells us nothing about how to interpret the words “law of your state” elsewhere. It does not answer the relevant question: whether those words encompass laws that have been authoritatively held invalid. Cf. Prouty, 121 Cal. App. 4th, at 1235, 18 Cal. Rptr. 3d, at 185–186 (specific words govern only “when a general and a particular provision are inconsistent”). The court added that it would interpret “ ‘ambiguous language against the interest of the party that drafted it,’ ” namely DIRECTV. 225 Cal. App. 4th, at 345, 170 Cal. Rptr. 3d, at 196 (quoting Mastrobuono, 514 U. S., at 62). The dissent adopts a similar argument. See post, at 7–9. But, as we have pointed out, supra, at 8, were the phrase “law of your state” ambiguous, surely some court would have construed that term to incorporate state laws invalidated by, for example, federal labor law, federal pension law, or federal civil rights law. Yet, we have found no such case. Moreover, the reach of the canon construing contract language against the drafter must have limits, no matter who the drafter was. The fact that we can find no similar case interpreting the words “law of your state” to include invalid state laws indicates, at the least, that the antidrafter canon would not lead California courts to reach a similar conclusion in similar cases that do not involve arbitration. * * * Taking these considerations together, we reach a conclusion that, in our view, falls well within the confines of (and goes no further than) present well-established law. California’s interpretation of the phrase “law of your state” does not place arbitration contracts “on equal footing with all other contracts,” Buckeye Check Cashing, Inc., 546 U. S., at 443. For that reason, it does not give “due regard . . . to the federal policy favoring arbitration.” Volt Information Sciences, 489 U. S., at 476. Thus, the Court of Appeal’s interpretation is pre-empted by the Federal Arbitration Act. See Perry v. Thomas, 482 U. S. 483 , n. 9 (1987) (noting that the Federal Arbitration Act pre-empts decisions that take their “meaning precisely from the fact that a contract to arbitrate is at issue”). Hence, the California Court of Appeal must “enforc[e]” the arbitration agreement. 9 U. S. C. §2. The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

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 . SUPREME COURT OF THE UNITED STATES Syllabus DIRECTV, INC. v. IMBURGIA et al. certiorari to the court of appeal of california, second appellate district, division one No. 14–462. Argued October 6, 2015—Decided December 14, 2015 Petitioner DIRECTV, Inc., and its customers entered into a service agreement that included a binding arbitration provision with a class-arbitration waiver. It specified that the entire arbitration provision was unenforceable if the “law of your state” made class-arbitration waivers unenforceable. The agreement also declared that the arbitration clause was governed by the Federal Arbitration Act. At the time that respondents, California residents, entered into that agreement with DIRECTV, California law made class-arbitration waivers unenforceable, see Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P. 3d 1100. This Court subsequently held in AT&T Mobility LLC v. Concepcion, 563 U. S. 333 , however, that California’s Discover Bank rule was pre-empted by the Federal Arbitration Act, 9 U. S. C. §2. When respondents sued petitioner, the trial court deniedDIRECTV’s request to order the matter to arbitration, and the California Court of Appeal affirmed. The court thought that California law would render class-arbitration waivers unenforceable, so it held the entire arbitration provision was unenforceable under the agreement. The fact that the Federal Arbitration Act pre-empted that California law did not change the result, the court said, because the parties were free to refer in the contract to California law as it would have been absent federal pre-emption. The court reasoned that the phrase “law of your state” was both a specific provision that should govern more general provisions and an ambiguous provision that should be construed against the drafter. Therefore, the court held, the parties had in fact included California law as it would have been without federal pre-emption. Held: Because the California Court of Appeal’s interpretation is pre-empted by the Federal Arbitration Act, that court must enforce the arbitration agreement. . (a) No one denies that lower courts must follow Concepcion, but that elementary point of law does not resolve the case because the parties are free to choose the law governing an arbitration provision, including California law as it would have been if not pre-empted. The state court interpreted the contract to mean that the parties did so, and the interpretation of a contract is ordinarily a matter of state law to which this Court defers, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 . The issue here is not whether the court’s decision is a correct statement of California law but whether it is consistent with the Federal Arbitration Act. . (b) The California court’s interpretation does not place arbitration contracts “on equal footing with all other contracts,” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 , because California courts would not interpret contracts other than arbitration contracts the same way. Several considerations lead to this conclusion. First, the phrase “law of your state” is not ambiguous and takes its ordinary meaning: valid state law. Second, California case law—that under “general contract principles,” references to California law incorporate the California Legislature’s power to change the law retroactively, Doe v. Harris, 57 Cal. 4th 64, 69–70, 302 P. 3d 598, 601–602—clarifies any doubt about how to interpret it. Third, because the court nowhere suggests that California courts would reach the same interpretation in any other context, its conclusion appears to reflect the subject matter, rather than a general principle that would include state statutes invalidated by other federal law. Fourth, the language the court uses to frame the issue focuses only on arbitration. Fifth, the view that state law retains independent force after being authoritatively invalidated is one courts are unlikely to apply in other contexts. Sixth, none of the principles of contract interpretation relied on by the California court suggests that other California courts would reach the same interpretation elsewhere. The court applied the canon that contracts are construed against the drafter, but the lack of any similar case interpreting similar language to include invalid laws indicates that the antidrafter canon would not lead California courts to reach a similar conclusion in cases not involving arbitration. . 225 Cal. App. 4th 338, 170 Cal. Rptr. 3d 190, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Alito, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.

Petitioner entered into a service agreement with its customers, including respondents Imburgia and Greiner, that sets forth a waiver of class arbitration. The contract also provides that, if the state law of your state makes the waiver unenforceable, then the entire arbitration provision is unconstitutional. Respondents then brought a class action in California state court against petitioner in that court, seeking damages for early termination fees that they believed violate California law. The trial court denied petitioner's motion to send the matter to arbitration, and the California Court of Appeal affirmed. Held: 1. California courts are the ultimate authority on the law, and they should not interpret contracts other than arbitration contracts the same way. . (a) The fact that the Federal Arbitration Act allows parties to an arbitration contract considerable latitude to choose what law governs some or all of its provisions, including the law governing enforceability of a class-arbitration waiver, does not resolve the issue in this case. The contract embodies the Discover Bank rule, which would have made the waiver of arbitration if the law of the state had been invalidated by the Court of Appeals. P.. (b) Nor does the relevant contract language be ambiguous, since the contract says that "[i]f... the [federal] law would find [the] agreement to dispense with class arbitration procedures [and] this entire Section 9 [the arbitration section] is unengforceable...." (c) There is no indication in the contract language that it refers to any ordinary state law, nor does it refer to any other state law. Even assuming that the court below correctly interpreted California law, its conclusion appears to reflect the subject matter at issue here, rather than a general principle that would apply to contracts using similar language but involving state statutes invalidated by other federal law. And the court did not indicate that invalid state arbitration law maintained legal force despite this Court's holding in Concepcion, which held that Discover Bank rules were invalid. Moreover, the court reasoned that a court should not construe ambiguous language against the interest of the party that drafted it. It also noted that, to void the arbitration provision was against its interest. Hence, the arbitration clause was void. (d) The court also erred in holding that, although the Discover Bank rule is invalid, it is an authoritative interpretation of that Act, and that it is a matter of contract law to which this Court defers. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474 (1989), and this Court has recognized as much. Here, the parties did mean the phrase phrase of the phrase in §9 of the contract to refer to state law as it would have been without this Court invalidating the DiscoverBank rule. Accordingly, the contract embodies that rule, and should not be enforced. After examining the grounds upon which the court rested its decision, this Court concludes that California courts would not interpret such contracts in that way, but rather would interpret the contract in the affirmative. This interpretation falls well within the confines of (and goes no further than) present well-established law, but, in doing so, must be enforc[e] the arbitration agreement. See, e.g., Buckeye Check Cashing, Inc.'s v. Cardegna, 546 U.S. 440, 443. These considerations lead to the conclusion that California law retains independent force even after it has been authoritatively invalidated, and are unlikely to accept as a general, and unlikely to apply to other, contexts, such as other California cases. Furthermore, the fact that there is no similar case interpreting the phrase to include invalid state laws indicates, at the least, that the antidrafter canon would not lead California courts to reach a similar conclusion in similar cases that do not involve arbitration. Thus, California's interpretation of the clause does not place arbitration contracts on equal footing with all other contracts, and does not give due regard to the federal policy favoring arbitration.. 2. This Court will not interpret the arbitration contract in any other way, and hence the California court mustenforc(e) its arbitration agreement with respect to its arbitration contract. However, its interpretation is pre-empted by the federal arbitration Act, which precludes it from doing so. See Perry v. Thomas, 483, n. 9 (1987), and hence, hence, the judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.. 255 Cal. App. 4th, 345, 170 Cal. Rptr. 3d, at 196, reversed and remanded.

2015_15-415

https://www.oyez.org/cases/2015/15-415

. This case addresses whether a federal statute requires payment of increased compensation to certain automobile dealership employees for overtime work. The federal statute in question is the Fair Labor Standards Act (FLSA), 29 U. S. C. §201 et seq., enacted in 1938 to “protect all covered workers from substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 739 (1981) . Among its other provisions, the FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. The rate of overtime pay must be “not less than one and one-half times the regular rate” of the employee’s pay. §207(a). Five current and former service advisors brought this suit alleging that the automobile dealership where they were employed was required by the FLSA to pay them overtime wages. The dealership contends that the position and duties of a service advisor bring these employees within §213(b)(10)(A), which establishes an exemption from the FLSA overtime provisions for certain employees engaged in selling or servicing automobiles. The case turns on the interpretation of this exemption. I A Automobile dealerships in many communities not only sell vehicles but also sell repair and maintenance services. Among the employees involved in providing repair and maintenance services are service advisors, partsmen, and mechanics. Service advisors interact with customers and sell them services for their vehicles. A service advisor’s duties may include meeting customers; listening to their concerns about their cars; suggesting repair and maintenance services; selling new accessories or replacement parts; recording service orders; following up with customers as the services are performed (for instance, if new problems are discovered); and explaining the repair and maintenance work when customers return for their vehicles. See App. 40–41; see also Brennan v. Deel Motors, Inc., 475 F. 2d 1095, 1096 (CA5 1973); 29 CFR §779.372(c)(4) (1971). Partsmen obtain the vehicle parts needed to perform repair and maintenance and provide those parts to the mechanics. See §779.372(c)(2). Mechanics perform the actual repair and maintenance work. See §779.372(c)(3). In 1961, Congress enacted a blanket exemption from the FLSA’s minimum wage and overtime provisions for all automobile dealership employees. Fair Labor Standards Amendments of 1961, §9, 75Stat. 73. In 1966, Congress repealed that broad exemption and replaced it with a narrower one. The revised statute did not exempt dealership employees from the minimum wage requirement. It also limited the exemption from the overtime compensation requirement to cover only certain employees—in particular, “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft” at a covered dealership. Fair Labor Standards Amendments of 1966, §209, 80Stat. 836. Congress authorized the Department of Labor to “promulgate necessary rules, regulations, or orders” with respect to this new provision. §602, id., at 844. The Department exercised that authority in 1970 and issued a regulation that defined the statutory terms “salesman,” “partsman,” and “mechanic.” 35 Fed. Reg. 5896 (1970) (codified at 29 CFR §779.372(c)). The Department intended its regulation as a mere interpretive rule explaining its own views, rather than a legislative rule with the force and effect of law; and so the Department did not issue the regulation through the notice-and-comment procedures of the Administrative Procedure Act. See 35 Fed. Reg. 5856; see also 5 U. S. C. §553(b)(A) (exempting interpretive rules from notice and comment). The 1970 interpretive regulation defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles or farm implements which the establishment is primarily engaged in selling.” 29 CFR §779.372(c)(1) (1971). By limiting the statutory term to salesmen who sell vehicles or farm implements, the regulation excluded service advisors from the exemption, since a service advisor sells repair and maintenance services but not the vehicle itself. The regulation made that exclusion explicit in a later subsection: “Employees variously described as service manager, service writer, service advisor, or service salesman . . . are not exempt under [the statute]. This is true despite the fact that such an employee’s principal function may be disagnosing [sic] the mechanical condition of vehicles brought in for repair, writing up work orders for repairs authorized by the customer, assigning the work to various employees and directing and checking on the work of mechanics.” §779.372(c)(4). Three years later, the Court of Appeals for the Fifth Circuit rejected the Department’s conclusion that service advisors are not covered by the statutory exemption. Deel Motors, supra. Certain District Courts followed that precedent. See Yenney v. Cass County Motors, 81 CCH LC ¶33,506 (Neb. 1977); Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶33,247 (ED Mich. 1975), aff’d sub nom. Dunlop v. North Bros. Ford, Inc., 529 F. 2d 524 (CA6 1976) (table); Brennan v. Import Volkswagen, Inc., 81 CCH LC ¶33,522 (Kan. 1975). In the meantime, Congress amended the statutory provision by enacting its present text, which now sets out the exemption in two subsections. Fair Labor Standards Amendments of 1974, §14, 88Stat. 65. The first subsection is at issue in this case. It exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership. 29 U. S. C. §213(b)(10)(A). The second subsection exempts “any salesman primarily engaged in selling trailers, boats, or aircraft” at a covered dealership. §213(b)(10)(B). The statute thus exempts certain employees engaged in servicing automobiles, trucks, or farm implements, but not similar employees engaged in servicing trailers, boats, or aircraft. In 1978, the Department issued an opinion letter departing from its previous position. Taking a position consistent with the cases decided by the courts, the opinion letter stated that service advisors could be exempt under §213(b)(10)(A). Dept. of Labor, Wage & Hour Div., Opinion Letter No. 1520 (WH–467) (1978), [1978–1981 Transfer Binder] CCH Wages–Hours Administrative Rulings ¶31,207. The letter acknowledged that the Department’s new policy “represent[ed] a change from the position set forth in section 779.372(c)(4)” of its 1970 regulation. In 1987, the Department confirmed its 1978 interpretation by amending its Field Operations Handbook to clarify that service advisors should be treated as exempt under §213(b)(10)(A). It observed that some courts had interpreted the statutory exemption to cover service advisors; and it stated that, as a result of those decisions, it would “no longer deny the [overtime] exemption for such employees.” Dept. of Labor, Wage & Hour Div., Field Operations Handbook, Insert No. 1757, 24L04–4(k)(Oct. 20, 1987), online at https://perma.cc/5GHD-KCJJ (all Internet materials as last visited June 16, 2016). The Department again acknowledged that its new position represented a change from its 1970 regulation and stated that the regulation would “be revised as soon as is practicable.” Ibid. Twenty-one years later, in 2008, the Department at last issued a notice of proposed rulemaking. 73 Fed. Reg. 43654. The notice observed that every court that had considered the question had held service advisors to be exempt under §213(b)(10)(A), and that the Department itself had treated service advisors as exempt since 1987. Id., at 43658–43659. The Department proposed to revise its regulations to accord with existing practice by interpreting the exemption in §213(b)(10)(A) to cover service advisors. In 2011, however, the Department changed course yet again. It announced that it was “not proceeding with the proposed rule.” 76 Fed. Reg. 18833. Instead, the Department completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells automobiles, trucks, or farm implements. Id., at 18859 (codified at 29 CFR §779.372(c)(1)). The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A). It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors “arenot exempt” under the relevant provision. 29 CFR §779.372(c)(4) (1971). In promulgating the 2011 regulation, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been “an inadvertent mistake in drafting.” Tr. of Oral Arg. 50. B Petitioner is a Mercedes-Benz automobile dealership in the Los Angeles area. Respondents are or were employed by petitioner as service advisors. They assert that petitioner required them to be at work from 7 a.m. to 6 p.m. at least five days per week, and to be available for work matters during breaks and while on vacation. App. 39–40. Respondents were not paid a fixed salary or an hourly wage for their work; instead, they were paid commissions on the services they sold. Id., at 40–41. Respondents sued petitioner in the United States District Court for the Central District of California, alleging that petitioner violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. Id., at 42–44. Petitioner moved to dismiss, arguing that the FLSA overtime provisions do not apply to respondents because service advisors are covered by the statutory exemption in §213(b)(10)(A). The District Court agreed and granted the motion to dismiss. The Court of Appeals for the Ninth Circuit reversed in relevant part. It construed the statute by deferring under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) , to the interpretation set forth by the Department in its 2011 regulation. Applying that deference, the Court of Appeals held that service advisors are not covered by the §213(b)(10)(A) exemption. 780 F. 3d 1267 (2015). The Court of Appeals recognized, however, that its decision conflicted with cases from a number of other courts. Id., at 1274 (citing, inter alia, Walton v. Greenbrier Ford, Inc., 370 F. 3d 446 (CA4 2004); Deel Motors, 475 F. 2d 1095; Thompson v. J. C. Billion, Inc., 368 Mont. 299, 294 P. 3d 397 (2013)). This Court granted certiorari to resolve the question. 577 U. S. ___ (2016). II A The full text of the statutory subsection at issue states that the overtime provisions of the FLSA shall not apply to: “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.” §213(b)(10)(A). The question presented is whether this exemption should be interpreted to include service advisors. To resolve that question, it is necessary to determine what deference,if any, the courts must give to the Department’s 2011 interpretation. In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency’s interpretation is reasonable. This principle is implemented by the two-step analysis set forth in Chevron. At the first step, a court must determine whether Congress has “directly spoken to the precise question at issue.” 467 U. S., at 842. If so, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id., at 842–843. If not, then at the second step the court must defer to the agency’s interpretation if it is “reasonable.” Id., at 844. A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme. See id., at 843–844; United States v. Mead Corp., 533 U. S. 218 –230 (2001). When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that “relatively formal administrative procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chevron should apply. Mead Corp., supra, at 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227; cf. Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158 –176 (2007) (rejecting challenge to procedures by which regulation was issued and affording Chevron deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting Co. v. FCC, 22 F. 3d 320, 324–326 (CADC 1994); cf. also Auer v. Robbins, 519 U. S. 452 –459 (1997) (party cannot challenge agency’s failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chevron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has challenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper. One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). That requirement is satisfied when the agency’s explanation is clear enough that its “path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974) . But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43. Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 –982 (2005); Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) . But the agency must at least “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Ibid. (emphasis deleted). In explaining its changed position, an agency must also be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.” Ibid.; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996) . “In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television Stations, supra, at 515–516. It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Brand X, supra, at 981. An arbitrary and capricious regulation of this sort is itself unlawful and receives no Chevron deference. See Mead Corp., supra, at 227. B Applying those principles here, the unavoidable conclusion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reliance interests involved. In promulgating the 2011 regulation, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to overrule its previous position. The retail automobile and truck dealership industry had relied since 1978 on the Department’s position that service advisors are exempt from the FLSA’s overtime pay requirements. See National Automobile Dealers Association, Comment Letter on Proposed Rule Updating Reg-ulations Issued Under the Fair Labor Standards Act(Sept. 26, 2008), online at https://www.regulations.gov/#!documentDetail;D=WHD-2008-0003-0038. Dealerships and service advisors negotiated and structured their compensation plans against this background understanding. Requiring dealerships to adapt to the Department’s new position could necessitate systemic, significant changes to the dealerships’ compensation arrangements. See Brief for National Automobile Dealers Association et al. as Amici Curiae 13–14. Dealerships whose service advisors are not compensated in accordance with the Department’s new views could also face substantial FLSA liability, see 29 U. S. C. §216(b), even if this risk of liability may be diminished in some cases by the existence of a separate FLSA exemption for certain employees paid on a commission basis, see §207(i), and even if a dealership could defend against retroactive liability by showing it relied in good faith on the prior agency position, see §259(a). In light of this background, the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy. The Department said that, in reaching its decision, it had “carefully considered all of the comments, analyses, and arguments made for and against the proposed changes.” 76 Fed. Reg. 18832. And it noted that, since 1978, ithad treated service advisors as exempt in certain circumstances. Id., at 18838. It also noted the comment from the National Automobile Dealers Association stating that the industry had relied on that interpretation. Ibid. But when it came to explaining the “good reasons for the new policy,” Fox Television Stations, supra, at 515, the Department said almost nothing. It stated only that it would not treat service advisors as exempt because “the statute does not include such positions and the Department recognizes that there are circumstances under which the requirements for the exemption would not be met.” 76 Fed. Reg. 18838. It continued that it “believes that this interpretation is reasonable” and “sets forth the appropriate approach.” Ibid. Although an agency may justify its policy choice by explaining why that policy “is more consistent with statutory language” than alternative policies, Long Island Care at Home, 551 U. S., at 175 (internal quotation marks omitted), the Department did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services (that is, service advisors). And though several public comments supported the Department’s reading of the statute, the Department did not explain what (if anything) it found persuasive in those comments beyond the few statements above. It is not the role of the courts to speculate on reasons that might have supported an agency’s decision. “[W]e may not supply a reasoned basis for the agency’s action that the agency itself has not given.” State Farm, 463 U. S., at 43 (citing SEC v. Chenery Corp., 332 U. S. 194, 196 (1947) ). Whatever potential reasons the Department might have given, the agency in fact gave almost no reasons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. See Fox Television Stations, 556 U. S., at 515–516. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43. It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute. * * * For the reasons above, §213(b)(10)(A) must be construed without placing controlling weight on the Department’s 2011 regulation. Because the decision below relied on Chevron deference to this regulation, it is appropriate to remand for the Court of Appeals to interpret the statute in the first instance. Cf. Mead, 533 U. S., at 238–239. 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 . SUPREME COURT OF THE UNITED STATES Syllabus ENCINO MOTORCARS, LLC v. NAVARRO et al. certiorari to the united states court of appeals for the ninth circuit No. 15–415. Argued April 20, 2016—Decided June 20, 2016 The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. In 1966, Congress enacted an exemption from the overtime compensation requirement for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership. Fair Labor Standards Amendments of 1966, §209, 80Stat. 836, codified as amended at 29 U. S. C. §213(b)(10)(A). Congress authorized the Department of Labor to promulgate necessary rules, regulations, or orders with respect to this new provision. The Department exercised that authority in 1970 and issued a regulation that defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles . . . which the establishment is primarily engaged in selling.” 29 CFR §779.372(c)(1) (1971). The regulation excluded service advisors, who sell repair and maintenance services but not vehicles, from the exemption. Several courts, however, rejected the Department’s conclusion that service advisors are not covered by the statutory exemption. In 1978, the Department issued an opinion letter departing from its previous position and stating that service advisors could be exempt under 29 U. S. C. §213(b)(10)(A). In 1987, the Department confirmed its new interpretation by amending its Field Operations Handbook to clarify that service advisors should be treated as exempt under the statute. In 2011, however, the Department issued a final rule that followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells vehicles. 76 Fed. Reg. 18859. The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A). Petitioner is an automobile dealership. Respondents are or were employed by petitioner as service advisors. Respondents filed suit alleging that petitioner violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. Petitioner moved to dismiss, arguing that the FLSA overtime provisions do not apply to respondents because service advisors are covered by the §213(b)(10)(A) exemption. The District Court granted the motion, but the Ninth Circuit reversed in relevant part. Deferring under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , to the interpretation set forth in the 2011 regulation, the court held that service advisors are not covered by the §213(b)(10)(A) exemption. Held: Section 213(b)(10)(A) must be construed without placing controlling weight on the Department’s 2011 regulation. . (a) When an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and the agency’s interpretation is reasonable. See Chevron, supra, at 842–844. When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that procedure is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chevron should apply. United States v. Mead Corp., 533 U. S. 218 –230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227. One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. Where the agency has failed to provide even a minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. Agencies are free to change their existing policies, but in explaining its changed position, an agency must be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.” FCC v. Fox Television Stations, Inc., 556 U. S. 502 . An “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 , and an arbitrary and capricious regulation of this sort receives no Chevron deference. . (b) Applying those principles, the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reliance interests involved. The industry had relied since 1978 on the Department’s position that service advisors are exempt from the FLSA’s overtime pay requirements, and had negotiated and structured compensation plans against this background understanding. In light of this background, the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy. The Department instead said almost nothing. It did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law, and so the regulation does not receive Chevron deference. It is appropriate to remand for the Ninth Circuit to interpret §213(b)(10)(A) in the first instance. . 780 F. 3d 1267, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed a concurring opinion, in which Sotomayor, J., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. The rate of overtime pay must be not less than one and one-half times the regular rate of the employee's pay. §207(a). Respondents, current and former service advisors, brought suit in Federal District Court, alleging that the automobile dealership where they were employed was required by the FLSA to pay them overtime wages. The full text of §213(b)(10)(A) states that such overtime provisions shall not apply to: (a) Any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaging in the business of selling such vehicles or implements to ultimate purchasers. In 1978, the Department of Labor issued an opinion letter departing from its previous position and announcing that it would no longer deny the overtime exemption for such employees. Twenty-one years later, in a subsequent notice-and-comment rulemaking, it issued a final rule that took the opposite position from the proposed rule and interpreted the statutory term "salesman" to mean only an employee who sells automobiles. Respondents then filed suit in the District Court. The Court of Appeals reversed in relevant part, interpreting the statute by deferring under Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) to the Department's 2011 interpretation. Applying that deference, the court held that service advisors are not covered by the statutory exemption. Held: The regulation below does not receive Chevron deference in the interpretation of the relevant statute. . 780 F. 3d 1267, vacated and remanded. 1. When an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency's interpretation is reasonable. Chevron should apply where deference is warranted where the regulation is defective. Here, where the proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chevron deference to the interpretation set forth by the Department in its 2011 regulation. Although an agency may justify its policy choice by explaining why that policy is more consistent with statutory language than alternative policies, the agency must at leastdisplay awareness that it is changing position and show that there are good reasons for the change. In explaining its changed position, an agency must also be cognizant of longstanding policies, which may haveengendered serious reliance interests that must be taken into account. An arbitrary and capricious regulation of this sort is itself unlawful and receives no deference. Mead Corp., supra, at 227. Pp. 227. 2. Nor did the Department give the proper explanation that was required in light of its change in position and the significant reliance interests involved. This Court, in particular because of decades of industry reliance on the Department, in promulgating the regulation, fell short of the agency, its duty, to explain why it deemed it necessary to overrule its predecessor position. It follows that an unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary capriciously change from agency practice. Thus, the regulation must be construed without placing controlling weight on it, and should not be interpreted in the first instance. Cf. Mead, 533 U. s. 218-230 (CA6), at 238. Moreover, since the retail automobile and truck dealership industry had relied since 1978 on the department's position that the service advisor exemption was exempt from the overtime pay requirements, it could not be said that the Department erred in failing to provide a more detailed explanation for its decision to depart from its existing enforcement policy. That requirement is satisfied when the agency provides a reasoned explanation. But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and so cannot carry the force of law. See, e.g., Motor Vehicle Mfrs. Assn. of United States v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). In light of the serious reliance interest at stake, this lack of reasoned explication for a regulation that is inconsistent with the Department its longstanding earlier position results in a rule that cannot carry the force of law, and is therefore unlawful. Furthermore, the regulations issued here must be interpreted without placing control weight on them, and must be remanded for the Court to interpret the statute in first instance, so that the Court does not have to interpret them in any way. Therefore, the judgment of the Court below relied on Chevron deferential to the regulation and is appropriate to remand for

2015_14-940

https://www.oyez.org/cases/2015/14-940

. Texas, like all other States, draws its legislative districts on the basis of total population. Plaintiffs-appellants are Texas voters; they challenge this uniform method of districting on the ground that it produces un-equal districts when measured by voter-eligible population.Voter-eligible population, not total population, they urge, must be used to ensure that their votes will not be devalued in relation to citizens’ votes in other districts. We hold, based on constitutional history, this Court’s decisions, and longstanding practice, that a State may draw its legislative districts based on total population. I A This Court long resisted any role in overseeing the process by which States draw legislative districts. “The remedy for unfairness in districting,” the Court once held, “is to secure State legislatures that will apportion prop-erly, or to invoke the ample powers of Congress.” Colegrovev. Green, 328 U. S. 549, 556 (1946) . “Courts ought not to enter this political thicket,” as Justice Frankfurter put it. Ibid. Judicial abstention left pervasive malapportionment unchecked. In the opening half of the 20th century, there was a massive population shift away from rural areas and toward suburban and urban communities. Nevertheless, many States ran elections into the early 1960’s based on maps drawn to equalize each district’s population as it was composed around 1900. Other States used maps allocating a certain number of legislators to each county regardless of its population. These schemes left many rural districts significantly underpopulated in comparison with urban and suburban districts. But rural legislators who benefited from malapportionment had scant incentive to adopt new maps that might put them out of office. The Court confronted this ingrained structural inequal-ity in Baker v. Carr, 369 U. S. 186 –192 (1962). Thatcase presented an equal protection challenge to a Tennessee state-legislative map that had not been redrawn since 1901. See also id., at 192 (observing that, in the meantime, there had been “substantial growth and redistribution” of the State’s population). Rather than steering clear of the political thicket yet again, the Court held for the first time that malapportionment claims are justiciable. Id., at 237 (“We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision.”). Although the Court in Baker did not reach the merits of the equal protection claim, Baker’s justiciability ruling set the stage for what came to be known as the one-person, one-vote principle. Just two years after Baker, in Wes-berry v. Sanders, 376 U. S. 1 –8 (1964), the Court invalidated Georgia’s malapportioned congressional map, underwhich the population of one congressional district was “two to three times” larger than the population of the others. Relying on Article I, §2, of the Constitution, the Court required that congressional districts be drawn with equal populations. Id., at 7, 18. Later that same Term, in Reynolds v. Sims, 377 U. S. 533, 568 (1964) , the Court upheld an equal protection challenge to Alabama’s malapportioned state-legislative maps. “[T]he Equal Protection Clause,” the Court concluded, “requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Ibid. Wesberry and Reynolds together instructed that jurisdictions must design both congressional and state-legislative districts with equal populations, and must regularly reapportion districts to prevent malapportionment.[1] Over the ensuing decades, the Court has several times elaborated on the scope of the one-person, one-vote rule. States must draw congressional districts with populations as close to perfect equality as possible. See Kirkpatrick v. Preisler, 394 U. S. 526 –531 (1969). But, when drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them, preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. See Brown v. Thomson, 462 U. S. 835 –843 (1983). Where the maximum population deviation between the largest and smallest district is less than 10%, the Court has held, a state or local legislative map presumptively complies with the one-person, one-vote rule. Ibid.[2] Maximum deviations above 10% are presumptively impermissible. Ibid. See also Mahan v. Howell, 410 U. S. 315, 329 (1973) (approving a state-legislative map with maximum population deviation of 16% to accommodate the State’s interest in “maintaining the integrity of political subdivision lines,” but cautioning that this deviation “may well approach tolerable limits”). In contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered-voter or voter-eligible populations of districts. See Burns v. Richardson, 384 U. S. 73 –94 (1966) (holding Hawaii could use a registered-voter population base because of “Hawaii’s special population problems”—in particular, its substantial temporary military population). But, in the overwhelming majority of cases, jurisdictions have equalized total population, as measured by the decennial census. Today, all States use total-population numbers from the census when designing congressional and state-legislative districts, and only seven States adjust those census numbers in any meaningful way.[3] B Appellants challenge that consensus. After the 2010 census, Texas redrew its State Senate districts using a total-population baseline. At the time, Texas was subject to the preclearance requirements of §5 of the Voting Rights Act of 1965. 52 U. S. C. §10304 (requiring jurisdictions to receive approval from the U. S. Department of Justice or the U. S. District Court for the District of Columbia before implementing certain voting changes). Once it became clear that the new Senate map, S148, would not receive preclearance in advance of the 2012 elections, the U. S. District Court for the Western District of Texas drew an interim Senate map, S164, which also equalized the total population of each district. See Davis v. Perry, No. SA–11–CV–788 (Nov. 23, 2011).[4] On direct appeal, this Court observed that the District Court had failed to “take guidance from the State’s recently enacted plan in drafting an interim plan,” and therefore vacated the District Court’s map. Perry v. Perez, 565 U. S. ___, ___, ___–___ (2012) (per curiam) (slip op., at 4, 8–10). The District Court, on remand, again used census data to draw districts so that each included roughly the same size total population. Texas used this new interim map, S172, in the 2012 elections, and, in 2013, the Texas Legislature adopted S172 as the permanent Senate map. See App. to Brief for Texas Senate Hispanic Caucus et al. as Amici Curiae 5 (reproducing the current Senate map). The permanent map’s maximum total-population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population baseline—eligible voters or registered voters—the map’s maximum population deviation exceeds 40%. Appellants Sue Evenwel and Edward Pfenninger live in Texas Senate districts (one and four, respectively) with particularly large eligible- and registered-voter populations. Contending that basing apportionment on total population dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause,[5] appellants filed suit in the U. S. District Court for the Western District of Texas. They named as defendants the Governor and Secretary of State of Texas, and sought a permanent injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district. The case was referred to a three-judge District Court for hearing and decision. See 28 U. S. C. §2284(a); Shapiro v. McManus, 577 U. S. ___, ___–___ (2015) (slip op., at 5–7). That court dismissed the complaint for failure to state a claim on which relief could be granted. Appellants, the District Court explained, “rel[y] upon a theory never before accepted by the Supreme Court or any circuit court: that the metric of apportionment employed by Texas (total population) results in an unconstitutional apportionment because it does not achieve equality as measured by Plaintiffs’ chosen metric—voter population.” App. to Juris. Statement 9a. Decisions of this Court, the District Court concluded, permit jurisdictions to use any neutral, nondiscriminatory population baseline, including total population, when drawing state and local legislative districts. Id., at 13a–14a.[6] We noted probable jurisdiction, 575 U. S. ___ (2015), and now affirm. II The parties and the United States advance different positions in this case. As they did before the District Court, appellants insist that the Equal Protection Clause requires jurisdictions to draw state and local legislative districts with equal voter-eligible populations, thus protecting “voter equality,” i.e., “the right of eligible voters to an equal vote.” Brief for Appellants 14.[7] To comply with their proposed rule, appellants suggest, jurisdictions should design districts based on citizen-voting-age-population (CVAP) data from the Census Bureau’s American Community Survey (ACS), an annual statistical sample of the U. S. population. Texas responds that jurisdic-tions may, consistent with the Equal Protection Clause, design districts using any population baseline—including total population and voter-eligible population—so long as the choice is rational and not invidiously discriminatory. Although its use of total-population data from the census was permissible, Texas therefore argues, it could have used ACS CVAP data instead. Sharing Texas’ position that the Equal Protection Clause does not mandate use of voter-eligible population, the United States urges us not to address Texas’ separate assertion that the Constitution allows States to use alternative population baselines, including voter-eligible population. Equalizing total population, the United States maintains, vindicates the principle of representational equality by “ensur[ing] that the voters in each district have the power to elect a representative who represents the same number of constituents as all other representatives.” Brief for United States as Amicus Curiae 5. In agreement with Texas and the United States, we reject appellants’ attempt to locate a voter-equality mandate in the Equal Protection Clause. As history, precedent, and practice demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts. A We begin with constitutional history. At the time of the founding, the Framers confronted a question analogous to the one at issue here: On what basis should congressional districts be allocated to States? The Framers’ solution, now known as the Great Compromise, was to provide each State the same number of seats in the Senate, and to allocate House seats based on States’ total populations. “Representatives and direct Taxes,” they wrote, “shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.” U. S. Const., Art. I, §2, cl. 3 (emphasis added). “It is a fundamental principle of the proposed constitution,” James Madison explained in the Federalist Papers, “that as the aggregate number of representatives allotted to the several states, is to be . . . founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each state, is to be exercised by such part of the inhabitants, as the state itself may designate.” The Federalist No. 54, p. 284 (G. Carey & J. McClellan eds. 2001). In other words, the basis of representation in the House was to include all inhabitants—although slaves were counted as only three-fifths of a person—even though States remained free to deny many of those inhabitants the right to participate in the selection of their representatives.[8] Endorsing apportionment based on total population, Alexander Hamilton declared: “There can be no truer principle than this—that every individual of the commu-nity at large has an equal right to the protection of govern-ment.” 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911).[9] When debating what is now the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Concerned that Southern States would not willingly enfranchise freed slaves, and aware that “a slave’s freedom could swell his state’s population for purposes of representation in the House by one person, rather than only three-fifths,” the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population. J. Sneed, Footprints on the Rocks of the Mountain: An Account of the Enactment of the Fourteenth Amendment 28 (1997). See also id., at 35 (“[T]he apportionment issue consumed more time in the Fourteenth Amendment debates than did any other topic.”). In December 1865, Thaddeus Stevens, a leader of the Radical Republicans, introduced a constitutional amendment that would have allocated House seats to States “according to their respective legal voters”; in addition, the proposed amendment mandated that “[a] true census of the legal voters shall be taken at the same time with the regular census.” Cong. Globe, 39th Cong., 1st Sess., 10 (1866). Supporters of apportionment based on voter population employed the same voter-equality reasoning that appellants now echo. See, e.g., id., at 380 (remarks of Rep. Orth) (“[T]he true principle of representation in Congress is that voters alone should form the basis, and that each voter should have equal political weight in our Government. . . .”); id., at 404 (remarks of Rep. Lawrence) (use of total population “disregards the fundamental idea of all just representation, that every voter should be equal in political power all over the Union”). Voter-based apportionment proponents encountered fierce resistance from proponents of total-population apportionment. Much of the opposition was grounded in the principle of representational equality. “As an abstract proposition,” argued Representative James G. Blaine, a leading critic of allocating House seats based on voter population, “no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.” Id., at 141. See also id., at 358 (remarks of Rep. Conkling) (arguing that use of a voter-population basis “would shut out four fifths of the citizens of the country—women and children, who are citizens, who are taxed, and who are, and always have been, represented”); id., at 434 (remarks of Rep. Ward) (“[W]hat becomes of that large class of non-voting tax-payers that are found in every section? Are they in no matter to be represented? They certainly should be enumerated in making up the whole number of those entitled to a representative.”). The product of these debates was §2 of the Fourteenth Amendment, which retained total population as the congressional apportionment base. See U. S. Const., Amdt. 14, §2 (“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.”). Introducing the final version of the Amendment on the Senate floor, Senator Jacob Howard explained: “[The] basis of representation is numbers . . . ; that is, the whole population except untaxed Indians and persons excluded by the State laws for rebellion or other crime. . . . The committee adopted numbers as the most just and satisfactory basis, and this is the principle upon which the Constitution itself was originally framed, that the basis of representation should depend upon numbers; and such, I think, after all, is the safest and most secure principle upon which the Government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.” Cong. Globe, 39th Cong., 1st Sess., 2766–2767 (1866). Appellants ask us to find in the Fourteenth Amendment’s Equal Protection Clause a rule inconsistent with this “theory of the Constitution.” But, as the Court recognized in Wesberry, this theory underlies not just the method of allocating House seats to States; it applies as well tothe method of apportioning legislative seats within States. “The debates at the [Constitutional] Convention,” the Court explained, “make at least one fact abundantly clear: that when the delegates agreed that the House should represent ‘people,’ they intended that in allocating Congressmen the number assigned to each state should be determined solely by the number of inhabitants.” 376 U. S., at 13. “While it may not be possible to draw congressional districts with mathematical precision,” the Court acknowledged, “that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goalfor the House of Representatives.” Id., at 18 (emphasis added). It cannot be that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis. Cordoning off the constitutional history of congressional districting, appellants stress two points.[10] First, they draw a distinction between allocating seats to States, and apportioning seats within States. The Framers selected total population for the former, appellants and their amici argue, because of federalism concerns inapposite to intra-state districting. These concerns included the perceived risk that a voter-population base might encourage States to expand the franchise unwisely, and the hope that a total-population base might counter States’ incentive to undercount their populations, thereby reducing their share of direct taxes. Wesberry, however, rejected the distinction appellants now press. See supra, at 12. Even without the weight of Wesberry, we would find appellants’ distinction unconvincing. One can accept that federalism—or, as Justice Alito emphasizes, partisan and regional political advantage, see post, at 6–13—figured in the Framers’ selection of total population as the basis for allocating congressional seats. Even so, it remains beyond doubt that the principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters.[11] Second, appellants and Justice Alito urge, see post, at 5–6, the Court has typically refused to analogize to features of the federal electoral system—here, the constitutional scheme governing congressional apportionment—when considering challenges to state and local election laws. True, in Reynolds, the Court rejected Alabama’s argument that it had permissibly modeled its State Senate apportionment scheme—one Senator for each county—on the United States Senate. “[T]he federal analogy,” the Court explained, “[is] inapposite and irrelevant to state legislative districting schemes” because “[t]he system of representation in the two Houses of the Federal Congress” arose “from unique historical circumstances.” 377 U. S., at 573–574. Likewise, in Gray v. Sanders, 372 U. S. 368 –372, 378 (1963), Georgia unsuccessfully attempted to defend, by analogy to the electoral college, its scheme of assigning a certain number of “units” to the winner of each county in statewide elections. Reynolds and Gray, however, involved features of the federal electoral system that contravene the principles of both voter and representational equality to favor interests that have no relevance outside the federal context. Senate seats were allocated to States on an equal basis to respect state sovereignty and increase the odds that the smaller States would ratify the Constitution. See Wesberry, 376 U. S., at 9–13 (describing the history of the Great Compromise). See also Reynolds, 377 U. S., at 575 (“Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities. . . . The relationship of the States to the Federal Government could hardly be less analogous.”). “The [Electoral] College was created to permit the most knowledge-able members of the community to choose the executive of anation whose continental dimensions were thought to preclude an informed choice by the citizenry at large.” Williams v. Rhodes, 393 U. S. 23 –44 (1968) (Harlan, J., concurring in result). See also Gray, 372 U. S., at 378 (“The inclusion of the electoral college in the Constitution, as the result of specific historical concerns, validated the collegiate principle despite its inherent numerical inequality.” (footnote omitted)). By contrast, as earlier developed, the constitutional scheme for congressional apportion-ment rests in part on the same representational concerns that exist regarding state and local legislative districting. The Framers’ answer to the apportionment question inthe congressional context therefore undermines appellants’ contention that districts must be based on voter population. B Consistent with constitutional history, this Court’s past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Quoting language from those decisions that, in appellants’ view, supports the principle of equal voting power—and emphasizing the phrase “one-person, one-vote”—appellants contend that the Court had in mind, and constantly meant, that States should equalize the voter-eligible population of districts. See Reynolds, 377 U. S., at 568 (“[A]n individual’s right to vote for State legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State.”); Gray, 372 U. S., at 379–380 (“The concept of ‘we the people’ under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.”). See also Hadley v. Junior College Dist. of Metropolitan Kansas City, 397 U. S. 50, 56 (1970) (“[W]hen members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.”). Appellants, however, extract far too much from selectively chosen language and the “one-person, one-vote” slogan. For every sentence appellants quote from the Court’s opinions, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation, not voter equality. In Reynolds, for instance, the Court described “the fundamental principle of representative government in this country” as “one of equal representation for equal numbers of people.” 377 U. S., at 560–561. See also Davis v. Bandemer, 478 U. S. 109, 123 (1986) (“[I]n formulating the one person, one vote formula, the Court characterized the question posed by election districts of disparate size as an issue of fair representation.”); Reynolds, 377 U. S., at 563 (rejecting state districting schemes that “give the same number of representatives to unequal numbers of constituents”). And the Court has suggested, repeatedly, that districting based on total population serves both the State’s interest in preventing vote dilution and its interest in ensuring equality of representation. See Board of Estimate of City of New York v. Morris, 489 U. S. 688 –694 (1989) (“If districts of widely unequal population elect an equal number of representatives, the voting power of each citizen in the larger constituencies is debased and the citizens in those districts have a smaller share of representation than do those in the smaller districts.”). See also Kirkpatrick, 394 U. S., at 531 (recognizing in a congressional-districting case that “[e]qual representation for equal numbers of people is a principle designed to prevent debasement of voting power and diminution of access to elected representatives”).[12] Moreover, from Reynolds on, the Court has consistently looked to total-population figures when evaluating whether districting maps violate the Equal Protection Clause bydeviating impermissibly from perfect population equality. See Brief for Appellees 29–31 (collecting cases brought under the Equal Protection Clause). See also id., at 31, n. 9 (collecting congressional-districting cases). Appellants point to no instance in which the Court has determined the permissibility of deviation based on eligible- or registered-voter data. It would hardly make sense for the Court to have mandated voter equality sub silentio and then used a total-population baseline to evaluate compliance with that rule. More likely, we think, the Court has always assumed the permissibility of drawing districts to equalize total population. “In the 1960s,” appellants counter, “the distribution of the voting population generally did not deviate from the distribution of total population to the degree necessary to raise this issue.” Brief for Appellants 27. To support this assertion, appellants cite only a District Court decision, which found no significant deviation in the distribution of voter and total population in “densely populated areas of New York State.” WMCA, Inc. v. Lomenzo, 238 F. Supp. 916, 925 (SDNY), aff’d, 382 U. S. 4 (1965) ( per curiam). Had this Court assumed such equivalence on a national scale, it likely would have said as much.[13] Instead, in Gaffney v. Cummings, 412 U. S. 735 –747 (1973), the Court acknowledged that voters may be distributed un-evenly within jurisdictions. “[I]f it is the weight of a person’s vote that matters,” the Court observed, then “total population—even if stable and accurately taken—may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because ‘census persons’ are not voters.” Id., at 746. Nonetheless, the Court in Gaffney recognized that the one-person, one-vote rule is designed to facilitate “[f ]air and effective representation,” id., at 748, and evaluated compliance with the rule based on total population alone, id., at 750. C What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population. See Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970) (“unbroken practice” followed “openly and by affirmative state action, not covertly or by state inaction, is not something to be lightly cast aside”). See also Burson v. Freeman, 504 U. S. 191 –206 (1992) (plurality opinion) (upholding a law limiting campaigning in areas around polling places in part because all 50 States maintain such laws, so there is a “widespread and time-tested consensus” that legislation of this order serves important state interests). As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. See supra, at 8–12. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. See McCormick v. United States, 500 U. S. 257, 272 (1991) (“Serving constituents and supporting legislation that will benefit the district and individ-uals and groups therein is the everyday business of a legislator.”).[14] In sum, the rule appellants urge has no mooring in the Equal Protection Clause. The Texas Senate map, we therefore conclude, complies with the requirements of the one-person, one-vote principle.[15] Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population. * * * For the reasons stated, the judgment of the United States District Court for the Western District of Texas is Affirmed.Notes 1 In Avery v. Midland County, 390 U. S. 474 –486 (1968), the Court applied the one-person, one-vote rule to legislative apportionment at the local level. 2 Maximum population deviation is the sum of the percentage deviations from perfect population equality of the most- and least-populated districts. See Chapman v. Meier, 420 U. S. 1, 22 (1975) . For example, if the largest district is 4.5% overpopulated, and the smallest district is 2.3% underpopulated, the map’s maximum population deviation is 6.8%. 3 The Constitutions and statutes of ten States—California, Delaware, Hawaii, Kansas, Maine, Maryland, Nebraska, New Hampshire, New York, and Washington—authorize the removal of certain groups from the total-population apportionment base. See App. to Brief for Appellees 1a–46a (listing relevant state constitutional and statutory provisions). Hawaii, Kansas, and Washington exclude certain non-permanent residents, including nonresident members of the military. Haw. Const., Art. IV, §4; Kan. Const., Art. 10, §1(a); Wash. Const., Art. II, §43(5). See also N. H. Const., pt. 2, Art. 9–a (authorizing the state legislature to make “suitable adjustments to the general census . . . on account of non-residents temporarily residing in this state”). California, Delaware, Maryland, and New York exclude inmates who were domiciled out-of-state prior to incarceration. Cal. Elec. Code Ann. §21003(5) (2016 West Cum. Supp.); Del. Code Ann., Tit. 29, §804A (Supp. 2014); Md. State Govt. Code Ann. §2–2A–01 (2014); N. Y. Legis. Law Ann. §83–m(b) (2015 West Cum. Supp.). The Constitutions of Maine and Nebraska authorize the exclusion of noncitizen immigrants, Me. Const., Art. IV, pt. 1, §2; Neb. Const., Art. III, §5, but neither provision is “operational as written,” Brief for United States as Amicus Curiae 12, n. 3. 4 Various plaintiffs had challenged Texas’ State House, State Senate, and congressional maps under, inter alia, §2 of the Voting Rights Act of 1965. They sought and received an injunction barring Texas’ use of the new maps until those maps received §5 preclearance. See Allen v. State Bd. of Elections, 393 U. S. 544, 561 (1969) (“[A]n individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by §5, but has not been subjected to the required federal scrutiny.”). 5 Apart from objecting to the baseline, appellants do not challenge the Senate map’s 8.04% total-population deviation. Nor do they challenge the use of a total-population baseline in congressional districting. 6 As the District Court noted, the Ninth Circuit has likewise rejected appellants’ theory, i.e., that voter population must be roughly equalized. See Garza v. County of L. A., 918 F. 2d 763, 773–776 (CA9 1990). Also declining to mandate voter-eligible apportionment, the Fourth and Fifth Circuits have suggested that the choice of apportionment base may present a nonjusticiable political question. See Chen v. Houston, 206 F. 3d 502, 528 (CA5 2000) (“[T]his eminently political question has been left to the political process.”); Daly v. Hunt, 93 F. 3d 1212, 1227 (CA4 1996) (“This is quintessentially a decision that should be made by the state, not the federal courts, in the inherently political and legislative process of apportionment.”). 7 In the District Court, appellants suggested that districting bodies could also comply with the one-person, one-vote rule by equalizing the registered-voter populations of districts, but appellants have not repeated that argument before this Court. See Tr. of Oral Arg. 22–23. 8 As the United States observes, the “choice of constitutional language reflects the historical fact that when the Constitution was drafted and later amended, the right to vote was not closely correlated with citizenship.” Brief for United States as Amicus Curiae 18. Restrictions on the franchise left large groups of citizens, including women and many males who did not own land, unable to cast ballots, yet the Framers understood that these citizens were nonetheless entitled to representation in government. 9 Justice Alito observes that Hamilton stated this principle while opposing allocation of an equal number of Senate seats to each State. Post, at 7–8 (opinion concurring in judgment). That context, however, does not diminish Hamilton’s principled argument for allocating seats to protect the representational rights of “every individual of the community at large.” 1 Records of the Federal Convention of 1787, p. 473 (M. Farrand ed. 1911). Justice Alito goes on to quote James Madison for the proposition that Hamilton was concerned, simply and only, with “the outcome of a contest over raw political power.” Post, at 8. Notably, in the statement Justice Alito quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898 –924 (1997). 10 Justice Alito adds a third, claiming “the allocation of congres-sional representation sheds little light” on the meaning of the one-person,one-vote rule “because that allocation plainly violates one person, one vote.” Post, at 4. For this proposition, Justice Alito notes the constitutional guarantee of two Senate seats and at least one House seat to each State, regardless of its population. But these guarantees bear no kinship to the separate question that dominated the Fourteenth Amendment’s ratification debates: After each State has received its guaranteed House seat, on what basis should additional seats be allocated? 11 Justice Alito asserts that we have taken the statements of the Fourteenth Amendment’s Framers “out of context.” Post, at 9. See also post, at 12 (“[C]laims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the national government.”). Like Alexander Hamilton, see supra, at 9, n. 9, the Fourteenth Amendment’s Framers doubtless made arguments rooted in practical political realities as well as in principle. That politics played a part, however, does not warrant rejecting principled argument. In any event, motivations aside, the Framers’ ultimate choice of total population rather than voter population is surely relevant to whether, as appellants now argue, the Equal Protection Clause mandates use of voter population rather than total population. 12 Appellants also observe that standing in one-person, one-vote cases has rested on plaintiffs’ status as voters whose votes were diluted. But the Court has not considered the standing of nonvoters to challenge a map malapportioned on a total-population basis. This issue, moreover, is unlikely ever to arise given the ease of finding voters willing to serve as plaintiffs in malapportionment cases. 13 In contrast to the insubstantial evidence marshaled by appellants, the United States cites several studies documenting the uneven distribution of immigrants throughout the country during the 1960’s. See Brief for United States as Amicus Curiae 16. 14 Appellants point out that constituents have no constitutional right to equal access to their elected representatives. But a State certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents. 15 Insofar as appellants suggest that Texas could have roughly equalized both total population and eligible-voter population, this Court has never required jurisdictions to use multiple population baselines. In any event, appellants have never presented a map that manages to equalize both measures, perhaps because such a map does not exist, or because such a map would necessarily ignore other traditional redistricting principles, including maintaining communities of interest and respecting municipal boundaries.

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 . SUPREME COURT OF THE UNITED STATES Syllabus EVENWEL et al. v. ABBOTT, GOVERNOR OF TEXAS, et al. on appeal from the united states district court for the western district of texas No. 14–940. Argued December 8, 2015—Decided April 4, 2016 Under the one-person, one-vote principle, jurisdictions must design legislative districts with equal populations. See Wesberry v. Sanders, 376 U. S. 1 –8, Reynolds v. Sims, 377 U. S. 533 . In the context of state and local legislative districting, States may deviate somewhat from perfect population equality to accommodate traditional districting objectives. Where the maximum population deviation between the largest and smallest district is less than 10%, a state or local legislative map presumptively complies with the one-person, one-vote rule. Texas, like all other States, uses total-population numbers from the decennial census when drawing legislative districts. After the 2010 census, Texas adopted a State Senate map that has a maximum total-population deviation of 8.04%, safely within the presumptively permissible 10% range. However, measured by a voter-population baseline—eligible voters or registered voters—the map’s maximum population deviation exceeds 40%. Appellants, who live in Texas Senate districts with particularly large eligible- and registered-voter populations, filed suit against the Texas Governor and Secretary of State. Basing apportionment on total population, appellants contended, dilutes their votes in relation to voters in other Senate districts, in violation of the one-person, one-vote principle of the Equal Protection Clause. Appellants sought an injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district. A three-judge District Court dismissed the complaint for failure to state a claim on which relief could be granted. Held: As constitutional history, precedent, and practice demonstrate, a State or locality may draw its legislative districts based on total population. . (a) Constitutional history shows that, at the time of the founding, the Framers endorsed allocating House seats to States based on total population. Debating what would become the Fourteenth Amendment, Congress reconsidered the proper basis for apportioning House seats. Retaining the total-population rule, Congress rejected proposals to allocate House seats to States on the basis of voter population. See U. S. Const., Amdt. 14, §2. The Framers recognized that use of a total-population baseline served the principle of representational equality. Appellants’ voter-population rule is inconsistent with the “theory of the Constitution,” Cong. Globe, 39th Cong., 1st Sess., 2766–2767, this Court recognized in Wesberry as underlying not just the method of allocating House seats to States but also the method of apportioning legislative seats within States. . (b) This Court’s past decisions reinforce the conclusion that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. Appellants assert that language in this Court’s precedent supports their view that States should equalize the voter-eligible population of districts. But for every sentence appellants quote, one could respond with a line casting the one-person, one-vote guarantee in terms of equality of representation. See, e.g., Reynolds, 377 U. S., at 560–561. Moreover, from Reynolds on, the Court has consistently looked to total-population figures when evaluating whether districting maps violate the Equal Protection Clause by deviating impermissibly from perfect population equality. . (c) Settled practice confirms what constitutional history and prior decisions strongly suggest. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have long followed. As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total-population apportionment promotes equitable and effective representation. . (d) Because constitutional history, precedent, and practice reveal the infirmity of appellants’ claim, this Court need not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population. P. 19. Affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined except as to Part III–B.

After Texas redrew its State Senate districts using a total-population baseline, the District Court for the Western District of Texas drew an interim Senate map that equalized the total population of each district. Appellants live in Senate districts with particularly large eligible- and registered-voter populations, contending that basing apportionment on total population dilutes their votes in relation to voters in other Senate districts, in violation of the Equal Protection Clause of the Fourteenth Amendment. They filed suit in Federal District Court, seeking a permanent injunction barring use of the existing Senate map in favor of a map that would equalize the voter population in each district, and seeking declaratory and injunctive relief. The District Court dismissed the complaint for failure to state a claim on which relief could be granted. The Court of Appeals affirmed. Held: Based on constitutional history, this Court has consistently held that States and localities may comply with the one-person, one-vote principle by designing districts with equal total populations. . (a) The Framers' answer to the question whether districts must be based on voter population is not inconsistent with this Court's decisions, such as Wesberry v. Sanders, 376 U. S. 1-8 (1964); Gaffney v. Cummings, 412 U.S. 735-747 (1973), and Reynolds v. Sims, 377 U. s. 533, 568 (1964). . (b) The principle of representational equality figured prominently in the decision to count people, whether or not they qualify as voters, and, in contrast to repeated disputes over the permissibility of deviating from perfect population equality, little controversy has centered on the population base jurisdictions must equalize. On rare occasions, jurisdictions have relied on the registered voter or voter-eligible populations of districts. However, in the overwhelming majority of cases, States have equalized total population, as measured by the decennial census. In contrast, in many States, the principle of representation left many rural districts significantly underpopulated in comparison with urban and suburban districts, but rural legislators who benefited from malapportionment had scant incentive to adopt new redistricting maps that might put them out of office. Here, the Framers answered the question inthe congressional context by using total population as the base for allocating House seats. Rather than steering clear of the political thicket yet again, the court used census data to draw districts so that each included roughly the same size total population. Texas used this interim map in the 2012 elections, and in 2013 adopted the permanent Senate map. The permanent map's maximum total population deviation is 8.04%, safely within the presumptively permissible 10% range. But measured by a voter-population-basis, the maximum population deviation exceeds 40%. Appellant voters-appellants, who live in Texas Senate districts (one and four, respectively), challenged the creation of un-equal districts on the ground that they dilute their votes by approximately 40% in relation to those in other districts. They sought and received an injunction barring the use of new congressional maps. They also brought a class action in the Federal Circuit, claiming, inter alia, that Texas had chosen to use a nondiscriminatory metric that did not achieve equality of the voter-voting-age-population (Voting-eligible) population, and that the county-wide use of a total population baseline was unconstitutional. That court concluded that the court had not chosen a neutralized, non-discriminatory population baseline when drawing districts, and rejected appellants' claims. As to the claim that the equalization of total population was unconstitutional, appellants have not repeated that argument before this Court, and the United States urges not to address Texas' separate assertion that the Constitution allows States to use alternative population baselines, including voters-eligible population, when considering challenges to state and local election laws. Because history, precedent, and practice suffice to reveal the infirmity of appellants’ claims, this case need not and do not resolve whether States may draw districts to equalize voter-Eligible population rather than total population.. Affirmed. APPEAL FROM THE UNITED STATES DISTRICT COURT MR. JUSTICE MARSHALL, concurring in the judgment, concluded that: 1. The Texas Senate map complies with the requirements of the One- Person, One-Vote principle. Avery v. Midland County,,. P.. 2. The rule appellants urge has no mooring in the equal Protection Clause. By ensuring that each representative in a State is subject to requests and suggestions from the same number of constituents, total population apportioning promotes equitable and effective representation. Since the Constitution forecloses any state-wide allocation of seats to States, there is no reason, on a national scale, to believe that States should allocate districts based on the same total

2015_14-840

https://www.oyez.org/cases/2015/14-840

. The Federal Power Act (FPA or Act), 41Stat. 1063, as amended, 16 U. S. C. §791a et seq., authorizes the Federal Energy Regulatory Commission (FERC or Commission) to regulate “the sale of electric energy at wholesale in interstate commerce,” including both wholesale electricity rates and any rule or practice “affecting” such rates. §§824(b), 824e(a). But the law places beyond FERC’s power, and leaves to the States alone, the regulation of “any other sale”—most notably, any retail sale—of electricity. §824(b). That statutory division generates a steady flow of jurisdictional disputes because—in point of fact if not of law—the wholesale and retail markets in electricity are inextricably linked. These cases concern a practice called “demand response,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. That practice arose because wholesale market operators can sometimes—say, on a muggy August day—offer electricity both more cheaply and more reliably by paying users to dial down their consumption than by paying power plants to ramp up their production. In the regulation challenged here, FERC required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. Two issues are presented here. First, and fundamen-tally, does the FPA permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ authority? Second, even if FERC has the requisite statutory power, did the Commission fail to justify adequately why demand response providers and electricity producers should receive the same compensation? The court below ruled against FERC on both scores. We disagree. I A Federal regulation of electricity owes its beginnings to one of this Court’s decisions. In the early 20th century, state and local agencies oversaw nearly all generation, transmission, and distribution of electricity. But this Court held in Public Util. Comm’n of R. I. v. Attleboro Steam & Elec. Co., 273 U. S. 83 –90 (1927), that the Commerce Clause bars the States from regulating certain interstate electricity transactions, including wholesale sales (i.e., sales for resale) across state lines. That ruling created what became known as the “Attleboro gap”—a regulatory void which, the Court pointedly noted, only Congress could fill. See id., at 90. Congress responded to that invitation by passing the FPA in 1935. The Act charged FERC’s predecessor agency with undertaking “effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce.” New York v. FERC, 535 U. S. 1, 6 (2002) (quoting Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973) ). Under the statute, the Commission has authority to regulate “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. §824(b)(1). In particular, the FPA obligates FERC to oversee all prices for those interstate transactions and all rules and practices affecting such prices. The statute provides that “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with” interstate transmissions or wholesale sales—as well as “all rulesand regulations affecting or pertaining to such rates or charges”—must be “just and reasonable.” §824d(a). And if “any rate [or] charge,” or “any rule, regulation, practice, or contract affecting such rate [or] charge[,]” falls short of that standard, the Commission must rectify the problem: It then shall determine what is “just and reasonable” and impose “the same by order.” §824e(a). Alongside those grants of power, however, the Act also limits FERC’s regulatory reach, and thereby maintains a zone of exclusive state jurisdiction. As pertinent here, §824(b)(1)—the same provision that gives FERC author-ity over wholesale sales—states that “this subchapter,” including its delegation to FERC, “shall not apply toany other sale of electric energy.” Accordingly, the Commission may not regulate either within-state wholesale sales or, more pertinent here, retail sales of electricity (i.e., sales directly to users). See New York, 535 U. S., at17, 23. State utility commissions continue to oversee those transactions. Since the FPA’s passage, electricity has increasingly become a competitive interstate business, and FERC’s role has evolved accordingly. Decades ago, state or local utilities controlled their own power plants, transmission lines, and delivery systems, operating as vertically integrated monopolies in confined geographic areas. That is no longer so. Independent power plants now abound, and almostall electricity flows not through “the local power networks of the past,” but instead through an interconnected “grid” of near-nationwide scope. See id., at 7 (“electricity that enters the grid immediately becomes a part of a vast pool of energy that is constantly moving in interstate commerce,” linking producers and users across the country). In this new world, FERC often forgoes the cost-based rate-setting traditionally used to prevent monopolistic pricing. The Commission instead undertakes to ensure “just and reasonable” wholesale rates by enhancing competition—attempting, as we recently explained, “to break down regulatory and economic barriers that hinder a free market in wholesale electricity.” Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 536 (2008) . As part of that effort, FERC encouraged the creation of nonprofit entities to manage wholesale markets on a regional basis. Seven such wholesale market operators now serve areas with roughly two-thirds of the country’s electricity “load” (an industry term for the amount of electricity used). See FERC, Energy Primer: A Handbook of Energy Market Basics 58–59 (Nov. 2015) (EnergyPrimer). Each administers a portion of the grid, providing generators with access to transmission lines and ensuring that the network conducts electricity reliably. See ibid. And still more important for present purposes, each operator conducts a competitive auction to set wholesale prices for electricity. These wholesale auctions serve to balance supply and demand on a continuous basis, producing prices for electricity that reflect its value at given locations and times throughout each day. Such a real-time mechanism is needed because, unlike most products, electricity cannot be stored effectively. Suppliers must generate—every day, hour, and minute—the exact amount of power necessary to meet demand from the utilities and other “load-serving entities” (LSEs) that buy power at wholesale for resale to users. To ensure that happens, wholesale market operators obtain (1) orders from LSEs indicating how much electricity they need at various times and (2) bids from generators specifying how much electricity they can produce at those times and how much they will charge for it. Operators accept the generators’ bids in order of cost (least expensive first) until they satisfy the LSEs’ total demand. The price of the last unit of electricity purchased is then paid to every supplier whose bid was accepted, regardless of its actual offer; and the total cost is split among the LSEs in proportion to how much energy they have ordered. So, for example, suppose that at 9 a.m. on August 15 four plants serving Washington, D. C. can each produce some amount of electricity for, respectively, $10/unit, $20/unit, $30/unit, and $40/unit. And suppose that LSEs’ demand at that time and place is met after the operator accepts the three cheapest bids. The first three generators would then all receive $30/unit. That amount is (think back to Econ 101) the marginal cost—i.e., the added cost of meeting another unit of demand—which is the price an efficient market would produce. See 1 A. Kahn, The Economics of Regulation: Principles and Institutions 65–67 (1988). FERC calls that cost (in jargon that will soon become oddly familiar) the locational marginal price, or LMP.[1] As in any market, when wholesale buyers’ demand for electricity increases, the price they must pay rises correspondingly; and in those times of peak load, the grid’s reliability may also falter. Suppose that by 2 p.m. on August 15, it is 98 degrees in D. C. In every home, store, or office, people are turning the air conditioning up. To keep providing power to their customers, utilities and other LSEs must ask their market operator for more electricity. To meet that spike in demand, the operator will have to accept more expensive bids from suppliers. The operator, that is, will have to agree to the $40 bid that it spurned before—and maybe, beyond that, to bids of $50 or $60 or $70. In such periods, operators often must call on extremely inefficient generators whose high costs of production cause them to sit idle most of the time. See Energy Primer 41–42. As that happens, LMP—the price paid by all LSEs to all suppliers—climbs ever higher. And meanwhile, the increased flow of electricity through the grid threatens to overload transmission lines. See id., at 44. As every consumer knows, it is just when the weather is hottest and the need for air conditioning most acute that blackouts, brownouts, and other service problems tend to occur. Making matters worse, the wholesale electricity market lacks the self-correcting mechanism of other markets. Usually, when the price of a product rises, buyers natu-rally adjust by reducing how much they purchase. But con-sumers of electricity—and therefore the utilities and other LSEs buying power for them at wholesale—do not respond to price signals in that way. To use the economic term, demand for electricity is inelastic. That is in part because electricity is a necessity with few ready substitutes: When the temperature reaches 98 degrees, many people see no option but to switch on the AC. And still more: Many State regulators insulate consumers from short-term fluctuations in wholesale prices by insisting that LSEs set stable retail rates. See id., at 41, 43–44. That, one might say, short-circuits the normal rules of economic behavior. Even in peak periods, as costs surge in the wholesale market, consumers feel no pinch, and so keep running the AC as before. That means, in turn, that LSEs must keep buying power to send to those users—no matter that wholesale prices spiral out of control and increased usage risks overtaxing the grid. But what if there were an alternative to that scenario? Consider what would happen if wholesale market operators could induce consumers to refrain from using (and so LSEs from buying) electricity during peak periods. Whenever doing that costs less than adding more power, an operator could bring electricity supply and demand into balance at a lower price. And simultaneously, the operator could ease pressure on the grid, thus protecting against system failures. That is the idea behind the practice at issue here: Wholesale demand response, as it is called, pays consumers for commitments to curtail their use of power, so as to curb wholesale rates and prevent grid breakdowns. See id., at 44–46.[2] These demand response programs work through the operators’ regular auctions. Aggregators of multiple users of electricity, as well as large-scale individual users like factories or big-box stores, submit bids to decrease electricity consumption by a set amount at a set time for a set price. The wholesale market operators treat those offers just like bids from generators to increase supply. The operators, that is, rank order all the bids—both to produce and to refrain from consuming electricity—from least to most expensive, and then accept the lowest bids until supply and demand come into equipoise. And, once again, the LSEs pick up the cost of all those payments. So, to return to our prior example, if a store submitted an offer not to use a unit of electricity at 2 p.m. on August 15 for $35, the operator would accept that bid before calling on the generator that offered to produce a unit of power for $40. That would result in a lower LMP—again, wholesale market price—than if the market operator could not avail itself of demand response pledges. See ISO/RTO Council, Harnessing the Power of Demand: How ISOs and RTOs Are Integrating Demand Response Into Wholesale Electricity Markets 40–43 (2007) (estimating that, in one market, a demand response program reducing electricity usage by 3% in peak hours would lead to price declines of 6% to 12%). And it would decrease the risk of blackouts and other service problems. Wholesale market operators began using demand response some 15 years ago, soon after they assumed the role of overseeing wholesale electricity sales. Recognizing the value of demand response for both system reliability and efficient pricing, they urged FERC to allow them to implement such programs. See, e.g., PJM Interconnection, L. L. C., Order Accepting Tariff Sheets as Modified, 95 FERC ¶61,306 (2001); California Independent System Operator Corp., Order Conditionally Accepting for Filing Tariff Revisions, 91 FERC ¶61,256 (2000). And as demand response went into effect, market participants of many kinds came to view it—in the words of respondent Electric Power Supply Association (EPSA)—as an “important element[ ] of robust, competitive wholesale electricity markets.” App. 94, EPSA, Comments on Proposed Rule on Demand Response Compensation in Organized Wholesale Energy Markets (May 12, 2010). Congress added to the chorus of voices praising wholesale demand response. In the Energy Policy Act of 2005, 119Stat. 594 (EPAct), it declared as “the policy of the United States” that such demand response “shall be encouraged.” §1252(f), 119Stat. 966, 16 U. S. C. §2642 note. In particular, Congress directed, the deployment of “technology and devices that enable electricity customers to participate in . . . demand response systems shall be facilitated, and unnecessary barriers to demand response participation in energy . . . markets shall be eliminated.” Ibid.[3] B Spurred on by Congress, the Commission determined to take a more active role in promoting wholesale demand response programs. In 2008, FERC issued Order No. 719, which (among other things) requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users’ retail purchases bars such demand response participation. See 73 Fed. Reg. 64119, ¶154 (codified 18 CFR §35.28(g)(1) (2015)). That original order allowed operators to compensate demand response providers differently from generators if they so chose. No party sought judicial review. Concerned that Order No. 719 had not gone far enough, FERC issued the rule under review here in 2011, with one commissioner dissenting. See Demand Response Competition in Organized Wholesale Energy Markets, Order No. 745, 76 Fed. Reg. 16658 (Rule) (codified 18 CFR §35.28(g)(1)(v)). The Rule attempts to ensure “just and reasonable” wholesale rates by requiring market operators to appropriately compensate demand response providers and thus bring about “meaningful demand-side participation” in the wholesale markets. 76 Fed. Reg. 16658, ¶1, 16660, ¶10; 16 U. S. C. §824d(a). The Rule’s most significant provision directs operators, under two specified conditions, to pay LMP for any accepted demand response bid, just as they do for successful supply bids. See 76 Fed. Reg. 16666–16669, ¶¶45–67. In other words, the Rule requires that demand response providers in those circumstances receive as much for conserving electricity as generators do for producing it. The two specified conditions ensure that a bid to use less electricity provides the same value to the wholesale market as a bid to make more. First, a demand response bidder must have “the capability to provide the service” offered; it must, that is, actually be able to reduce electricity use and thereby obviate the operator’s need to secure additional power. Id., at 16666, ¶¶48–49. Second, paying LMP for a demand response bid “must be cost-effective,” as measured by a standard called “the net benefits test.” Ibid., ¶48. That test makes certain that accepting a lower-priced demand response bid over a higher-priced supply bid will actually save LSEs (i.e., wholesale purchasers) money. In some situations it will not, even though accepting a lower-priced bid (by definition) reduces LMP. That is because (to oversimplify a bit) LSEs share the cost of paying successful bidders, and reduced electricity use makes some LSEs drop out of the market, placing a proportionally greater burden on those that are left. Each remaining LSE may thus wind up paying more even though the total bill is lower; or said otherwise, the costs associated with an LSE’s increased share of compensating bids may exceed the savings that the LSE obtains from a lower wholesale price.[4] The net benefits test screens out such counterproductive demand response bids, exempting them from the Rule’s compensation requirement. See id., at 16659, 16666–16667, ¶¶3, 50–53. What remains are only those offers whose acceptance will result in actual savings to wholesale purchasers (along with more reliable service to end users). See id., at 16671, ¶¶78–80. The Rule rejected an alternative scheme for compensating demand response bids. Several commenters had urged that, in paying a demand response provider, an operator should subtract from the ordinary wholesale price the savings that the provider nets by not buying electricity on the retail market. Otherwise, the commenters claimed, demand response providers would receive a kind of“double-payment” relative to generators. See id., at 16663, ¶24. That proposal, which the dissenting commissioner largely accepted, became known as LMP minus G, or more simply LMP-G, where “G” stands for the retail price of electricity. See id., at 16668, ¶60, 16680 (Moeller, dissenting). But FERC explained that, under the conditions it had specified, the value of an accepted demand response bid to the wholesale market is identical to that of an accepted supply bid because each succeeds in cost-effectively “balanc[ing] supply and demand.” Id., at 16667, ¶55. And, the Commission reasoned, that comparable value is what ought to matter given FERC’s goal of strengthening competition in the wholesale market: Rates should reflect not the costs that each market participant incurs, but instead the services it provides. See id., at 16668, ¶62. Moreover, the Rule stated, compensating demand response bids at their actual value—i.e., LMP—will help overcome various technological barriers, including a lack of needed infrastructure, that impede aggregators and large-scale users of electricity from fully participating in demand response programs. See id., at 16667–16668, ¶¶57–58. The Rule also responded to comments challenging FERC’s statutory authority to regulate the compensation operators pay for demand response bids. Pointing to the Commission’s analysis in Order No. 719, the Rule explained that the FPA gives FERC jurisdiction over such bids because they “directly affect[ ] wholesale rates.” Id., at 16676, ¶112 (citing 74 id., at 37783, ¶47, and 18 U. S. C. §824d). Nonetheless, the Rule noted, FERC would continue Order No. 719’s policy of allowing any state regulatory body to prohibit consumers in its retail market from taking part in wholesale demand response programs. See 76 Fed. Reg. 16676, ¶114; 73 id., at 64119, ¶154. Accordingly, the Rule does not require any “action[ ] that would violate State laws or regulations.” 76 id., at 16676, ¶114. C A divided panel of the Court of Appeals for the District of Columbia Circuit vacated the Rule as “ultra vires agency action.” 753 F. 3d 216, 225 (2014). The court held that FERC lacked authority to issue the Rule even though “demand response compensation affects the wholesale market.” Id., at 221. The Commission’s “jurisdiction to regulate practices ‘affecting’ rates,” the court stated, “does not erase the specific limit[ ]” that the FPA imposes on FERC’s regulation of retail sales. Id., at 222. And the Rule, the court concluded, exceeds that limit: In “luring . . . retail customers” into the wholesale market, and causing them to decrease “levels of retail electricity consumption,” the Rule engages in “direct regulation of the retail market.” Id., at 223–224. The Court of Appeals held, alternatively, that the Rule is arbitrary and capricious under the Administrative Procedure Act, 5 U. S. C. §706(2)(A), because FERC failed to “adequately explain[ ]” why paying LMP to demand response providers “results in just compensation.” 753 F. 3d, at 225. According to the court, FERC did not “properly consider” the view that such a payment would give those providers a windfall by leaving them with “the full LMP plus . . . the savings associated with” reduced consumption. Ibid. (quoting Demand Response Competition in Organized Wholesale Energy Markets: Order on Rehearing and Clarification, Order No. 745–A (Rehearing Order), 137 FERC ¶61,215, p. 62,316 (2011) (Moeller, dissenting)). The court dismissed out of hand the idea that “comparable contributions [could] be the reason for equal compensation.” 753 F. 3d, at 225. Judge Edwards dissented. He explained that the rules governing wholesale demand response have a “direct effect . . . on wholesale electricity rates squarely within FERC’s jurisdiction.” Id., at 227. And in setting those rules, he argued, FERC did not engage in “direct regulation of the retail market”; rather, “[a]uthority over retail rates . . . remains vested solely in the States.” Id., at 234 (internal quotation marks omitted). Finally, Judge Edwards rejected the majority’s view that the Rule is arbitrary and capricious. He noted the substantial deference due to the Commission in cases involving ratemaking, and concluded that FERC provided a “thorough” and “reasonable” explanation for choosing LMP as the appropriate compensation formula. Id., at 236–238. We granted certiorari, 575 U. S. ___ (2015), to decide whether the Commission has statutory authority to regulate wholesale market operators’ compensation of demand response bids and, if so, whether the Rule challenged here is arbitrary and capricious. We now hold that the Commission has such power and that the Rule is adequately reasoned. We accordingly reverse. II Our analysis of FERC’s regulatory authority proceeds in three parts. First, the practices at issue in the Rule—market operators’ payments for demand response commitments—directly affect wholesale rates. Second, in addressing those practices, the Commission has not regulated retail sales. Taken together, those conclusions establish that the Rule complies with the FPA’s plain terms. And third, the contrary view would conflict with the Act’s core purposes by preventing all use of a tool that no one (not even EPSA) disputes will curb prices and enhance reliability in the wholesale electricity market.[5] A The FPA delegates responsibility to FERC to regulate the interstate wholesale market for electricity—both wholesale rates and the panoply of rules and practices affecting them. As noted earlier, the Act establishesa scheme for federal regulation of “the sale of electric energy at wholesale in interstate commerce.” 16 U. S. C. §824(b)(1); see supra, at 3. Under the statute, “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with” interstate wholesale sales “shall be just and reasonable”; so too shall “all rules and regulations affecting or pertaining to such rates orcharges.” §824d(a). And if FERC sees a violation of that standard, it must take remedial action. More specifically, whenever the Commission “shall find that any rate [or] charge”—or “any rule, regulation, practice, or contract affecting such rate [or] charge”—is “unjust [or] unreasonable,” then the Commission “shall determine the just and reasonable rate, charge[,] rule, regulation, practice or contract” and impose “the same by order.” §824e(a). That means FERC has the authority—and, indeed, the duty—to ensure that rules or practices “affecting” wholesale rates are just and reasonable. Taken for all it is worth, that statutory grant could extend FERC’s power to some surprising places. As the court below noted, markets in all electricity’s inputs—steel, fuel, and labor most prominent among them—might affect generators’ supply of power. See 753 F. 3d, at 221; id., at 235 (Edwards, J., dissenting). And for that matter, markets in just about everything—the whole economy, as it were—might influence LSEs’ demand. So if indirect or tangential impacts on wholesale electricity rates sufficed, FERC could regulate now in one industry, now in another, changing a vast array of rules and practices to implement its vision of reasonableness and justice. We cannot imagine that was what Congress had in mind. For that reason, an earlier D. C. Circuit decision adopted, and we now approve, a common-sense construction ofthe FPA’s language, limiting FERC’s “affecting” jurisdiction to rules or practices that “directly affect the [wholesale] rate.” California Independent System Operator Corp. v. FERC, 372 F. 3d 395, 403 (2004) (emphasis added); see 753 F. 3d, at 235 (Edwards, J., dissenting). As we have explained in addressing similar terms like “relating to” or “in connection with,” a non-hyperliteral reading is needed to prevent the statute from assuming near-infinite breadth. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) (“If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes [the statute] would never run its course”); Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) (“The phrase ‘in connection with’ is essentially indeterminat[e] because connections, like relations, stop nowhere” (internal quotation marks omitted)). The Commission itself incorporated the D. C. Circuit’s standard in addressing its authority to issue the Rule. See 76 Fed. Reg. 16676, ¶112 (stating that FERC has jurisdiction because wholesale demand response “directly affects wholesale rates”). We think it right to do the same. Still, the rules governing wholesale demand response programs meet that standard with room to spare. In general (and as earlier described), wholesale market operators employ demand response bids in competitive auctions that balance wholesale supply and demand and thereby set wholesale prices. See supra, at 7–8. The operators accept such bids if and only if they bring down the wholesale rate by displacing higher-priced generation. And when that occurs (most often in peak periods), the easing of pressure on the grid, and the avoidance of service problems, further contributes to lower charges. See Brief for Grid Engineers et al. as Amici Curiae 26–27. Wholesale demand response, in short, is all about reducing wholesale rates; so too, then, the rules and practices that determine how those programs operate. And that is particularly true of the formula that operators use to compensate demand response providers. As in other areas of life, greater pay leads to greater participation. If rewarded at LMP, rather than at some lesser amount, more demand response providers will enter more bids capable of displacing generation, thus necessarily lowering wholesale electricity prices. Further, the Commission found, heightened demand response participation will put “downward pressure” on generators’ own bids, encouraging power plants to offer their product at reduced prices lest they come away empty-handed from the bidding process. 76 Fed. Reg. 16660, ¶10. That, too, ratchets down the rates wholesale purchasers pay. Compensation for demand response thus directly affects wholesale prices. Indeed, it is hard to think of a practice that does so more. B The above conclusion does not end our inquiry into the Commission’s statutory authority; to uphold the Rule, we also must determine that it does not regulate retail electricity sales. That is because, as earlier described, §824(b) “limit[s] FERC’s sale jurisdiction to that at wholesale,” reserving regulatory authority over retail sales (as well as intrastate wholesale sales) to the States. New York, 535 U. S., at 17 (emphasis deleted); see 16 U. S. C. §824(b); supra, at 3.[6] FERC cannot take an action transgressing that limit no matter how direct, or dramatic, its impact on wholesale rates. Suppose, to take a far-fetched example, that the Commission issued a regulation compelling every consumer to buy a certain amount of electricity on the retail market. Such a rule would necessarily determine the load purchased on the wholesale market too, and thus would alter wholesale prices. But even given that ineluctable consequence, the regulation would exceed FERC’s authority, as defined in §824(b), because it specifies terms of sale at retail—which is a job for the States alone.[7] Yet a FERC regulation does not run afoul of §824(b)’s proscription just because it affects—even substantially—the quantity or terms of retail sales. It is a fact of eco-nomic life that the wholesale and retail markets in electricity, as in every other known product, are not hermetically sealed from each other. To the contrary, transactions that occur on the wholesale market have natural consequences at the retail level. And so too, of necessity, will FERC’s regulation of those wholesale matters. Cf. Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 13) (noting that in the similarly structured world of natural gas regulation, a “Platonic ideal” of strict separation between federal and state realms cannot exist). When FERC sets a wholesale rate, when it changes wholesale market rules, when it allocates electricity as between wholesale purchasers—in short, when it takes virtually any action respecting wholesale transactions—it has some effect, in either the short or the long term, on retail rates. That is of no legal consequence. See, e.g., Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 –373 (1988) (holding that an order regulating wholesale purchases fell within FERC’s jurisdiction, and preempted contrary state action, even though it clearly affected retail prices); Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 –961, 970 (1986) (same); FPC v. Louisiana Power & Light Co., 406 U. S. 621 –641 (1972) (holding similarly in the natural gas context). When FERC regulates what takes place on the wholesale market, as part of carrying out its charge to improve how that market runs, then no matter the effect on retail rates, §824(b) imposes no bar. And in setting rules for demand response, that is all FERC has done. The Commission’s Rule addresses—and addresses only—transactions occurring on the wholesale market. Recall once again how demand response works—and forgive the coming italics. See supra, at 7–8. Wholesale market operators administer the entire program, receiving every demand response bid made. Those operators accept such a bid at the mandated price when (and only when) the bid provides value to the wholesale market by balancing supply and demand more “cost-effective[ly]”—i.e., at a lower cost to wholesale purchasers—than a bid to generate power. 76 Fed. Reg. 16659, 16666, ¶2, 48. The compensation paid for a successful bid (LMP) is whatever the operator’s auction has determined is the marginal price of wholesale electricity at a particular location and time. See id., at 16659, ¶2. And those footing the bill are the same wholesale purchasers that have benefited from the lower wholesale price demand response participation has produced. See id., at 16674, ¶¶99–100. In sum, whatever the effects at the retail level, every aspect of the regulatory plan happens exclusively on the wholesale market and governs exclusively that market’s rules. What is more, the Commission’s justifications for regulating demand response are all about, and only about, improving the wholesale market. Cf. Oneok, 575 U. S., at ___ (slip op., at 11) (considering “the target at which [a] law aims” in determining whether a State is properly regulating retail or, instead, improperly regulating wholesale sales). In Order No. 719, FERC explained that demand response participation could help create a “well-functioning competitive wholesale electric energy market” with “reduce[d] wholesale power prices” and “enhance[d] reliability.” 73 Fed. Reg. 64103, ¶16. And in the Rule under review, FERC expanded on that theme. It listed the several ways in which “demand response in organized wholesale energy markets can help improve the functioning and competitiveness of those markets”: by replacing high-priced, inefficient generation; exerting “downward pressure” on “generator bidding strategies”; and “support[ing] system reliability.” 76 id., at 16660, ¶10; see Notice of Proposed Rulemaking for Order No. 745, 75 id., at 15363–15364, ¶4 (2010) (noting similar aims); supra, at 7–8. FERC, that is, focused wholly on the benefits that demand response participation (in the wholesale market) could bring to the wholesale market. The retail market figures no more in the Rule’s goals than in the mechanism through which the Rule operates. EPSA’s primary argument that FERC has usurped state power (echoed in the dissent) maintains that the Rule “effectively,” even though not “nominal[ly],” regulates retail prices. See, e.g., Brief for Respondents 1, 10, 23–27, 35–39; Tr. of Oral Arg. 26, 30; post, at 4–6. The argument begins on universally accepted ground: Under §824(b), only the States, not FERC, can set retail rates. See, e.g., FPC v. Conway Corp., 426 U. S. 271, 276 (1976) . But as EPSA concedes, that tenet alone cannot make its case, because FERC’s Rule does not set actual rates: States continue to make or approve all retail rates, and in doing so may insulate them from price fluctuations in the wholesale market. See Brief for Respondents 39. Still, EPSA contends, rudimentary economic analysis shows that the Rule does the “functional equivalen[t]” of setting—more particularly, of raising—retail rates. Id., at 36. That is because the opportunity to make demand response bids in the wholesale market changes consumers’ calculations. In deciding whether to buy electricity at retail, economically-minded consumers now consider both the cost of making such a purchase and the cost of forgoing a possible demand response payment. So, EPSA explains, if a factory can buy electricity for $10/unit, but can earn $5/unit for not buying power at peak times, then the effective retail rate at those times is $15/unit: the $10 the factory paid at retail plus the $5 it passed up. See id., at 10. And by thus increasing effective retail rates, EPSA concludes, FERC trespasses on the States’ ground. The modifier “effective” is doing quite a lot of work in that argument—more work than any conventional understanding of rate-setting allows. The standard dictionary definition of the term “rate” (as used with reference to prices) is “[a]n amount paid or charged for a good or service.” Black’s Law Dictionary 1452 (10th ed. 2014); see, e.g., 13 Oxford English Dictionary 208–209 (2d ed. 1989) (“rate” means “price,” “cost,” or “sum paid or asked for a . . . thing”). To set a retail electricity rate is thus to establish the amount of money a consumer will hand over in exchange for power. Nothing in §824(b) or any other part of the FPA suggests a more expansive notion, in which FERC sets a rate for electricity merely by altering consumers’ incentives to purchase that product.[8] And neither does anything in this Court’s caselaw. Our decisions uniformly speak about rates, for electricity and all else, in only their most prosaic, garden-variety sense. As the Solicitor General summarized that view, “the rate is what it is.” Tr. of Oral Arg. 7. It is the price paid, not the price paid plus the cost of a forgone economic opportunity. Consider a familiar scenario to see what is odd about EPSA’s theory. Imagine that a flight is overbooked. The airline offers passengers $300 to move to a later plane that has extra seats. On EPSA’s view, that offer adds $300—the cost of not accepting the airline’s proffered payment—to the price of every continuing passenger’s ticket. So a person who originally spent $400 for his ticket, and decides to reject the airline’s proposal, paid an “effective” price of $700. But would any passenger getting off the plane say he had paid $700 to fly? That is highly unlikely. And airline lawyers and regulators (including many, we are sure, with economics Ph. D.’s) appear to share that common-sensical view. It is in fact illegal to “increase the price” of “air transportation . . . after [such] air transportation has been purchased by the consumer.” 14 CFR §399.88(a) (2015). But it is a safe bet that no airline has ever gotten into trouble by offering a payment not to fly.[9] And EPSA’s “effective price increase” claim fares even worse when it comes to payments not to use electricity. In EPSA’s universe, a wholesale demand response program raises retail rates by compelling consumers to “pay” the price of forgoing demand response compensation. But such a consumer would be even more surprised than our air traveler to learn of that price hike, because the natural consequence of wholesale demand response programs is to bring down retail rates. Once again, wholesale market operators accept demand response bids only if those offers lower the wholesale price. See supra, at 7–8. And when wholesale prices go down, retail prices tend to follow, because state regulators can, and mostly do, insist that wholesale buyers eventually pass on their savings to consumers. EPSA’s theoretical construct thus runs headlong into the real world of electricity sales—where the Rule does anything but increase retail prices. EPSA’s second argument that FERC intruded into the States’ sphere is more historical and purposive in nature. According to EPSA, FERC deliberately “lured [retail customers] into the[ ] wholesale markets”—and, more, FERC did so “only because [it was] dissatisfied with the States’ exercise of their undoubted authority” under §824(b) to regulate retail sales. Brief for Respondents 23; see id., at 2–3, 31, 34. In particular, EPSA asserts, FERC disapproved of “many States’ continued preference” for stable pricing—that is, for insulating retail rates from short-term fluctuations in wholesale costs. Id., at 28. In promoting demand response programs—or, in EPSA’s somewhat less neutral language, in “forc[ing] retail customers to respond to wholesale price signals”—FERC acted “for the express purpose of overriding” that state policy. Id., at 29, 49. That claim initially founders on the true facts of how wholesale demand response came about. Contra EPSA, the Commission did not invent the practice. Rather, and as described earlier, the impetus came from wholesale market operators. See supra, at 8. In designing their newly organized markets, those operators recognized almost at once that demand response would lower wholesale electricity prices and improve the grid’s reliability. So they quickly sought, and obtained, FERC’s approval to institute such programs. Demand response, then, emerged not as a Commission power grab, but instead as a market-generated innovation for more optimally balancing wholesale electricity supply and demand. And when, years later (after Congress, too, endorsed the practice), FERC began to play a more proactive role, it did so for the identical reason: to enhance the wholesale, not retail, electricity market. Like the market operators, FERC saw that sky-high demand in peak periods threatened network breakdowns, compelled purchases from inefficient generators, and consequently drove up wholesale prices. See, e.g., 73 Fed. Reg. 64103, ¶16; 76 id., at 16660, ¶10; see supra, at 6–7. Addressing those problems—which demand response does—falls within the sweet spot of FERC’s statutory charge. So FERC took action promoting the practice. No doubt FERC recognized connections, running in both directions, between the States’ policies and its own. The Commission understood that by insulating consumers from price fluctuations, States contributed to the wholesale market’s difficulties in optimally balancing supply and demand. See 76 Fed. Reg. 16667–16668, ¶¶57, 59; supra, at 6–7. And FERC realized that increased use of demand response in that market would (by definition) inhibit retail sales otherwise subject to State control. See 73 Fed. Reg. 64167. But nothing supports EPSA’s more feverish idea that the Commission’s interest in wholesale demand response emerged from a yen to usurp State authority over, or impose its own regulatory agenda on, retail sales. In promoting demand response, FERC did no more than follow the dictates of its regulatory mission to improve the competitiveness, efficiency, and reliability of the wholesale market. Indeed, the finishing blow to both of EPSA’s arguments comes from FERC’s notable solicitude toward the States. As explained earlier, the Rule allows any State regulator to prohibit its consumers from making demand response bids in the wholesale market. See 76 id., at 16676, ¶114; 73 id., at 64119, ¶154; supra, at 12. Although claiming the ability to negate such state decisions, the Commission chose not to do so in recognition of the linkage between wholesale and retail markets and the States’ role in overseeing retail sales. See 76 Fed. Reg. 16676, ¶¶112–114. The veto power thus granted to the States belies EPSA’s view that FERC aimed to “obliterate[ ]” their regulatory authority or “override” their pricing policies. Brief for Respondents 29, 33. And that veto gives States the means to block whatever “effective” increases in retail rates demand response programs might be thought to produce. Wholesale demand response as implemented in the Rule is a program of cooperative federalism, in which the States retain the last word. That feature of the Rule removes any conceivable doubt as to its compliance with §824(b)’s allocation of federal and state authority. C One last point, about how EPSA’s position would subvert the FPA. EPSA’s jurisdictional claim, as may be clear by now, stretches very far. Its point is not that this single Rule, relating to compensation levels, exceeds FERC’s power. Instead, EPSA’s arguments—that rewarding energy conservation raises effective retail rates and that “luring” consumers onto wholesale markets aims to disrupt state policies—suggest that the entire practice of wholesale demand response falls outside what FERC can regulate. EPSA proudly embraces that point: FERC, it declares, “has no business regulating ‘demand response’ at all.” Id., at 24. Under EPSA’s theory, FERC’s earlier Order No. 719, although never challenged, would also be ultra vires because it requires operators to open their markets to demand response bids. And more: FERC could not even approve an operator’s voluntary plan to administer a demand response program. See Tr. of Oral Arg. 44. That too would improperly allow a retail customer to participate in a wholesale market. Yet state commissions could not regulate demand response bids either. EPSA essentially concedes this point. See Brief for Respondents 46 (“That may well be true”). And so it must. The FPA “leaves no room either for direct state regulation of the prices of interstate wholesales” or for regulation that “would indirectly achieve the same result.” Northern Natural Gas Co. v. State Corporation Comm’n of Kan., 372 U. S. 84, 91 (1963) . A State could not oversee offers, made in a wholesale market operator’s auction, that help to set wholesale prices. Any effort of that kind would be preempted. And all of that creates a problem. If neither FERC nor the States can regulate wholesale demand response, then by definition no one can. But under the Act, no electricity transaction can proceed unless it is regulable by someone. As earlier described, Congress passed the FPA precisely to eliminate vacuums of authority over the electricity markets. See supra, at 2–3. The Act makes federal and state powers “complementary” and “comprehensive,” so that “there [will] be no ‘gaps’ for private interests to subvert the public welfare.” Louisiana Power & Light Co., 406 U. S., at 631. Or said otherwise, the statute prevents the creation of any regulatory “no man’s land.” FPC v. Transcontinental Gas Pipe Line Corp., 365 U. S. 1, 19 (1961) ; see id., at 28. Some entity must have jurisdiction to regulate each and every practice that takes place in the electricity markets, demand response no less than any other.[10] For that reason, the upshot of EPSA’s view would be to extinguish the wholesale demand response program in its entirety. Under the FPA, each market operator must submit to FERC all its proposed rules and procedures. See 16 U. S. C. §§824d(c)–(d); 18 CFR §§35.28(c)(4), 35.3(a)(1). Assume that, as EPSA argues, FERC could not authorize any demand response program as part of that package. Nor could FERC simply allow such plans to go into effect without its consideration and approval. There are no “off the books” programs in the wholesale electricity markets—because, once again, there is no regulatory “no man’s land.” Transcontinental, 365 U. S., at 19. The FPA mandates that FERC review, and ensure the reasonableness of, every wholesale rule and practice. See 16 U. S. C. §§824d(a), 824e(a); supra, at 3, 14–15. If FERC could not carry out that duty for demand response, then those programs could not go forward. And that outcome would flout the FPA’s core objects. The statute aims to protect “against excessive prices” and ensure effective transmission of electric power. Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414, 418 (1952) ; see Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973) . As shown above, FERC has amply explained how wholesale demand response helps to achieve those ends, by bringing down costs and preventing service interruptions in peak periods. See supra, at 20. No one taking part in the rulemaking process—not even EPSA—seriously challenged that account. Even as he objected to FERC’s compensation formula, Commissioner Moeller noted the unanimity of opinion as to demand response’s value: “[N]owhere did I review any comment or hear any testimony that questioned the benefit of having demand response resources participate in the organized wholesale energy markets. On this point, there is no debate.” 76 Fed. Reg. 16679; see also App. 82, EPSA, Comments on Proposed Rule (avowing “full[ ] support” for demand response participation in wholesale markets because of its “economic and operational” benefits).[11] Congress itself agreed, “encourag[ing]” greater use of demand response participation at the wholesale level. EPAct §1252(f ), 119Stat. 966. That undisputed judgment extinguishes any last flicker of life in EPSA’s argument. We will not read the FPA, against its clear terms, to halt a practice that so evidently enables the Commission to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market. III These cases present a second, narrower question: Is FERC’s decision to compensate demand response providers at LMP—the same price paid to generators—arbitrary and capricious? Recall here the basic issue. See supra, at 9–12. Wholesale market operators pay a single price—LMP—for all successful bids to supply electricity at a given time and place. The Rule orders operators to pay the identical price for a successful bid to conserve electric-ity so long as that bid can satisfy a “net benefits test”—meaning that it is sure to bring down costs for wholesale purchasers. In mandating that payment, FERC rejected an alternative proposal under which demand response providers would receive LMP minus G (LMP-G), where G is the retail rate for electricity. According to EPSA and others favoring that approach, demand response providers get a windfall—a kind of “double-payment”—unless market operators subtract the savings associated with conserving electricity from the ordinary compensation level. 76 Fed. Reg. 16663, ¶24. EPSA now claims that FERC failed to adequately justify its choice of LMP rather than LMP-G. In reviewing that decision, we may not substitute our own judgment for that of the Commission. The “scope of review under the ‘arbitrary and capricious’ standard is narrow.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) . A court is not to ask whether a regulatory decision is the best one possible or even whether it is better than the alternatives. Rather, the court must uphold a rule if the agency has “examine[d] the relevant [considerations] and articulate[d] a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” Ibid. (internal quotation marks omitted). And nowhere is that more true than in a technical area like electricity rate design: “[W]e afford great deference to the Commission in its rate decisions.” Morgan Stanley, 554 U. S., at 532. Here, the Commission gave a detailed explanation of its choice of LMP. See 76 Fed. Reg. 16661–16669, ¶¶18–67. Relying on an eminent regulatory economist’s views, FERC chiefly reasoned that demand response bids should get the same compensation as generators’ bids because both provide the same value to a wholesale market. See id., at 16662–16664, 16667–16668, ¶¶20, 31, 57, 61; see also App. 829–851, Reply Affidavit of Dr. Alfred E. Kahn (Aug. 30, 2010) (Kahn Affidavit). FERC noted that a market operator needs to constantly balance supply and demand, and that either kind of bid can perform that service cost-effectively—i.e., in a way that lowers costs for wholesale purchasers. See 76 Fed. Reg. 16667–16668, ¶¶56, 61. A compensation system, FERC concluded, therefore should place the two kinds of bids “on a competitive par.” Id., at 16668, ¶61 (quoting Kahn Affidavit); see also App. 830, Kahn Affidavit (stating that “economic efficiency requires” compensating the two equally given their equivalent function in a “competitive power market[ ]”). With both supply and demand response available on equal terms, the operator will select whichever bids, of whichever kind, provide the needed electricity at the lowest possible cost. See Rehearing Order, 137 FERC, at 62,301–62,302, ¶68 (“By ensuring that both . . . receive the same compensation for the same service, we expect the Final Rule to enhance the competitiveness” of wholesale markets and “result in just and reasonable rates”). That rationale received added support from FERC’s adoption of the net benefits test. The Commission realized during its rulemaking that in some circumstances a demand response bid—despite reducing the wholesale rate—does not provide the same value as generation. See 76 Fed. Reg. 16664–16665, ¶38. As described earlier, that happens when the distinctive costs associated with compensating a demand response bid exceed the savings from a lower wholesale rate: The purchaser then winds up paying more than if the operator had accepted the best (even though higher priced) supply bid available. See supra, at 10–11. And so FERC developed the net benefits test to filter out such cases. See 76 Fed. Reg. 16666–16667, ¶¶50–53. With that standard in place, LMP is paid only to demand response bids that benefit wholesale purchasers—in other words, to those that function as “cost-effective alternative[s] to the next highest-bid generation.” Id., at 16667, ¶54. Thus, under the Commission’s approach, a demand response provider will receive the same compensation as a generator only when it is in fact providing the same service to the wholesale market. See ibid., ¶53. The Commission responded at length to EPSA’s con-trary view that paying LMP, even in that situation, will overcompensate demand response providers because they are also “effectively receiv[ing] ‘G,’ the retail rate that they do not need to pay.” Id., at 16668, ¶60. FERC explained that compensation ordinarily reflects only the value of the service an entity provides—not the costs it incurs, or benefits it obtains, in the process. So when a generator presents a bid, “the Commission does not inquire into the costs or benefits of production.” Ibid., ¶62. Different power plants have different cost structures. And, indeed, some plants receive tax credits and similar incentive payments for their activities, while others do not. See Rehearing Order, 137 FERC, at 62,301, ¶65, and n. 122. But the Commission had long since decided that such matters are irrelevant: Paying LMP to all generators—although some then walk away with more profit and some with less—“encourages more efficient supply and demand decisions.” 76 Fed. Reg. 16668, ¶62 (internal quotation marks omitted). And the Commission could see no economic reason to treat demand response providers any differently. Like generators, they too experience a range of benefits and costs—both the benefits of not paying for electricity and the costs of not using it at a certain time. But, FERC again concluded, that is immaterial: To increase competition and optimally balance supply and demand, market operators should compensate demand response providers, like generators, based on their contribution to the wholesale system. See ibid.; 137 FERC, at 62,300, ¶60. Moreover, FERC found, paying LMP will help demand response providers overcome certain barriers to participation in the wholesale market. See 76 Fed. Reg. 16667–16668, ¶¶57–59. Commenters had detailed significant start-up expenses associated with demand response, including the cost of installing necessary metering technol-ogy and energy management systems. See id., at 16661, ¶18, 16667–16668, ¶57; see also, e.g., App. 356, Viridity Energy, Inc., Comments on Proposed Rule on Demand Response Compensation in Organized Wholesale Energy Markets (May 13, 2010) (noting the “capital investments and operational changes needed” for demand response participation). The Commission agreed that such factors inhibit potential demand responders from competing with generators in the wholesale markets. See 76 Fed. Reg. 16668, ¶59. It concluded that rewarding demand response at LMP (which is, in any event, the price reflecting its value to the market) will encourage that competition and, in turn, bring down wholesale prices. See ibid. Finally, the Commission noted that determining the “G” in the formula LMP-G is easier proposed than accomplished. See ibid., ¶63. Retail rates vary across and even within States, and change over time as well. Accordingly, FERC concluded, requiring market operators to incorporate G into their prices, “even though perhaps feasible,” would “create practical difficulties.” Ibid. Better, then, not to impose that administrative burden. All of that together is enough. The Commission, not this or any other court, regulates electricity rates. The dis-puted question here involves both technical understanding and policy judgment. The Commission addressed that issue seriously and carefully, providing reasons in support of its position and responding to the principal alternative advanced. In upholding that action, we do not discount the cogency of EPSA’s arguments in favor of LMP-G. Nor do we say that in opting for LMP instead, FERC made the better call. It is not our job to render that judgment, on which reasonable minds can differ. Our important but limited role is to ensure that the Commission engaged in reasoned decisionmaking—that it weighed competing views, selected a compensation formula with adequate support in the record, and intelligibly explained thereasons for making that choice. FERC satisfied that standard. IV FERC’s statutory authority extends to the Rule at issue here addressing wholesale demand response. The Rule governs a practice directly affecting wholesale electricity rates. And although (inevitably) influencing the retail market too, the Rule does not intrude on the States’ power to regulate retail sales. FERC set the terms of transactions occurring in the organized wholesale markets, so as to ensure the reasonableness of wholesale prices and the reliability of the interstate grid—just as the FPA contemplates. And in choosing a compensation formula, the Commission met its duty of reasoned judgment. FERC took full account of the alternative policies proposed, and adequately supported and explained its decision. Accordingly, we reverse the judgment of the Court of Appeals for the District of Columbia Circuit and remand the cases 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 To be more precise, LMP generally includes, in addition to the price of the highest-accepted bid, certain costs of moving power through the grid. But those costs are not relevant here, and we therefore disregard them. 2 Differently designed demand response programs can operate in retail markets. Some States, for example, either encourage or require utilities to offer “critical-peak rebates” to customers for curtailing electricity use at times of high load. See Energy Primer 45. 3 The dissent misreads this subsection of the EPAct in suggesting that it encourages States’ use of retail demand response, rather than the wholesale programs at issue here. See post, at 8–9 (opinion of Scalia, J.); n. 2, supra. The prior subsection, §1252(e), as the dissent notes, promotes demand response in the States—but then the EPAct switches gears. Subsection (f) expressly addresses the programs of “regional electricity entit[ies]”—that is, wholesale market operators. Indeed, the provision lists all the markets those operators run: not just the electricity market involved here, but also the “capacity and ancillary service markets.” Those are established components of the wholesale system with no counterparts at the state level. See Energy Primer 59. 4 The explanation is a stylized version of the actual phenomenon. In reality, LSEs rarely drop out of the market entirely because of demand response; instead, they will merely order less electricity. But the effect is the same as in the text, because the total cost of accepted bids is spread among LSEs in proportion to the units of electricity they purchase; and as those units decline, each remaining one bears a greater share of the bill. 5 Because we think FERC’s authority clear, we need not address the Government’s alternative contention that FERC’s interpretation of the statute is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . 6 EPSA additionally cites §824(a) as constraining the Commission’s authority, see Brief for Respondent EPSA et al. 25, 31, 43 (Brief for Respondents), but that provision adds nothing to the analysis. Section 824(a), the FPA’s “declaration of policy,” states that federal regulation of electricity is to “extend only to those matters which are not subject to regulation by the States.” We have often explained that this declaration serves only to frame the Act’s basic structure and purpose. See, e.g., New York, 535 U. S., at 22 (Section 824(a) “broadly expresse[s] [the Act’s] purpose” (quoting FPC v. Southern Cal. Edison Co., 376 U. S. 205, 215 (1964) ); id., at 215 (Section 824(a) is “merely a ‘policy declaration . . . of great generality’ ” (quoting Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 527 (1945) )). That means, as applied to the issue here, that §824(a) merely points toward the division of regulatory authority that §824(b) carries out. The operative provision is what counts. 7 The dissent disputes this framing of the issue, but its criticism (made by neither EPSA nor its amici) is irrelevant to deciding this case. According to the dissent, the FPA prohibits FERC from regulating not only retail sales of electricity (as we agree) but also any other sales of electricity aside from wholesale sales. See post, at 2–4. But the dissent turns out not to argue that the Rule regulates some kind of non-retail, non-wholesale sale of electric energy (whatever that might be). Rather, the dissent claims that the Rule regulates retail sales, see post, at 4–6—exactly the point that we address, and reject, in the following pages. And in any event, the dissent’s framing of the issue is wrong if and to the extent it posits some undefined category of other electricity sales falling within neither FERC’s nor the States’ regulatory authority. Sales of electric energy come in two varieties: wholesale and retail. The very case the dissent relies on recognizes that fact by referring to “other sales, that is, to direct sales for consumptive use.” Panhandle Eastern Pipe Line Co. v. Public Serv. Comm’n of Ind., 332 U. S. 507, 516 (1947) . FERC regulates interstate wholesale sales of electricity; the States regulate retail sales of electricity. And FERC may also regulate, as it did here, practices and rules affecting wholesale prices—that is, matters beyond wholesale sales themselves—so long as, in doing so, it does not trespass on the States’ authority to regulate retail sales of electric power. See supra, at 3. 8 The dissent offers, alternatively, a definition of “price,” but that only further proves our point. “Price,” says the dissent, is “[t]he amount of money or other consideration asked for or given in exchange for something else.” Post, at 6 (quoting Black’s Law Dictionary 1380). But the “effective” rates posited by EPSA and the dissent do not meet that test. If $10 is the actual rate for a unit of retail electricity, that is the only amount either “asked for” or “given” in exchange for power. A retail customer is asked to pay $10 by its LSE, and if it buys that electricity, it gives the LSE that same $10. By contrast, the $15 “effective” rate is neither asked for nor given by anyone. 9 The dissent replaces our simple, real-world example with a convoluted, fictitious one—but once again merely confirms our point. Suppose, the dissent says, that an airline cancels a passenger’s $400 ticket; gives him a refund plus an extra $300; and then tells him that if he wants to repurchase the ticket, he must pay $700. Aha!, says the dissent—isn’t the price now $700? See post, at 5–6. Well, yes it is, because that is now the actual amount the passenger will have to hand over to the airline to receive a ticket in exchange (or in the dissent’s definition of price, the amount “asked for” and “given,” see n. 8, supra). In other words, in search of an intuitive way to explain its “effective rate” theory, the dissent must rely on an “actual rate” hypothetical. But all that does is highlight the distance, captured in the law, between real prices (reflecting amounts paid) and effective ones (reflecting opportunity costs). 10 The dissent contests this point (complaining that our decades’ worth of precedents affirming it partly rely on legislative history), but the example the dissent offers in response misses the mark. See post, at 7–8. The dissent hypothesizes a rule enabling generators to sell directly to consumers and fixing all generation, transmission, and retail rates. But of course neither FERC nor the States could issue such a rule: If FERC did so, it would interfere with the States’ authority over retail sales and rates as well as (most) generation; if a State did so, it would interfere with FERC’s power over transmission. Thus, to implement such a scheme, the States would need to do some things and FERC to do others. And if the one or the other declined to cooperate, then the full scheme could not proceed. But that just goes to show that the FPA divides regulatory power over electricity matters between FERC and the States. The example does nothing to demonstrate that some electricity transactions can proceed outside any regulator’s authority. 11 EPSA now contends that wholesale demand response is unnecessary because state regulators can adopt programs to reduce demand at the retail level. See Brief for Respondents 46–47. For example, States can insist that utilities give rebates to customers for not using energy at certain times. See n. 2, supra. But according to both the Commission and market participants, state-level programs cannot offer nearly the same benefits as wholesale demand response because individual utilities lack the regional scope and real-time information needed to identify when demand response will lower prices and ensure reliability system-wide. See 73 Fed. Reg. 64103, ¶18; Energy Primer 45–46; Brief for NRG Energy, Inc., as Amicus Curiae 20–22. Similarly, FERC addressed and rejected the dissent’s suggestion that wholesale market operators could pay LSEs to reduce their electricity purchases: Because LSEs lose revenues whenever demand goes down, any demand response programs targeting those actors would be highly inefficient. See FERC, Assessment of Demand Response and Advanced Metering 72 (2006); Tr. of Oral Arg. 56 (Solicitor General noting that LSEs engaged in demand response would be “cannibaliz[ing] their own 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 . SUPREME COURT OF THE UNITED STATES Syllabus FEDERAL ENERGY REGULATORY COMMISSION v. ELECTRIC POWER SUPPLY ASSOCIATION et al. certiorari to the united states court of appeals for the district of columbia circuit[1] No. 14–840. Argued October 14, 2015—Decided January 25, 2016 The Federal Power Act (FPA) authorizes the Federal Energy Regulatory Commission (FERC) to regulate “the sale of electric energy at wholesale in interstate commerce,” including both wholesale electricity rates and any rule or practice “affecting” such rates. 16 U. S. C. §§824(b), 824d(a), 824e(a). But it places beyond FERC’s power, leaving to the States alone, the regulation of “any other sale”—i.e., any retail sale—of electricity. §824(b). In an increasingly competitive interstate electricity market, FERC has undertaken to ensure “just and reasonable” wholesale rates, §824d(a), by encouraging the creation of nonprofit entities to manage regions of the nationwide electricity grid. These wholesale market operators administer their portions of the grid to ensure that the network conducts electricity reliably, and each holds competitive auctions to set wholesale prices. These auctions balance supply and demand continuously by matching bids to provide electricity from generators with orders from utilities and other “load-serving entities” (LSEs) that buy power at wholesale for resale to users. All bids to supply electricity are stacked from lowest to highest, and accepted in that order until all requests for power have been met. Every electricity supplier is paid the price of the highest-accepted bid, known as the locational marginal price (LMP). In periods of high electricity demand, prices can reach extremely high levels as the least efficient generators have their supply bids accepted in the wholesale market auctions. Not only do rates rise dramatically during these peak periods, but the increased flow of electricity threatens to overload the grid and cause substantial service problems. Faced with these challenges, wholesale market operators devised wholesale demand response programs, which pay consumers for commitments to reduce their use of power during these peak periods. Just like bids to supply electricity, offers from aggregators of multiple users of electricity or large individual consumers to reduce consumption can be bid into the wholesale market auctions. When it costs less to pay consumers to refrain from using power than it does to pay producers to supply more of it, demand response can lower these wholesale prices and increase grid reliability. Wholesale operators began integrating these programs into their markets some 15 years ago and FERC authorized their use. Congress subsequently encouraged further development of demand response. Spurred on by Congress, FERC issued Order No. 719, which, among other things, requires wholesale market operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users’ retail purchases bars demand response participation. 18 CFR §35.28(g)(1). Concerned that the order had not gone far enough, FERC then issued the rule under review here, Order No. 745. §35.28(g)(1)(v) (Rule). It requires market operators to pay the same price to demand response providers for conserving energy as to generators for producing it, so long as a “net benefits test,” which ensures that accepted bids actually save consumers money, is met. The Rule rejected an alternative compensation scheme that would have subtracted from LMP the savings consumers receive from not buying electricity in the retail market, a formula known as LMP-G. The Rule also rejected claims that FERC lacked statutory authority to regulate the compensation operators pay for demand response bids. The Court of Appeals for the District of Columbia Circuit vacated the Rule, holding that FERC lacked authority to issue the order because it directly regulates the retail electricity market, and holding in the alternative that the Rule’s compensation scheme is arbitrary and capricious under the Administrative Procedure Act. Held: 1. The FPA provides FERC with the authority to regulate wholesale market operators’ compensation of demand response bids. The Court’s analysis proceeds in three parts. First, the practices at issue directly affect wholesale rates. Second, FERC has not regulated retail sales. Taken together, these conclusions establish that the Rule complies with the FPA’s plain terms. Third, the contrary view would conflict with the FPA’s core purposes. . (a) The practices at issue directly affect wholesale rates. The FPA has delegated to FERC the authority—and, indeed, the duty—to ensure that rules or practices “affecting” wholesale rates are just and reasonable. §§824d(a), 824e(a). To prevent the statute from assuming near-infinite breadth, see e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , this Court adopts the D. C. Circuit’s common-sense construction limiting FERC’s “affecting” jurisdiction to rules or practices that “directly affect the [wholesale] rate,” California Independent System Operator Corp. v. FERC, 372 F. 3d 395, 403 (emphasis added). That standard is easily met here. Wholesale demand response is all about reducing wholesale rates; so too the rules and practices that determine how those programs operate. That is particularly true here, as the formula for compensating demand response necessarily lowers wholesale electricity prices by displacing higher-priced generation bids. . (b) The Rule also does not regulate retail electricity sales in violation of §824(b). A FERC regulation does not run afoul of §824(b)’s proscription just because it affects the quantity or terms of retail sales. Transactions occurring on the wholesale market have natural consequences at the retail level, and so too, of necessity, will FERC’s regulation of those wholesale matters. That is of no legal consequence. See, e.g., Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 –373. When FERC regulates what takes place on the wholesale market, as part of carrying out its charge to improve how that market runs, then no matter the effect on retail rates, §824(b) imposes no bar. Here, every aspect of FERC’s regulatory plan happens exclusively on the wholesale market and governs exclusively that market’s rules. The Commission’s justifications for regulating demand response are likewise only about improving the wholesale market. Cf. Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___. . (c) In addition, EPSA’s position would subvert the FPA. EPSA’s arguments suggest that the entire practice of wholesale demand response falls outside what FERC can regulate, and EPSA concedes that States also lack that authority. But under the FPA, wholesale demand response programs could not go forward if no entity had jurisdiction to regulate them. That outcome would flout the FPA’s core purposes of protecting “against excessive prices” and ensuring effective transmission of electric power. Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414 ; see Gulf States Util. Co. v. FPC, 411 U. S. 747 . The FPA should not be read, against its clear terms, to halt a practice that so evidently enables FERC to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market. . 2. FERC’s decision to compensate demand response providers at LMP—the same price paid to generators—instead of at LMP-G, is not arbitrary and capricious. Under the narrow scope of review in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 , this Court’s important but limited role is to ensure that FERC engaged in reasoned decisionmaking—that it weighed competing views, selected a compensation formula with adequate support in the record, and intelligibly explained the reasons for making that decision. Here, FERC provided a detailed explanation of its choice of LMP and responded at length to contrary views. FERC’s serious and careful discussion of the issue satisfies the arbitrary and capricious standard. . 753 F. 3d 216, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, 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. 14–841, EnerNOC, Inc., et al. v. Electric Power Supply Association et al., also on certiorari to the same court.

The Federal Power Act (FPA or Act) authorizes the Federal Energy Regulatory Commission (FERC) to regulate the sale of electric energy at wholesale in interstate commerce, including both wholesale electricity rates and any rule or practice "affecting" such rates. But the law places beyond FERC's power, and leaves to the States alone, the regulation of "any other sale" (most notably, any retail sale) of electricity. The FPA obligates FERC to oversee all prices for those interstate transactions and all rules and practices affecting such prices, including all rates and regulations affecting or pertaining to such rates, but it also provides that the FERC shall determine what is reasonable and what is not reasonable, and shall determine whether the same is true and reasonable. Pursuant to the FPA, FERC issued an order requiring wholesale market operators to compensate demand response providers for conserving energy as to generators for making more of it. FERC also issued a regulation requiring such operators to receive demand response bids from aggregators of electricity consumers, except when the state regulatory authority overseeing those users' retail purchases bars such demand response participation. That regulation challenged here was issued by FERC, which has the requisite statutory power. The Court of Appeals vacated the regulation as being arbitrary and capricious under the Administrative Procedure Act, holding that FERC lacked authority to issue the regulation even though demand response compensation affects the wholesale market, and that the Rule exceeded that limit. Held: 1. FERC has the statutory authority to regulate wholesale demand response. . (a) FERC addressed the issue seriously and carefully, providing reasons in support of its position and responding to the principal alternative advanced. P.. (b) The Rule at issue here does not regulate retail electricity sales. It is the wholesale electricity market that is inextricably linked to the regulatory scheme for federal regulation of the wholesale electric energy market, 16 U. S. C. §824(b)(1). Moreover, the Rule attempts to ensure that rules or practices affecting wholesale rates are just and reasonable by requiring market operators, like generators, to pay LMP for any accepted demand response bid, just as they do for successful supply bids, and by specifying the net benefits test that determines whether paying LMP will actually save LSEs money. See id., at 2. But FERC did not err in choosing LMP instead. In choosing a compensation formula, the Commission met its duty of reasoned judgment, and adequately supported and explained its decision. Accordingly, the cases are remanded. 753 F. 3d 216, reversed in part, and remanded in part. Justice Alito took no part in the consideration or decision of these cases.

2015_14-981

https://www.oyez.org/cases/2015/14-981

.The Court is asked once again to consider whether the race-conscious admissions program at the University of Texas is lawful under the Equal Protection Clause.IThe University of Texas at Austin (or University) relies upon a complex system of admissions that has undergone significant evolution over the past two decades. Until 1996, the University made its admissions decisions primarily based on a measure called “Academic Index” (or AI), which it calculated by combining an applicant’sSAT score and academic performance in high school. In assessing applicants, preference was given to racialminorities.In 1996, the Court of Appeals for the Fifth Circuit invalidated this admissions system, holding that any consideration of race in college admissions violates the Equal Protection Clause. See Hopwood v. Texas, 78 F. 3d 932, 934–935, 948.One year later the University adopted a new admissions policy. Instead of considering race, the University began making admissions decisions based on an applicant’s AI and his or her “Personal Achievement Index” (PAI). The PAI was a numerical score based on a holistic review of an application. Included in the number were the applicant’s essays, leadership and work experience, extracurricular activities, community service, and other “special characteristics” that might give the admissions committee insight into a student’s background. Consistent with Hopwood, race was not a consideration in calculating an applicant’s AI or PAI.The Texas Legislature responded to Hopwood as well. It enacted H. B. 588, commonly known as the Top Ten Percent Law. Tex. Educ. Code Ann. §51.803 (West Cum. Supp. 2015). As its name suggests, the Top Ten Percent Law guarantees college admission to students who graduate from a Texas high school in the top 10 percent of their class. Those students may choose to attend any of the public universities in the State.The University implemented the Top Ten Percent Law in 1998. After first admitting any student who qualified for admission under that law, the University filled the remainder of its incoming freshman class using a combination of an applicant’s AI and PAI scores—again, without considering race.The University used this admissions system until 2003, when this Court decided the companion cases of Grutter v. Bollinger,539 U. S. 306, and Gratz v. Bollinger,539 U. S. 244. In Gratz, this Court struck down the University of Michigan’s undergraduate system of admissions, which at the time allocated predetermined points to racial minority candidates. See 539 U. S., at 255, 275–276. In Grutter, however, the Court upheld the University of Michigan Law School’s system of holistic review—a system that did not mechanically assign points but rather treated race as a relevant feature within the broader context of a candidate’s application. See 539 U. S., at 337, 343–344. In upholding this nuanced use of race, Grutter implicitly overruled Hopwood’s categorical prohibition.In the wake of Grutter, the University embarked upon a year-long study seeking to ascertain whether its admissions policy was allowing it to provide “the educational benefits of a diverse student body . . . to all of the University’s undergraduate students.” App. 481a–482a (affidavit of N. Bruce Walker ¶11 (Walker Aff.)); see also id., at 445a–447a. The University concluded that its admissions policy was not providing these benefits. Supp. App. 24a–25a.To change its system, the University submitted a proposal to the Board of Regents that requested permission to begin taking race into consideration as one of “the many ways in which [an] academically qualified individual might contribute to, and benefit from, the rich, diverse, and challenging educational environment of the Univer-sity.” Id., at 23a. After the board approved the proposal, the University adopted a new admissions policy to implement it. The University has continued to use that admissions policy to this day.Although the University’s new admissions policy was a direct result of Grutter, it is not identical to the policy this Court approved in that case. Instead, consistent with the State’s legislative directive, the University continues to fill a significant majority of its class through the Top Ten Percent Plan (or Plan). Today, up to 75 percent of the places in the freshman class are filled through the Plan. As a practical matter, this 75 percent cap, which has now been fixed by statute, means that, while the Plan continues to be referenced as a “Top Ten Percent Plan,” a student actually needs to finish in the top seven or eight percent of his or her class in order to be admitted under this category.The University did adopt an approach similar to the one in Grutter for the remaining 25 percent or so of the incoming class. This portion of the class continues to be admitted based on a combination of their AI and PAI scores. Now, however, race is given weight as a subfactor within the PAI. The PAI is a number from 1 to 6 (6 is the best) that is based on two primary components. The first component is the average score a reader gives the applicant on two required essays. The second component is a full-file review that results in another 1-to-6 score, the “Personal Achievement Score” or PAS. The PAS is determined by a separate reader, who (1) rereads the applicant’s required essays, (2) reviews any supplemental information the applicant submits (letters of recommendation, resumes, an additional optional essay, writing samples, artwork, etc.), and (3) evaluates the applicant’s potential contributions to the University’s student body based on the applicant’s leadership experience, extracurricular activities, awards/honors, community service, and other “special circumstances.”“Special circumstances” include the socioeconomic status of the applicant’s family, the socioeconomic status of the applicant’s school, the applicant’s family responsibilities, whether the applicant lives in a single-parent home, the applicant’s SAT score in relation to the average SAT score at the applicant’s school, the language spoken at the applicant’s home, and, finally, the applicant’s race. See App. 218a–220a, 430a.Both the essay readers and the full-file readers who assign applicants their PAI undergo extensive training to ensure that they are scoring applicants consistently. Deposition of Brian Breman 9–14, Record in No. 1: 08–CV–00263, (WD Tex.), Doc. 96–3. The Admissions Office also undertakes regular “reliability analyses” to “measure the frequency of readers scoring within one point of each other.” App. 474a (affidavit of Gary M. Lavergne ¶8); see also id., at 253a (deposition of Kedra Ishop (Ishop Dep.)). Both the intensive training and the reliability analyses aim to ensure that similarly situated applicants are being treated identically regardless of which admissions officer reads the file.Once the essay and full-file readers have calculated each applicant’s AI and PAI scores, admissions officers from each school within the University set a cutoff PAI/AI score combination for admission, and then admit all of the applicants who are above that cutoff point. In setting the cutoff, those admissions officers only know how many applicants received a given PAI/AI score combination. They do not know what factors went into calculating those applicants’ scores. The admissions officers who make the final decision as to whether a particular applicant will be admitted make that decision without knowing the applicant’s race. Race enters the admissions process, then, at one stage and one stage only—the calculation of the PAS.Therefore, although admissions officers can consider race as a positive feature of a minority student’s application, there is no dispute that race is but a “factor of a factor of a factor” in the holistic-review calculus. 645 F. Supp. 2d 587, 608 (WD Tex. 2009). Furthermore, consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities. Id., at 606 (“Plaintiffs cite no evidence to show racial groups other than African-Americans and Hispanics are excluded from benefitting from UT’s consideration of race in admissions. As the Defendants point out, the consideration of race, within the full context of the entire application, may be beneficial to any UT Austin applicant—including whites and Asian-Americans”); see also Brief for Asian American Legal Defense and Education Fund et al. as Amici Curiae 12 (the contention that the University discriminates against Asian-Americans is “entirely unsupported by evidence in the record or empirical data”). There is also no dispute, however, that race, when considered in conjunction with other aspects of an applicant’s background, can alter an applicant’s PAS score. Thus, race, in this indirect fashion, considered with all of the other factors that make up an applicant’s AI and PAI scores, can make a difference to whether an application is accepted or rejected.Petitioner Abigail Fisher applied for admission to the University’s 2008 freshman class. She was not in the top 10 percent of her high school class, so she was evaluated for admission through holistic, full-file review. Petitioner’s application was rejected.Petitioner then filed suit alleging that the University’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause. See U. S. Const., Amdt. 14, §1 (no State shall “deny to any person within its jurisdiction the equal protection of the laws”). The District Court entered summary judgment in the University’s favor, and the Court of Appeals affirmed.This Court granted certiorari and vacated the judgment of the Court of Appeals, Fisher v. University of Tex. at Austin, 570 U. S. ___ (2013) (Fisher I ), because it had applied an overly deferential “good-faith” standard in assessing the constitutionality of the University’s program. The Court remanded the case for the Court of Appeals to assess the parties’ claims under the correct legal standard.Without further remanding to the District Court, the Court of Appeals again affirmed the entry of summary judgment in the University’s favor. 758 F. 3d 633 (CA5 2014). This Court granted certiorari for a second time, 576 U. S. ___ (2015), and now affirms.IIFisher I set forth three controlling principles relevant to assessing the constitutionality of a public university’s affirmative-action program. First, “because racial characteristics so seldom provide a relevant basis for disparate treatment,” Richmond v. J. A. Croson Co.,488 U. S. 469,505 (1989), “[r]ace may not be considered [by a university] unless the admissions process can withstand strict scru-tiny,” Fisher I, 570 U. S., at ___ (slip op., at 7). Strict scru-tiny requires the university to demonstrate with clarity that its “ ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’ ” Ibid.Second, Fisher I confirmed that “the decision to pursue ‘the educational benefits that flow from student body diversity’ . . . is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Id., at ___ (slip op, at 9). A university cannot impose a fixed quota or otherwise “define diversity as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’ ” Ibid. Once, however, a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.” Ibid. (internal quotation marks and citation omitted).Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. Id., at ___ (slip op., at 10). A university, Fisher I explained, bears the burden of proving a “nonracial approach” would not promote its interest in the educational benefits of diversity “about as well and at tolerable administrative expense.” Id., at ___ (slip op., at 11) (internal quotation marks omitted). Though “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative” or “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups,” Grutter, 539 U. S., at 339, it does impose “on the university the ultimate burden of demonstrating” that “race-neutral alternatives” that are both “available” and “workable” “do not suffice.” Fisher I, 570 U. S., at ___ (slip op., at 11).Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admissions program at issue in this case. The Court held only that the District Court and the Court of Appeals had “confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications.” Id., at ___ (slip op., at 12) The Court remanded the case, with instructions to evaluate the record under the correct standard and to determine whether the University had made “a showing that its plan is narrowly tailored to achieve” the educational benefits that flow from diversity. Id., at ___ (slip op., at 13). On remand, the Court of Appeals determined that the program conformed with the strict scrutiny mandated by Fisher I. See 758 F. 3d, at 659–660. Judge Garzadissented.IIIThe University’s program is sui generis. Unlike other approaches to college admissions considered by this Court, it combines holistic review with a percentage plan. This approach gave rise to an unusual consequence in this case: The component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan. Because petitioner did not graduate in the top 10 percent of her high school class, she was categorically ineligible for more than three-fourths of the slots in the incoming freshman class. It seems quite plausible, then, to think that petitioner would have had a better chance of being admitted to the University if the school used race-conscious holistic review to select its entire incoming class, as was the case in Grutter.Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not challenged it. For that reason, throughout this litigation, the Top Ten Percent Plan has been taken, somewhat artificially, as a given premise.Petitioner’s acceptance of the Top Ten Percent Plan complicates this Court’s review. In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.In an ordinary case, this evidentiary gap perhaps could be filled by a remand to the district court for further factfinding. When petitioner’s application was rejected, however, the University’s combined percentage-plan/holistic-review approach to admission had been in effect for just three years. While studies undertaken over the eight years since then may be of significant value in determining the constitutionality of the University’s current admissions policy, that evidence has little bearing on whether petitioner received equal treatment when her application was rejected in 2008. If the Court were to remand, therefore, further factfinding would be limited to a narrow 3-year sample, review of which might yield little insight.Furthermore, as discussed above, the University lacks any authority to alter the role of the Top Ten Percent Plan in its admissions process. The Plan was mandated by the Texas Legislature in the wake of Hopwood, so the University, like petitioner in this litigation, has likely taken the Plan as a given since its implementation in 1998. If the University had no reason to think that it could deviate from the Top Ten Percent Plan, it similarly had no reason to keep extensive data on the Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict-scrutiny burden for a school that employs race-conscious review.Under the circumstances of this case, then, a remand would do nothing more than prolong a suit that has already persisted for eight years and cost the parties on both sides significant resources. Petitioner long since has graduated from another college, and the University’s policy—and the data on which it first was based—may have evolved or changed in material ways.The fact that this case has been litigated on a somewhat artificial basis, furthermore, may limit its value for prospective guidance. The Texas Legislature, in enacting the Top Ten Percent Plan, cannot much be criticized, for it was responding to Hopwood, which at the time was binding law in the State of Texas. That legislative response, in turn, circumscribed the University’s discretion in crafting its admissions policy. These circumstances refute any criticism that the University did not make good-faith efforts to comply with the law.That does not diminish, however, the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances. The University en-gages in periodic reassessment of the constitutionality, and efficacy, of its admissions program. See Supp. App. 32a; App. 448a. Going forward, that assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admissions plan.As the University examines this data, it should remain mindful that diversity takes many forms. Formalistic racial classifications may sometimes fail to capture diversity in all of its dimensions and, when used in a divisive manner, could undermine the educational benefits the University values. Through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is neces-sary to meet its compelling interest. The University’s examination of the data it has acquired in the years since petitioner’s application, for these reasons, must proceed with full respect for the constraints imposed by the Equal Protection Clause. The type of data collected, and the manner in which it is considered, will have a significant bearing on how the University must shape its admissions policy to satisfy strict scrutiny in the years to come. Here, however, the Court is necessarily limited to the narrow question before it: whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.IVIn seeking to reverse the judgment of the Court of Appeals, petitioner makes four arguments. First, she argues that the University has not articulated its compelling interest with sufficient clarity. According to petitioner, the University must set forth more precisely the level of minority enrollment that would constitute a “critical mass.” Without a clearer sense of what the University’s ultimate goal is, petitioner argues, a reviewing court cannot assess whether the University’s admissions program is narrowly tailored to that goal.As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining “the educational benefits that flow from student body diversity.” Fisher I, 570 U. S., at ___ (slip op., at 9) (internal quotation marks omitted); see also Grutter, 539 U. S., at 328. As this Court has said, enrolling a diverse student body “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” Id., at 330 (internal quotation marks and alteration omitted). Equally important, “student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.” Ibid. (internal quotation marks omitted).Increasing minority enrollment may be instrumental to these educational benefits, but it is not, as petitioner seems to suggest, a goal that can or should be reduced to pure numbers. Indeed, since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.The record reveals that in first setting forth its current admissions policy, the University articulated concrete and precise goals. On the first page of its 2004 “Proposal to Consider Race and Ethnicity in Admissions,” the Univer-sity identifies the educational values it seeks to realize through its admissions process: the destruction of stereotypes, the “ ‘promot[ion of] cross-racial understanding,’ ” the preparation of a student body “ ‘for an increasingly diverse workforce and society,’ ” and the “ ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’ ” Supp. App. 1a; see also id., at 69a; App. 314a–315a (deposition of N. Bruce Walker (Walker Dep.)), 478a–479a (Walker Aff. ¶4) (setting forth the same goals). Later in the proposal, the University explains that it strives to provide an “academic environment” that offers a “robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.” Supp. App. 23a. All of these objectives, as a general matter, mirror the “compelling interest” this Court has approved in its prior cases.The University has provided in addition a “reasoned, principled explanation” for its decision to pursue these goals. Fisher I, supra, at ___ (slip op., at 9). The Univer-sity’s 39-page proposal was written following a year-long study, which concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful” in “provid[ing] an educational setting that fosters cross-racial understanding, provid[ing] enlightened discussion and learning, [or] prepar[ing] students to function in an increasingly diverse workforce and society.” Supp. App. 25a; see also App. 481a–482a (Walker Aff. ¶¶8–12) (describing the “thoughtful review” the University undertook when it faced the “important decision . . . whether or not to use race in its admissions process”). Further support for the University’s conclusion can be found in the depositions and affidavits from various admissions officers, all of whom articulate the same, consistent “reasoned, principled explanation.” See, e.g., id., at 253a (Ishop Dep.), 314a–318a, 359a (Walker Dep.), 415a–416a (Defendant’s Statement of Facts), 478a–479a, 481a–482a (Walker Aff. ¶¶4, 10–13). Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record.Second, petitioner argues that the University has no need to consider race because it had already “achieved critical mass” by 2003 using the Top Ten Percent Plan and race-neutral holistic review. Brief for Petitioner 46. Petitioner is correct that a university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan. The record reveals, however, that, at the time of petitioner’s application, the University could not be faulted on this score. Before changing its policy the University conducted “months of study and deliberation, including retreats, interviews, [and] review of data,” App. 446a, and concluded that “[t]he use of race-neutral policies and programs ha[d] not been successful in achieving” sufficient racial diversity at the University, Supp. App. 25a. At no stage in this litigation has petitioner challenged the University’s good faith in conducting its studies, and the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to. See, e.g., post, at 45–46 (opinion of Alito, J.) (describing a 2015 report regarding the admission of applicants who are related to ‘‘politically connected individuals’’).The record itself contains significant evidence, both statistical and anecdotal, in support of the University’s position. To start, the demographic data the University has submitted show consistent stagnation in terms of the percentage of minority students enrolling at the Univer-sity from 1996 to 2002. In 1996, for example, 266 African-American freshmen enrolled, a total that constituted 4.1 percent of the incoming class. In 2003, the year Grutter was decided, 267 African-American students enrolled—again, 4.1 percent of the incoming class. The numbers for Hispanic and Asian-American students tell a similar story. See Supp. App. 43a. Although demographics alone are by no means dispositive, they do have some value as a gauge of the University’s ability to enroll students who can offer underrepresented perspectives.In addition to this broad demographic data, the University put forward evidence that minority students admitted under the Hopwood regime experienced feelings of loneliness and isolation. See, e.g., App. 317a–318a.This anecdotal evidence is, in turn, bolstered by further, more nuanced quantitative data. In 2002, 52 percent of undergraduate classes with at least five students had no African-American students enrolled in them, and 27 percent had only one African-American student. Supp. App. 140a. In other words, only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled. Twelve percent of these classes had no Hispanic students, as compared to 10 percent in 1996. Id., at 74a, 140a. Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.Third, petitioner argues that considering race was not necessary because such consideration has had only a “ ‘minimal impact’ in advancing the [University’s] compelling interest.” Brief for Petitioner 46; see also Tr. of Oral Arg. 23:10–12; 24:13–25:2, 25:24–26:3. Again, the record does not support this assertion. In 2003, 11 percent of the Texas residents enrolled through holistic review were Hispanic and 3.5 percent were African-American. Supp. App. 157a. In 2007, by contrast, 16.9 percent of the Texas holistic-review freshmen were Hispanic and 6.8 percent were African-American. Ibid. Those increases—of 54 percent and 94 percent, respectively—show that consideration of race has had a meaningful, if still limited, effect on the diversity of the University’s freshman class.In any event, it is not a failure of narrow tailoring for the impact of racial consideration to be minor. The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality.Petitioner’s final argument is that “there are numerous other available race-neutral means of achieving” the University’s compelling interest. Brief for Petitioner 47. A review of the record reveals, however, that, at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought. For example, petitioner suggests that the University could intensify its outreach efforts to African-American and Hispanic applicants. But the University submitted extensive evidence of the many ways in which it already had intensified its outreach efforts to those students. The University has created three new scholarship programs, opened new regional admissions centers, increased its recruitment budget by half-a-million dollars, and organized over 1,000 recruitment events. Supp. App. 29a–32a; App. 450a–452a (citing affidavit of Michael Orr ¶¶4–20). Perhaps more significantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review. None of these efforts succeeded, and petitioner fails to offer any meaningful way in which the University could have improved upon them at the time of her application.Petitioner also suggests altering the weight given to academic and socioeconomic factors in the University’s admissions calculus. This proposal ignores the fact that the University tried, and failed, to increase diversity through enhanced consideration of socioeconomic and other factors. And it further ignores this Court’s precedent making clear that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence. Grutter, 539 U. S., at 339.Petitioner’s final suggestion is to uncap the Top Ten Percent Plan, and admit more—if not all—the University’s students through a percentage plan. As an initial matter, petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral, cannot be understood apart from its basic purpose, which is to boost minority enrollment. Percentage plans are “adopted with racially segregated neighborhoods and schools front and center stage.” Fisher I, 570 U. S., at ___ (Ginsburg, J., dissenting) (slip op., at 2). “It is race consciousness, not blindness to race, that drives such plans.” Ibid. Consequently, petitioner cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.Even if, as a matter of raw numbers, minority enrollment would increase under such a regime, petitioner would be hard-pressed to find convincing support for the proposition that college admissions would be improved if they were a function of class rank alone. That approach would sacrifice all other aspects of diversity in pursuit of enrolling a higher number of minority students. A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school, only to find herself just outside of the top decile of her class.These are but examples of the general problem. Class rank is a single metric, and like any single metric, it will capture certain types of people and miss others. This does not imply that students admitted through holistic review are necessarily more capable or more desirable than those admitted through the Top Ten Percent Plan. It merely reflects the fact that privileging one characteristic above all others does not lead to a diverse student body. Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it. See Grutter, supra, at 340 (explaining that percentage plans “may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university”); 758 F. 3d, at 653 (pointing out that the Top Ten Percent Law leaves out students “who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the diversity of [the University’s] educational experience” and “leaves a gap in an admissions process seeking to create the multi-dimensional diversity that [Regents of Univ. of Cal. v. Bakke,438 U. S. 265 (1978),] envisions”). At its center, the Top Ten Percent Plan is a blunt instrument that may well compromise the University’s own definition of the diversity it seeks.In addition to these fundamental problems, an admissions policy that relies exclusively on class rank creates perverse incentives for applicants. Percentage plans “encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.” Gratz, 539 U. S., at 304, n. 10 (Ginsburg, J., dissenting).For all these reasons, although it may be true that the Top Ten Percent Plan in some instances may provide a path out of poverty for those who excel at schools lacking in resources, the Plan cannot serve as the admissions solution that petitioner suggests. Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realisti-cally, the exclusive use of a percentage plan.In short, none of petitioner’s suggested alternatives—nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.* * *A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter,339 U. S. 629,634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez,514 U. S. 549,581 (1995) (Kennedy, J., concurring); see also New State Ice Co. v. Liebmann,285 U. S. 262,311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must con-tinue to use this data to scrutinize the fairness of its admis-sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.The judgment of the Court of Appeals is affirmed.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 . SUPREME COURT OF THE UNITED STATES Syllabus FISHER v. UNIVERSITY OF TEXAS AT AUSTIN et al. certiorari to the united states court of appeals for the fifth circuit No. 14–981. Argued December 9, 2015—Decided June 23, 2016 The University of Texas at Austin (University) uses an undergraduate admissions system containing two components. First, as required by the State’s Top Ten Percent Law, it offers admission to any students who graduate from a Texas high school in the top 10% of their class. It then fills the remainder of its incoming freshman class, some 25%, by combining an applicant’s “Academic Index”—the student’s SAT score and high school academic performance—with the applicant’s “Personal Achievement Index,” a holistic review containing numerous factors, including race. The University adopted its current admissions process in 2004, after a year-long-study of its admissions process—undertaken in the wake of Grutter v. Bollinger, 539 U. S. 306 , and Gratz v. Bollinger, 539 U. S. 244 —led it to conclude that its prior race-neutral system did not reach its goal of providing the educational benefits of diversity to its undergraduate students. Petitioner Abigail Fisher, who was not in the top 10% of her high school class, was denied admission to the University’s 2008 freshman class. She filed suit, alleging that the University’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause. The District Court entered summary judgment in the University’s favor, and the Fifth Circuit affirmed. This Court vacated the judgment, Fisher v. University of Tex. at Austin, 570 U. S. ___ (Fisher I), and remanded the case to the Court of Appeals, so the University’s program could be evaluated under the proper strict scrutiny standard. On remand, the Fifth Circuit again affirmed the entry of summary judgment for the University. Held: The race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause. . (a) Fisher I sets out three controlling principles relevant to assessing the constitutionality of a public university’s affirmative action program. First, a university may not consider race “unless the admissions process can withstand strict scrutiny,” i.e., it must show that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary” to accomplish that purpose. 570 U. S., at ___. Second, “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Id., at ___. Third, when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals, the school bears the burden of demonstrating that “available” and “workable” “race-neutral alternatives” do not suffice. Id., at ___. . (b) The University’s approach to admissions gives rise to an unusual consequence here. The component with the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but the Top Ten Percent Plan. Because petitioner did not challenge the percentage part of the plan, the record is devoid of evidence of its impact on diversity. Remand for further factfinding would serve little purpose, however, because at the time of petitioner’s application, the current plan had been in effect only three years and, in any event, the University lacked authority to alter the percentage plan, which was mandated by the Texas Legislature. These circumstances refute any criticism that the University did not make good faith efforts to comply with the law. The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan, and by tailoring its approach to ensure that race plays no greater role than is necessary to meet its compelling interests. . (c) Drawing all reasonable inferences in her favor, petitioner has not shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected. . (1) Petitioner claims that the University has not articulated its compelling interest with sufficient clarity because it has failed to state more precisely what level of minority enrollment would constitute a “critical mass.” However, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining “the educational benefits that flow from student body diversity.” Fisher I, 570 U. S., at ___. Since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained. On the other hand, asserting an interest in the educational benefits of diversity writ large is insufficient. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. The record here reveals that the University articulated concrete and precise goals—e.g., ending stereotypes, promoting “cross-racial understanding,” preparing students for “an increasingly diverse workforce and society,” and cultivating leaders with “legitimacy in the eyes of the citizenry”—that mirror the compelling interest this Court has approved in prior cases. It also gave a “reasoned, principled explanation” for its decision, id., at ___, in a 39-page proposal written after a year-long study revealed that its race-neutral policies and programs did not meet its goals. . (2) Petitioner also claims that the University need not consider race because it had already “achieved critical mass” by 2003 under the Top Ten Percent Plan and race-neutral holistic review. The record, however, reveals that the University studied and deliberated for months, concluding that race-neutral programs had not achieved the University’s diversity goals, a conclusion supported by significant statistical and anecdotal evidence. . (3) Petitioner argues further that it was unnecessary to consider race because such consideration had only a minor impact on the number of minority students the school admitted. But the record shows that the consideration of race has had a meaningful, if still limited, effect on freshman class diversity. That race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality. P. 15. (4) Finally, petitioner argues that there were numerous other race-neutral means to achieve the University’s goals. However, as the record reveals, none of those alternatives was a workable means of attaining the University’s educational goals, as of the time of her application. . 758 F. 3d 633, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Kagan, J., took no part in the consideration or decision of the case.

The University of Texas at Austin (or University) relies upon a complex system of admissions that has undergone significant evolution over the past two decades. Until 1996, the University made its admissions decisions primarily based on an applicant's artificial intelligence (AI) and his or her personal achievement index (PAI). The PAI was a numerical score based on a holistic review of an application. Included in the number were the applicant's essays, leadership and work experience, extracurricular activities, community service, and other special characteristics that might give the admissions committee insight into a student's background. Consistent with Hopwood v. Texas, 78 F. 3d 932, this Court invalidated this system in Grutter v. Bollinger, 539 U. S. 306, holding that any consideration of race in college admissions violated the Equal Protection Clause of the Fourteenth Amendment.In Grutter, the Court of Appeals affirmed the District Court entry of summary judgment in the University for the University, but vacated the judgment in favor of the University on the ground, inter alia, that it had applied an overly deferential standard in assessing the constitutionality of its program. The court remanded the case for the court to assess the parties' claims under the correct legal standard. Held: The University has not articulated its compelling interest with sufficient clarity. First, the record contains significant evidence, both statistical and anecdotal, in supporting the University's position that the Top Ten Percent Plan is a means of obtaining the educational benefits that flow from student body diversity, and that increasing minority enrollment may be instrumental to these benefits, but it is not a goal that can or should be reduced to pure numbers. Second, asserting an interest in the educational benefit of diversity writ large is insufficient. A university must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. . (a) The record does not support petitioner Davis, who long since graduated from another college, and the University now has valuable data about the manner in which different approaches to admissions may foster diversity or dilute it. The University must con-tinue to use the data to scrutinize the fairness of its admis-sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary. P.. (b) Nor has the University met its burden of showing that the admissions policy it used at the time it rejected petitioner Davis was narrowly tailored to achieve her educational goals. Although diversity takes many forms, and may sometimes fail to capture all dimensions of diversity, nevertheless, through regular examination of the data, it must be considered in light of changing circumstances. Equal protection inferences must be drawn before drawing inferences in Davis favor. Here, none of petitioner Davis' suggested alternatives has been shown to be available and workable means through which the University could have met its educational goals, as she understood and defined them in 2008. Moreover, in striking this sensitive balance, public universities, like the States themselves, can serve as laboratories for experimentation. Public universities must be allowed to experiment in striking a sensitive balance between diversity and equal treatment and dignity. In this case, however, a remand to the district court would do nothing more than prolong a suit that has already persisted for eight years and cost the parties significant resources. Davis, supra, at ___ (slip op., at 9). The fact that this case has been litigated on a somewhat artificial basis, moreover, may limit its value for prospective guidance, since the University has at its disposal valuable data on how the University plays its role in shaping its admissions policy. And, in any event, it has to be careful to determine how carefully the type of scrutiny bearing on its application will be applied in the manner to meet the requirements imposed by Equal Protection inferences. Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realisti-cally, the exclusive use of a percentage plan. Pp. 446 U.S. 629-645. (c) There is no merit to Davis' contention that the University must set forth more precisely the level of minority enrollment that would constitute a critical mass. Petitioner Davis, long thereafter a graduate student, has not challenged her exclusion from the University because she did not graduate in the top 10 percent of her high school class, and she has thus not challenged it for that reason, throughout this litigation. Furthermore, she has not raised any meaningful way in which it could have improved upon her at the time of her application. See Fisher v. University of Tex. at Austin, 570 U. S. ___ (Fisher I). . (d) Petitioner has thus met her burden of proving that the exclusion of minority students through holistic review had only a minimal impact in advancing the University

2015_14-8349

https://www.oyez.org/cases/2015/14-8349

. Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State’s use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, 476 U. S. 79 (1986) . The trial court and the Georgia Supreme Court rejected Foster’s Batson claim. Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse. I On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. Foster v. State, 258 Ga. 736, 374 S. E. 2d 188 (1988). District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 “qualified” prospective jurors. Five were black. In the second phase, known as the “striking of the jury,” both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. §15–12–165 (1985). The process worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State declined to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted. The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death. Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and we denied certiorari, Foster v. Georgia, 490 U. S. 1085 (1989) . Foster subsequently sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, again pressing his Batson claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act, see Ga. Code Ann. §§50–18–70 to 50–18–77 (2002), seeking access to the State’s file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State’s objections, the state habeas court admitted those documents into evidence. They included the following: (1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.” See, e.g., App. 253. The letter “B” also appeared next to each black prospective juror’s name. See, e.g., ibid. According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney’s office during jury selection. That allowed “everybody in the office”—approximately “10 to 12 people,” including “[s]ecretaries, investigators, [and] district attorneys”—to look at them, share information, and contribute thoughts on whether the prosecution should strike a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified, were returned to Lanier before jury selection. Id., at 220. (2) A draft of an affidavit that had been prepared by Lundy “at Lanier’s request” for submission to the state trial court in response to Foster’s motion for a new trial. Id., at 203. The typed draft detailed Lundy’s views on ten black prospective jurors, stating “[m]y evaluation of the jurors are a[s] follows.” App. 343. Under the name of one of those jurors, Lundy had written: “If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors.” Id., at 345 (paragraph break omitted). That text had been crossed out by hand; the version of the affidavit filed with the trial court did not contain the crossed-out language. See id., at 127–129. Lundy testified that he “guess[ed]” the redactions had been done by Lanier. Tr. 203. (3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as “B#1,” “B#2,” and “B#3,” respectively. App. 295–297. Lundy testified that these were examples of the type of “notes that the team—the State would take down during voir dire to help select the jury in Mr. Foster’s case.” Tr. 208–210. (4) A typed list of the qualified jurors remaining after voir dire. App. 287–290. It included “Ns” next to ten jurors’ names, which Lundy told the state habeas court “signif[ied] the ten jurors that the State had strikes for during jury selection.” Tr. 211. Such an “N” appeared alongside the names of all five qualified black prospective jurors. See App. 287–290. The file also included a handwritten version of the same list, with the same markings. Id., at 299–300; see Tr. 212. Lundy testified that he was unsure who had prepared or marked the two lists. (5) A handwritten document titled “definite NO’s,” listing six names. The first five were those of the five qualified black prospective jurors. App. 301. The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was “used for preparation in jury selection.” Tr. 215; Tr. of Oral Arg. 45. (6) A handwritten document titled “Church of Christ.” A notation on the document read: “NO. No Black Church.” App. 302. (7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror’s response indicating his or her race had been circled. Id., at 311, 317, 323, 329, 334. In response to the admission of this evidence, the State introduced short affidavits from Lanier and Pullen. Lanier’s affidavit stated: “I did not make any of the highlighted marks on the jury venire list. It was common practice in the office to highlight in yellow those jurors who had prior case experience. I did not instruct anyone to make the green highlighted marks. I reaffirm my testimony made during the motion for new trial hearing as to how I used my peremptory jury strikes and the basis and reasons for those strikes.” Id., at 169 (paragraph numeral omitted). Pullen’s affidavit averred: “I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. I did not rely on the highlighted jury venire list in making my decision on how to use my peremptory strikes.” Id., at 170–171 (paragraph numeral omitted). Neither affidavit provided further explanation of the documents, and neither Lanier nor Pullen testified in the habeas proceeding. After considering the evidence, the state habeas court denied relief. The court first stated that, “[a]s a preliminary matter,” Foster’s Batson claim was “not reviewable based on the doctrine of res judicata” because it had been “raised and litigated adversely to [Foster] on his direct appeal to the Georgia Supreme Court.” App. 175. The court nonetheless announced that it would “mak[e] findings of fact and conclusions of law” on that claim. Id., at 191. Based on what it referred to as a “Batson . . . analysis,” the court concluded that Foster’s “renewed Batson claim is without merit,” because he had “fail[ed] to demonstrate purposeful discrimination.” Id., at 192, 195, 196. The Georgia Supreme Court denied Foster the “Certificate of Probable Cause” necessary under state law for him to pursue an appeal, determining that his claim had no “arguable merit.” Id., at 246; see Ga. Code Ann. §9–14–52 (2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari. 575 U. S. ___ (2015). II Before turning to the merits of Foster’s Batson claim, we address a threshold issue. Neither party contests our jurisdiction to review Foster’s claims, but we “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) . This Court lacks jurisdiction to entertain a federal claim on review of a state court judgment “if that judgment rests on a state law ground that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U. S. 255, 260 (1989) . The state habeas court noted that Foster’s Batson claim was “not reviewable based on the doctrine of res judicata” under Georgia law. App. 175. The Georgia Supreme Court’s unelaborated order on review provides no reasoning for its decision.[1] That raises the question whether the Georgia Supreme Court’s order—the judgment from which Foster sought certiorari[2]—rests on an adequate and independent state law ground so as to preclude our jurisdiction over Foster’s federal claim. We conclude that it does not. When application of a state law bar “depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our jurisdiction is not precluded.” Ake v. Oklahoma, 470 U. S. 68, 75 (1985) ; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984) . In this case, the Georgia habeas court’s analysis in the section of its opinion labeled “Batson claim” proceeded as follows: “The [State] argues that this claim is not reviewable due to the doctrine of res judicata. However, because [Foster] claims that additional evidence allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court’s ruling [on direct appeal], this court will review the Batson claim as to whether [Foster] has shown any change in the facts sufficient to overcome the res judicata bar.” App. 192. To determine whether Foster had alleged a sufficient “change in the facts,” the habeas court engaged in four pages of what it termed a “Batson . . . analysis,” in which it evaluated the original trial record and habeas record, including the newly uncovered prosecution file. Id., at 192–196. Ultimately, that court concluded that Foster’s “renewed Batson claim is without merit.” Id., at 196 (emphasis added). In light of the foregoing, it is apparent that the state habeas court’s application of res judicata to Foster’s Batson claim was not independent of the merits of his federal constitutional challenge.[3] That court’s invocation of res judicata therefore poses no impediment to our review of Foster’s Batson claim. See Ake, 470 U. S., at 75.[4] III A The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (internal quotation marks omitted). Our decision in Batson v. Kentucky, 476 U. S. 79 , provides a three-step process for determining when a strike is discriminatory: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder, 552 U. S., at 476–477 (internal quotation marks and brackets omitted). Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson’s third step. That step turns on factual determinations, and, “in the absence of exceptional circumstances,” we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder, 552 U. S., at 477. Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution’s file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a “certif[ied] . . . true and correct copy of 103 pages of the State’s case file” from his 1987 trial. App. 247. The State argues that “because [Foster] did not call either of the prosecutors to the stand” to testify in his state habeas proceedings, “he can only speculate as to the meaning of various markings and writings” on thosepages, “the author of many of them, and whether the twoprosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them.” Brief for Respondent 20. For these reasons, the State argues, “none of the specific pieces of new evidence [found in the file] shows an intent to discriminate.” Ibid. (capitalization omitted). For his part, Foster argues that “[t]here is no question that the prosecutors used the lists and notes, which came from the prosecution’s file and were certified as such,” and therefore the “source of the lists and notes, their timing, and their purpose is hardly ‘unknown’ or based on ‘conjecture.’ ” Reply Brief 4–5 (quoting Brief for Respondent 27–28). The State concedes that the prosecutors themselves authored some documents, see, e.g., Tr. of Oral Arg. 45 (admitting that one of the two prosecutors must have written the list titled “definite NO’s”), and Lundy’s testimony strongly suggests that the prosecutors viewed others, see, e.g., Tr. 220 (noting that the highlighted jury venire lists were returned to Lanier prior to jury selection). There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as “B#1,” “B#2,” and “B#3.” Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving “a determination as to what weight the Court is going to put on any of [them]” in light of the objections urged by the State. 1 Record 20. We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence. We have “made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder, 552 U. S., at 478. As we have said in a related context, “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . . evidence of intent as may be available.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977) . At a minimum, we are comfortable that all documents in the file were authored by someone in the district attorney’s office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value. B Foster centers his Batson claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett. Rather, he decided to strike her only after learning that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause that morning. Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. Specifically, Lanier objected to Garrett because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failedto disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service. See App. 55–57 (pretrial hearing); id., at 93–98, 105, 108, 110–112 (new trial hearing); Record in No. 45609 (Ga. 1988), pp. 439–440 (hereinafter Trial Record) (brief in opposition to new trial). The trial court accepted Lanier’s justifications, concluding that “[i]n the totality of circumstances,” there was “no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons” for the strike. App. 143. On their face, Lanier’s justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact. Lanier’s misrepresentations to the trial court began with an elaborate explanation of how he ultimately came to strike Garrett: “[T]he prosecution considered this juror [to have] the most potential to choose from out of the four remaining blacks in the 42 [member] panel venire. However, a system of events took place on the morning of jury selection that caused the excusal of this juror. The [S]tate had, in his jury notes, listed this juror as questionable. The four negative challenges were allocated for Hardge, Hood, Turner and Powell. . . . But on the morning of jury selection, Juror Powell was excused for cause with no objections by [d]efense counsel. She was replaced by Juror Cadle [who] was acceptable to the State. This left the State with an additional strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list.” Trial Record 438–440 (brief in opposition to new trial) (emphasis added and citations omitted). Lanier then offered an extensive list of reasons for striking Garrett and explained that “[t]hese factors, with no reference to race, were considered by the prosecutor in this particular case to result in a juror less desirable from the prosecutor’s viewpoint than Juror Blackmon.” Id., at 441 (emphasis deleted). Lanier then compared Blackmon to Garrett. In contrast to Garrett, Juror Blackmon “was 46 years old, married 13 years to her husband who works at GE, buying her own home and [was recommended by a third party to] this prosecutor. She was no longer employed at Northwest Georgia Regional Hospital and she attended Catholic church on an irregular basis. She did not hesitate when answering the questions concerning the death penalty, had good eye contact with the prosecutor and gave good answers on the insanity issue. She was perceived by the prosecutor as having a stable home environment, of the right age and no association with any disadvantaged youth organizations.” Ibid. Lanier concluded that “the chances of [Blackmon] returning a death sentence were greater when all these factors were considered than Juror Garrett. Consequently, Juror Garrett was excused.” Ibid. The trial court accepted this explanation in denying Foster’s motion for a new trial. See App. 142–143. But the predicate for the State’s account—that Garrett was “listed” by the prosecution as “questionable,” making that strike a last-minute race-neutral decision—was false. During jury selection, the State went first. As a consequence, the defense could accept any prospective juror not struck by the State without any further opportunity for the State to use a strike against that prospective juror. Accordingly, the State had to “pretty well select the ten specific people [it] intend[ed] to strike” in advance. Id., at 83 (pretrial hearing); accord, ibid. (“[T]he ten people that we felt very uncomfortable with, we have to know up front.” (Lanier testimony)). The record evidence shows that Garrett was one of those “ten specific people.” That much is evident from the “definite NO’s” list in the prosecution’s file. Garrett’s name appeared on that list, which the State concedes was written by one of the prosecutors. Tr. of Oral Arg. 45. That list belies Lanier’s assertion that the State considered allowing Garrett to serve. The title of the list meant what it said: Garrett was a “definite NO.” App. 301 (emphasis added). The State from the outset was intent on ensuring that none of the jurors on that list would serve. The first five names on the “definite NO’s” list were Eddie Hood, Evelyn Hardge, Shirley Powell, Marilyn Garrett, and Mary Turner. All were black. The State struck each one except Powell (who, as discussed, was excused for cause at the last minute—though the prosecution informed the trial court that the “State was not, under any circumstances, going to take [Powell],” Trial Record 439 (brief in opposition to new trial)). Only in the number six position did a white prospective juror appear, and she had informed the court during voir dire that she could not “say positively” that she could impose the death penalty even if the evidence warranted it. 6 Tr. in No. 86–2218–2 (Super. Ct. Floyd Cty., Ga., 1987), p. 1152 (hereinafter Trial Transcript); see also id., at 1153–1158. In short, contrary to the prosecution’s submissions, the State’s resolve to strike Garrett was never in doubt. See also App. 290 (“N” appears next to Garrett’s name on juror list); id., at 300 (same). The State attempts to explain away the contradiction between the “definite NO’s” list and Lanier’s statements to the trial court as an example of a prosecutor merely “misspeak[ing].” Brief for Respondent 51. But this was not some off-the-cuff remark; it was an intricate story expounded by the prosecution in writing, laid out over three single-spaced pages in a brief filed with the trial court. Moreover, several of Lanier’s reasons for why he chose Garrett over Blackmon are similarly contradicted by the record. Lanier told the court, for example, that he struck Garrett because “the defense did not ask her questions about” pertinent trial issues such as her thoughts on “insanity” or “alcohol,” or “much questions on publicity.” App. 56 (pretrial hearing). But the trial transcripts reveal that the defense asked her several questions on all three topics. See 5 Trial Transcript 955–956 (two questions on insanity and one on mental illness); ibid. (four questions on alcohol); id., at 956–957 (five questions on publicity). Still other explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. App. 56 (pre-trial hearing). But he declined to strike three out of the four prospective white jurors who were also divorced. SeeJuror Questionnaire in No. 86–2218–2 (Super. Ct. Floyd Cty., Ga., 1987) (hereinafter Juror Questionnaire), for Juror No. 23, p. 2 (juror Coultas, divorced); id., No. 33, p. 2 (juror Cochran, divorced); id., No. 107, p. 2 (juror Hatch, divorced); App. 23–24, 31 (State accepting jurors Coultas, Cochran, and Hatch). Additionally, Lanier claimed that he struck Garrett because she was too young, and the “State was looking for older jurors that would not easily identify with the defendant.” Trial Record 439; see App. 55 (pretrial hearing). Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. See Trial Record 439; Juror Questionnaire No. 4, p. 1; id., No. 10, p. 1; id., No. 23, p. 1; id., No. 48, p. 1; id., No. 70, p. 1; id., No. 71, p. 1; id., No. 92, p. 1; id., No. 106, p. 1; see App. 22–31. Two of those white jurors served on the jury; one of those two was only 21 years old. See id., at 35. Lanier also explained to the trial court that he struck Garrett because he “felt that she was less than truthful” in her answers in voir dire. Id., at 108 (new trial hearing). Specifically, the State pointed the trial court to the following exchange: “[Court]: Are you familiar with the neighborhood where [the victim] lived, North Rome? “[Garrett]: No.” 5 Trial Transcript 950–951. Lanier, in explaining the strike, told the trial court that in apparent contradiction to that exchange (which represented the only time that Garrett was asked about the topic during voir dire), he had “noted that [Garrett] attended Main High School, which is only two blocks from where [the victim] lived and certainly in the neighborhood. She denied any knowledge of the area.” Trial Record 439 (brief in opposition to new trial). We have no quarrel with the State’s general assertion that it “could not trust someone who gave materially untruthful answers on voir dire.” Foster, 258 Ga., at 739, 374 S. E. 2d, at 192. But even this otherwise legitimate reason is difficult to credit in light of the State’s acceptance of (white) juror Duncan. Duncan gave practically the same answer as Garrett did during voir dire: “[Court]: Are you familiar with the neighborhood in which [the victim] live[d]? “[Duncan]: No. I live in Atteiram Heights, but it’s not—I’m not familiar with up there, you know.” 5 Trial Transcript 959. But, as Lanier was aware, Duncan’s “residence [was] less than a half a mile from the murder scene” and her workplace was “located less than 250 yards” away. Trial Record 430 (brief in opposition to new trial). In sum, in evaluating the strike of Garrett, we are not faced with a single isolated misrepresentation. C We turn next to the strike of Hood. According to Lanier, Hood “was exactly what [the State] was looking for in terms of age, between forty and fifty, good employment and married.” App. 44 (pretrial hearing). The prosecution nonetheless struck Hood, giving eight reasons for doing so. Hood: (1) had a son who was the same age as the defendant and who had previously been convicted of a crime; (2) had a wife who worked in food service at the local mental health institution; (3) had experienced food poisoning during voir dire; (4) was slow in responding to death penalty questions; (5) was a member of the Church of Christ; (6) had a brother who counseled drug offenders; (7) was not asked enough questions by the defense during voir dire; and (8) asked to be excused from jury service. See id., at 44–47; id., at 86, 105, 110–111 (new trial hearing); Trial Record 433–435 (brief in opposition to new trial). An examination of the record, however, convinces us that many of these justifications cannot be credited. As an initial matter, the prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual. In response to Foster’s pre-trial Batson challenge, District Attorney Lanier noted all eight reasons, but explained: “The only thing I was concerned about, and I will state it for the record. He has an eighteen year old son which is about the same age as the defendant. “In my experience prosecuting over twenty-five murder cases . . . individuals having the same son as [a] defendant who is charged with murder [have] serious reservations and are more sympathetic and lean toward that particular person. “It is ironic that his son, . . . Darrell Hood[,] has been sentenced . . . by the Court here, to theft by taking on April 4th, 1982. . . . [T]heft by taking is basi-cally the same thing that this defendant is chargedwith.” App. 44–45 (pretrial hearing; emphasis added). But by the time of Foster’s subsequent motion for a new trial, Lanier’s focus had shifted. He still noted the similarities between Hood’s son and Foster, see id., at 105 (new trial hearing), but that was no longer the key reason behind the strike. Lanier instead told the court that his paramount concern was Hood’s membership in the Church of Christ: “The Church of Christ people, while they may not take a formal stand against the death penalty, they are very, very reluctant to vote for the death penalty.” Id., at 84 (new trial hearing); accord, Trial Record 434–435 (“It is the opinion of this prosecutor that in a death penalty case, Church of Christ affiliates are reluctant to return a verdict of death.” (brief in opposition to new trial)). Hood’s religion, Lanier now explained, was the most important factor behind the strike: “I evaluated the whole Eddie Hood. . . . And the bottom line on Eddie Hood is the Church of Christ affiliation.” App. 110–111 (new trial hearing; emphasis added). Of course it is possible that Lanier simply misspoke in one of the two proceedings. But even if that were so, we would expect at least one of the two purportedly principal justifications for the strike to withstand closer scrutiny. Neither does. Take Hood’s son. If Darrell Hood’s age was the issue, why did the State accept (white) juror Billy Graves, who had a 17-year-old son? Juror Questionnaire No. 31, p. 3; see App. 24. And why did the State accept (white) juror Martha Duncan, even though she had a 20-year-old son? Juror Questionnaire No. 88, p. 3; see App. 30. The comparison between Hood and Graves is particu-larly salient. When the prosecution asked Hood if Foster’sage would be a factor for him in sentencing, he answered “None whatsoever.” Trial Transcript 280. Graves, on the other hand, answered the same question “probably so.” Id., at 446. Yet the State struck Hood and accepted Graves. The State responds that Duncan and Graves were not similar to Hood because Hood’s son had been convicted of theft, while Graves’s and Duncan’s sons had not. See Brief for Respondent 34–35; see also App. 135–136 (“While the defense asserts that the state used different standards for white jurors, insofar as many of them had children near the age of the Defendant, the Court believes that [Darrell Hood’s] conviction is a distinction that makes the difference.” (trial court opinion denying new trial)). Lanier had described Darrell Hood’s conviction to the trial court as being for “basically the same thing that this defendant is charged with.” Id., at 45 (pretrial hearing). Nonsense. Hood’s son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier. Trial Record 446. Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault. The “implausible” and “fantastic” assertion that the two had been charged with “basically the same thing” supports our conclusion that the focus on Hood’s son can only be regarded as pretextual. Miller-El v. Cockrell, 537 U. S. 322, 339 (2003) ; see also ibid. (“Credibility can be measured by, among other factors, . . . how reasonable, or how improbable, the [State’s] explanations are.”). The prosecution’s second principal justification for striking Hood—his affiliation with the Church of Christ, and that church’s alleged teachings on the death penalty—fares no better. Hood asserted no fewer than four times during voir dire that he could impose the death penalty.[5] A prosecutor is entitled to disbelieve a juror’s voir dire answers, of course. But the record persuades us that Hood’s race, and not his religious affiliation, was Lanier’s true motivation. The first indication to that effect is Lanier’s mischaracterization of the record. On multiple occasions, Lanier asserted to the trial court that three white prospective jurors who were members of the Church of Christ had been struck for cause due to their opposition to the death penalty. See App. 46 (“[Hood’s] religious preference is Church of Christ. There have been [three] other jurors that have been excused for cause by agreement that belong to the Church of Christ, Juror No. 35, 53, and 78.” (pretrial hearing)); id., at 114 (“Three out of four jurors who professed to be members of the Church of Christ, went off for [cause related to opposition to the death penalty].” (new trial hearing)); Trial Record 435 (“Church of Christ jurors Terry (#35), Green (#53), and Waters (#78) [were] excused for cause due to feeling[s] against the death penalty.” (brief in opposition to new trial)). That was not true. One of those prospective jurors was excused before even being questioned during voir dire because she was five-and-a-half months pregnant. 5 Trial Transcript 893. Another was excused by the agreement of both parties because her answers on the death penalty made it difficult to ascertain her precise views on capital punishment. See Brief for Respondent 39 (“[I]t was entirely unclear if [this juror] understood any of the trial court’squestions and her answers are equivocal at best.”). And the judge found cause to dismiss the third because she had already formed an opinion about Foster’s guilt. See 3 Trial Transcript 558 (“[Court]: And you have made up your mind already as to the guilt of the accused? A: Yes, sir. [Court]: I think that’s cause.”). The prosecution’s file fortifies our conclusion that any reliance on Hood’s religion was pretextual. The file contains a handwritten document titled “Church of Christ.” The document notes that the church “doesn’t take a stand on [the] Death Penalty,” and that the issue is “left for each individual member.” App. 302. The document then states: “NO. NO Black Church.” Ibid. The State tries to downplay the significance of this document by emphasizing that the document’s author is unknown. That uncertainty is pertinent. But we think the document is nonetheless entitled to significant weight, especially given that it is consistent with our serious doubts about the prosecution’s account of the strike. Many of the State’s secondary justifications similarly come undone when subjected to scrutiny. Lanier told the trial court that Hood “appeared to be confused and slow in responding to questions concerning his views on the death penalty.” Trial Record 434 (brief in opposition to new trial). As previously noted, however, Hood unequivocally voiced his willingness to impose the death penalty, and a white juror who showed similar confusion served on the jury. Compare 5 Trial Transcript 1100–1101 (white juror Huffman’s answers) with 2 id., at 269–278 (Hood’s answers); see App. 35. According to the record, such confusion was not uncommon. See id., at 138 (“The Court notes that [Hood’s] particular confusion about the death penalty questions was not unusual.”); accord, 5 Trial Transcript 994 (“[Court]: I think these questions should be reworded. I haven’t had a juror yet that understood what that meant.”); id., at 1101–1102 (“[Court]: I still say that these questions need changing overnight, because one out of a hundred jurors, I think is about all that’s gone along with knowing what [you’re asking].”). Lanier also stated that he struck Hood because Hood’s wife worked at Northwest Regional Hospital as a food services supervisor. App. 45 (pretrial hearing). That hospital, Lanier explained, “deals a lot with mentally disturbed, mentally ill people,” and so people associated with it tend “to be more sympathetic to the underdog.” Ibid. But Lanier expressed no such concerns about white juror Blackmon, who had worked at the same hospital. Blackmon, as noted, served on the jury. Lanier additionally stated that he struck Hood because the defense “didn’t ask [Hood] any question[s] about the age of the defendant,” “his feelings about criminal responsibility involved in insanity,” or “publicity.” Id., at 47. Yet again, the trial transcripts clearly indicate the contrary. See 2 Trial Transcript 280 (“Q: Is age a factor to you in trying to determine whether or not a defendant should receive a life sentence or a death sentence? A: None whatsoever.”); ibid. (“Q: Do you have any feeling about the insanity defense? A: Do I have any opinion about that? I have not formed any opinion about that.”); id., at 281 (“Q: Okay. The publicity that you have heard, has that pub-licity affected your ability to sit as a juror in this case and be fair and impartial to the defendant? A: No, it has no effect on me.”). D As we explained in Miller-El v. Dretke, “[i]f a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination.” 545 U. S. 231, 241 (2005) . With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bear[s] upon the issue of racial animosity,” we are left with the firm conviction that the strikes of Garrett and Hood were “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 478, 485.[6] IV Throughout all stages of this litigation, the State has strenuously objected that “race [was] not a factor” in its jury selection strategy. App. 41 (pretrial hearing); but see id., at 120 (Lanier testifying that the strikes were “based on many factors and not purely on race.” (emphasis added) (new trial hearing)). Indeed, at times the State has been downright indignant. See Trial Record 444 (“The Defenses’s [sic] misapplication of the law and erroneous distortion of the facts are an attempt to discredit the pro-secutor. . . . The State and this community demand an apology.” (brief in opposition to new trial)). The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” Brief for Respondent 6. Batson, after all, had come down only months before Foster’s trial. The prosecutors, according to the State, were uncertain what sort of showing might be demanded of them and wanted to be prepared. This argument falls flat. To begin, it “reeks of afterthought,” Miller-El, 545 U. S., at 246, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it “was actively seeking a black juror.” Brief for Respondent 12; see also App. 99 (new trial hearing). But this claim is not credible. An “N” appeared next to each of the black prospective jurors’ names on the jury venire list. See, e.g., id., at 253. An “N” was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the “definite NO’s” list. See id., 299–301. And a draft affidavit from the prosecution’s investigator stated his view that “[i]f it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.” Id., at 345 (emphasis added); see also ibid. (recommending Garrett “if we had to pick a black juror” (emphasis added)). Such references are inconsistent with attempts to “actively see[k]” a black juror. The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows. The order of the Georgia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 The order stated, in its entirety: “Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied. All the Justices concur, except Benham, J., who dissents.” App. 246. 2 We construe Foster’s petition for writ of certiorari as seeking review of the Georgia Supreme Court’s order denying him a “Certificate of Probable Cause.” App. 246. The Georgia Supreme Court Rules provide that such a certificate “will be issued where there is arguable merit.” Rule 36 (emphasis added); see also Hittson v. GDCP Warden, 759 F. 3d 1210, 1231–1232 (CA11 2014). A decision by the Georgia Supreme Court that Foster’s appeal had no “arguable merit” would seem to be a decision on the merits of his claim. In such circumstances the Georgia Supreme Court’s order is subject to review in this Court pursuant to a writ of certiorari under 28 U. S. C. §1257(a). R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130 –139 (1986); see Sears v. Upton, 561 U. S. 945 (2010) (per curiam) (exercising jurisdiction over order from Georgia Supreme Court denying a Certificate of Probable Cause). We reach the conclusion that such an order is a decision on the merits “in the absence of positive assurance to the contrary” from the Georgia Supreme Court. R. J. Reynolds, 479 U. S., at 138. 3 Contrary to the dissent’s assertion, see post, at 6–8, it is perfectly consistent with this Court’s past practices to review a lower court decision—in this case, that of the Georgia habeas court—in order to ascertain whether a federal question may be implicated in an unreasoned summary order from a higher court. See, e.g., R. J. Reynolds, 479 U. S., at 136–139 (exercising §1257 jurisdiction over unreasoned judgment by the North Carolina Supreme Court after examining grounds of decision posited by North Carolina Court of Appeal); see also Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, Dan Himmelfarb, Supreme Court Practice 211 (10th ed. 2013) (“[W]here the state court opinion fails to yield precise answers as to the grounds of decision, the Court may be forced to turn to other parts of the record, such as pleadings, motions, and trial court rulings, to determine if a federal claim is so central to the controversy as to preclude resting the judgment on independent and adequate state grounds.”). And even the dissent does not follow its own rule. It too goes beyond the unreasoned order of the Georgia Supreme Court in determining that the “likely explanation for the court’s denial of habeas relief is that Foster’s claim is procedurally barred.” Post, at 2. There would be no way to know this, of course, from the face of the Georgia Supreme Court’s summary order. 4 The concurrence notes that the “res judicata rule applied by the Superior Court in this case is quite different” from the state procedural bar at issue in Ake, which was “entirely dependent on federal law.” Post, at 8. But whether a state law determination is characterized as “entirely dependent on,” ibid., “resting primarily on,” Stewart v. Smith, 536 U. S. 856, 860 (2002) (per curiam), or “influenced by” a question of federal law, Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984) , the result is the same: the state law determination is not independent of federal law and thus poses no bar to our jurisdiction. 5 See 2 Trial Transcript 269 (“[Court]: Are you opposed to or against the death penalty? A: I am not opposed to it. Q: If the facts and circumstances warrant the death penalty, are you prepared to vote for the death penalty? A: Yes.”); id., at 270 (“[Court]: [A]re you prepared to vote for the death penalty? Now you said yes to that. A: All right. Q: Are you still saying yes? A: Uh-huh.”); id., at 274 (“[Court]: If the evidence warrants the death penalty, could you vote for the death penalty? A: Yes. I could vote for the death penalty.”); id., at 278 (“[Pullen]: And if the facts and circumstances warranted, you could vote to impose the death penalty? Yes.”). 6 In Snyder, we noted that we had not previously allowed the prosecution to show that “a discriminatory intent [that] was a substantial or motivating factor” behind a strike was nevertheless not “determinative” to the prosecution’s decision to exercise the strike. 552 U. S., at 485. The State does not raise such an argument here and so, as in Snyder, we need not decide the availability of such a 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 . SUPREME COURT OF THE UNITED STATES Syllabus FOSTER v. CHATMAN, WARDEN certiorari to the supreme court of georgia No. 14–8349. Argued November 2, 2015—Decided May 23, 2016 Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State’s use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U. S. 79 . The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained from the State copies of the file used by the prosecution during his trial. Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror were highlighted in bright green, with a legend indicating that the highlighting “represents Blacks”; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, “If it comes down to having to pick one of the black jurors, [this one] might be okay”; (3) notes identifying black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) notes with “N” (for “no”) appearing next to the names of all black prospective jurors; (5) a list titled “[D]efinite NO’s” containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated “NO. No Black Church”; and (7) the questionnaires filled out by five prospective black jurors, on which each juror’s response indicating his or her race had been circled. The state habeas court denied relief. It noted that Foster’s Batson claim had been adjudicated on direct appeal. Because Foster’s renewed Batson claim “fail[ed] to demonstrate purposeful discrimination,” the court concluded that he had failed to show “any change in the facts sufficient to overcome” the state law doctrine of res judicata. The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal. Held: 1. This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds for that unelaborated judgment, there is no indication that it rested on a state law ground that is both “independent of the merits” of Foster’s Batson claim and an “adequate basis” for that decision, so as to preclude jurisdiction. Harris v. Reed, 489 U. S. 255 . The state habeas court held that the state law doctrine of res judicata barred Foster’s claim only by examining the entire record and determining that Foster had not alleged a change in facts sufficient to overcome the bar. Based on this lengthy “Batson analysis,” the state habeas court concluded that Foster’s renewed Batson claim was “without merit.” Because the state court’s application of res judicata thus “depend[ed] on a federal constitutional ruling, [that] prong of the court’s holding is not independent of federal law, and [this Court’s] jurisdiction is not precluded.” Ake v. Oklahoma, 470 U. S. 68 ; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138 . . 2. The decision that Foster failed to show purposeful discrimination was clearly erroneous. . (a) Batson provides a three-step process for adjudicating claims such as Foster’s. “First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U. S. 472 (internal quotation marks and brackets omitted). Only Batson’s third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. . (b) Foster established purposeful discrimination in the State’s strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution’s justifications for both strikes, the record belies much of the prosecution’s reasoning. . (i) The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence showing that Garrett’s name appeared on the prosecution’s list of “[D]efinite NO’s”—the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State’s willingness to accept white jurors with the same characteristics. For example, the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve. . (ii) With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster’s pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood’s membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny. As to the age of Hood’s son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster’s age would be a factor at sentencing. And as to Hood’s religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State’s file contains a handwritten note stating, “NO. NO Black Church,” while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns were expressed with regard to similar white prospective jurors. . (c) Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U. S. 231 . Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution’s shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was “motivated in substantial part by discriminatory intent.” Snyder, 552 U. S., at 485. P. 23. (d) Because Batson was decided only months before Foster’s trial, the State asserts that the focus on black prospective jurors in the prosecution’s file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster’s trial, “reeks of afterthought.” Miller-El, 545 U. S., at 246. And the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. . Reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.

During jury selection at petitioner Foster v. Georgia, in which he was convicted of capital murder and sentenced to death, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Petitioner argued that the State's use of those strikes was racially motivated in violation of Batson v. Kentucky, 476 U. S. 79 (1986). The trial court and the Georgia Supreme Court rejected petitioner Foster's Batson claim, and he then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the State Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for him to pursue an appeal. Held: 1. When application of a state law bardepends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and this Court lacks jurisdiction to entertain a federal claim on review of the state court judgment if that judgment rests on a ground that is both independent of the merits of the federal claim and an adequate state law basis for the court�s decision. . (a) In evaluating the strike of Garrett, this Court is not faced with a single isolated misrepresentation. As an initial matter, the prosecution's principal reasons for striking Garrett shifted over time, suggesting that those reasons may be pretextual. The record supports this conclusion. There are, however, genuine questions as to the provenance of other documents, such as the author of the notes that listed three black jurors as "B#1,” (B#2, and (B) Blackmon, who served on the jury in the nearly 30-year history of the Batson case. A prosecutor is entitled to disbelieve a juror's voir dire answers, see, e.g., Tr. of Oral Arg. 45 (pre-trial hearing). Here, the record discloses that the focus of the strikes on Garrett was not solely on race, but was on the motivation of the State to strike him. Moreover, the evidence showed that Garrett was one of those persons who was the most likely to have the most potential to choose from out of the four remaining blacks in the jury venire, see id., at 253; that the prosecution willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the court that he struck Garrett because the defense did not ask him questions about pertinent trial issues such as his thoughts on the death penalty or his feelings about criminal responsibility involved in insanity; that he felt that he had a greater chance of returning a death sentence than anyone else; and that, in view of the fact that the strike was based on many factors, he was asked few questions by the defense and did not show purposeful discrimination. In light of this Court's past practices to review a lower court decision and to ascertain whether a federal question may be implicated in an unreasoned summary order from a higher court, this order is a decision on the merits in the absence of positive assurance to the contrary. P.. (b) Although the State concedes that the prosecutors themselves authored some documents, Lanier mischaracterized those documents by stating that the defense had not asked him any questions about the pertinent trial issue. On the other hand, the trial transcripts clearly indicate that the record is clear that the purpose of striking Garrett was to compel him to vote for a death penalty. And the record also refutes the State, which asserted that it was actively seeking a black juror, to strike Garrett because of his affiliation with the Church of Christ, and that church was the motivating factor behind the strike. Although the record does not show that the prosecutor was aware of the limited number of white jurors on the list, it is insufficient to credit the prosecution, since the focus on Garrett can only be regarded as pretextual, and since the record contains no evidence to show that he was motivated to strike the black jurors. Furthermore, even if it were possible that Lanier simply misspoke in one of the two proceedings, it would be perfectly consistent with this Court, since this Court has past practices, in order, that to review lower court decisions, and in order to determine whether, even in exceptional circumstances, a state court factual finding is clearly erroneous. See id., supra, at 476. Similarly, the dissent does not follow its own rule, but goes beyond the unreasoning order in determining that the likely explanation for the state Supreme Court denial of relief is that the claim is procedurally barred. However, the concurrence notes that the res judicata rule applied by the State Superior Court is quite different from the state procedural bar at issue in Ake v. Oklahoma, 470 U.S. 68, 75 (1985) ; see also Id., at 8). The State does not raise such an argument here and so need not

2015_14-1175

https://www.oyez.org/cases/2015/14-1175

. In Nevada v. Hall, 440 U. S. 410 (1979) , this Court held that one State (here, Nevada) can open the doors of its courts to a private citizen’s lawsuit against another State (here, California) without the other State’s consent. In this case, a private citizen, a resident of Nevada, has brought a suit in Nevada’s courts against the Franchise Tax Board of California, an agency of the State of California. The board has asked us to overrule Hall and hold that the Nevada courts lack jurisdiction to hear this lawsuit. The Court is equally divided on this question, and we consequently affirm the Nevada courts’ exercise of jurisdiction over California. See, e.g., Exxon Shipping Co. v. Baker, 554 U. S. 471, 484 (2008) (citing Durant v. Essex Co., 7 Wall. 107, 112 (1869)). California also asks us to reverse the Nevada court’s decision insofar as it awards the private citizen greater damages than Nevada law would permit a private citizen to obtain in a similar suit against Nevada’s own agencies. We agree that Nevada’s application of its damages law in this case reflects a special, and constitutionally forbidden, “ ‘policy of hostility to the public Acts’ of a sister State,” namely, California. U. S. Const., Art. IV, §1 (Full Faith and Credit Clause); Franchise Tax Bd. of Cal. v. Hyatt, 538 U. S. 488, 499 (2003) (quoting Carroll v. Lanza, 349 U. S. 408, 413 (1955) ). We set aside the Nevada Supreme Court’s decision accordingly. I Gilbert P. Hyatt, the respondent here, moved from California to Nevada in the early 1990’s. He says that he moved to Nevada in September 1991. California’s Franchise Tax Board, however, after an investigation and tax audit, claimed that Hyatt moved to Nevada later, in April 1992, and that he consequently owed California more than $10 million in taxes, associated penalties, and interest. Hyatt filed this lawsuit in Nevada state court against California’s Franchise Tax Board, a California state agency. Hyatt sought damages for what he considered the board’s abusive audit and investigation practices, including rifling through his private mail, combing through his garbage, and examining private activities at his place of worship. See App. 213–245, 267–268. California recognized that, under Hall, the Constitution permits Nevada’s courts to assert jurisdiction over California despite California’s lack of consent. California nonetheless asked the Nevada courts to dismiss the case on other constitutional grounds. California law, it pointed out, provided state agencies with immunity from lawsuits based upon actions taken during the course of collecting taxes. Cal. Govt. Code Ann. §860.2 (West 1995); see also §860.2 (West 2012). It argued that the Constitution’s Full Faith and Credit Clause required Nevada to apply California’s sovereign immunity law to Hyatt’s case. Nevada’s Supreme Court, however, rejected California’s claim. It held that Nevada’s courts, as a matter of comity, would immunize California where Nevada law would similarly immunize its own agencies and officials (e.g., for actions taken in the performance of a “discretionary” function), but they would not immunize California where Nevada law permitted actions against Nevada agencies, say, for acts taken in bad faith or for intentional torts. App. to Pet. for Cert. in Franchise Tax Bd. of Cal. v. Hyatt, O. T. 2002, No. 42, p. 12. We reviewed that decision, and we affirmed. Franchise Tax Bd., supra, at 499. On remand, the case went to trial. A jury found in Hyatt’s favor and awarded him close to $500 million in damages (both compensatory and punitive) and fees (including attorney’s fees). California appealed. It argued that the trial court had not properly followed the Nevada Supreme Court’s earlier decision. California explained that in a similar suit against similar Nevada officials, Nevada statutory law would limit damages to $50,000, and it argued that the Constitution’s Full Faith and Credit Clause required Nevada to limit damages similarly here. The Nevada Supreme Court accepted the premise that Nevada statutes would impose a $50,000 limit in a similar suit against its own officials. See 130 Nev. ___, ___, 335 P. 3d 125, 145–146 (2014); see also Nev. Rev. Stat. §41.035(1) (1995). But the court rejected California’s conclusion. Instead, while setting aside much of the damages award, it nonetheless affirmed $1 million of the award (earmarked as compensation for fraud), and it remanded for a retrial on the question of damages for intentional infliction of emotional distress. In doing so, it stated that “damages awarded on remand . . . are not subject to any statutory cap.” 130 Nev., at ___, 335 P. 3d, at 153. The Nevada Supreme Court explained its holding by stating that California’s efforts to control the actions of its own agencies were inadequate as applied to Nevada’s own citizens. Hence, Nevada’s “policy interest in providing adequate redress to Nevada’s citizens [wa]s paramount to providing [California] a statutory cap on damages under comity.” Id., at ___, 335 P. 3d, at 147. California petitioned for certiorari. We agreed to decide two questions. First, whether to overrule Hall. And, second, if we did not do so, whether the Constitution permits Nevada to award Hyatt damages against a California state agency that are greater than those that Nevada would award in a similar suit against its own stateagencies. II In light of our 4-to-4 affirmance of Nevada’s exercise of jurisdiction over California’s state agency, we must consider the second question: Whether the Constitution permits Nevada to award damages against California agencies under Nevada law that are greater than it could award against Nevada agencies in similar circumstances. We conclude that it does not. The Nevada Supreme Court has ignored both Nevada’s typical rules of immunity and California’s immunity-related statutes (insofar as California’s statutes would prohibit a monetary recovery that is greater in amount than the maximum recovery that Nevada law would permit in similar circumstances). Instead, it has applied a special rule of law that evinces a “ ‘policy of hostility’ ” toward California. Franchise Tax Bd., supra, at 499 (quoting Carroll v. Lanza, supra, at 413). Doing so violates the Constitution’s requirement that “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.” Art. IV, §1. The Court’s precedents strongly support this conclusion. A statute is a “public Act” within the meaning of the Full Faith and Credit Clause. See, e.g., Carroll v. Lanza, supra, at 411; see also 28 U. S. C. §1738 (referring to “[t]he Acts of the legislature” in the full faith and credit context). We have said that the Clause “does not require a State to substitute for its own statute, applicable to persons and events within it, the statute of another State reflecting a conflicting and opposed policy.” Carroll v. Lanza, 349 U. S., at 412. But when affirming a State’s decision to decline to apply another State’s statute on this ground, we have consistently emphasized that the State had “not adopt[ed] any policy of hostility to the public Acts” of that other State. Id., at 413. In Carroll v. Lanza, the Court considered a negligence action brought by a Missouri worker in Arkansas’ courts. We held that the Arkansas courts need not apply a time limitation contained in Missouri’s (but not in Arkansas’) workman’s compensation law. Id., at 413–414. In doing so, we emphasized both that (1) Missouri law (compared with Arkansas law) embodied “a conflicting and opposed policy,” and (2) Arkansas law did not embody “any policy of hostility to the public Acts of Missouri.” Id., at 412–413. This second requirement was well established in earlier law. See, e.g., Broderick v. Rosner, 294 U. S. 629 –643 (1935) (New Jersey may not enforce a jurisdictional statute that would permit enforcement of certain claims under New Jersey law but “deny the enforcement” of similar, valid claims under New York law); Hughes v. Fetter, 341 U. S. 609 –612 (1951) (invalidating a Wisconsin statute that “close[d] the doors of its courts” to an Illinois cause of action while permitting adjudication of similar Wisconsin claims). We followed this same approach when we considered the litigation now before us for the first time. See Franchise Tax Bd., 538 U. S., at 498–499. Nevada had permitted Hyatt to sue California in Nevada courts. See id., at 497 (citing Hall, 440 U. S., at 414–421). Nevada’s courts recognized that California’s law of complete immunity would prevent any recovery in this case. The Nevada Supreme Court consequently did not apply California law. It applied Nevada law instead. We upheld that decision as consistent with the Full Faith and Credit Clause. But in doing so, we emphasized both that (1) the Clause does not require one State to apply another State’s law that violates its “own legitimate public policy,” Franchise Tax Bd., supra, at 497–498 (citing Hall, supra, at 424), and (2) Nevada’s choice of law did not “exhibi[t] a ‘policy of hostility to the public Acts’ of a sister State.” Franchise Tax Bd., supra, at 499 (quoting Carroll v. Lanza, supra, at 413). Rather, Nevada had evinced “a healthy regard for California’s sovereign status,” we said, by “relying on the contours of Nevada’s own sovereign immunity from suit as a benchmark for its analysis.” Franchise Tax Bd., supra, at 499. The Nevada decision before us embodies a critical departure from its earlier approach. Nevada has not applied the principles of Nevada law ordinarily applicable to suits against Nevada’s own agencies. Rather, it has applied a special rule of law applicable only in lawsuits against its sister States, such as California. With respect to damages awards greater than $50,000, the ordinary principles of Nevada law do not “conflic[t]” with California law, for both laws would grant immunity. Carroll v. Lanza, 349 U. S., at 412. Similarly, in respect to such amounts, the “polic[ies]” underlying California law and Nevada’s usual approach are not “opposed”; they are consistent. Id., at 412–413. But that is not so in respect to Nevada’s special rule. That rule, allowing damages awards greater than $50,000, is not only “opposed” to California law, ibid.; it is also inconsistent with the general principles of Nevada immunity law, see Franchise Tax Bd., supra, at 499. The Nevada Supreme Court explained its departure from those general principles by describing California’s system of controlling its own agencies as failing to provide “adequate” recourse to Nevada’s citizens. 130 Nev., at ___, 335 P. 3d, at 147. It expressed concerns about the fact that California’s agencies “ ‘operat[e] outside’ ” the systems of “ ‘legislative control, administrative oversight, and public accountability’ ” that Nevada applies to its own agencies. Ibid. (quoting Faulkner v. University of Tenn., 627 So. 2d 362 (Ala. 1992)). Such an explanation, which amounts to little more than a conclusory statement disparaging California’s own legislative, judicial, and administrative controls, cannot justify the application of a special and discriminatory rule. Rather, viewed through a full faith and credit lens, a State that disregards its own ordinary legal principles on this ground is hostile to another State. A constitutional rule that would permit this kind of discriminatory hostility is likely to cause chaotic interference by some States into the internal, legislative affairs of others. Imagine, for example, that many or all States enacted such discriminatory, special laws, and justified them on the sole basis that (in their view) a sister State’s law provided inadequate protection to their citizens. Would each affected sister State have to change its own laws? Entirely? Piece-by-piece, in order to respond to the new special laws enacted by every other State? It is difficult to reconcile such a system of special and discriminatory rules with the Constitution’s vision of 50 individual and equally dignified States. In light of the “constitutional equality” among the States, Coyle v. Smith, 221 U. S. 559, 580 (1911) , Nevada has not offered “sufficient policy considerations” to justify the application of a special rule of Nevada law that discriminates against its sister States, Carroll v. Lanza, supra, at 413. In our view, Nevada’s rule lacks the “healthy regard for California’s sovereign status” that was the hallmark of its earlier decision, and it reflects a constitutionally impermissible “ ‘policy of hostility to the public Acts’ of a sister State.” Franchise Tax Bd., supra, at 499 (quoting Carroll v. Lanza, supra, at 413). In so holding we need not, and do not, intend to return to a complex “balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause.” Franchise Tax Bd., 538 U. S., at 496. Long ago this Court’s efforts to apply that kind of analysis led to results that seemed to differ depending, for example, upon whether the case involved commercial law, a shareholders’ action, insurance claims, or workman’s compensation statutes. See, e.g., Bradford Elec. Light Co. v. Clapper, 286 U. S. 145 –159 (1932); Carroll v. Lanza, supra, at 414–420 (Frankfurter, J., dissenting) (listing, and trying to classify, nearly 50 cases). We have since abandoned that approach, and we continue to recognize that a State need not “ ‘substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’ ” Franchise Tax Bd., supra, at 496 (quoting Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 501 (1939) ). But here, we can safely conclude that, in devising a special—and hostile—rule for California, Nevada has not “sensitively applied principles of comity with a healthy regard for California’s sovereign status.” Franchise Tax Bd., supra, at 499; see Thomas v. Washington Gas Light Co., 448 U. S. 261, 272 (1980) (plurality opinion) (Clause seeks to prevent “parochial entrenchment on the interests of other States”); Allstate Ins. Co. v. Hague, 449 U. S. 302 , and n. 10 (1981) (Stevens, J., concurring in judgment) (Clause is properly brought to bear when a State’s choice of law “threatens the federal interest in national unity by unjustifiably infringing upon the legitimate interests of another State”); cf. Supreme Court of N. H. v. Piper, 470 U. S. 274, 288 (1985) (Privileges and Immunities Clause prevents the New Hampshire Supreme Court from promulgating a rule that limits bar admission to state residents, discriminating against out-of-state lawyers); Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 894 (1988) (Commerce Clause invalidates a statute of limitations that “imposes a greater burden on out-of-state companies than it does on [in-state] companies”). For these reasons, insofar as the Nevada Supreme Court has declined to apply California law in favor of a special rule of Nevada law that is hostile to its sister States, we find its decision unconstitutional. We vacate its judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Alito concurs in the judgment.

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 . SUPREME COURT OF THE UNITED STATES Syllabus FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT certiorari to the supreme court of nevada No. 14–1175. Argued December 7, 2015—Decided April 19, 2016 Respondent Hyatt claims that he moved from California to Nevada in 1991, but petitioner Franchise Tax Board of California, a state agency, claims that he actually moved in 1992 and thus owes California millions in taxes, penalties, and interest. Hyatt filed suit in Nevada state court, which had jurisdiction over California under Nevada v. Hall, 440 U. S. 410 , seeking damages for California’s alleged abusive audit and investigation practices. After this Court affirmed the Nevada Supreme Court’s ruling that Nevada courts, as a matter of comity, would immunize California to the same extent that Nevada law would immunize its own agencies and officials, see Franchise Tax Bd. of Cal. v. Hyatt, 538 U. S. 488 , the case went to trial, where Hyatt was awarded almost $500 million in damages and fees. On appeal, California argued that the Constitution’s Full Faith and Credit Clause, Art. IV, §1, required Nevada to limit damages to $50,000, the maximum that Nevada law would permit in a similar suit against its own officials. The Nevada Supreme Court, however, affirmed $1 million of the award and ordered a retrial on another damages issue, stating that the $50,000 maximum would not apply on remand. Held: 1. The Court is equally divided on the question whether Nevada v. Hall should be overruled and thus affirms the Nevada courts’ exercise of jurisdiction over California’s state agency. P. 4. 2. The Constitution does not permit Nevada to apply a rule of Nevada law that awards damages against California that are greater than it could award against Nevada in similar circumstances. This conclusion is consistent with this Court’s precedents. A statute is a “public Act” within the meaning of the Full Faith and Credit Clause. While a State is not required “to substitute for its own statute . . . the statute of another State reflecting a conflicting and opposed policy,” Carroll v. Lanza, 349 U. S. 408 , a State’s decision to decline to apply another State’s statute on this ground must not embody a “policy of hostility to the public Acts” of that other State, id., at 413. Using this approach, the Court found no violation of the Clause in Carroll v. Lanza or in Franchise Tax Bd. the first time this litigation was considered. By contrast, the rule of unlimited damages applied here is not only “opposed” to California’s law of complete immunity; it is also inconsistent with the general principles of Nevada immunity law, which limit damages awards to $50,000. Nevada explained its departure from those general principles by describing California’s own system of controlling its agencies as an inadequate remedy for Nevada’s citizens. A State that disregards its own ordinary legal principles on this ground employs a constitutionally impermissible “ ‘policy of hostility to the public Acts’ of a sister State.” 538 U. S., at 499. The Nevada Supreme Court’s decision thereby lacks the “healthy regard for California’s sovereign status” that was the hallmark of its earlier decision. Ibid. This holding does not indicate a return to a complex “balancing-of-interests approach to conflicts of law under the Full Faith and Credit Clause.” Id., at 496. Rather, Nevada’s hostility toward California is clearly evident in its decision to devise a special, discriminatory damages rule that applies only to a sister State. . 130 Nev. ___, 335 P. 3d 125, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., concurred in the judgment. Roberts, C. J., filed a dissenting opinion, in which Thomas, J., joined.

A private citizen, a resident of Nevada, brought suit in Nevada state court against California, an agency of the State of California, seeking damages for what he called the Board of California's abusive audit and investigation practices, including rifling through his private mail, combing through his garbage, and examining private activities at his place of worship. California recognized that, under Hall, the Constitution permits Nevada's courts to assert jurisdiction over California despite California's lack of consent. However, California nonetheless asked the Nevada courts to dismiss the case on other constitutional grounds, arguing that the Constitution's Full Faith and Credit Clause required Nevada to apply California's sovereign immunity law to respondent. Nevada's Supreme Court rejected the claim, holding that Nevada courts, as a matter of comity, would immunize California where Nevada law would similarly immunize its own agencies and officials (e.g., for actions taken in the performance of a "discretionary" function), but that, in any event, such law permitted actions against Nevada agencies, say, for acts taken in bad faith or for intentional torts. On remand, the case went to trial, and a jury awarded respondent close to $500 million in damages (including compensatory and punitive fees and attorney fees) against California officials. California appealed to the Nevada Supreme Court, which accepted the court's conclusion that Nevada law required a limit of $50,000 against its own officials. The court agreed to limit the limit, but rejected California officials' argument that Nevada would impose similar statutory limits against similar state officials. Instead, setting aside the Nevada court, the court remanded for a retrial on the question of damages for intentional infliction of emotional distress. The court stated that damages awarded on remand are not subject to any statutory cap. Held: 1. Nevada has not applied the principles of Nevada law ordinarily applicable to suits against Nevada's own agencies. Rather, it has applied a special rule of law that evinces a State that disregards its own ordinary legal principles on this ground is hostile to another State. . 2. The Constitution does not permit Nevada to award respondent greater damages than Nevada law permits a private citizen to obtain in a similar suit against California agencies that are greater than Nevada would award against Nevada ownagencies in similar circumstances. Pp. 468 U.S. 491. (a) A statute is a "public Act" within the meaning of Art. IV, §1, and, when affirming a State's decision to decline to apply another State's statute on the ground that the State had not adopted any policy of hostility to the public Acts of that other State, the State has not offered sufficient policy considerations to justify the application of a special and discriminatory rule. Rather, viewed through a full faith and credit lens, a State such as Nevada has disregarded its own normal legal principles and disregards itself as hostile to its sister States. A constitutional rule that would permit this kind of discriminatory hostility is likely to cause chaotic interference by some States into the internal, legislative affairs of others. In light of the constitutional equality among the States, Coyle v. Smith, 221 U. S. 559, 580 (1911) and Carroll v. Lanza, 413), Nevada, in devising a special, and hostile, rule for California, has not analyzed the factors that led to its holding that one State (here, Nevada) can open the doors of its courts to private citizen's lawsuit against another State without the other State's consent. However, in doing so, Nevada had evinced a healthy regard for California. Franchise Tax Bd. of Cal. v. Hyatt,,. It embodies a critical departure from its earlier approach, emphasizing both that (1) Missouri law (compared with Arkansas law) embodied a conflicting and opposed policy, and (2) Arkansas law did not embody any policy hostility to Missouri. This second requirement was well established in earlier law, which emphasized both that Missouri law embodied "a conflicting policy," and that (3) the state law embodied a "conflic[t]" and (4) the "public Acts of the legislature." In devising the special Nevada rule, Nevada has failed to sensitively applied principles of comity with respect to damages awards greater than $50k. Moreover, the rule is inconsistent with the general Nevada immunity law, since it is not onlyopposed to California law, but is also inconsistent with Nevada general principles, which would grant immunity. Furthermore, in describing California's system of controlling its own agency as failing to provide adequate recourse to Nevada's citizens, it amounts to little more than a conclusory statement disparaging California's own legislative, judicial, and administrative controls. Such an explanation, which amounts to nothing more than an explanation disparaging the California system of administrative controls, cannot justify application of the special rule.. 130 Nev., ___, 335 P. 3d 145, affirmed.

2015_14-181

https://www.oyez.org/cases/2015/14-181

. This case presents a challenge to the applicability of a state law requiring disclosure of payments relating to health care claims and other information relating to health care services. Vermont enacted the statute so it could maintain an all-inclusive health care database.Vt. Stat. Ann., Tit. 18, §9410(a)(1) (2015 Cum. Supp.) ( V. S. A.). The state law, by its terms, applies to health plans established by employers and regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq. The question before the Court is whether ERISA pre-empts the Vermont statute as it applies to ERISA plans. I A Vermont requires certain public and private entities that provide and pay for health care services to report information to a state agency. The reported information is compiled into a database reflecting “all health care utilization, costs, and resources in [ Vermont], and health care utilization and costs for services provided to Vermont residents in another state.” 18 V. S. A. §9410(b). A database of this kind is sometimes called an all-payer claims database, for it requires submission of data from all health insurers and other entities that pay for health care services. Almost 20 States have or are implementing similar databases. See Brief for State of New York et al. as Amici Curiae 1, and n. 1. Vermont’s law requires health insurers, health care providers, health care facilities, and governmental agencies to report any “information relating to health care costs, prices, quality, utilization, or resources required” by the state agency, including data relating to health insurance claims and enrollment. §9410(c)(3). Health insurers must submit claims data on members, subscribers, and policyholders. §9410(h). The Vermont law defines health insurer to include a “self-insured . . . health care benefit plan,” §9402(8), as well as “any third party administrator” and any “similar entity with claims data, eligibility data, provider files, and other information relating to health care provided to a Vermont resident.” §9410( j)(1)(B). The database must be made “available as a resource for insurers, employers, providers, purchasers of health care, and State agencies to continuously review health care utili-zation, expenditures, and performance in Vermont.” §9410(h)(3)(B). Vermont law leaves to a state agency the responsibility to “establish the types of information to be filed under this section, and the time and place and the manner in which such information shall be filed.” §9410(d). The law has been implemented by a regulation creating the Vermont Healthcare Claims Uniform Reporting and Evaluation System. The regulation requires the submission of “medical claims data, pharmacy claims data, member eligibility data, provider data, and other information,” Reg. H–2008–01, Code of Vt. Rules 21–040–021, §4(D) (2016) (CVR),in accordance with specific formatting, coding, and other requirements, §5. Under the regulation, health insurers must report data about the health care services provided to Vermonters regardless of whether they are treated in Vermont or out-of-state and about non-Vermonters who are treated in Vermont. §4(D); see also §1. The agency at present does not collect data on denied claims, §5(A)(8), but the statute would allow it to do so. Covered entities (reporters) must register with the State and must submit data monthly, quarterly, or annually, depending on the number of individuals that an entity serves. The more people served, the more frequently the reports must be filed. §§4, 6(I). Entities with fewer than 200 members need not report at all, ibid., and are termed “voluntary” reporters as distinct from “mandated” reporters, §3. Reporters can be fined for not complying with the statute or the regulation. §10; 18 V. S. A. §9410(g). B Respondent Liberty Mutual Insurance Company maintains a health plan (Plan) that provides benefits in all 50 States to over 80,000 individuals, comprising respondent’s employees, their families, and former employees. The Plan is self-insured and self-funded, which means that Plan benefits are paid by respondent. The Plan, which qualifies as an “employee welfare benefit plan” under ERISA, 29 U. S. C. §1002(1), is subject to “ERISA’s comprehensive regulation,” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 650 (1995) . Respondent, as the Plan sponsor, is both a fiduciary and plan administrator. The Plan uses Blue Cross Blue Shield of Massachusetts, Inc. (Blue Cross) as a third-party administrator. Blue Cross manages the “processing, review, and payment” of claims for respondent. Liberty Mut. Ins. Co. v. Donegan, 746 F. 3d 497, 502 (CA2 2014) (case below). In its contract with Blue Cross, respondent agreed to “hold [Blue Cross] harmless for any charges, including legal fees, judgments, administrative expenses and benefit payment requirements, . . . arising from or in connection with [the Plan] or due to [respondent’s] failure to comply with any laws or regulations.” App. 82. The Plan is a voluntary reporter under the Vermont regulation because it covers some 137 Vermonters, which is fewer than the 200-person cutoff for mandated reporting. Blue Cross, however, serves several thousand Vermonters, and so it is a mandated reporter. Blue Cross, therefore, must report the information it possesses about the Plan’s members in Vermont. In August 2011, Vermont issued a subpoena ordering Blue Cross to transmit to a state-appointed contractor all the files it possessed on member eligibility, medical claims, and pharmacy claims for Vermont members. Id., at 33. (For clarity, the Court uses “Vermont” to refer not only to the State but also to state officials acting in their official capacity.) The penalty for noncompliance, Vermont threatened, would be a fine of up to $2,000 a day and a suspension of Blue Cross’ authorization to operate in Vermont for as long as six months. Id., at 31. Respondent, concerned in part that the disclosure of confidential information regarding its members might violate its fiduciary duties under the Plan, instructed Blue Cross not to comply. Respondent then filed this action in the United States District Court for the District of Vermont. It sought a declaration that ERISA pre-empts application of Vermont’s statute and regulation to the Plan and an injunction forbidding Vermont from trying to acquire data about the Plan or its members. Vermont filed a motion to dismiss, which the District Court treated as one for summary judgment, see Fed. Rule Civ. Proc. 12(d), and respondent filed a cross-motion for summary judgment. The District Court granted summary judgment to Vermont. It first held that respondent, despite being a mere voluntary reporter, had standing to sue because it was faced with either allegedly violating its “fiduciary and administrative responsibilities to the Plan” or assuming liability for Blue Cross’ withholding of the data from Vermont. Liberty Mut. Ins. Co. v. Kimbell, No. 2:11–cv–204 (D Vt., Nov. 9, 2012), p. 12. The District Court then concluded that the State’s reporting scheme was not pre-empted. Although that scheme “may have some indirect effect on health benefit plans,” the court reasoned that the “effect is so peripheral that the regulation cannot be considered an attempt to interfere with the administration or structure of a welfare benefit plan.” Id., at 31–32. The Court of Appeals for the Second Circuit reversed. The panel was unanimous in concluding that respondent had standing, but it divided on the merits of the pre-emption challenge. The panel majority explained that “one of ERISA’s core functions—reporting—[cannot] be laden with burdens, subject to incompatible, multiple and variable demands, and freighted with risk of fines, breach of duty, and legal expense.” 746 F. 3d, at 510. The Vermont regime, the court held, does just that. Id., at 508–510. This Court granted certiorari to address the important issue of ERISA pre-emption. 576 U. S. ___ (2015). II The text of ERISA’s express pre-emption clause is the necessary starting point. It is terse but comprehensive. ERISA pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). The Court has addressed the potential reach of this clause before. In Travelers, the Court observed that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course.” 514 U. S., at 655. That is a result “no sensible person could have intended.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 336 (1997) (Scalia, J., concurring). So the need for workable standards has led the Court to reject “uncritical literalism” in applying the clause. Travelers, 514 U. S., at 656. Implementing these principles, the Court’s case law to date has described two categories of state laws that ERISA pre-empts. First, ERISA pre-empts a state law if it has a “ ‘reference to’ ” ERISA plans. Ibid. To be more precise, “[w]here a State’s law acts immediately and exclusively upon ERISA plans . . . or where the existence of ERISA plans is essential to the law’s operation . . . , that ‘reference’ will result in pre-emption.” Dillingham, supra, at 325. Second, ERISA pre-empts a state law that has an impermissible “connection with” ERISA plans, meaning a state law that “governs . . . a central matter of plan administration” or “interferes with nationally uniform plan administration.” Egelhoff v. Egelhoff, 532 U. S. 141, 148 (2001) . A state law also might have an impermissible connection with ERISA plans if “acute, albeit indirect, economic effects” of the state law “force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.” Travelers, supra, at 668. When considered together, these formulations ensure that ERISA’s express pre-emption clause receives the broad scope Congress intended while avoiding the clause’s susceptibility to limitless application. III Respondent contends that Vermont’s law falls in the second category of state laws that are pre-empted by ERISA: laws that govern, or interfere with the uniformity of, plan administration and so have an impermissible “ ‘connection with’ ” ERISA plans. Egelhoff, supra, at 148; Travelers, 514 U. S., at 656. When presented with these contentions in earlier cases, the Court has considered “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,” ibid., and “the nature of the effect of the state law on ERISA plans,” Dillingham, supra, at 325. Here, those considerations lead the Court to conclude that Vermont’s regime, as applied to ERISA plans, is pre-empted. A ERISA does not guarantee substantive benefits. The statute, instead, seeks to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures. Travelers, 514 U. S., at 651. Those systems and procedures are intended to be uniform. Id., at 656 (ERISA’s pre-emption clause “indicates Congress’s intent to establish the regulation of employee welfare benefit plans ‘as exclusively a federal concern’ ” (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 523 (1981) )). “Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators—burdens ultimately borne by the beneficiaries.” Egelhoff, supra, at 149–150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990) ); see also Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987) . ERISA’s reporting, disclosure, and recordkeeping requirements for welfare benefit plans are extensive. ERISA plans must present participants with a plan description explaining, among other things, the plan’s eligibility requirements and claims-processing procedures. §§1021(a)(1), 1022, 1024(b)(1). Plans must notify participants when a claim is denied and state the basis for the denial. §1133(1). Most important for the pre-emption question presented here, welfare benefit plans governed by ERISA must file an annual report with the Secretary of Labor. The report must include a financial statement listing assets and liabilities for the previous year and, further, receipts and disbursements of funds. §§1021(b), 1023(b)(1), 1023(b)(3)(A)–(B), 1024(a). The information on assets and liabilities as well as receipts and disbursements must be provided to plan participants on an annual basis as well. §§1021(a)(2), 1023(b)(3)(A)–(B), 1024(b)(3). Because welfare benefit plans are in the business of providing benefits to plan participants, a plan’s reporting of data on disbursements by definition incorporates paid claims. See Dept. of Labor, Schedule H (Form 5500)Financial Information (2015) (requiring reporting of “[b]enefit claims payable” and “[b]enefit payment and payments to provide benefits”), online at http://www.dol.gov/ebsa/pdf/2015-5500-Schedule-H.pdf (as last visited Feb. 26, 2016). The Secretary of Labor has authority to establish additional reporting and disclosure requirements for ERISA plans. ERISA permits the Secretary to use the data disclosed by plans “for statistical and research purposes, and [to] compile and publish such studies, analyses, reports, and surveys based thereon as he may deem appropriate.” §1026(a). The Secretary also may, “in connection” with any research, “collect, compile, analyze, and publish data, information, and statistics relating to” plans. §1143(a)(1); see also §1143(a)(3) (approving “other studies relating to employee benefit plans, the matters regulated by this subchapter, and the enforcement procedures provided for under this subchapter”). ERISA further permits the Secretary of Labor to “requir[e] any information or data from any [plan] where he finds such data or information is necessary to carry out the purposes of” the statute, §1024(a)(2)(B), and, when investigating a possible statutory violation, “to require the submission of reports, books, and records, and the filing of data” related to other requisite filings, §1134(a)(1). The Secretary has the general power to promulgate regulations “necessary or appropriate” to administer the statute, §1135, and to provide exemptions from any reporting obligations, §1024(a)(3). It should come as no surprise, then, that plans must keep detailed records so compliance with ERISA’s reporting and disclosure requirements may be “verified, explained, or clarified, and checked for accuracy and completeness.” §1027. The records to be retained must “include vouchers, worksheets, receipts, and applicable resolutions.” Ibid.; see also §1135 (allowing the Secretary to “provide for the keeping of books and records, and for the inspection of such books and records”). These various requirements are not mere formalities. Violation of any one of them may result in both civil and criminal liability. See §§1131–1132. As all this makes plain, reporting, disclosure, and recordkeeping are central to, and an essential part of, the uniform system of plan administration contemplated by ERISA. The Court, in fact, has noted often that these requirements are integral aspects of ERISA. See, e.g., Dillingham, 519 U. S., at 327; Travelers, supra, at 651; Ingersoll-Rand, supra, at 137; Massachusetts v. Morash, 490 U. S. 107, 113, 115 (1989) ; Fort Halifax, supra, at 9; Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 732 (1985) . Vermont’s reporting regime, which compels plans to report detailed information about claims and plan members, both intrudes upon “a central matter of plan administration” and “interferes with nationally uniform plan administration.” Egelhoff, 532 U. S., at 148. The State’s law and regulation govern plan reporting, disclosure, and—by necessary implication—recordkeeping. These matters are fundamental components of ERISA’s regulation of plan administration. Differing, or even parallel, regulations from multiple jurisdictions could create wasteful administrative costs and threaten to subject plans to wide-ranging liability. See, e.g., 18 V. S. A. §9410(g) (supplying penalties for violation of Vermont’s reporting rules); CVR §10 (same). Pre-emption is necessary to prevent the States from imposing novel, inconsistent, and burdensome reporting requirements on plans. The Secretary of Labor, not the States, is authorized to administer the reporting requirements of plans governed by ERISA. He may exempt plans from ERISA report-ing requirements altogether. See §1024(a)(3); 29 CFR §2520.104–44 (2005) (exempting self-insured health plans from the annual financial reporting requirement). And, he may be authorized to require ERISA plans to report data similar to that which Vermont seeks, though that question is not presented here. Either way, the uniform rule design of ERISA makes it clear that these decisions are for federal authorities, not for the separate States. B Vermont disputes the pre-emption of its reporting regime on several fronts. The State argues that respondent has not demonstrated that the reporting regime in fact has caused it to suffer economic costs. Brief for Petitioner 52–54. But respondent’s challenge is not based on the theory that the State’s law must be pre-empted solely because of economic burdens caused by the state law. See Travelers, 514 U. S., at 668. Respondent argues, rather, that Vermont’s scheme regulates a central aspect of plan administration and, if the scheme is not pre-empted, plans will face the possibility of a body of disuniform state reporting laws and, even if uniform, the necessity to accommodate multiple governmental agencies. A plan need not wait to bring a pre-emption claim until confronted with numerous inconsistent obligations and encumbered with any ensuing costs. Vermont contends, furthermore, that ERISA does not pre-empt the state statute and regulation because the state reporting scheme has different objectives. This Court has recognized that “[t]he principal object of [ERISA] is to protect plan participants and beneficiaries.” Boggs v. Boggs, 520 U. S. 833, 845 (1997) . And “[i]n enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds.” Morash, supra, at 115. The State maintains that its program has nothing to do with the financial solvency of plans or the prudent behavior of fiduciaries. See Brief for Petitioner 29. This does not suffice to avoid federal pre-emption. “[P]re-emption claims turn on Congress’s intent.” Travelers, 514 U. S., at 655. The purpose of a state law, then, is relevant only as it may relate to the “scope of the state law that Congress understood would survive,” id., at 656, or “the nature of the effect of the state law on ERISA plans,” Dillingham, supra, at 325. In Travelers, for example, the Court noted that “[b]oth the purpose and the effects of” the state law at issue “distinguish[ed] it from” laws that “function as a regulation of an ERISA plan itself.” 514 U. S., at 658–659. The perceived difference here in the objectives of the Vermont law and ERISA does not shield Vermont’s reporting regime from pre-emption. Vermont orders health insurers, including ERISA plans, to report detailed information about the administration of benefits in a systematic manner. This is a direct regulation of a fundamental ERISA function. Any difference in purpose does not transform this direct regulation of “a central matter of plan administration,” Egelhoff, supra, at 148, into an innocuous and peripheral set of additional rules. The Vermont regime cannot be saved by invoking the State’s traditional power to regulate in the area of public health. The Court in the past has “addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law,” in particular state laws regulating a subject of traditional state power. Travelers, supra, at 654–655. ERISA, however, “certainly contemplated the pre-emption of substantial areas of traditional state regulation.” Dillingham, 519 U. S., at 330. ERISA pre-empts a state law that regulates a key facet of plan administration even if the state law exercises a traditional state power. See Egelhoff, 532 U. S., at 151–152. The fact that reporting is a principal and essential feature of ERISA demonstrates that Congress intended to pre-empt state reporting laws like Vermont’s, including those that operate with the purpose of furthering public health. The analysis may be different when applied to a state law, such as a tax on hospitals, see De Buono v. NYSA–ILA Medical and Clinical Services Fund, 520 U. S. 806 (1997) , the enforcement of which necessitates incidental reporting by ERISA plans; but that is not the law before the Court. Any presumption against pre-emption, whatever its force in other instances, cannot validate a state law that enters a fundamental area of ERISA regulation and thereby counters the federal purpose in the way this state law does. IV Respondent suggests that the Patient Protection and Affordable Care Act (ACA), which created new reporting obligations for employer-sponsored health plans and incorporated those requirements into the body of ERISA, further demonstrates that ERISA pre-empts Vermont’s reporting regime. See 29 U. S. C. §1185d; 42 U. S. C. §§300gg–15a, 17; §18031(e)(3). The ACA, however, specified that it shall not “be construed to preempt any State law that does not prevent the application of the provisions” of the ACA. 42 U. S. C. §18041(d). This anti-pre-emption provision might prevent any new ACA-created reporting obligations from pre-empting state reporting regimes like Vermont’s, notwithstanding the incorporation of these requirements in the heart of ERISA. But see 29 U. S. C. §1191(a)(2) (providing that the new ACA provisions shall not be construed to affect or modify the ERISA pre-emption clause as applied to group health plans); 42 U. S. C. §300gg–23(a)(2) (same). The Court has no need to resolve this issue. ERISA’s pre-existing reporting, disclosure, and recordkeeping provisions—upon which the Court’s conclusion rests—maintain their pre-emptive force whether or not the new ACA reporting obligations also pre-empt state law. * * * ERISA’s express pre-emption clause requires invalidation of the Vermont reporting statute as applied to ERISA plans. The state statute imposes duties that are inconsistent with the central design of ERISA, which is to provide a single uniform national scheme for the administration of ERISA plans without interference from laws of the several States even when those laws, to a large extent, impose parallel requirements. The judgment of the Court of Appeals for the Second Circuit is Affirmed.

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 . SUPREME COURT OF THE UNITED STATES Syllabus GOBEILLE, CHAIR OF THE VERMONT GREEN MOUNTAIN CARE BOARD v. LIBERTY MUTUAL INSURANCE CO. certiorari to the united states court of appeals for the second circuit No. 14–181. Argued December 2, 2015—Decided March 1, 2016 Vermont law requires certain entities, including health insurers, to report payments relating to health care claims and other information relating to health care services to a state agency for compilation in an all-inclusive health care database. Respondent Liberty Mutual Insurance Company’s health plan (Plan), which provides benefits in all 50 States, is an “employee welfare benefit plan” under the Employee Retirement Income Security Act of 1974 (ERISA). The Plan’s third-party administrator, Blue Cross Blue Shield of Massachusetts, Inc. (Blue Cross), which is subject to Vermont’s disclosure statute, was ordered to transmit its files on eligibility, medical claims, and pharmacy claims for the Plan’s Vermont members. Respondent, concerned that the disclosure of such confidential information might violate its fiduciary duties, instructed Blue Cross not to comply and filed suit, seeking a declaration that ERISA pre-empts application of Vermont’s statute and regulation to the Plan and an injunction prohibiting Vermont from trying to acquire data about the Plan or its members. The District Court granted summary judgment to Vermont, but the Second Circuit reversed, concluding that Vermont’s reporting scheme is pre-empted by ERISA. Held: ERISA pre-empts Vermont’s statute as applied to ERISA plans. . (a) ERISA expressly pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). As relevant here, the clause pre-empts a state law that has an impermissible “connection with” ERISA plans, i.e., a law that governs, or interferes with the uniformity of, plan administration. Egelhoff v. Egelhoff, 532 U. S. 141 . . (b) The considerations relevant to the determination whether an impermissible connection exists—ERISA’s objectives “as a guide to the scope of the state law that Congress understood would survive,” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , and “the nature of” the state law’s “effect . . . on ERISA plans,” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 —lead to the conclusion that Vermont’s regime, as applied to ERISA plans, is pre-empted. . (1) ERISA seeks to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures, Travelers, 514 U. S., at 651, and those systems and procedures are intended to be uniform, id., at 656. ERISA’s extensive reporting, disclosure, and recordkeeping requirements are central to, and an essential part of, this uniform plan administration system. Vermont’s law and regulation, however, also govern plan reporting, disclosure, and recordkeeping. Pre-emption is necessary in order to prevent multiple jurisdictions from imposing differing, or even parallel, regulations, creating wasteful administrative costs and threatening to subject plans to wide-ranging liability. ERISA’s uniform rule design also makes clear that it is the Secretary of Labor, not the separate States, that is authorized to decide whether to exempt plans from ERISA reporting requirements or to require ERISA plans to report data such as that sought by Vermont. . (2) Vermont’s counterarguments are unpersuasive. Vermont argues that respondent has not shown that the State scheme has caused it to suffer economic costs, but respondent need not wait to bring its pre-emption claim until confronted with numerous inconsistent obligations and encumbered with any ensuing costs. In addition, the fact that ERISA and the state reporting scheme have different objectives does not transform Vermont’s direct regulation of a fundamental ERISA function into an innocuous and peripheral set of additional rules. Vermont’s regime also cannot be saved by invoking the State’s traditional power to regulate in the area of public health. . (c) ERISA’s pre-existing reporting, disclosure, and recordkeeping provisions maintain their pre-emptive force regardless of whether the new Patient Protection and Affordable Care Act’s reporting obligations also pre-empt state law. . 746 F. 3d 497, affirmed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., and Breyer, J., filed concurring opinions. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.

A Vermont statute requires certain public and private entities that provide and pay for health care services to report any information relating to health care costs, prices, quality, utilization, or resources required by the state agency. The reported information is compiled into a database reflecting all health care utilization and costs for services provided to Vermont residents in another State. The Vermont statute also requires health insurers, health care providers, and health care facilities to report to a state agency any information concerning health insurance claims and enrollment. The data is submitted to a health insurer that is a mandated reporter under the Vermont statute, as is Blue Cross Blue Shield of Massachusetts, Inc. (Blue Cross). Blue Cross must report the information it possesses about the members of its Vermont-covered health insurance plan. When Blue Cross failed to comply with a state-imposed subpoena ordering Blue Cross to transmit all the files it possessed on member eligibility, medical claims, and pharmacy claims for Vermont members, respondent instructed Blue Cross not to comply. Respondent then filed an action in Federal District Court, seeking a declaration that ERISA pre-empts application of Vermont's statute and regulation to the Plan and an injunction forbidding Vermont from trying to acquire data about the Plan or its members. The District Court granted summary judgment to Vermont, holding that respondent, despite being a mere voluntary reporter, had standing to sue because it was faced with either allegedly violating its fiduciary and administrative responsibilities to the plan or assuming liability for Blue Cross' withholding of the data from Vermont. The Court of Appeals reversed, concluding that respondent had standing, but divided on the merits of the pre-emption challenge. Held: ERISA preempts Vermont's statutory application. . (a) ERISA does not guarantee substantive benefits, but instead seeks to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures. Those systems and procedures are intended to be uniform, and any difference in purpose does not transform the direct regulation of a central matter of plan administration into an innocuous and peripheral set of additional rules. Vermont's regime cannot be saved by invoking the State's traditional power to regulate in the area of public health. Pp. 475-476. (b) The State has the authority to establish additional reporting and disclosure requirements for ERISA plans. ERISA permits the Secretary of Labor to use the data disclosed by plans for statistical and research purposes, to compile and publish such studies, and to require the submission of reports, books, records, and the filing of data related to other requisite filings. ERISA further permits the Labor Department to request information from any plan where it finds such data is necessary to carry out the purposes of the statute, §1024(a)(2)(B), or when investigating a possible statutory violation. A state law also might have an impermissible connection with ERISA insurance plans if adverse, albeit indirect, economic effects of the state lawforce an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers. When considered together, ERISA formulations ensure that the clause receives the broad scope Congress intended while avoiding the clause's susceptibility to limitless application.. 746 F. 3d, affirmed. JUSTICE WHITE, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded in Part II that:CHIEF JUSTICE POWELL and JUSTICE STEVENS, JJ., joined. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., joined, post, p..

2015_14-613

https://www.oyez.org/cases/2015/14-613

. Title VII of the Civil Rights Act of 1964, 78Stat. 253, as amended, 42 U. S. C. §2000e et seq., prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, or retaliating against their employees for opposing or seeking relief from such discrimination. Before a federal civil servant can sue his employer for violating Title VII, he must, among other things, “initiate contact” with an Equal Employment Opportunity counselor at his agency “within 45 days of the date of the matter alleged to be discriminatory.” 29 CFR §1614.105(a)(1) (2015). If an employee claims he has been fired for discriminatory reasons, the “matter alleged to be discriminatory” includes the discharge itself and the 45-day limitations period begins running only after the employee is fired. We address here when the limitations period begins to run for an employee who was not fired, but resigns in the face of intolerable discrimination—a “constructive” discharge. We hold that, in such circumstances, the “matter alleged to be discriminatory” includes the employee’s resignation, and that the 45-day clock for a constructive discharge begins running only after the employee resigns. I We recite the following facts in the light most favorable to petitioner Marvin Green, against whom the District Court entered summary judgment. Green is a black man who worked for the Postal Service for 35 years. In 2008, he was serving as the postmaster for Englewood, Colorado when he applied for a promotion to the vacant postmaster position in nearby Boulder. He was passed over. Shortly thereafter, Green complained he was denied the promotion because of his race. Green’s relations with his supervisors crumbled following his complaint. Tensions peaked on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail—a criminal offense. See 18 U. S. C. §1703. They informed Green that the Postal Service’s Office of the Inspector General (OIG) was investigating the charge and that OIG agents had arrived to interview him as part of their investigation. After Green met with the OIG agents, his supervisors gave him a letter reassigning him to off-duty status until the matter was resolved. Even though the OIG agents reported to Green’s supervisors that no further investigation was warranted, the supervisors continued to represent to Green that “the OIG is all over this” and that the “criminal” charge “could be a life changer.” App. 53. On December 16, 2009, Green and the Postal Service signed an agreement whose meaning remains disputed. Relevant here, the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post in Englewood. The agreement also apparently gave Green a choice: effective March 31, 2010, he could either retire or report for duty in Wamsutter, Wyoming—population 451—at a salary considerably lower than what he earned in his Denver suburb. Green chose to retire and submitted his resignation to the Postal Service on February 9, 2010, effective March 31. On March 22—41 days after submitting his resignation paperwork to the Postal Service on February 9, but 96 days after signing the settlement agreement on December 16—Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint.[1] He alleged that the choice he had been given effectively forced his resignation in violation of Title VII. Green eventually filed suit in the Federal District Court for the District of Colorado, alleging, inter alia, that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR §1614.105(a)(1). The District Court granted the Postal Service’s motion for summary judgment. The Tenth Circuit affirmed, holding that the “matter alleged to be discriminatory” encompassed only the Postal Service’s discriminatory actions and not Green’s independent decision to resign on February 9. Green v. Donahue, 760 F. 3d 1135 (2014). Therefore, the 45-day limitations period started running when both parties signed the settlement agreement on December 16, 2009. Accordingly, because 96 days passed between the agreement and when Green contacted an EEO counselor on March 22, 2010, his constructive-discharge claim was time barred. Two other Courts of Appeals agree with the Tenth Circuit’s view that the limitations period begins to run for a constructive-discharge claim after the employer’s last discriminatory act.[2] As the Tenth Circuit recognized, however, other Courts of Appeals have held that the limitations period for a constructive-discharge claim does not begin to run until the employee resigns.[3] We granted certiorari to resolve this split. 575 U. S. ___ (2015). Because no party here supports the Tenth Circuit’s holding that an employee’s resignation is not part of the “matter alleged to be discriminatory,” we appointed Catherine M. A. Carroll to defend that aspect of the judgment below. 576 U. S. ___ (2015). She has ably discharged her duties and the Court thanks her for her service. II Before a federal civil servant can sue his employer in court for discriminating against him in violation of Title VII, he must first exhaust his administrative remedies. 42 U. S. C. §2000e–16(c). To exhaust those remedies, the Equal Employment Opportunity Commission (EEOC) has promulgated regulations that require, among other things, that a federal employee consult with an EEO counselor prior to filing a discrimination lawsuit. Specifically, he “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 CFR §1614.105(a)(1).[4] The timeliness of Green’s claim therefore turns on our interpretation of this EEOC regulation implementing Title VII.[5] Although we begin our interpretation of the regulation with its text, the text in this case is not particularly helpful. Nowhere does §1614.105 indicate whether a “matter alleged to be discriminatory” in a constructive-discharge claim includes the employee’s resignation, as Green contends, or only the employer’s discriminatory conduct, as amica contends. The word “matter” simply means “an allegation forming the basis of a claim or defense,” Black’s Law Dictionary 1126 (10th ed. 2014)—a term that could readily apply to a discrimination-precipitated resignation. So the “matter alleged to be discriminatory” could refer to all of the allegations underlying a claim of discrimination, including the employee’s resignation, or only to those allegations concerning the employer’s discriminatory conduct. We therefore must turn to other canons of interpretation. The most helpful canon in this context is “the ‘standard rule’ ” for limitations periods. Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409, 418 (2005) . Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’ ” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes until 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) . Although the standard rule can be displaced such that the limitations period begins to run before a plaintiff can file a suit, we “will not infer such an odd result in the absence of any such indication” in the text of the limitations period. Reiter v. Cooper, 507 U. S. 258, 267 (1993) . Applying this default rule, we are persuaded that the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, nothing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here. We therefore interpret the term “matter alleged to be discriminatory” for a constructive-discharge claim to include the date Green resigned. A The standard rule for limitations periods requires us first to determine what is a “complete and present cause of action” for a constructive-discharge claim. We hold that such a claim accrues only after an employee resigns. The constructive-discharge doctrine contemplates a situation in which an employer discriminates against an employee to the point such that his “working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” Pennsylvania State Police v. Suders, 542 U. S. 129, 141 (2004) . When the employee resigns in the face of such circumstances, Title VII treats that resignation as tantamount to an actual discharge. Id., at 142–143. A claim of constructive discharge therefore has two basic elements. A plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign. Id., at 148. But he must also show that he actually resigned. Ibid. (“A constructive discharge involves both an employee’s decision to leave and precipitating conduct . . .” (emphasis added)). In other words, an employee cannot bring a constructive-discharge claim until he is constructively discharged. Only after both elements are satisfied can he file suit to obtain relief. Under the standard rule for limitations periods, the limitations period should begin to run for a constructive-discharge claim only after a plaintiff resigns. At that point—and not before—he can file a suit for constructive discharge. So only at that point—and not before—does he have a “complete and present” cause of action. And only after he has a complete and present cause of action does a limitations period ordinarily begin to run. Cf. Mac’s Shell Service, Inc. v. Shell Oil Products Co., 559 U. S. 175 –190 (2010) (the limitations period for a constructive termination of a franchise agreement starts running when the agreement is constructively terminated). In this respect, a claim that an employer constructively discharged an employee is no different from a claim that an employer actually discharged an employee. An ordinary wrongful discharge claim also has two basic elements: discrimination and discharge. See St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 506 (1993) ; 1 B. Lindemann, P. Grossman, & C. Weirich, Employment Discrimination Law 21–33 (5th ed. 2012) (Lindemann) (“The sine qua non of a discharge case is, of course, a discharge”). The claim accrues when the employee is fired. At that point—and not before—he has a “complete and present cause of action.” So at that point—and not before—the limitations period begins to run. With claims of either constructive discharge or actual discharge, the standard rule thus yields the same result: a limitations period should not begin to run until after the discharge itself. In light of this rule, we interpret the term “matter alleged to be discriminatory” in §1614.105 to refer to all of the elements that make up a constructive-discharge claim—including an employee’s resignation. B Although the standard rule dictates that a limitations period should commence only after a claim accrues, there is an exception to that rule when the text creating the limitations period clearly indicates otherwise. See, e.g., Dodd v. United States, 545 U. S. 353, 360 (2005) . Nothing in the text of Title VII or the regulation, however, suggests that the standard rule should be displaced here. To the contrary, the language of the regulation confirms our application of the default rule. As noted previously, the word “matter” generally refers to “an allegation forming the basis of a claim or defense.” Black’s Law Dictionary 1126. The natural reading of “matter alleged to be discriminatory” thus refers to the allegation forming the basis of the discrimination claim—here, a claim of constructive discharge. And as discussed above, a constructive discharge claim requires two basic allegations: discriminatory conduct by the employer that leads to resignation of the employee. So long as those acts are part of the same, single claim under consideration, they are part of the “matter alleged to be discriminatory,” whatever the role of discrimination in each individual element of the claim. Cf. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 –121 (2002) (holding that a hostile-work-environment claim is a single “unlawful employment practice” that includes every act composing that claim, whether those acts are independently actionable or not). C Finally, we are also persuaded that applying the standard rule for limitations periods to constructive discharge makes a good deal of practical sense. Starting the limitations clock ticking before a plaintiff can actually sue for constructive discharge serves little purpose in furthering the goals of a limitations period—and it actively negates Title VII’s remedial structure. Cf. Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 398 (1982) (holding that the Title VII limitations period should be construed to “honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement”). This Court has recognized “that the limitations perio[d] should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Delaware State College v. Ricks, 449 U. S. 250 , n. 16 (1980). If the limitations period begins to run following the employer’s precipitating discriminatory conduct, but before the employee’s resignation, the employee will be forced to file a discrimination complaint after the employer’s conduct and later amend the complaint to allege constructive discharge after he resigns. Nothing in the regulation suggests it intended to require a layperson, while making this difficult decision, to follow such a two-step process in order to preserve any remedy if he is constructively discharged. Moreover, forcing an employee to lodge a complaint before he can bring a claim for constructive discharge places that employee in a difficult situation. An employee who suffered discrimination severe enough that a reasonable person in his shoes would resign might nevertheless force himself to tolerate that discrimination for a period of time. He might delay his resignation until he can afford to leave. Or he might delay in light of other circumstances, as in the case of a teacher waiting until the end of the school year to resign. Tr. 17. And, if he feels he must stay for a period of time, he may be reluctant to complain about discrimination while still employed. A complaint could risk termination—an additional adverse consequence that he may have to disclose in future job applications. III Amica and the dissent read “matter alleged to be discriminatory” as having a clear enough meaning to displace our reliance on the standard rule for limitations periods. They argue that “matter” is not equivalent to “claim” or “cause of action,” and that the use of the phrase “matter alleged to be discriminatory” is a sufficiently clear statement that the standard claim accrual rule should not apply. According to amica and the dissent, “matter” refers only to the discriminatory acts of the Postal Service, not Green’s resignation. We disagree. There is nothing inherent in the phrase “matter alleged to be discriminatory” that clearly limits it to employer conduct. Rather, as discussed above, the term can reasonably be interpreted to include the factual basis for a claim. Green is not alleging just that the Postal Service discriminated against him. He claims that the discrimination left him no choice but to resign. Amica and the dissent dispute that a constructive discharge is a separate claim. According to amica and the dissent, the constructive-discharge doctrine merely allows a plaintiff to expand any underlying discrimination claim to include the damages from leaving his job, thereby increasing his available remedies. See 1 Lindemann 21–49 (constructive discharge allows plaintiff to seek backpay, front pay, or reinstatement). In support of this argument, amica and the dissent emphasize this Court’s statement in Suders that “[u]nder the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes.” 542 U. S., at 141 (emphasis added); see also id., at 148 (“[A] constructive discharge is functionally the same as an actual termination in damages-enhancing respects”). But the Court did not hold in Suders that a constructive discharge is tantamount to a formal discharge for remedial purposes exclusively. To the contrary, it expressly held that constructive discharge is a claim distinct from the underlying discriminatory act. Id., at 149 (holding that a hostile-work-environment claim is a “lesser included component” of the “graver claim of hostile-environment constructive discharge”). This holding was no mere dictum. See id., at 142 (“[A] claim for constructive discharge lies under Title VII”). We see no reason to excise an employee’s resignation from his constructive-discharge claim for purposes of the limitations period. The concurrence sets out a theory that there are two kinds of constructive discharge for purposes of the limitations period: constructive discharge “claims” where the employer “makes conditions intolerable with the specific discriminatory intent of forcing the employee to resign,” and constructive discharge “damages” where the employer does not intend to force the employee to quit, but the discriminatory conditions of employment are so intolerable that the employee quits anyway. Post, at 6–11 (Alito, J., concurring in judgment). According to the concurrence, the limitations period does not begin to run until an employee resigns under the “claim” theory of constructive discharge, but begins at the last discriminatory act before resignation under the “damages” theory. This sometimes-a-claim-sometimes-not theory of constructive discharge is novel and contrary to the constructive discharge doctrine. The whole point of allowing an employee to claim “constructive” discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him. Suders, 542 U. S., at 141–143.[6] We do not also require an employee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the dis-crimination so bad that he had to quit, but also that his quitting was his employer’s plan all along. Amica and the dissent also argue that their interpretation is more consistent with this Court’s prior precedent on when the limitations period begins to run for discrimination claims. Under their interpretation, Green’s resignation was not part of the discriminatory “matter,” but was instead the mere inevitable consequence of the Postal Service’s discriminatory conduct, and therefore cannot be used to extend the limitations period. See Brief for Court-Appointed Amica Curiae in Support of Judgment Below 21–27 (Brief for Amica Curiae) (citing Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007) , overruled by statute, Lilly Ledbetter Fair Pay Act of 2009, 123Stat. 5; Delaware State College v. Ricks, 449 U. S. 250 ; United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977) ); post, at 3–7 (Thomas, J., dissenting) (citing Ricks, 449 U. S. 250 , and Chardon v. Fernandez, 454 U. S. 6 (1981) (per curiam)). Similarly, the concurrence argues these cases require that an act done with discriminatory intent must occur within the limitations period. Post, at 4 (opinion of Alito, J.). But these cases are consistent with the standard rule that a limitations period begins to run after a claim accrues, not after an inevitable consequence of that claim. In Ricks, for example, the Court considered the discrimination claim of a college faculty member who was denied tenure and given a 1-year “ ‘terminal’ ” contract for his last year teaching. 449 U. S., at 258. The plaintiff’s claim accrued—and he could have sued—when the college informed him he would be denied tenure and gave him “explicit notice that his employment would end” when his 1-year contract expired. Ibid. The Court held that the limitations period began to run on that date, and not after his 1-year contract expired. That final year of teaching was merely an inevitable consequence of the tenure denial the plaintiff claimed was discriminatory. Green’s resignation, by contrast, is not merely an inevitable consequence of the discrimination he suffered; it is an essential part of his constructive-discharge claim. That is, Green could not sue for constructive discharge until he actually resigned. Of course, Green could not resign and then wait until the consequences of that resignation became most painful to complain. For example, he could not use the date of the expiration of his health insurance after his resignation to extend the limitations period. But the “inevitable consequence” principle of Ricks, Ledbetter, and Evans does not change the focus of the limitations period, which remains on the claim of discrimination itself. See Lewis v. Chicago, 560 U. S. 205, 214 (2010) (holding Evans and its progeny “establish only that a Title VII plaintiff must show a present violation within the limitations period” (internal quotation marks omitted)); National Railroad Passenger Corporation v. Morgan, 536 U. S., at 115–121 (holding limitations period for hostile-work-environment claim runs from the last act composing the claim).[7] For a constructive discharge, the claim does not exist until the employee resigns. Finally, amica contends that her interpretation of the regulation better advances the EEOC’s goal of promoting conciliation for federal employees through early, informal contact with an EEO counselor. See Exec. Order No. 11478, §4, 34 Fed. Reg. 12986 (1969) (counseling for federal employees “shall encourage the resolution of employee problems on an informal basis”). The dissent suggests that our holding will make a discrimination victim the master of his complaint, permitting him to “ ‘exten[d] the limitation[s period] indefinitely’ ” by waiting to resign. Post, at 7 (opinion of Thomas, J.). The concurrence claims that an employee who relies on the limitations period in waiting to resign is “doubly out of luck” if his otherwise-meritorious discrimination claim is time barred and he cannot show the discrimination was so intolerable that it amounted to a constructive discharge. Post, at 13 (opinion of Alito, J.). These concerns are overblown. Amica may be right that it is more difficult to achieve conciliation after an employee resigns. But the same is true for a federal civil servant who is fired by his agency for what the employee believes to be a discriminatory purpose. And neither decision is necessarily permanent—a resignation or a termination may be undone after an employee contacts a counselor. Conciliation, while important, does not warrant treating a constructive discharge different from an actual discharge for purposes of the limitations period. As for the dissent’s fear, we doubt that a victim of employment discrimination will continue to work in an intolerable environment merely because he can thereby extend the limitations period for a claim of constructive discharge. If anything, a plaintiff who wishes to prevail on the merits of his constructive discharge claim has the opposite incentive. A claim of constructive discharge requires proof of a causal link between the allegedly intolerable conditions and the resignation. See 1 Lindemann 21–45, and n. 106. And as for the concurrence’s double-loser concern, no plaintiff would be well advised to delay pursuing what he believes to be a meritorious non-constructive-discharge-discrimination claim on the ground that a timely filed constructive discharge claim could resuscitate other time-lapsed claims. The 45-day limitations period begins running on any separate underlying claim of discrimination when that claim accrues, regardless of whether the plaintiff eventually claims constructive discharge. The limitations-period analysis is always conducted claim by claim. IV Our decision that a resignation triggers the limitations period for a constructive-discharge claim raises the question of when precisely an employee resigns. Here, Green and the Government agree that an employee resigns when he gives his employer definite notice of his intent to resign. If an employee gives “two weeks’ notice”—telling his employer he intends to leave after two more weeks of employment—the limitations period begins to run on the day he tells his employer, not his last day at work. (This issue was not addressed by the Tenth Circuit and, accordingly, amica takes no position on it. See Brief for Amica Curiae 42.) We agree. A notice rule flows directly from this Court’s precedent. In Ricks, 449 U. S., at 250, and Chardon v. Fernandez, 454 U. S. 6 , the Court explained that an ordinary wrongful-discharge claim accrues—and the limitations period begins to run—when the employer notifies the employee he is fired, not on the last day of his employment. Ricks, 449 U. S., at 258–259; Chardon, 454 U. S., at 8. Likewise, here, we hold that a constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation, not on the effective date of that resignation. One factual issue remains: when exactly Green gave the Postal Service notice of his resignation. The Government argues that Green resigned on December 16, 2009—when he signed the settlement agreement—and that his claim is therefore still time barred. Green argues that he did not resign until February 9, 2010—when he submitted his retirement paperwork—and that his claim is therefore timely. We need not resolve this issue. Having concluded that the limitations period for Green’s constructive-discharge claim runs from the date he gave notice of his resignation, we leave it to the Tenth Circuit to determine when this in fact occurred. * * * For these reasons, we vacate the judgment of the Tenth Circuit and remand the case for further proceedings consistent with this opinion. So ordered.Notes 1 We assume without deciding that it is unlawful for a federal agency to retaliate against a civil servant for complaining of discrimination. See Gómez-Pérez v. Potter, 553 U. S. 474 , n. 4 (2008); Brief for Respondent 2. 2 Mayers v. Laborers’ Health and Safety Fund of North America, 478 F. 3d 364, 370 (CADC 2007) (per curiam); Davidson v. Indiana-American Water Works, 953 F. 2d 1058, 1059 (CA7 1992). 3 Flaherty v. Metromail Corp., 235 F. 3d 133, 138 (CA2 2000); Draper v. Coeur Rochester, Inc., 147 F. 3d 1104, 1111 (CA9 1998); Hukkanen v. Operating Engineers, 3 F. 3d 281, 285 (CA8 1993); Young v. National Center for Health Servs. Research, 828 F. 2d 235, 238 (CA4 1987). 4 This regulation, applicable to federal employees only, has a statutory analog for private-sector Title VII plaintiffs, who are required to file a charge with the EEOC within 180 or 300 days “after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e–5(e)(1). Al-though the language is different, the EEOC treats the federal and private-sector employee limitations periods as identical in operation. See EEOC Compliance Manual: Threshold Issues §2–IV(C)(1), n. 179. 5 Green does not contend that his alleged constructive discharge is a “personnel action.” See Brief for Petitioner 17–18; Green v. Donahoe, 760 F. 3d 1135, 1144, n. 3 (CA10 2014). We therefore address the “matter alleged to be discriminatory” clause only. 6 The concurrence suggests that its theory is consistent with statements in the Suders opinion that constructive discharge is akin to an actual discharge “ ‘for remedial purposes’ ” and in “ ‘damages-enhancing respects.’ ” Post, at 10 (opinion of Alito, J.) (quoting Suders, 542 U. S., at 141, 148). This ignores the more obvious explanation for this qualification: The Court was distinguishing between the merits of a claim of constructive discharge generally, where resignation is imputed as a discriminatory act of the employer, and the affirmative defense avail-able to an employer in a hostile work environment claim specifically, which allows an employer to defend against a hostile work environment claim in certain circumstances if it took no “ ‘official act’ ” against the employee. Id., at 143–146. The Court in Suders recognized that it would be bizarre to always impute resignation as an “official act” of the employer in a constructive discharge hostile work environment case and prohibit the employer from relying on the no-“official-act” defense, because it would make it easier to prove the “graver” claim of a constructive discharge hostile work environment than to prove a hostile work environment claim. Id., at 148–149. Thus, the Court declined to hold that resignation in a constructive discharge case was categorically an “official act” in all instances. Ibid. In other words, the Court sought a measure of parity between constructive discharge and ordinary discrimination—parity that we extend to the limitations period here. 7 The dissent relies on Morgan’s other holding that, unlike a hostile-work-environment claim that may comprise many discriminatory acts, discrete claims of discrimination based on independent discriminatory acts cannot be aggregated to extend the limitations period. See post, at 3 (opinion of Thomas, J.) (citing 536 U. S., at 109–113). But this just proves the point: The analysis for the limitations period turns on the nature of the specific legal claim at issue. In Morgan, the Court noted that even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim, so long as one other act that was part of that same hostile-work-environment claim occurred within the limitations period. Id., at 117 (“It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations . . . ”).

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 . SUPREME COURT OF THE UNITED STATES Syllabus GREEN v. BRENNAN, POSTMASTER GENERAL certiorari to the united states court of appeals for the tenth circuit No. 14–613. Argued November 30, 2015—Decided May 23, 2016 After petitioner Marvin Green complained to his employer, the United States Postal Service, that he was denied a promotion because he was black, his supervisors accused him of the crime of intentionally delaying the mail. In an agreement signed December 16, 2009, the Postal Service agreed not to pursue criminal charges, and Green agreed either to retire or to accept another position in a remote location for much less money. Green chose to retire and submitted his resignation paperwork on February 9, 2010, effective March 31. On March 22—41 days after resigning and 96 days after signing the agreement—Green reported an unlawful constructive discharge to an Equal Employment Opportunity counselor, an administrative prerequisite to filing a complaint alleging discrimination or retaliation in violation of Title VII of the Civil Rights Act of 1964. See 29 CFR §1614.105(a)(1). Green eventually filed suit in Federal District Court, which dismissed his complaint as untimely because he had not contacted the counselor within 45 days of the “matter alleged to be discriminatory,” ibid. The Tenth Circuit affirmed, holding that the 45-day limitations period began to run on December 16, the date Green signed the agreement. Held: 1. Because part of the “matter alleged to be discriminatory” in a constructive-discharge claim is an employee’s resignation, the 45-day limitations period for such action begins running only after an employee resigns. . (a) Where, as here, the regulatory text itself is not unambiguously clear, the Court relies on the standard rule for limitations periods, which provides that a limitations period ordinarily begins to run “ ‘when the plaintiff has a complete and present cause of action,’ ” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409 . Applied here, that rule offers three persuasive reasons to include the employee’s resignation in the limitations period. . (i) First, resignation is part of the “complete and present cause of action” in a constructive-discharge claim, which comprises two basic elements: discriminatory conduct such that a reasonable employee would have felt compelled to resign and actual resignation, Pennsylvania State Police v. Suders, 542 U. S. 129 . Until he resigns, an employee does not have a “complete and present cause of action” for constructive discharge. Under the standard rule, only after the employee has a complete and present cause of action does that trigger the limitations period. In this respect, a constructive-discharge claim is no different from an ordinary wrongful-discharge claim, which accrues only after the employee is fired. . (ii) Second, although the standard rule may be subject to exception where clearly indicated by the text creating the limitations period, nothing in Title VII or the regulation suggests such displacement. To the contrary, it is natural to read “matter alleged to be discriminatory” as including the allegation forming the basis of the claim, which confirms the standard rule’s applicability. . (iii) Third, practical considerations also confirm the merit of applying the standard rule. Starting the clock ticking before a plaintiff can actually file suit does little to further the limitations period’s goals and actively negates Title VII’s remedial structure. A “limitations perio[d] should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Delaware State College v. Ricks, 449 U. S. 250 , n. 16. Nothing in the regulation suggests a two-step process in which an employee would have to file a complaint after an employer’s discriminatory conduct, only to be forced to amend that complaint to allege constructive discharge after resigning. Requiring that a complaint be filed before resignation occurs would also, e.g., ignore that an employee may not be in a position to leave his job immediately. . (b) Arguments against applying the standard rule here are rejected. Suders stands not for the proposition that a constructive discharge is tantamount to a formal discharge for remedial purposes only, but for the rule that constructive discharge is a claim distinct from the underlying discriminatory act, 542 U. S., at 149. Nor was Green’s resignation the mere inevitable consequence of the Postal Service’s discriminatory conduct. Ricks, 449 U. S. 250 , distinguished. Finally, the important goal of promoting conciliation through early, informal contact with a counselor does not warrant treating a constructive discharge different from an actual discharge for purposes of the limitations period. . 2. A constructive-discharge claim accrues—and the limitations period begins to run—when the employee gives notice of his resignation, not on the effective date thereof. The Tenth Circuit is left to determine, in the first instance, the date that Green in fact gave notice. P. 16. 760 F. 3d 1135, vacated and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin, or retaliating against their employees for opposing or seeking relief from such discrimination. Before a federal civil servant can sue his employer for violating Title VII, he must, inter alia, initiate contact with an Equal Employment Opportunity (EEEO) counselor within 45 days of the matter alleged to be discriminatory, and the 45-day limitations period begins running only after the employee is fired. Petitioner Green, a black man who worked for the Postal Service for 35 years, filed suit against his employer in Federal District Court, alleging that his supervisors had violated Title VII by forcing his resignation in violation of Title VII. The District Court granted summary judgment for the USPS, holding that the alleged discriminatory actions encompassed only the alleged constructive discharge period, and that therefore the limitations period began to run when Green signed the constructive discharge agreement. The Court of Appeals affirmed. Held: The limitations period for a constructive discharge claim does not begin to run until Green resigns. . (a) The timeliness of Green's claim turns on the interpretation of an EEOC regulation implementing Title VII that requires that a federal employee consult with an EEO counselor prior to filing a discrimination lawsuit. The wordmatter, simply means an allegation forming the basis for a claim of discrimination, including the employee's resignation, or only to those allegations concerning the employer's discriminatory conduct. Although the standard rule dictates that a limitations period should commence only after a claim accrues, there is an exception to that rule when the text creating the limitation period clearly indicates otherwise. See, e.g., Dodd v. United States, 545 U. S. 353, 360. Here, nothing in the Title VII regulation indicates that it is unlawful for a federal agency to retaliate against a civil servant for complaining of discrimination. Rather, the term is interpreted to refer to all of the elements that make up a constructive-discharge claim, including an employee resigning. Moreover, applying the rule for limitations periods to constructive discharge makes a good deal of practical sense, since starting limitations periods before a plaintiff can sue for constructive discharge actually furthers the remedial purpose of remedial legislation. Pp. 456 U.S. 569-569. (b) The term constructive discharge is not displaced here by the fact that the employee resigns when he gives his employer definite notice of his intent to resign. Rather, it can reasonably be interpreted to include the factual basis for the claim. Green is not alleging just that the postal service discriminated against him. He claims that the discrimination left him no choice but to resign, and there is nothing inherent in the phrase that clearly limits it to employer conduct; rather, as discussed above, it simply includes the factual basis for such a claim, and thus the term should not be displaced in this context. Applying the rule here also confirms this Court's prior precedent on when limitations periods begins to run for discrimination claims. Cf. Ricks v. Chicago, ; Chardon v. Fernandez, 454 U. s. 6; United Air Lines, Inc. v. Evans, 477 F.2d 1135, n. 3. Amica Curiae, who has ably discharged her duties and the Court thanks her for her service, is defending the aspect of the judgment below that an employee resignation is not part of the alleged discrimination, but resigns in the face of an intolerable situation. She also contends that her interpretation of the regulation better advances the EEOC's goal of promoting conciliation for federal employees through early, informal contact with EEO counselors. However, she contends that the holding will make a discrimination victim the master of his complaint, permitting him to apply the rule of limitations periods indefinitely before resigning by waiting to sue. This Court will address the question whether the resignation in this case was categorically an "official act" in all instances. Finally, the Court need not resolve the issue whether the employee resigned on December 16, 2009, when he signed the settlement agreement, and whether his claim is still time barred. P.. 760 F. 2d 760, vacated and remanded. Certiorari dismissed. Reported below: 575 F. Supp. 760, affirmed in part and reversed in part.

2015_14-1513

https://www.oyez.org/cases/2015/14-1513

. Section 284 of the Patent Act provides that, in a case of infringement, courts “may increase the damages up to three times the amount found or assessed.” 35 U. S. C. §284. In In re Seagate Technology, LLC, 497 F. 3d 1360 (2007) (en banc), the United States Court of Appeals for the Federal Circuit adopted a two-part test for determining when a district court may increase damages pursuant to §284. Under Seagate, a patent owner must first “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Id., at 1371. Second, the patentee must demonstrate, again by clear and convincing evidence, that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Ibid. The question before us is whether this test is consistent with §284. We hold that it is not. I A Enhanced damages are as old as U. S. patent law. The Patent Act of 1793 mandated treble damages in any successful infringement suit. See Patent Act of 1793, §5, 1Stat. 322. In the Patent Act of 1836, however, Congress changed course and made enhanced damages discretionary, specifying that “it shall be in the power of the court to render judgment for any sum above the amount found by [the] verdict . . . not exceeding three times the amount thereof, according to the circumstances of the case.” Pat-ent Act of 1836, §14, 5Stat. 123. In construing that new provision, this Court explained that the change was prompted by the “injustice” of subjecting a “defendant who acted in ignorance or good faith” to the same treatment as the “wanton and malicious pirate.” Seymour v. McCormick, 16 How. 480, 488 (1854). There “is no good reason,” we observed, “why taking a man’s property in an invention should be trebly punished, while the measure of damages as to other property is single and actual damages.” Id., at 488–489. But “where the injury is wanton or malicious, a jury may inflict vindictive or exemplary damages, not to recompense the plaintiff, but to punish the defendant.” Id., at 489. The Court followed the same approach in other decisions applying the 1836 Act, finding enhanced damages appropriate, for instance, “where the wrong [had] been done, under aggravated circumstances,” Dean v. Mason, 20 How. 198, 203 (1858), but not where the defendant “appeared in truth to be ignorant of the existence of the patent right, and did not intend any infringement,” Hogg v. Emerson, 11 How. 587, 607 (1850). See also Livingston v. Woodworth, 15 How. 546, 560 (1854) (“no ground” to inflict “penalty” where infringers were not “wanton”). In 1870, Congress amended the Patent Act, but preserved district court discretion to award up to treble damages “according to the circumstances of the case.” Patent Act of 1870, §59, 16Stat. 207. We continued to describe enhanced damages as “vindictive or punitive,” which the court may “inflict” when “the circumstances of the case appear to require it.” Tilghman v. Proctor, 125 U. S. 136 –144 (1888); Topliff v. Topliff, 145 U. S. 156, 174 (1892) (infringer knowingly sold copied technology of his former employer). At the same time, we reiterated that there was no basis for increased damages where “[t]here is no pretence of any wanton and wilful breach” and “nothing that suggests punitive damages, or that shows wherein the defendant was damnified other than by the loss of the profits which the plaintiff received.” Cincinnati Siemens-Lungren Gas Illuminating Co. v. Western Siemens-Lungren Co., 152 U. S. 200, 204 (1894) . Courts of Appeals likewise characterized enhanced damages as justified where the infringer acted deliberately or willfully, see, e.g., Baseball Display Co. v. Star Ballplayer Co., 35 F. 2d 1, 3–4 (CA3 1929) (increased damages award appropriate “because of the deliberate and willful infringement”); Power Specialty Co. v. Connecticut Light & Power Co., 80 F. 2d 874, 878 (CA2 1936) (“wanton, deliberate, and willful” infringement); Brown Bag Filling Mach. Co. v. Drohen, 175 F. 576, 577 (CA2 1910) (“a bald case of piracy”), but not where the infringement “was not wanton and deliberate,” Rockwood v. General Fire Extinguisher Co., 37 F. 2d 62, 66 (CA2 1930), or “conscious and deliberate,” Goodyear Tire & Rubber Co. v. Overman Cushion Tire Co., 95 F. 2d 978, 986 (CA6 1938). Some early decisions did suggest that enhanced dam-ages might serve to compensate patentees as well as to punish infringers. See, e.g., Clark v. Wooster, 119 U. S. 322, 326 (1886) (noting that “[t]here may be damages beyond” licensing fees “but these are more properly the subjects” of enhanced damage awards). Such statements, however, were not for the ages, in part because the merger of law and equity removed certain procedural obstacles to full compensation absent enhancement. See generally 7 Chisum on Patents §20.03[4][b][iii], pp. 20–343 to 20–344 (2011). In the main, moreover, the references to compensation concerned costs attendant to litigation. See Clark, 119 U. S., at 326 (identifying enhanced damages as compensation for “the expense and trouble the plaintiff has been put to”); Day v. Woodworth, 13 How. 363, 372 (1852) (enhanced damages appropriate when defendant was “stubbornly litigious” or “caused unnecessary expense and trouble to the plaintiff”); Teese v. Huntingdon, 23 How. 2, 8–9 (1860) (discussing enhanced damages in the context of “counsel fees”). That concern dissipated with the enactment in 1952 of 35 U. S. C. §285, which authorized district courts to award reasonable attorney’s fees to prevailing parties in “exceptional cases” under the Patent Act. See Octane Fitness, LLC v. ICON Health & Fitness Inc., 572 U. S. ___, ___ (2014) (slip op., at 7). It is against this backdrop that Congress, in the 1952 codification of the Patent Act, enacted §284. “The stated purpose” of the 1952 revision “was merely reorganization in language to clarify the statement of the statutes.” Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476, 505, n. 20 (1964) (internal quotation marks omitted). This Court accordingly described §284—consistent with the history of enhanced damages under the Patent Act—as providing that “punitive or ‘increased’ damages” could be recovered “in a case of willful or bad-faith infringement.” Id., at 508; see also Dowling v. United States, 473 U. S. 207 , n. 19 (1985) (“willful infringement”); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 , n. 11 (1999) (describing §284 damages as “punitive”). B In 2007, the Federal Circuit decided Seagate and fashioned the test for enhanced damages now before us. Under Seagate, a plaintiff seeking enhanced damages must show that the infringement of his patent was “willful.” 497 F. 3d, at 1368. The Federal Circuit announced a two-part test to establish such willfulness: First, “a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent,” without regard to “[t]he state of mind of the accused infringer.” Id., at 1371. This objectively defined risk is to be “determined by the record developed in the infringement proceedings.” Ibid. “Objective recklessness will not be found” at this first step if the accused infringer, during the infringement proceedings, “raise[s] a ‘substantial question’ as to the validity or noninfringement of the patent.” Bard Peripheral Vascular, Inc. v. W. L. Gore & Assoc., Inc., 776 F. 3d 837, 844 (CA Fed. 2015). That categorical bar applies even if the defendant was unaware of the arguable defense when he acted. See Seagate, 497 F. 3d, at 1371; Spine Solutions, Inc. v. Medtronic Sofamor Danek USA, Inc., 620 F. 3d 1305, 1319 (CA Fed. 2010). Second, after establishing objective recklessness, a patentee must show—again by clear and convincing evidence—that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Seagate, 497 F. 3d, at 1371. Only when both steps have been satisfied can the district court proceed to consider whether to exercise its discretion to award enhanced damages. Ibid. Under Federal Circuit precedent, an award of enhanced damages is subject to trifurcated appellate review. The first step of Seagate—objective recklessness—is reviewed de novo; the second—subjective knowledge—for substantial evidence; and the ultimate decision—whether to award enhanced damages—for abuse of discretion. See Bard Peripheral Vascular, Inc. v. W. L. Gore & Assoc., Inc., 682 F. 3d 1003, 1005, 1008 (CA Fed. 2012); Spectralytics, Inc. v. Cordis Corp., 649 F. 3d 1336, 1347 (CA Fed. 2011). C 1 Petitioner Halo Electronics, Inc., and respondents Pulse Electronics, Inc., and Pulse Electronics Corporation (collectively, Pulse) supply electronic components. 769 F. 3d 1371, 1374–1375 (CA Fed. 2014). Halo alleges that Pulse infringed its patents for electronic packages containing transformers designed to be mounted to the surface of circuit boards. Id., at 1374. In 2002, Halo sent Pulse two letters offering to license Halo’s patents. Id., at 1376. After one of its engineers concluded that Halo’s patents were invalid, Pulse continued to sell the allegedly infringing products. Ibid. In 2007, Halo sued Pulse. Ibid. The jury found that Pulse had infringed Halo’s patents, and that there was a high probability it had done so willfully. Ibid. The District Court, however, declined to award enhanced damages under §284, after determining that Pulse had at trial presented a defense that “was not objectively baseless, or a ‘sham.’ ” App. to Pet. for Cert. in No. 14–1513, p. 64a (quoting Bard, 682 F. 3d, at 1007). Thus, the court concluded, Halo had failed to show objective recklessness under the first step of Seagate. App. to Pet. for Cert. in No. 14–1513, at 65a. The Federal Circuit affirmed. 769 F. 3d 1371 (2014). 2 Petitioners Stryker Corporation, Stryker Puerto Rico, Ltd., and Stryker Sales Corporation (collectively, Stryker) and respondents Zimmer, Inc., and Zimmer Surgical, Inc. (collectively, Zimmer), compete in the market for orthopedic pulsed lavage devices. App. to Pet. for Cert. in No. 14–1520, p. 49a. A pulsed lavage device is a combination spray gun and suction tube, used to clean tissue during surgery. Ibid. In 2010, Stryker sued Zimmer for patent infringement. 782 F. 3d 649, 653 (CA Fed. 2015). The jury found that Zimmer had willfully infringed Stryker’s patents and awarded Stryker $70 million in lost profits. Ibid. The District Court added $6.1 million in supplemental damages and then trebled the total sum under §284, resulting in an award of over $228 million. App. in No. 14–1520, pp. 483–484. Specifically, the District Court noted, the jury had heard testimony that Zimmer had “all-but instructed its design team to copy Stryker’s products,” App. to Pet. for Cert. in No. 14–1520, at 77a, and had chosen a “high-risk/high-reward strategy of competing immediately and aggressively in the pulsed lavage market,” while “opt[ing] to worry about the potential legal consequences later,” id., at 52a. “[T]reble damages [were] appropriate,” the District Court concluded, “[g]iven the one-sidedness of the case and the flagrancy and scope of Zimmer’s infringement.” Id., at 119a. The Federal Circuit affirmed the judgment of infringement but vacated the award of treble damages. 782 F. 3d, at 662. Applying de novo review, the court concluded that enhanced damages were unavailable because Zimmer had asserted “reasonable defenses” at trial. Id., at 661–662. We granted certiorari in both cases, 577 U. S. ___ (2015), and now vacate and remand. II A The pertinent text of §284 provides simply that “the court may increase the damages up to three times the amount found or assessed.” 35 U. S. C. §284. That language contains no explicit limit or condition, and we have emphasized that the “word ‘may’ clearly connotes discretion.” Martin v. Franklin Capital Corp., 546 U. S. 132, 136 (2005) (quoting Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994) ). At the same time, “[d]iscretion is not whim.” Martin, 546 U. S., at 139. “[I]n a system of laws discretion is rarely without limits,” even when the statute “does not specify any limits upon the district courts’ discretion.” Flight Attendants v. Zipes, 491 U. S. 754, 758 (1989) . “[A] motion to a court’s discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” Martin, 546 U. S., at 139 (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.); alteration omitted). Thus, although there is “no precise rule or formula” for awarding damages under §284, a district court’s “discretion should be exercised in light of the considerations” underlying the grant of that discretion. Octane Fitness, 572 U. S., at ___ (slip op., at 8) (quoting Fogerty, 510 U. S., at 534). Awards of enhanced damages under the Patent Act over the past 180 years establish that they are not to be meted out in a typical infringement case, but are instead designed as a “punitive” or “vindictive” sanction for egregious infringement behavior. The sort of conduct warranting enhanced damages has been variously described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or—indeed—characteristic of a pirate. See supra, at 2–5. District courts enjoy discretion in deciding whether to award enhanced damages, and in what amount. But through nearly two centuries of discretionary awards and review by appellate tribunals, “the channel of discretion ha[s] narrowed,” Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 772 (1982), so that such damages are generally reserved for egregious cases of culpable behavior. B The Seagate test reflects, in many respects, a sound recognition that enhanced damages are generally appropriate under §284 only in egregious cases. That test, however, “is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts.” Octane Fitness, 572 U. S., at ___ (slip op., at 7) (construing §285 of the Patent Act). In particular, it can have the effect of insulating some of the worst patent infringers from any liability for enhanced damages. 1 The principal problem with Seagate’s two-part test is that it requires a finding of objective recklessness in every case before district courts may award enhanced damages. Such a threshold requirement excludes from discretionary punishment many of the most culpable offenders, such as the “wanton and malicious pirate” who intentionally infringes another’s patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee’s business. Seymour, 16 How., at 488. Under Seagate, a district court may not even consider enhanced damages for such a pirate, unless the court first determines that his infringement was “objectively” reckless. In the context of such deliberate wrongdoing, how-ever, it is not clear why an independent showing of objective recklessness—by clear and convincing evidence, no less—should be a prerequisite to enhanced damages. Our recent decision in Octane Fitness arose in a different context but points in the same direction. In that case we considered §285 of the Patent Act, which allows district courts to award attorney’s fees to prevailing parties in “exceptional” cases. 35 U. S. C. §285. The Federal Circuit had adopted a two-part test for determining when a case qualified as exceptional, requiring that the claim asserted be both objectively baseless and brought in subjective bad faith. We rejected that test on the ground that a case presenting “subjective bad faith” alone could “sufficiently set itself apart from mine-run cases to warrant a fee award.” 572 U. S., at ___ (slip op., at 9). So too here. The subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless. The Seagate test aggravates the problem by making dispositive the ability of the infringer to muster a reasonable (even though unsuccessful) defense at the infringement trial. The existence of such a defense insulatesthe infringer from enhanced damages, even if he did not act on the basis of the defense or was even aware of it. Under that standard, someone who plunders a patent—in-fringing it without any reason to suppose his conduct is arguably defensible—can nevertheless escape any come-uppance under §284 solely on the strength of his attorney’s ingenuity. But culpability is generally measured against the knowledge of the actor at the time of the challenged conduct. See generally Restatement (Second) of Torts §8A (1965) (“intent” denotes state of mind in which “the actor desires to cause consequences of his act” or “believes” them to be “substantially certain to result from it”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §34, p. 212 (5th ed. 1984) (describing willful, wanton, and reckless as “look[ing] to the actor’s real or supposed state of mind”); see also Kolstad v. American Dental Assn., 527 U. S. 526, 538 (1999) (“Most often . . . eligibility for punitive awards is characterized in terms of a defendant’s motive or intent”). In Safeco Ins. Co. of America v. Burr, 551 U. S. 47 (2007) , we stated that a person is reckless if he acts “knowing or having reason to know of facts which would lead a reasonable man to realize” his actions are unreasonably risky. Id., at 69 (emphasis added and internal quotation marks omitted). The Court found that the defendant had not recklessly violated the Fair Credit Reporting Act because the defendant’s interpretation had “a foundation in the statutory text” and the defendant lacked “the benefit of guidance from the courts of appeals or the Federal Trade Commission” that “might have warned it away from the view it took.” Id., at 69–70. Nothing in Safeco suggests that we should look to facts that the defendant neither knew nor had reason to know at the time he acted.[1]* Section 284 allows district courts to punish the full range of culpable behavior. Yet none of this is to say that enhanced damages must follow a finding of egregious misconduct. As with any exercise of discretion, courts should continue to take into account the particular circumstances of each case in deciding whether to award damages, and in what amount. Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the Seagate test. Consistent with nearly two centuries of enhanced damages under patent law, however, such punishment should generally be reserved for egregious cases typified by willful misconduct. 2 The Seagate test is also inconsistent with §284 because it requires clear and convincing evidence to prove recklessness. On this point Octane Fitness is again instructive. There too the Federal Circuit had adopted a clear and convincing standard of proof, for awards of attorney’s fees under §285 of the Patent Act. Because that provision supplied no basis for imposing such a heightened standard of proof, we rejected it. See Octane Fitness, 572 U. S., at ___ (slip op., at 11). We do so here as well. Like §285, §284 “imposes no specific evidentiary burden, much less such a high one.” Ibid. And the fact that Congress expressly erected a higher standard of proof elsewhere in the Patent Act, see 35 U. S. C. §273(b), but not in §284, is telling. Furthermore, nothing in historical practice supports a heightened standard. As we explained in Octane Fitness, “patent-infringement litigation has always been governed by a preponderance of the evidence standard.” 572 U. S., at ___ (slip op., at 11). Enhanced damages are no exception. 3 Finally, because we eschew any rigid formula for awarding enhanced damages under §284, we likewise reject the Federal Circuit’s tripartite framework for appellate review. In Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___ (2014), we built on our Octane Fitness holding to reject a similar multipart standard of review. Because Octane Fitness confirmed district court discretion to award attorney fees, we concluded that such decisions should be reviewed for abuse of discretion. Highmark, 572 U. S., at ___ (slip op., at 1). The same conclusion follows naturally from our holding here. Section 284 gives district courts discretion in meting out enhanced damages. It “commits the determination” whether enhanced damages are appropriate “to the discretion of the district court” and “that decision is to be reviewed on appeal for abuse of discretion.” Id., at ___ (slip op., at 4). That standard allows for review of district court decisions informed by “the considerations we have identified.” Octane Fitness, 572 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). The appellate review framework adopted by the Federal Circuit reflects a concern that district courts may award enhanced damages too readily, and distort the balance between the protection of patent rights and the interest in technological innovation. Nearly two centuries of exercising discretion in awarding enhanced damages in patent cases, however, has given substance to the notion that there are limits to that discretion. The Federal Circuit should review such exercises of discretion in light of the longstanding considerations we have identified as having guided both Congress and the courts. III For their part, respondents argue that Congress ratified the Seagate test when it passed the America Invents Act of 2011 and reenacted §284 without pertinent change. See Brief for Respondents in No. 14–1513 27 (citing Lorillard v. Pons, 434 U. S. 575, 580 (1978) ). But the language Congress reenacted unambiguously confirmed discretion in the district courts. Congress’s retention of §284 could just as readily reflect an intent that enhanced damages be awarded as they had been for nearly two centuries, through the exercise of such discretion, informed by settled practices. Respondents point to isolated snippets of legislative history referring to Seagate as evidence of congressional endorsement of its framework, but other morsels—such as Congress’s failure to adopt a proposed codification similar to Seagate—point in the opposite direction. See, e.g., H. R. 1260, 111th Cong., 1st Sess. §5(e) (2009). Respondents also seize on an addition to the Act addressing opinions of counsel. Section 298 provides that “[t]he failure of an infringer to obtain the advice of counsel” or “the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed.” 35 U. S. C. §298. Respondents contend that the reference to willfulness reflects an endorsement of Seagate’s willfulness test. But willfulness has always been a part of patent law, before and after Seagate. Section 298 does not show that Congress ratified Seagate’s particular conception of willfulness. Rather, it simply addressed the fallout from the Federal Circuit’s opinion in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F. 2d 1380 (1983), which had imposed an “affirmative duty” to obtain advice of counsel prior to initiating any possible infringing activity, id., at 1389–1390. See, e.g., H. R. Rep. No. 112–98, pt. 1, p. 53 (2011). At the end of the day, respondents’ main argument for retaining the Seagate test comes down to a matter of policy. Respondents and their amici are concerned that allowing district courts unlimited discretion to award up to treble damages in infringement cases will impede innovation as companies steer well clear of any possible interference with patent rights. They also worry that the ready availability of such damages will embolden “trolls.” Trolls, in the patois of the patent community, are entities that hold patents for the primary purpose of enforcing them against alleged infringers, often exacting outsized licensing fees on threat of litigation. Respondents are correct that patent law reflects “a careful balance between the need to promote innovation” through patent protection, and the importance of facilitating the “imitation and refinement through imitation” that are “necessary to invention itself and the very lifeblood of a competitive economy.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 146 (1989) . That balance can indeed be disrupted if enhanced damages are awarded in garden-variety cases. As we have explained, however, they should not be. The seriousness of respondents’ policy concerns cannot justify imposing an artificial construct such as the Seagate test on the discretion conferred under §284. * * * Section 284 gives district courts the discretion to award enhanced damages against those guilty of patent infringement. In applying this discretion, district courts are “to be guided by [the] sound legal principles” developed over nearly two centuries of application and interpretation of the Patent Act. Martin, 546 U. S., at 139 (internal quotation marks omitted). Those principles channel the exercise of discretion, limiting the award of enhanced damages to egregious cases of misconduct beyond typical infringement. The Seagate test, in contrast, unduly confines the ability of district courts to exercise the discretion conferred on them. Because both cases before us were decided under the Seagate framework, we vacate the judgments of the Federal Circuit and remand the cases for proceedings consistent with this opinion. It is so ordered.Notes 1 * Respondents invoke a footnote in Safeco where we explained that in considering whether there had been a knowing or reckless violation of the Fair Credit Reporting Act, a showing of bad faith was not relevant absent a showing of objective recklessness. See 551 U. S., at 70, n. 20. But our precedents make clear that “bad-faith infringement” is an independent basis for enhancing patent damages. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476, 508 (1964) ; see supra, at 2–5, 9–10; see also Safeco, 551 U. S., at 57 (noting that “ ‘willfully’ is a word of many meanings whose construction is often dependent on the context in which it appears” (some 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 . SUPREME COURT OF THE UNITED STATES Syllabus HALO ELECTRONICS, INC. v. PULSE ELECTRONICS, INC., et al. certiorari to the united states court of appeals for the federal circuit No. 14–1513. Argued February 23, 2016—Decided June 13, 2016[1] Section 284 of the Patent Act provides that, in a case of infringement, courts “may increase the damages up to three times the amount found or assessed.” 35 U. S. C. §284. The Federal Circuit has adopted a two-part test for determining whether damages may be increased pursuant to §284. First, a patent owner must “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” In re Seagate Technology, LLC, 497 F. 3d 1360, 1371. Second, the patentee must demonstrate, also by clear and convincing evidence, that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Ibid. Under Federal Circuit precedent, an award of enhanced damages is subject to trifurcated appellate review. The first step of Seagate—objective recklessness—is reviewed de novo; the second—subjective knowledge—for substantial evidence; and the ultimate decision—whether to award enhanced damages—for abuse of discretion. In each of these cases, petitioners were denied enhanced damages under the Seagate framework. Held: The Seagate test is not consistent with §284. . (a) The pertinent language of §284 contains no explicit limit or condition on when enhanced damages are appropriate, and this Court has emphasized that the “word ‘may’ clearly connotes discretion.” Martin v. Franklin Capital Corp., 546 U. S. 132 . At the same time, however, “[d]iscretion is not whim.” Id., at 139. Although there is “no precise rule or formula” for awarding damages under §284, a district court’s “discretion should be exercised in light of the considerations” underlying the grant of that discretion. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U. S. ___, ___. Here, 180 years of enhanced damage awards under the Patent Act establish that they are not to be meted out in a typical infringement case, but are instead designed as a sanction for egregious infringement behavior. . (b) In many respects, the Seagate test rightly reflects this historic guidance. It is, however, “unduly rigid, and . . . impermissibly encumbers the statutory grant of discretion to district courts.” Octane Fitness, 572 U. S., at ___. . (1) By requiring an objective recklessness finding in every case, the Seagate test excludes from discretionary punishment many of the most culpable offenders, including the “wanton and malicious pirate” who intentionally infringes a patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee’s business. Seymour v. McCormick, 16 How. 480, 488. Under Seagate, a district court may not even consider enhanced damages for such a pirate, unless the court first determines that his infringement was “objectively” reckless. In the context of such deliberate wrongdoing, however, it is not clear why an independent showing of objective recklessness should be a prerequisite to enhanced damages. Octane Fitness arose in a different context but is instructive here. There, a two-part test for determining when a case was “exceptional”—and therefore eligible for an award of attorney’s fees—was rejected because a claim of “subjective bad faith” alone could “warrant a fee award.” 572 U. S., at ___. So too here: A patent infringer’s subjective willfulness, whether intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless. The Seagate test further errs by making dispositive the ability of the infringer to muster a reasonable defense at trial, even if he did not act on the basis of that defense or was even aware of it. Culpability, however, is generally measured against the actor’s knowledge at the time of the challenged conduct. In sum, §284 allows district courts to punish the full range of culpable behavior. In so doing, they should take into account the particular circumstances of each case and reserve punishment for egregious cases typified by willful misconduct. . (2) Seagate’s requirement that recklessness be proved by clear and convincing evidence is also inconsistent with §284. Once again, Octane Fitness is instructive. There, a clear and convincing standard for awards of attorney’s fees was rejected because the statute at issue supplied no basis for imposing a heightened standard. Here, too, §284 “imposes no specific evidentiary burden, much less such a high one,” 572 U. S., at ___. And the fact that Congress erected a higher standard of proof elsewhere in the Patent Act, but not in §284, is telling. “[P]atent-infringement litigation has always been governed by a preponderance of the evidence standard.” Id., at ___. Enhanced damages are no exception. P. 12. (3) Having eschewed any rigid formula for awarding enhanced damages under §284, this Court likewise rejects the Federal Circuit’s tripartite appellate review framework. In Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, the Court built on the Octane Fitness holding—which confirmed district court discretion to award attorney’s fees—and rejected a similar multipart standard of review in favor of abuse of discretion review. The same conclusion follows naturally from the holding here: Because §284 “commits the determination” whether enhanced damages are appropriate to the district court’s discretion, “that decision is to be reviewed on appeal for abuse of discretion.” Id., at ___. Nearly two centuries of enhanced damage awards have given substance to the notion that district courts’ discretion is limited, and the Federal Circuit should review their exercise of that discretion in light of longstanding considerations that have guided both Congress and the courts. . (c) Respondents’ additional arguments are unpersuasive. They claim that Congress ratified the Seagate test when it reenacted §284 in 2011 without pertinent change, but the reenacted language unambiguously confirmed discretion in the district courts. Neither isolated snippets of legislative history nor a reference to willfulness in another recently enacted section reflects an endorsement of Seagate’s test. Respondents are also concerned that allowing district courts unlimited discretion to award enhanced damages could upset the balance between the protection of patent rights and the interest in technological innovation. That concern—while serious—cannot justify imposing an artificial construct such as the Seagate test on the limited discretion conferred under §284. . No. 14–1513, 769 F. 3d 1371; No. 14–1520, 782 F. 3d 649, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court. Breyer, J., filed a concurring opinion, in which Kennedy and Alito, JJ., joined.Notes 1 Together with No. 14–1520, Stryker Corp. et al. v. Zimmer, Inc., et al., also on certiorari to the same court.

Under 35 U.S. C. §284, a patent owner must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its infringement constituted infringement of a valid patent, and that the risk of infringement was either known or so obvious that it should have been known to the accused infringer. Under In re Seagate Technology, LLC, 497 F. 3d 1360 (en banc), the Federal Circuit adopted a two-part test for determining when a district court may increase damages pursuant to §284: (1) a patentee must first show by evidence of objective recklessness, i.e., that the infringement was objectively reckless, and (2) the patentee has to show, again by evidence, that the risks of infringement were either known and so obvious as to have been aware to the infringing infringer, and only when both steps have been satisfied can the district court proceed to consider whether to exercise its discretion to award enhanced damages. . (a) Awards of enhanced damages under the Patent Act over the past 180 years establish that they are not to be meted out in a typical infringement case, but are instead designed as a punitive or vindictive sanction for egregious infringement behavior. The test reflects, in many respects, a sound recognition that enhanced damages are generally appropriate under §284 only in egregious cases. However, the test is unduly rigid, and it impermissibly encumbers the statutory grant of discretion to district courts. Consistent with nearly two centuries of discretionary awards and review by appellate tribunals, the channel of discretion ha[s] narrowed so that such damages generally are generally reserved for egregious cases of culpable behavior. Here, the language Congress reenacted unambiguously confirmed discretion in the district courts, and there is nothing in the Seagate test to show that Congress ratified Seagate's particular conception of willfulness. Moreover, the fact that Congress expressly erected a higher standard of proof elsewhere in the Patent Act, such as §285, in §284 is not telling the contrary. In any event, the enhanced damages awards here were decided under the multiponderance of the evidence-infirmance standard. That standard allows for review of district court decisions informed by the considerations we have identified as having guided both Congress and the courts. See, e.g., Safeco Ins. Co. of America v. Burr, 551 U. S. 47 (2007). Section 284 permits district courts to exercise their discretion in a manner free from the inelastic constraints of the test, but, in particular, it should generally be reserved for cases typified by willful or bad-faith infringement. Such a test is inconsistent with §284 because it requires clear evidence to prove recklessness. Accordingly, it unduly confines the ability of district courts to exercise the discretion conferred on them. Pp. 462 U. K. 562-571. (b) Section 284 gives district courts discretion in meting out enhanced damages, without regard to whether their infringement is objectively reckless. Although there is no precise rule or formula for awarding damages under that test, it can just as readily reflect an intent that enhanced damages be awarded as they had been for nearly 2 centuries, through the exercise of such discretion, informed by settled practices. See Safeco, supra, at 69 (emphasis added and internal quotation marks omitted). The fact that § 284 authorizes district courts unlimited discretion in awarding up to treble damages in infringement cases does not mean that they should look to facts that the defendant neither knew nor had reason to know at the time he acted. Rather, it simply addressed the fallout from the Court of Appeals opinion in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F. 2d 1380 (1983), which had imposed an affirmative duty to obtain advice of counsel prior to initiating any possible infringement activity, id., at 1389-1390. Cf. Safeco. Also instructive is an exception to the double-part review standard, which allows district courts in cases of bad faith infringement to judge the constitutionality of a patent by its subjective willfulness alone, rather than on the basis of the legal principles developed over centuries of legal application and judicial review. Thus, the Court does not eschew a multiponder of evidence in favor of a rigid standard of review that, in turn, channels discretion, limiting the award of enhanced damage to egregious case of misconduct beyond typical infringement, and in contrast, confines the District Court to exercise discretion conferred by the appellate review framework adopted by the Court. Seagate, supra at ___ (slip op., at 4). . (c) The Court also eschews a rigid triad of standards for awarding enhanced damages based on the principles of the Double-Partner System and the Court-in-Waiting-For-Agency-Management-Du-Sole-Worth-

2015_14-232

https://www.oyez.org/cases/2015/14-232

. Appellants, a group of Arizona voters, challenge a re-districting plan for the State’s legislature on the ground that the plan’s districts are insufficiently equal in population. See Reynolds v. Sims, 377 U. S. 533, 577 (1964) . Because the maximum population deviation between the largest and the smallest district is less than 10%, the appellants cannot simply rely upon the numbers to show that the plan violates the Constitution. See Brown v. Thomson, 462 U. S. 835, 842 (1983) . Nor have appellants adequately supported their contentions with other evidence. We consequently affirm a 3-judge Federal District Court decision upholding the plan. I In 2000, Arizona voters, using the initiative process, amended the Arizona Constitution to provide for an independent redistricting commission. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 35) (upholding the amendment as consistent with federal constitutional and statutory law). Each decade, the Arizona Commission on Appellate Court Appointments creates three slates of individuals: one slate of 10 Republicans, one slate of 10 Democrats, and one slate of 5 individuals not affiliated with any political party. The majority and minority leader of the Arizona Legislature each select one Redistricting Commission member from the first two lists. These four selected individuals in turn choose one member from the third, nonpartisan list. See Ariz. Const., Art. IV, pt. 2, §§1(5)–(8). Thus, the membership of the Commission consists of two Republicans, two Democrats, and one independent. After each decennial census, the Commission redraws Arizona’s 30 legislative districts. The first step in the process is to create “districts of equal population in a grid-like pattern across the state.” §1(14). It then adjusts the grid to “the extent practicable” in order to take into account the need for population equality; to maintain geographic compactness and continuity; to show respect for “communities of interest”; to follow locality boundaries; and to use “visible geographic features” and “undivided . . . tracts.” §§1(14)(B)–(E). The Commission will “favo[r]” political “competitive[ness]” as long as its efforts to do so “create no significant detriment to the other goals.” Id., §1(14)(F). Finally, it must adjust boundaries “as necessary” to comply with the Federal Constitution and with the federal Voting Rights Act. §1(14)(A). After the 2010 census, the legislative leadership selected the Commission’s two Republican and two Democratic members, who in turn selected an independent member, Colleen Mathis. Mathis was then elected chairwoman. The Commission hired two counsel, one of whom they thought of as leaning Democrat and one as leaning Republican. It also hired consultants, including mapping specialists, a statistician, and a Voting Rights Act specialist. With the help of its staff, it drew an initial plan, based upon the gridlike map, with district boundaries that produced a maximum population deviation (calculated as the difference between the most populated and least populated district) of 4.07%. After changing several boundaries, including those of Districts 8, 24, and 26, the Commission adopted a revised plan by a vote of 3 to 2, with the two Republican members voting against it. In late April 2012, the Department of Justice approved the plan as consistent with the Voting Rights Act. The next day, appellants filed this lawsuit, primarily claiming that the plan’s population variations were inconsistent with the Fourteenth Amendment. A 3-judge Federal District Court heard the case. See 28 U. S. C. §2284(a) (providing for the convention of such a court whenever an action is filed challenging the constitutional-ity of apportionment of legislative districts). After a 5-day bench trial, the court, by a vote of 2 to 1, entered judgment for the Commission. The majority found that “the population deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d 1042, 1046 (Ariz. 2014). Appellants sought direct review in this Court. See 28 U. S. C. §1253. We noted probable jurisdiction on June 30, 2015, and we now affirm. II A The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts . . . as nearly of equal population as is practicable.” Reynolds, 377 U. S., at 577. The Constitution, however, does not demand mathematical perfection. In determining what is “practicable,” we have recognized that the Constitution permits deviation when it is justified by “legitimate considerations incident to the effectuation of a rational state policy.” Id., at 579. In related contexts, we have made clear that in addition to the “traditional districting principles such as compactness [and] contiguity,” Shaw v. Reno, 509 U. S. 630, 647 (1993) , those legitimate considerations can include a state interest in maintaining the integrity of political subdivisions, Mahan v. Howell, 410 U. S. 315, 328 (1973) , or the competitive balance among political parties, Gaffney v. Cummings, 412 U. S. 735, 752 (1973) . In cases decided before Shelby County v. Holder, 570 U. S. ___ (2013), Members of the Court expressed the view that compliance with §5 of the Voting Rights Act is also a legitimate state consideration that can justify some deviation from perfect equality of population. See League of United Latin American Citizens v. Perry, 548 U. S. 399, 518 (2006) (Scalia, J., concurring in judgment in part and dissenting in part, joined in relevant part by Roberts, C. J., Thomas & Alito, JJ.); id., at 475, n. 12 (Stevens, J., concurring in part and dissenting in part, joined in relevant part by Breyer, J.); id., at 485 n. 2 (Souter, J., concurring in part and dissenting in part, joined by Ginsburg, J.); see also Vieth v. Jubelirer, 541 U. S. 267, 284 (2004) (plurality opinion) (listing examples of traditional redistricting criteria, including “compliance with requirements of the [Voting Rights Act]”). It was proper for the Commission to proceed on that basis here. We have further made clear that “minor deviations from mathematical equality” do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Gaffney, supra, at 745. We have defined as “minor deviations” those in “an apportionment plan with a maximum population deviation under 10%.” Brown, 462 U. S., at 842. And we have refused to require States to justify deviations of 9.9%, White v. Regester, 412 U. S. 755, 764 (1973) , and 8%, Gaffney, 412 U. S., at 751. See also Fund for Accurate and Informed Representation, Inc. v. Weprin, 506 U. S. 1017 (1992) (summarily affirming a District Court’s finding that there was no prima facie case where the maximum population deviation was 9.43%). In sum, in a case like this one, those attacking a state-approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors rather than the “legitimate considerations” to which we have referred in Reynolds and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their burden here. B Appellants’ basic claim is that deviations in their apportionment plan from absolute equality of population reflect the Commission’s political efforts to help the Democratic Party. We believe that appellants failed to prove this claim because, as the district court concluded, the deviations predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary. And the record bears out this conclusion. Cf. Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) (explaining that a district court’s factual finding as to whether discrimination occurred will not be set aside by an appellate court unless clearly erroneous). The Voting Rights Act, among other things, forbids the use of new reapportionment plans that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Reno v. Bossier Parish School Bd., 520. U. S. 471, 478 (1997). A plan leads to impermissible retrogression when, compared to the plan currently in effect (typically called a “benchmark plan”), the new plan diminishes the number of districts in which minority groups can “elect their preferred candidates of choice” (often called “ability-to-elect” districts). See 52 U. S. C. §10304(b). A State can obtain legal assurance that it has satisfied the non-retrogression requirement if it submits its proposed plan to the Federal Department of Justice, and the Department does not object to the plan within 60 days. See 28 C. F. R. §§51.9, 51.52(b) (2015). While Shelby County struck down the §4(b) coverage formula, that decision came after the maps in this case were drawn. The record in this case shows that the gridlike map that emerged after the first step of the redistricting process had a maximum population deviation from absolute equality of districts of 4.07%. After consulting with their Voting Rights Act expert, their mapping consultant, and their statisticians, all five Commissioners agreed that they must try to obtain Justice Department Voting Rights Act “preclearance” and that the former benchmark plan contained 10 ability-to-elect districts. They consequently set a goal of 10 such districts for the new plan. They then went through an iterative process, involving further consultation, to adjust the plan’s initial boundaries in order to enhance minority voting strength. In October 2011 (by a vote of 4 to 1), they tentatively approved a draft plan with adjusted boundaries. They believed it met their goal of 10 ability-to-elect districts. And they published the plan for public comment. In the meantime, however, the Commission received a report from one of its statisticians suggesting that the Department of Justice might not agree that the new proposed plan contained 10 ability-to-elect districts. It was difficult to know for certain because the Justice Department did not tell States how many ability-to-elect districts it believed were present in a benchmark plan, and neither did it typically explain precisely and specifically how it would calculate the number that exist in a newly submitted plan. See 76 Fed. Reg. 7470–7471 (2011). At the same time, the ability-to-elect analysis was complex, involving more than simply adding up census figures. The Department of Justice instead conducted a “functional analysis of the electoral behavior within the particular . . . election district,” id., at 7471, and so might, for example, count as ability-to-elect districts “crossover” districts in which white voters combine their votes with minorities, see Bartlett v. Strickland, 556 U. S. 1 –14 (2009). Its calculations might take into account group voting patterns, electoral participation, election history, and voter turnout. See 76 Fed. Reg., 7471. The upshot was not randomdecision-making but the process did create an inevitable degree of uncertainty. And that uncertainty could lead a redistricting commission, as it led Arizona’s, to make serious efforts to make certain that the districts it believed were ability-to-elect districts did in fact meet the criteria that the Department might reasonably apply. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 22) (“The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands [because] the standards of §5 are complex . . . . [To do so would] lay a trap for an unwary legislature, condemning its redistricting plan as either . . . unconstitutional racial gerrymandering [or] . . . retrogressive under §5”). As a result of the statistician’s report, the Commission became concerned about certain of its proposed boundaries. One of the Commission’s counsel advised that it would be “prudent to stay the course in terms of the ten districts that are in the draft map and look to . . . strengthen them if there is a way to strengthen them.” 993 F. Supp. 2d, at 1058 (internal quotation marks omitted). Subsequently, the Commission adopted several changes to the boundaries of Districts 24 and 26. It reduced the populations of those districts, thereby increasing the percentage of Hispanic voters in each. The Commission approved these changes unanimously. Changes in the boundaries of District 8, however, proved more controversial. District 8 leaned Republican. A Democrat-appointed Commissioner asked the mapping specialist to look into modifications that might make District 8 politically more competitive. The specialist returned with a draft that shifted the boundary line between District 8 and District 11 so as to keep several communities with high minority populations together in District 8. The two Republican-appointed Commissioners objected that doing so would favor Democrats by “hyperpacking” Republicans into other districts; they added that the Commission should either favor political competitiveness throughout the State or not at all. Id., at 1059 (internal quotation marks omitted). The Democrat-appointed proponent of the change replied that District 8 had historically provided minority groups a good opportunity to elect their candidate of choice—an opportunity that the changes would preserve. The Voting Rights Act specialist then said that by slightly increasing District 8’s minority population, the Commission might be able to claim an 11th ability-to-elect district; and that fact would “unquestionably enhance the submission and enhance chances for preclearance.” Ibid. (internal quotation marks omitted). The Commission’s counsel then added that having another possible ability-to-elect district could be helpful because District 26 was not as strong an ability-to-elect district as the others. See ibid. Only then, after the counsel and consultants argued for District 8 changes for the sake of Voting Rights Act preclearance, did Chairwoman Mathis support those changes. On that basis, the Commission ultimately approved the changes to District 8 by a vote of 3 to 2 (with the two Republican-appointed commissioners dissenting). The total population deviation among districts in this final map was 8.8%. While the Commission ultimately concluded that District 8 was not a true ability-to-elect district, the State’s submission to the Department of Justice cited the changes to District 8 in support of the argument for preclearance. On April 26, 2012, the Department of Justice precleared the submitted plan. On the basis of the facts that we have summarized, the District Court majority found that “the population deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d, at 1046. This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predominant motivation behind the plan’s deviations from mathematically equal district populations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause as interpreted in Reynolds and subsequent cases. C The appellants make three additional arguments. First, they support their claim that the plan reflects unreason-able use of partisan considerations by pointing to the fact that almost all the Democratic-leaning districts are somewhat underpopulated and almost all the Republican-leaning districts are somewhat overpopulated. That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart with percentage deviation figures by district). But that fact may well reflect the tendency of minority populations in Arizona in 2010 to vote disproportionately for Democrats. If so, the variations are explained by the Commission’s efforts to maintain at least 10 ability-to-elect districts. The Commission may have relied on data from its statisticians and Voting Rights Act expert to create districts tailored to achieve preclearance in which minority voters were a larger percentage of the district population. That might have necessitated moving other voters out of those districts, thereby leaving them slightly underpopulated. The appellants point to nothing in the record to suggest the contrary. Second, the appellants point to Cox v. Larios, 542 U. S. 947 (2004) , in which we summarily affirmed a district court’s judgment that Georgia’s reapportionment of representatives to state legislative districts violated the Equal Protection Clause, even though the total population deviation was less than 10%. In Cox, however, unlike the present case, the district court found that those attacking the plan had shown that it was more probable than not that the use of illegitimate factors significantly explained deviations from numerical equality among districts. The district court produced many examples showing that population deviation as well as the shape of many districts “did not result from any attempt to create districts that were compact or contiguous, or to keep counties whole, or to preserve the cores of prior districts.” Id., at 949. No legitimate purposes could explain them. It is appellants’ inability to show that the present plan’s deviations and boundary shapes result from the predominance of simi-larly illegitimate factors that makes Cox inapposite here. Even assuming, without deciding, that partisanship is an illegitimate redistricting factor, appellants have not carried their burden. Third, appellants point to Shelby County v. Holder, 570 U. S. ___ (2013), in which this Court held unconstitutional sections of the Voting Rights Act that are relevant to this case. Appellants contend that, as a result of that holding, Arizona’s attempt to comply with the Act could not have been a legitimate state interest. The Court decided Shelby County, however, in 2013. Arizona created the plan at issue here in 2010. At the time, Arizona was subject tothe Voting Rights Act, and we have never suggested the contrary. * * * For these reasons the judgment of the District Court 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 . SUPREME COURT OF THE UNITED STATES Syllabus HARRIS et al. v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION et al. on appeal from the united states district court for the district of arizona No. 14–232. Argued December 8, 2015—Decided April 20, 2016 After the 2010 census, Arizona’s independent redistricting commission (Commission), comprising two Republicans, two Democrats, and one Independent, redrew Arizona’s legislative districts, with guidance from legal counsel, mapping specialists, a statistician, and a Voting Rights Act specialist. The initial plan had a maximum population deviation from absolute equality of districts of 4.07%, but the Commission adopted a revised plan with an 8.8% deviation on a 3-to-2 vote, with the Republican members dissenting. After the Department of Justice approved the revised plan as consistent with the Voting Rights Act, appellants filed suit, claiming that the plan’s population variations were inconsistent with the Fourteenth Amendment. A three-judge Federal District Court entered judgment for the Commission, concluding that the “deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” Held: The District Court did not err in upholding Arizona’s redistricting plan. . (a) The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts . . . as nearly of equal population as is practicable,” Reynolds v. Sims, 377 U. S. 533 , but mathematical perfection is not required. Deviations may be justified by “legitimate considerations,” id., at 579, including “traditional districting principles such as compactness [and] contiguity,” Shaw v. Reno, 509 U. S. 630 , as well as a state interest in maintaining the integrity of political subdivisions, Mahan v. Howell, 410 U. S. 315 , a competitive balance among political parties, Gaffney v. Cummings, 412 U. S. 735 , and, before Shelby County v. Holder, 570 U. S. ___, compliance with §5 of the Voting Rights Act. It was proper for the Commission to proceed on the last basis here. In addition, “minor deviations from mathematical equality”—i.e., deviations “under 10%,” Brown v. Thomson, 462 U. S. 835 —do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment [requiring] justification by the State,” Gaffney, supra, at 745. Because the deviation here is under 10%, appellants cannot rely upon the numbers to show a constitutional violation. Instead, they must show that it is more probable than not that the deviation reflects the predominance of illegitimate reapportionment factors rather than “legitimate considerations.” . (b) Appellants have failed to meet that burden here, where the record supports the District Court’s conclusion that the deviations predominantly reflected Commission efforts to achieve compliance with the Voting Rights Act, not to secure political advantage for the Democratic Party. To meet the Voting Rights Act’s nonretrogression requirement, a new plan, when compared to the current plan (benchmark plan), must not diminish the number of districts in which minority groups can “elect their preferred candidates of choice” (ability-to-elect districts). A State can obtain legal assurance that it has satisfied this requirement if it submits its proposed plan to the Justice Department and the Department does not object to the plan. The record shows that the Commission redrew the initial map to ensure that the plan had 10 ability-to-elect districts, the same number as the benchmark plan. But after a statistician reported that the Justice Department still might not agree with the plan, the Commission changed additional boundaries, causing District 8, a Republican leaning district, to become more politically competitive. Because this record well supports the District Court’s finding that the Commission was trying to comply with the Voting Rights Act, appellants have not shown that it is more probable than not that illegitimate considerations were the predominant motivation for the deviations. They have thus failed to show that the plan violates the Equal Protection Clause. . (c) Appellants’ additional arguments are unpersuasive. While Arizona’s Democratic-leaning districts may be somewhat underpopulated and its Republican-leaning districts somewhat overpopulated, these variations may reflect only the tendency of Arizona’s 2010 minority populations to vote disproportionately for Democrats and thus can be explained by the Commission’s efforts to maintain at least 10 ability-to-elect districts. Cox v. Larios, 542 U. S. 947 , in which the Court affirmed a District Court’s conclusion that a Georgia reapportionment plan violated the Equal Protection Clause where its deviation, though less than 10%, resulted from the use of illegitimate factors, is inapposite because appellants have not carried their burden of showing the use of illegitimate factors here. And because Shelby County was decided after Arizona’s plan was created, it has no bearing on the issue whether the State’s attempt to comply with the Voting Rights Act is a legitimate state interest. . 993 F. Supp. 2d 1042, affirmed. Breyer, J., delivered the opinion for a unanimous Court.

Appellants, a group of Arizona voters, challenge a re-districting plan for the State's legislature on the ground that the plan's districts are insufficiently equal in population. A 3-judge Federal District Court upheld the plan. Held: In a case like this one, those attacking a state-approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors, rather than the legitimate considerations referred to in Reynolds v. Reynolds,; Brown v. Thomson, 462 U. S. 835, 842 (1983). Nor have appellants adequately supported their contentions with other evidence. Appellants failed to meet their burden of proving that deviations in their apportionment plan from absolute equality of population reflect the Commission's political efforts to help the Democratic Party. . 93 U.S.App.D.C. 2d 1053, affirmed. STEWART, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p..

2015_14-1280

https://www.oyez.org/cases/2015/14-1280

. The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U. S. 347 (1976) ; Branti v. Finkel, 445 U. S. 507 (1980) ; but cf. Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 564 (1973) . In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U. S. C. §1983. We hold that it did. I To decide the legal question presented, we assume the following, somewhat simplified, version of the facts: In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola’s. During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spag-nola’s campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan’s supervisors had made a factual mistake. Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other respondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.” Rev. Stat. §1979, 42 U. S. C. §1983. The District Court found that Heffernan had not engaged in any “ First Amendment conduct,” 2 F. Supp. 3d 563, 580 (NJ 2014); and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that “a free-speech retaliation claim is actionable under §1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.” 777 F. 3d 147, 153 (2015) (citing Ambrose v. Robinson, 303 F. 3d 488, 496 (CA3 2002); emphasis added). Heffernan filed a petition for certiorari. We agreed to decide whether the Third Circuit’s legal view was correct. Compare 777 F. 3d, at 153 (case below), with Dye v. Office of Racing Comm’n, 702 F. 3d 286, 300 (CA6 2012) (similar factual mistake does not affect the validity of the government employee’s claim). II With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. See Elrod v. Burns, supra; Branti v. Finkel, supra. The basic constitutional requirement reflects the First Amendment’s hostility to government action that “prescribe[s] what shall be orthodox in politics.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) . The exceptions take account of “practical realities” such as the need for “efficiency” and “effective[ness]” in government service. Waters v. Churchill, 511 U. S. 661, 672, 675 (1994) ; see also Civil Service Comm’n, supra, at 564 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti, supra, at 518 (political affiliation requirement permissible where affiliation is “an appropriate requirement for effective performance of the public office involved”). In order to answer the question presented, we assume that the exceptions do not apply here. But see infra, at 8. We assume that the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, see Rutan v. Republican Party of Ill., 497 U. S. 62, 69 (1990) (“joining, working for or contributing to the political party and candidates of their own choice”), but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities. Does Heffernan’s constitutional case consequently fail? The text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a person “depriv[ed]” of a “right . . . secured by the Constitution.” 42 U. S. C. §1983. But in this context, what precisely is that “right?” Is it a right that primarily focuses upon (the employee’s) actual activity or a right that primarily fo-cuses upon (the supervisor’s) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say. Neither does precedent directly answer the question. In some cases we have used language that suggests the “right” at issue concerns the employee’s actual activity. In Connick v. Myers, 461 U. S. 138 (1983) , for example, we said that a court should first determine whether the plaintiff spoke “ ‘as a citizen’ ” on a “ ‘matter[] of public concern,’ ” id., at 143. We added that, if the employee has not engaged in what can “be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.” Id., at 146. We made somewhat similar statements in Garcetti v. Ceballos, 547 U. S. 410, 418 (2006) , and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968) . These cases, however, did not present the kind of question at issue here. In Connick, for example, no factual mistake was at issue. The Court assumed that both the employer and the employee were at every stage in agreement about the underlying facts: that the employer dismissed the employee because of her having circulated within the office a document that criticized how the office was being run (that she had in fact circulated). The question was whether the circulation of that document amounted to constitutionally protected speech. If not, the Court need go no further. Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a school board) and the employee understood the cause for dismissal, namely, a petition that the employee had indeed circulated criticizing his employer’s practices. The question concerned whether the petition was protectedspeech. Garcetti is substantially similar. In each of these cases, the only way to show that the employer’s motive was unconstitutional was to prove that the controver-sial statement or activity—in each case the undisputed reason for the firing—was in fact protected by the First Amendment. Waters v. Churchill, 511 U. S. 661 (1994) , is more to the point. In that case the Court did consider the consequences of an employer mistake. The employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unprotected speech. The employee, however, had in fact used words that did not amount to personal “gossip” (as the employer believed) but which focused on matters of public concern. The Court asked whether, and how, the employer’s factual mistake mattered. The Court held that, as long as the employer (1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief, the dismissal did not violate the First Amendment. Id., at 679–680. In a word, it was the employer’s motive, and in particular the facts as the employer reasonably understood them, that mattered. In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander. We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior. We note that a rule of law finding liability in these circumstances tracks the language of the First Amend-ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment beginsby focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was di-rectly harmed, namely, demoted, through application of that policy. We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities. The discharge of one tells the others that they engage in protected activity at their peril. See, e.g., Elrod, 427 U. S., at 359 (retaliatory employment action against one employee “unquestionably inhibits protected belief and association” of all employees). Hence, we do not require plaintiffs in political affiliation cases to “prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance.” Branti, 445 U. S., at 517. The employer’s factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candidate in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help. Cf. Gooding v. Wilson, 405 U. S. 518, 521 (1972) (explaining that overbreadth doctrine is necessary “because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions”). The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake. Finally, we note that, contrary to respondents’ asser-tions, a rule of law that imposes liability despite the employer’s factual mistake will not normally impose significant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks. III We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s employers implemented violated the Constitution. Supra, at 3. There is some evidence in the record, however, suggesting that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it complies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance. Without expressing views on the matter, we reverse the judgment of the Third Circuit and remand the case for such 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 . SUPREME COURT OF THE UNITED STATES Syllabus HEFFERNAN v. CITY OF PATERSON, NEW JERSEY, et al. certiorari to the united states court of appeals for the third circuit No. 14–1280. Argued January 19, 2016—Decided April 26, 2016 Petitioner Heffernan was a police officer working in the office of Paterson, New Jersey’s chief of police. Both the chief of police and Heffernan’s supervisor had been appointed by Paterson’s incumbent mayor, who was running for re-election against Lawrence Spagnola, a good friend of Heffernan’s. Heffernan was not involved in Spagnola’s campaign in any capacity. As a favor to his bedridden mother, Heffernan agreed to pick up and deliver to her a Spagnola campaign yard sign. Other police officers observed Heffernan speaking to staff at a Spagnola distribution point while holding the yard sign. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted him from detective to patrol officer as punishment for his “overt involvement” in Spagnola’s campaign. Heffernan filed suit, claiming that the police chief and the other respondents had demoted him because, in their mistaken view, he had engaged in conduct that constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.” 42 U. S. C. §1983. The District Court, however, found that Heffernan had not been deprived of any constitutionally protected right because he had not engaged in any First Amendment conduct. Affirming, the Third Circuit concluded that Heffernan’s claim was actionable under §1983 only if his employer’s action was prompted by Heffernan’s actual, rather than his perceived, exercise of his free-speech rights. Held: 1. When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior. To answer the question whether an official’s factual mistake makes a critical legal difference, the Court assumes that the activities that Heffernan’s supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish. Section 1983 does not say whether the “right” protected primarily focuses on the employee’s actual activity or on the supervisor’s motive. Neither does precedent directly answer the question. In Connick v. Myers, 461 U. S. 138 , Garcetti v. Ceballos, 547 U. S. 410 , and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 , there were no factual mistakes: The only question was whether the undisputed reason for the adverse action was in fact protected by the First Amendment. However, in Waters v. Churchill, 511 U. S. 661 , a government employer’s adverse action was based on a mistaken belief that an employee had not engaged in protected speech. There, this Court determined that the employer’s motive, and particularly the facts as the employer reasonably understood them, mattered in determining that the employer had not violated the First Amendment. The government’s motive likewise matters here, where respondents demoted Heffernan on the mistaken belief that he had engaged in protected speech. A rule of law finding liability in these circumstances tracks the First Amendment’s language, which focuses upon the Government’s activity. Moreover, the constitutional harm—discouraging employees from engaging in protected speech or association—is the same whether or not the employer’s action rests upon a factual mistake. Finally, a rule of law imposing liability despite the employer’s factual mistake is not likely to impose significant extra costs upon the employer, for the employee bears the burden of proving an improper employer motive. . 2. For the purposes of this opinion, the Court has assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards. P. 8. 777 F. 3d 147, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Petitioner, a police officer in Paterson, N.J., while working in the office of the Chief of Police, was a good friend of the Mayor of Paterson who was running for reelection against a candidate for mayor. During the campaign, petitioner, who was not involved in the campaign but had picked up a Spagnola sign to help his mother, was demoted by his supervisors to a "walking post." Petitioner then filed suit in Federal District Court, claiming that the supervisors had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. The court found that he had not engaged in any First Amendment conduct, and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals affirmed, holding that a free-speech retaliation claim is actionable under 42 U.S. C. §1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights. Held: The Government's reason for demoting petitioner is what counts here. . (a) When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under that Amendment, even if, as here, the employer makes a factual mistake about the employee's behavior. Here, the text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a persondepriv[ed] of a "right... secured by the Constitution. But in this context, what precisely is that right? In the context of this case, the constitutional harm at issue consists in large part of discouraging employees (both the employee discharged (or demoted) and his or her colleagues from engaging in protected activities. The upshot is that a discharge or demotion based upon an employer's belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual error. Cf. Garcetti v. Ceballos, 547 U. S. 410, 418 (2006) and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U S. 563 (1968), are similar cases where the only way to show that the employer's motive was unconstitutional was to prove that the controver-sial statement or activity (in each case the undisputed reason for the firing) was in fact protected by First Amendment. Waters v. Churchill,, is more to the point, and the Court did consider the consequences of an employer mistake. It assumed that both the employer (a school board) and the employee understood the cause for dismissal, namely, a petition that an employee had indeed circulated criticizing his employer's practices, and that the question concerned whether the petition was protectedspeech. However, the record in these cases does not support the assumption that the employers implemented a policy prohibiting police officers from participating in a political campaign pursuant to their neutral, overt, and neutral assumption that petitioner voluntarily implemented the policy. Thereafter, petitioner seeks to recover damages from the employers pursuant to the policy, assuming that they implemented it pursuant to a neutral, neutral and neutral policy. 777 F. 3d 147, reversed and remanded. WHITE, J., wrote the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. SCALIA v. J., filed an opinion concurring in the judgment, post, p..

2015_14-614

https://www.oyez.org/cases/2015/14-614

. The Federal Power Act (FPA), 41Stat. 1063, as amended, 16 U. S. C. §791a et seq., vests in the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over wholesale sales of electricity in the interstate market. FERC’s regulatory scheme includes an auction-based market mechanism to ensure wholesale rates that are just and reasonable. FERC’s scheme, in Maryland’s view, provided insufficient incentive for new electricity generation in the State. Maryland therefore enacted its own regulatory program. Maryland’s program provides subsidies, through state-mandated contracts, to a new generator, but conditions receipt of those subsidies on the new generator selling capacity into a FERC-regulated wholesale auction. In a suit initiated by competitors of Maryland’s new electricity generator, the Court of Appeals for the Fourth Circuit held that Maryland’s scheme impermissibly intrudes upon the wholesale electricity market, a domain Congress reserved to FERC alone. We affirm the Fourth Circuit’s judgment. I A Under the FPA, FERC has exclusive authority to regulate “the sale of electric energy at wholesale in interstate commerce.” §824(b)(1). A wholesale sale is defined as a “sale of electric energy to any person for resale.” §824(d). The FPA assigns to FERC responsibility for ensuring that “[a]ll rates and charges made, demanded, or received by any public utility for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission . . . shall be just and reasonable.” §824d(a). See also §824e(a) (if a rate or charge is found to be unjust or unreasonable, “the Commission shall determine the just and reasonable rate”). “But the law places beyond FERC’s power, and leaves to the States alone, the regulation of ‘any other sale’—most notably, any retail sale—of electricity.” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___ (2016) (EPSA) (slip op., at 1) (quoting §824(b)). The States’ reserved authority includes control over in-state “facilities used for the generation of electric energy.” §824(b)(1); see Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 205 (1983) (“Need for new power facilities, their economic feasibility, and rates and services, are areas that have been characteristically governed by the States.”). “Since the FPA’s passage, electricity has increasingly become a competitive interstate business, and FERC’s role has evolved accordingly.” EPSA, 577 U. S., at ___ (slip op., at 4). Until relatively recently, most state energy markets were vertically integrated monopolies—i.e., one entity, often a state utility, controlled electricity generation, transmission, and sale to retail consumers. Over the past few decades, many States, including Maryland, have deregulated their energy markets. In deregulated markets, the organizations that deliver electricity to retail consumers—often called “load serving entities” (LSEs)—purchase that electricity at wholesale from independent power generators. To ensure reliable transmission of electricity from independent generators to LSEs, FERC has charged nonprofit entities, called Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs), with managing certain segments of the electricity grid. Interstate wholesale transactions in deregulated markets typically occur through two mechanisms. The first is bilateral contracting: LSEs sign agreements with generators to purchase a certain amount of electricity at a certain rate over a certain period of time. After the parties have agreed to contract terms, FERC may review the rate for reasonableness. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527 –548 (2008) (Because rates set through good-faith arm’s-length negotiation are presumed reasonable, “FERC may abrogate a valid contract only if it harms the public interest.”). Second, RTOs and ISOs administer a number of competitive wholesale auctions: for example, a “same-day auction” for immediate delivery of electricity to LSEs facing a sudden spike in demand; a “next-day auction” to satisfy LSEs’ anticipated near-term demand; and a “capacity auction” to ensure the availability of an adequate supply of power at some point far in the future. These cases involve the capacity auction administered by PJM Interconnection (PJM), an RTO that oversees the electricity grid in all or parts of 13 mid-Atlantic and Midwestern States and the District of Columbia. The PJM capacity auction functions as follows. PJM predicts electricity demand three years ahead of time, and assigns a share of that demand to each participating LSE. Owners of capacity to produce electricity in three years’ time bid to sell that capacity to PJM at proposed rates. PJM accepts bids, beginning with the lowest proposed rate, until it has purchased enough capacity to satisfy projected demand. No matter what rate they listed in their original bids, all accepted capacity sellers receive the highest accepted rate, which is called the “clearing price.”[1] LSEs then must purchase from PJM, at the clearing price, enough electricity to satisfy their PJM-assigned share of overall projected demand. The capacity auction serves to identify need for new generation: A high clearing price in the capacity auction encourages new generators to enter the market, increasing supply and thereby lowering the clearing price in same-day and next-day auctions three years’ hence; a low clearing price discourages new entry and encourages retirement of existing high-cost generators.[2] The auction is designed to accommodate long-term bilateral contracts for capacity. If an LSE has acquired a certain amount of capacity through a long-term bilateral contract with a generator, the LSE—not the generator—is considered the owner of that capacity for purposes of the auction. The LSE sells that capacity into the auction, where it counts toward the LSE’s assigned share of PJM-projected demand, thereby reducing the net costs of the LSE’s required capacity purchases from PJM.[3] LSEs generally bid their capacity into the auction at a price of $0, thus guaranteeing that the capacity will clear at any price. Such bidders are called “price takers.” Because the fixed costs of building generating facilities often vastly exceed the variable costs of producing electricity, many generators also function as price takers. FERC extensively regulates the structure of the PJM capacity auction to ensure that it efficiently balances supply and demand, producing a just and reasonable clearing price. See EPSA, 577 U. S., at ___ (slip op., at 5) (the clearing price is “the price an efficient market would produce”). Two FERC rules are particularly relevant to these cases. First, the Minimum Offer Price Rule (MOPR) requires new generators to bid capacity into the auction at or above a price specified by PJM, unless those generators can prove that their actual costs fall below the MOPR price. Once a new generator clears the auction at the MOPR price, PJM deems that generator an efficient entrant and exempts it from the MOPR going forward, allowing it to bid its capacity into the auction at any price it elects, including $0. Second, the New Entry Price Adjustment (NEPA) guarantees new generators, under certain circumstances, a stable capacity price for their first three years in the market. The NEPA’s guarantee eliminates, for three years, the risk that the new generator’s entry into the auction might so decrease the clearing price as to prevent that generator from recovering its costs. B Around 2009, Maryland electricity regulators became concerned that the PJM capacity auction was failing to encourage development of sufficient new in-state generation. Because Maryland sits in a particularly congested part of the PJM grid, importing electricity from other parts of the grid into the State is often difficult. To address this perceived supply shortfall, Maryland regulators proposed that FERC extend the duration of the NEPA from three years to ten. FERC rejected the proposal. PJM, 126 FERC ¶62,563 (2009). “[G]iving new suppliers longer payments and assurances unavailable to existing suppliers,” FERC reasoned, would improperly favor new generation over existing generation, throwing the auction’s market-based price-setting mechanism out of balance. Ibid. See also PJM, 128 FERC ¶61,789 (2009) (order on petition for rehearing) (“Both new entry and retention of existing efficient capacity are necessary to ensure reliability and both should receive the same price so that the price signals are not skewed in favor of new entry.”). Shortly after FERC rejected Maryland’s NEPA proposal, the Maryland Public Service Commission promulgated the Generation Order at issue here. Under the order, Maryland solicited proposals from various companies for construction of a new gas-fired power plant at a particular location, and accepted the proposal of petitioner CPV Maryland, LLC (CPV). Maryland then required LSEs to enter into a 20-year pricing contract (the parties refer to this contract as a “contract for differences”) with CPV at a rate CPV specified in its accepted proposal.[4] Unlike a traditional bilateral contract for capacity, the contract for differences does not transfer ownership of capacity from CPV to the LSEs. Instead, CPV sells its capacity on the PJM market, but Maryland’s program guarantees CPV the contract price rather than the auction clearing price. If CPV’s capacity clears the PJM capacity auction and the clearing price falls below the price guaranteed in the contract for differences, Maryland LSEs pay CPV the difference between the contract price and the clearing price. The LSEs then pass the costs of these required payments along to Maryland consumers in the form of higher retail prices. If CPV’s capacity clears the auction and the clearing price exceeds the price guaranteed in the contract for differences, CPV pays the LSEs the difference between the contract price and the clearing price, and the LSEs then pass the savings along to consumers in the form of lower retail prices. Because CPV sells its capacity exclusively in the PJM auction market, CPV receives no payment from Maryland LSEs or PJM if its capacity fails to clear the auction. But CPV is guaranteed a certain rate if its capacity does clear, so the contract’s terms encourage CPV to bid its capacity into the auction at the lowest possible price.[5] Prior to enactment of the Maryland program, PJM had exempted new state-supported generation from the MOPR, allowing such generation to bid capacity into the auction at $0 without first clearing at the MOPR price. Responding to a complaint filed by incumbent generators in the Maryland region who objected to Maryland’s program (and the similar New Jersey program), FERC eliminated this exemption. PJM, 135 FERC ¶61,106 (2011). See also 137 FERC ¶61,145 (2011) (order on petition for rehearing) (“Our intent is not to pass judgment on state and local policies and objectives with regard to the development of new capacity resources, or unreasonably interfere with those objectives. We are forced to act, however, when subsidized entry supported by one state’s or locality’s policies has the effect of disrupting the competitive price signals that PJM’s [capacity auction] is designed to produce, and that PJM as a whole, including other states, rely on to attract sufficient capacity.”); New Jersey Bd. of Pub. Util. v. FERC, 744 F. 3d 74, 79–80 (CA3 2014) (upholding FERC’s elimination of the state-supported generation exemption). In the first year CPV bid capacity from its new plant into the PJM capacity auction, that capacity cleared the auction at the MOPR rate, so CPV was thereafter eligible to function as a price taker. In addition to seeking the elimination of the state-supported generation exemption, incumbent generators—respondents here—brought suit in the District of Maryland against members of the Maryland Public Service Commission in their official capacities. The incumbent generators sought a declaratory judgment that Maryland’s program violates the Supremacy Clause by setting a wholesale rate for electricity and by interfering with FERC’s capacity-auction policies.[6] CPV intervened as a defendant. After a six-day bench trial, the District Court issued a declaratory judgment holding that Maryland’s program improperly sets the rate CPV receives for interstate wholesale capacity sales to PJM. PPL Energyplus, LLC v. Nazarian, 974 F. Supp. 2d 790, 840 (Md. 2013). “While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,” the District Court explained, “the scope of Maryland’s power is necessarily limited by FERC’s exclusive authority to set wholesale energy and capacity prices.” Id., at 829.[7] The Fourth Circuit affirmed. Relying on this Court’s decision in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 370 (1988) , the Fourth Circuit observed that state laws are preempted when they “den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction.” PPL EnergyPlus, LLC v. Nazarian, 753 F. 3d 467, 476 (2014). Maryland’s program, the Fourth Circuit reasoned, “functionally sets the rate that CPV receives for its sales in the PJM auction,” “a FERC-approved market mechanism.” Id., at 476–477. “[B]y adopting terms and prices set by Maryland, not those sanctioned by FERC,” the Fourth Circuit concluded, Maryland’s program “strikes at the heart of the agency’s statutory power.” Id., at 478.[8] The Fourth Circuit cautioned that it “need not express an opinion on other state efforts to encourage new generation, such as direct subsidies or tax rebates, that may or may not differ in important ways from the Maryland initiative.” Ibid. The Fourth Circuit then held that Maryland’s program impermissibly conflicts with FERC policies. Maryland’s program, the Fourth Circuit determined, “has the potential to seriously distort the PJM auction’s price signals,” undermining the incentive structure FERC has approved for construction of new generation. Ibid. Moreover, the Fourth Circuit explained, Maryland’s program “conflicts with NEPA” by providing a 20-year price guarantee to a new entrant—even though FERC refused Maryland’s request to extend the duration of the NEPA past three years. Id., at 479. We granted certiorari, 577 U. S. ___ (2015), and now affirm. II The Supremacy Clause makes the laws of the United States “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. Put simply, federal law preempts contrary state law. “Our inquiry into the scope of a [federal] statute’s pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case.” Altria Group, Inc. v. Good, 555 U. S. 70, 76 (2008) (internal quotation marks omitted). A state law is preempted where “Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493, 509 (1989) , as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Crosby v. National Foreign Trade Council, 530 U. S. 363, 373 (2000) (brackets and internal quotation marks omitted). We agree with the Fourth Circuit’s judgment that Maryland’s program sets an interstate wholesale rate, contravening the FPA’s division of authority between state and federal regulators. As earlier recounted, see supra, at 2, the FPA allocates to FERC exclusive jurisdiction over “rates and charges . . . received . . . for or in connection with” interstate wholesale sales. §824d(a). Exercising this authority, FERC has approved the PJM capacity auction as the sole ratesetting mechanism for sales of capacity to PJM, and has deemed the clearing price per se just and reasonable. Doubting FERC’s judgment, Maryland—through the contract for differences—requires CPV to participate in the PJM capacity auction, but guarantees CPV a rate distinct from the clearing price for its interstate sales of capacity to PJM. By adjusting an interstate wholesale rate, Maryland’s program invades FERC’s regulatory turf. See EPSA, 577 U. S., at ___ (slip op., at 26) (“The FPA leaves no room either for direct state regulation of the prices of interstate wholesales or for regulation that would indirectly achieve the same result.” (internal quotation marks omitted)).[9] That Maryland was attempting to encourage construction of new in-state generation does not save its program. States, of course, may regulate within the domain Congress assigned to them even when their laws incidentally affect areas within FERC’s domain. See Oneok, Inc. v. Learjet, Inc., 575 U. S. ___, ___ (2015) (slip op., at 11) (whether the Natural Gas Act (NGA) preempts a particular state law turns on “the target at which the state law aims”).[10] But States may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here. See ibid. (distinguishing between “measures aimed directly at interstate purchasers and wholesalers for resale, and those aimed at subjects left to the States to regulate” (internal quotation marks omitted)).[11] The problem we have identified with Maryland’s program mirrors the problems we identified in Mississippi Power & Light and Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 (1986) . In each of those cases, a State determined that FERC had failed to ensure the reasonableness of a wholesale rate, and the State therefore prevented a utility from recovering—through retail rates—the full cost of wholesale purchases. See Mississippi Power & Light, 487 U. S., at 360–364; Nantahala, 476 U. S., at 956–962. This Court invalidated the States’ attempts to second-guess the reasonableness of interstate wholesale rates. “ ‘Once FERC sets such a rate,’ ” we observed in Mississippi Power & Light, “ ‘a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress’ desire to give FERC plenary authority over interstate wholesale rates, and to ensure that the States do not interfere with this authority.’ ” 487 U. S., at 373 (quoting Nantahala, 476 U. S., at 966). True, Maryland’s program does not prevent a utility from recovering through retail sales a cost FERC mandated it incur—Maryland instead guarantees CPV a certain rate for capacity sales to PJM regardless of the clearing price. But Mississippi Power & Light and Nantahala make clear that States interfere with FERC’s authority by disregarding interstate wholesale rates FERC has deemed just and reasonable, even when States exercise their traditional authority over retail rates or, as here, in-state generation. The contract for differences, Maryland and CPV respond, is indistinguishable from traditional bilateral contracts for capacity, which FERC has long accommodated in the auction. See supra, at 4–5, and n. 3. But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for differences does not transfer ownership of capacity from one party to another outside the auction. Instead, the contract for differences operates within the auction; it mandates that LSEs and CPV exchange money based on the cost of CPV’s capacity sales to PJM. Notably, because the contract for differences does not contemplate the sale of capacity outside the auction, Maryland and CPV took the position, until the Fourth Circuit issued its decision, that the rate in the contract for differences is not subject to FERC’s reasonableness review. See §824(b)(1) (FERC has jurisdiction over contracts for “the sale of electric energy at wholesale in interstate commerce.” (emphasis added)).[12] Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures “untethered to a generator’s wholesale market participation.” Brief for Respondents 40. So long as a State does not condition payment of funds on capacity clearing the auction, the State’s program would not suffer from the fatal defect that renders Maryland’s program unacceptable.[13] * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed.Notes 1 For example, if four power plants bid to sell capacity at, respectively, $10/unit, $20/unit, $30/unit, and $40/unit, and the first three plants provide enough capacity to satisfy projected demand, PJM will purchase capacity only from those three plants, each of which will receive $30/unit, the clearing price. 2 Because PJM operates the electricity grid in a very large region of the country, PJM divides its overall grid into geographic subregions and makes adjustments to the clearing price to reflect operating conditions in those subregions. For instance, PJM may pay a higher rate in or near areas where transmission-line congestion limits the amount of electricity that can be imported from other areas. The elevated clearing price might encourage a company to site a new power plant in a subregion where the need for local generation is great rather than elsewhere in PJM’s grid. 3 To take a simplified example, assume an LSE has signed a long-term bilateral contract with a generator to purchase 50 units of electricity annually at a price of $40/unit (total annual cost: $2,000). In a given year when the auction clearing price is $50/unit, assume PJM requires the LSE to purchase 100 units of electricity to satisfy its share of projected demand. The LSE bids the 50 units of capacity it already owns into the PJM auction, and PJM pays the LSE $2,500 for those 50 units. Although the LSE then must pay PJM $5,000 for the 100 units it must purchase to satisfy projected demand, the net cost to the LSE of auction participation is only $2,500. Note that the effective price the LSE pays for 50 of the 100 units it must purchase from PJM—the amount purchased through the long-term contract—is the contract price, not the clearing price. That is, the LSE pays the utility $2,000 for 50 units of capacity, receives $2,500 from PJM after selling that capacity into the auction, and then pays $2,500 to PJM to purchase 50 units of capacity, resulting in a net cost of $2,000—the contract price—for those 50 units. The LSE, of course, must pay the full clearing price—$50/unit—for the other 50 units it is obliged to purchase to satisfy its full share of projected demand. 4 New Jersey implemented a similar program around the same time. The duration of the price guarantee for the New Jersey program is 15 years rather than Maryland’s 20. 5 Two simplified examples illustrate how Maryland’s program interacts with the PJM capacity auction. First, consider a hypothetical situation where the clearing price falls below the price guaranteed in the contract for differences. Assume that CPV’s plant produces 10,000 units of electricity a year, and that the 20-year price guaranteed under the contract is $30/unit. Assume further that, in a given year during the duration of the price guarantee, the clearing price is $20/unit, and CPV’s capacity clears the auction. CPV receives payments from Maryland LSEs of $10/unit, or $100,000, and payments from PJM of $20/unit, or $200,000. The rate CPV receives from the capacity auction is therefore $30/unit—the contract price—not $20/unit—the clearing price. Under PJM auction rules, Maryland LSEs then must purchase from PJM, at the clearing price of $20/unit, enough capacity to satisfy their assigned shares of anticipated demand. Assume that PJM requires Maryland LSEs to purchase 40,000 units of capacity. Total capacity-auction expenses for Maryland LSEs would therefore include both the payment to CPV ($100,000) and the full cost of purchasing capacity from PJM ($800,000), or $900,000. Absent Maryland’s program, the LSEs’ capacity-auction expenses would have included only the total cost of capacity purchases from PJM, or $800,000. 6 Because neither CPV nor Maryland has challenged whether plaintiffs may seek declaratory relief under the Supremacy Clause, the Court assumes without deciding that they may. See Brief for Public Utility Law Project of New York, Inc., as Amicus Curiae 21 (arguing that the incumbent generators should have been required to exhaust administrative remedies before filing suit). 7 Respondents also raised arguments under the Dormant Commerce Clause and 42 U. S. C. §1983. The District Court rejected those arguments, PPL Energyplus, LLC v. Nazarian, 974 F. Supp. 2d 790, 841–855 (Md. 2013), the Fourth Circuit did not address them, and they are irrelevant at this stage. 8 For the same reason, the Third Circuit found New Jersey’s similar program preempted. PPL Energyplus, LLC v. Solomon, 766 F. 3d 241, 246 (2014). 9 According to Maryland and CPV, the payments guaranteed under Maryland’s program are consideration for CPV’s compliance with various state-imposed conditions, i.e., the requirements that CPV build a certain type of generator, at a particular location, that would produce a certain amount of electricity over a particular period of time. The payments, Maryland and CPV continue, are therefore separate from the rate CPV receives for its wholesale sales of capacity to PJM. But because the payments are conditioned on CPV’s capacity clearing the auction—and, accordingly, on CPV selling that capacity to PJM—the payments are certainly “received . . . in connection with” interstate wholesale sales to PJM. 16 U. S. C. §824d(a). 10 Although Oneok, Inc. v. Learjet, Inc., 575 U. S. ___ (2015), involved the NGA rather than the FPA, the relevant provisions of the two statutes are analogous. This Court has routinely relied on NGA cases in determining the scope of the FPA, and vice versa. See, e.g., id., at 14–15 (discussing FPA cases while determining the preemptive scope of the NGA). 11 Maryland’s program, Maryland and CPV assert, is consistent with federal law because FERC has accommodated the program by eliminating the MOPR’s state-supported generation exception. Even assuming that this change has prevented Maryland’s program from distorting the auction’s price signals, however—a point the parties dispute—Maryland cannot regulate in a domain Congress assigned to FERC and then require FERC to accommodate Maryland’s intrusion. See Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493, 518 (1989) (“The NGA does not require FERC to regulate around a state rule the only purpose of which is to influence purchasing decisions of interstate pipelines, however that rule is labeled.”). 12 Our opinion does not call into question whether generators and LSEs may enter into long-term financial hedging contracts based on the auction clearing price. Such contracts, also frequently termed contracts for differences, do not involve state action to the same degree as Maryland’s program, which compels private actors (LSEs) to enter into contracts for differences—like it or not—with a generator that must sell its capacity to PJM through the auction. 13 Because the reasons we have set out suffice to invalidate Maryland’s program, we do not resolve whether, as the incumbent generators also assert, Maryland’s program is preempted because it counteracts FERC’s refusal to extend the NEPA’s duration, or because it interferes with the capacity auction’s price signals.

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 . SUPREME COURT OF THE UNITED STATES Syllabus HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISION, et al. v. TALEN ENERGY MARKETING, LLC, fka PPL ENERGYPLUS, LLC, et al. certiorari to the united states court of appeals for the fourth circuit No. 14–614. Argued February 24, 2016—Decided April 19, 2016[1] The Federal Power Act (FPA) vests in the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over wholesale sales of electricity in the interstate market, but “leaves to the States alone, the regulation of [retail electricity sales].” FERC v. Electric Power Supply Assn., 577 U. S. ___, ___. In Maryland and other States that have deregulated their energy markets, “load serving entities” (LSEs) purchase electricity at wholesale from independent power generators for delivery to retail consumers. Interstate wholesale transactions in deregulated markets typically occur through (1) bilateral contracting, where LSEs agree to purchase a certain amount of electricity from generators at a certain rate over a certain period of time; and (2) competitive wholesale auctions administered by Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs), nonprofit entities that manage certain segments of the electricity grid. PJM Interconnection (PJM), an RTO overseeing a multistate grid, operates a capacity auction. The capacity auction is designed to identify need for new generation and to accommodate long-term bilateral contracts for capacity. PJM predicts demand three years into the future and assigns a share of that demand to each participating LSE. Owners of capacity to produce electricity in three years’ time then bid that capacity into the auction for sale to PJM at rates the sellers set in their bids. PJM accepts bids until it has purchased enough capacity to satisfy anticipated demand. All accepted capacity sellers receive the highest accepted rate, called the “clearing price.” LSEs then must purchase, from PJM, enough electricity to satisfy their assigned share of overall projected demand. FERC extensively regulates the structure of the capacity auction to ensure that it efficiently balances supply and demand, producing a just and reasonable clearing price. Concerned that the PJM capacity auction was failing to encourage development of sufficient new in-state generation, Maryland enacted its own regulatory program. Maryland selected, through a proposal process, petitioner CPV Maryland, LLC (CPV), to construct a new power plant and required LSEs to enter into a 20-year pricing contract (called a contract for differences) with CPV at a rate CPV specified in its proposal. Under the terms of the contract, CPV sells its capacity to PJM through the auction, but—through mandated payments from or to LSEs—receives the contract price rather than the clearing price for these sales to PJM. In a suit filed by incumbent generators (respondents here) against members of the Maryland Public Service Commission—CPV intervened as a defendant—the District Court issued a declaratory judgment holding that Maryland’s program improperly sets the rate CPV receives for interstate wholesale capacity sales to PJM. The Fourth Circuit affirmed. Held: Maryland’s program is preempted because it disregards the interstate wholesale rate FERC requires. A state law is preempted where “Congress has legislated comprehensively to occupy an entire field of regulation,” Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493 , as well as “ ‘where, under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ ” Crosby v. National Foreign Trade Council, 530 U. S. 363 . Exercising its exclusive authority over interstate wholesale sales, see 16 U. S. C. §824(b)(1), FERC has approved PJM’s capacity auction as the sole ratesetting mechanism for capacity sales to PJM, and has deemed the clearing price per se just and reasonable. However, Maryland—through the contract for differences—guarantees CPV a rate distinct from the clearing price for its interstate capacity sales to PJM. By adjusting an interstate wholesale rate, Maryland’s program contravenes the FPA’s division of authority between state and federal regulators. That Maryland was attempting to encourage construction of new in-state generation does not save its program. States may regulate within their assigned domain even when their laws incidentally affect areas within FERC’s domain. But they may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC’s authority over interstate wholesale rates, as Maryland has done here. See Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354 ; Nantahala Power & Light Co. v. Thornburg, 476 U. S. 953 . Maryland and CPV analogize the contract for differences to traditional bilateral contracts for capacity. Unlike traditional bilateral contracts, however, the contract for differences does not transfer ownership of capacity from one party to another outside the auction. Instead, Maryland’s program operates within the auction, mandating LSEs and CPV to exchange money based on the cost of CPV’s capacity sales to PJM. Maryland’s program is rejected only because it disregards an interstate wholesale rate required by FERC. Neither Maryland nor other States are foreclosed from encouraging production of new or clean generation through measures that do not condition payment of funds on capacity clearing the auction. . 753 F. 3d 467, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Notes 1 Together with No. 14–623, CPV Maryland, LLC v. Talen Energy Marketing, LLC, fka PPL EnergyPlus, LLC, et al., also on certiorari to the same court

Under the Federal Power Act (FPA), the Federal Energy Regulatory Commission (FERC) has exclusive jurisdiction over wholesale sales of electricity in the interstate market. Under the FPA, FERC assigns to FERC responsibility for ensuring that rates and charges made by public utility companies for or in connection with the transmission or sale of electric energy subject to the jurisdiction of the Commission shall be just and reasonable. The FPA also vests in the FERC exclusive authority over the regulation of any other sale of electricity, including any retail sale. To address a perceived supply shortfall, Maryland officials proposed that FERC extend the duration of the NEPA from three years to ten. FERC rejected the proposal, and the Court of Appeals affirmed. Held: Maryland's scheme impermissibly intrudes upon the wholesale electricity market, a domain Congress reserved to Congress alone. . (a) The Supremacy Clause makes the laws of the United States "the supreme Law of the Land;... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, 205. P.. (b) Federal law preempts contrary state law. A state law is preempted where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law, or where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Here, Maryland has enacted its own regulatory program to ensure that its program sets an interstate wholesale rate, contravening FERC's division of authority between state and federal regulators. FERC has approved the PJM capacity auction as the sole ratesetting mechanism for sales of capacity to PJM, and has deemed the clearing price per se just. reasonable. The contract for differences between Maryland and CPV differs from traditional bilateral contracts for capacity in that it does not transfer ownership of capacity from one party to another outside the auction. Instead, the contract operates within the auction, and mandates that LSEs exchange money based on the cost of CPV's capacity sales. Maryland took the position, until the Fourth Circuit issued its decision, that the rate in the contract is not subject to review by FERC. (c) This holding is limited to rejecting Maryland's program only because it disregards an interstate wholesale rate. Because neither CPV nor Maryland has challenged whether plaintiffs may seek declaratory relief, the Court does not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Thus, so long as a State does not condition payment of funds on capacity clearing an auction, the State's program would not suffer from the fatal defect that renders Maryland�s program unacceptable. Cf. NGA v. Thornburg Co.,,. Pp. 456 U.S. 575-554. 774 F. Supp. 2d 790 (Md. 2013), affirmed. JUSTICE STEVENS concluded that Maryland has preempted Maryland in its program, since Maryland, through its program for the sale of power at wholesale from independent power generators, cannot regulate in the domain Congress assigned to it and then require FERC to accommodate Maryland's intrusion. This Court invalidated the States' attempts to second-guess the reasonableness of interstate wholesale rates, invalidating the States, who had previously attempted to regulate their own wholesale rates. Section 824(b)(1) of the FGA, which has jurisdiction over contracts for interstate commerce, preempts a state law preempted in a pre-emption case. However, the Dormant Commerce Clause and §1983 have been consistent with determining the scope of FERC statutes, and have accommodated FERC-supported state-supported federal programs. See, e.g., Learjet, Inc., v. Learjet,,. Moreover, the NGA has generally accommodated federal programs supported by state law, including Maryland-supported generation. Even assuming, arguendo, that Maryland prevented its program from distorting the auction's price signals, Maryland cannot regulate, as the incumbent generators assert, Maryland, because it counteracts FERC, and then requires private actors (LSEs) to enter into contracts for differences, like it or not, with a generator that must sell its capacity through the auction

2015_14-7505

https://www.oyez.org/cases/2015/14-7505

. A Florida jury convicted Timothy Lee Hurst of murdering his co-worker, Cynthia Harrison. A penalty-phase jury recommended that Hurst’s judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced Hurst to death. We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough. I On May 2, 1998, Cynthia Harrison’s body was discovered in the freezer of the restaurant where she worked—bound, gagged, and stabbed over 60 times. The restaurant safe was unlocked and open, missing hundreds of dollars. The State of Florida charged Harrison’s co-worker, Timothy Lee Hurst, with her murder. See 819 So. 2d 689, 692–694 (Fla. 2002). During Hurst’s 4-day trial, the State offered substantial forensic evidence linking Hurst to the murder. Witnesses also testified that Hurst announced in advance that he planned to rob the restaurant; that Hurst and Harrison were the only people scheduled to work when Harrison was killed; and that Hurst disposed of blood-stained evidence and used stolen money to purchase shoes and rings. Hurst responded with an alibi defense. He claimed he never made it to work because his car broke down. Hurst told police that he called the restaurant to let Harrison know he would be late. He said she sounded scared and he could hear another person—presumably the real murderer—whispering in the background. At the close of Hurst’s defense, the judge instructed the jury that it could find Hurst guilty of first-degree murder under two theories: premeditated murder or felony murder for an unlawful killing during a robbery. The jury convicted Hurst of first-degree murder but did not specify which theory it believed. First-degree murder is a capital felony in Florida. See Fla. Stat. §782.04(1)(a) (2010). Under state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment. §775.082(1). “A person who has been convicted of a capital felony shall be punished by death” only if an additional sentencing proceeding “results in findings by the court that such person shall be punished by death.” Ibid. “[O]therwise such person shall be punished by life imprisonment and shall be ineligible for parole.” Ibid. The additional sentencing proceeding Florida employs is a “hybrid” proceeding “in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencingdeterminations.” Ring v. Arizona, 536 U. S. 584, 608, n. 6 (2002) . First, the sentencing judge conducts an evidentiary hearing before a jury. Fla. Stat. §921.141(1) (2010). Next, the jury renders an “advisory sentence” of life or death without specifying the factual basis of its recommendation. §921.141(2). “Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death.” §921.141(3). If the court imposes death, it must “set forth in writing its findings upon which the sentence of death is based.” Ibid. Although the judge must give the jury recommendation “great weight,” Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (per curiam), the sentencing order must “reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors,” Blackwelder v. State, 851 So. 2d 650, 653 (Fla. 2003) ( per curiam). Following this procedure, Hurst’s jury recommended a death sentence. The judge independently agreed. See 819 So. 2d, at 694–695. On postconviction review, however, the Florida Supreme Court vacated Hurst’s sentence for reasons not relevant to this case. See 18 So. 3d 975 (2009). At resentencing in 2012, the sentencing judge conducted a new hearing during which Hurst offered mitigating evidence that he was not a “major participant” in the murder because he was at home when it happened. App. 505–507. The sentencing judge instructed the advisory jury that it could recommend a death sentence if it found at least one aggravating circumstance beyond a reason-able doubt: that the murder was especially “heinous, atrocious, or cruel” or that it occurred while Hurst was committing a robbery. Id., at 211–212. The jury recommended death by a vote of 7 to 5. The sentencing judge then sentenced Hurst to death. In her written order, the judge based the sentence in part on her independent determination that both the heinous-murder and robbery aggravators existed. Id., at 261–263. She assigned “great weight” to her findings as well as to the jury’s recommendation of death. Id., at 271. The Florida Supreme Court affirmed 4 to 3. 147 So. 3d 435 (2014). As relevant here, the court rejected Hurst’s argument that his sentence violated the Sixth Amendment in light of Ring, 536 U. S. 584 . Ring, the court recognized, “held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in the maximum punishment.” 147 So. 3d, at 445. But the court considered Ring inapplicable in light of this Court’s repeated support of Florida’s capital sentencing scheme in pre-Ring cases. 147 So. 3d, at 446–447 (citing Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam)); see also Spaziano v. Florida, 468 U. S. 447 –465 (1984). Specifically, in Hildwin, this Court held that the Sixth Amendment “does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” 490 U. S., at 640–641. The Florida court noted that we have “never expressly overruled Hildwin, and did not do so in Ring.” 147 So. 3d, at 446–447. Justice Pariente, joined by two colleagues, dissented from this portion of the court’s opinion. She reiterated her view that “Ring requires any fact that qualifies a capital defendant for a sentence of death to be found by a jury.” Id., at 450 (opinion concurring in part and dissenting in part). We granted certiorari to resolve whether Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring. 575 U. S. ___ (2015). We hold that it does, and reverse. II The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). In Apprendi v. New Jersey, 530 U. S. 466, 494 (2000) , this Court held that any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. In the years since Apprendi, we have applied its rule to instances involving plea bargains, Blakely v. Washington, 542 U. S. 296 (2004) , sentencing guidelines, United States v. Booker, 543 U. S. 220 (2005) , criminal fines, Southern Union Co. v. United States, 567 U. S. ___ (2012), mandatory minimums, Alleyne, 570 U. S., at ___, and, in Ring, 536 U. S. 584 , capital punishment. In Ring, we concluded that Arizona’s capital sentencing scheme violated Apprendi’s rule because the State allowed a judge to find the facts necessary to sentence a defendant to death. An Arizona jury had convicted Timothy Ring of felony murder. 536 U. S., at 591. Under state law, “Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made.” Id., at 592. Specifically, a judge could sentence Ring to death only after independently finding at least one aggravating circumstance. Id., at 592–593. Ring’s judge followed this procedure, found an aggravating circumstance, and sentenced Ring to death. The Court had little difficulty concluding that “ ‘the required finding of an aggravated circumstance exposed Ring to a greater punishment than that authorized by the jury’s guilty verdict.’ ” Id., at 604 (quoting Apprendi, 530 U. S., at 494; alterations omitted). Had Ring’s judge not engaged in any factfinding, Ring would have received a life sentence. Ring, 536 U. S., at 597. Ring’s death sentence therefore violated his right to have a jury find the facts behind his punishment. The analysis the Ring Court applied to Arizona’s sentencing scheme applies equally to Florida’s. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty. Rather, Florida requires a judge to find these facts. Fla. Stat. §921.141(3). Although Florida incorporates an advisory jury verdict that Arizona lacked, we have previously made clear that this distinction is immaterial: “It is true that in Florida the jury recommends a sentence, but it does not make specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation is not binding on the trial judge. A Florida trial court no more has the assistance of a jury’s findings of fact with respect to sentencing issues than does a trial judge in Arizona.” Walton v. Arizona, 497 U. S. 639, 648 (1990) ; accord, State v. Steele, 921 So. 2d 538, 546 (Fla. 2005) (“[T]he trial court alone must make detailed findings about the existence and weight of aggravating circumstances; it has no jury findings on which to rely”). As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment. III Without contesting Ring’s holding, Florida offers a bevy of arguments for why Hurst’s sentence is constitutional. None holds water. A Florida concedes that Ring required a jury to find every fact necessary to render Hurst eligible for the death pen-alty. But Florida argues that when Hurst’s sentencing jury recommended a death sentence, it “necessarily included a finding of an aggravating circumstance.” Brief for Respondent 44. The State contends that this finding qualified Hurst for the death penalty under Florida law, thus satisfying Ring. “[T]he additional requirement that a judge also find an aggravator,” Florida concludes, “only provides the defendant additional protection.” Brief for Respondent 22. The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until “findings by the court that such person shall be punished by death.” Fla. Stat. §775.082(1) (emphasis added). The trial court alone must find “the facts . . . [t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” §921.141(3); see Steele, 921 So. 2d, at 546. “[T]he jury’s function under the Florida death penalty statute is advisory only.” Spaziano v. State, 433 So. 2d 508, 512 (Fla. 1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires. B Florida launches its second salvo at Hurst himself, arguing that he admitted in various contexts that an aggravating circumstance existed. Even if Ring normally requires a jury to hear all facts necessary to sentence a defendant to death, Florida argues, “Ring does not require jury findings on facts defendants have admitted.” Brief for Respondent 41. Florida cites our decision in Blakely v. Washington, 542 U. S. 296 (2004) , in which we stated that under Apprendi, a judge may impose any sentence authorized “on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at 303 (emphasis deleted). In light of Blakely, Florida points to various instances in which Hurst’s counsel allegedly admitted the existence of a robbery. Florida contends that these “admissions” made Hurst eligible for the death penalty. Brief for Respondent 42–44. Blakely, however, was a decision applying Apprendi to facts admitted in a guilty plea, in which the defendant necessarily waived his right to a jury trial. See 542 U. S., at 310–312. Florida has not explained how Hurst’s alleged admissions accomplished a similar waiver. Florida’s argument is also meritless on its own terms. Hurst never admitted to either aggravating circumstance alleged by the State. At most, his counsel simply refrained from challenging the aggravating circumstances in parts of his appellate briefs. See, e.g., Initial Brief for Appellant in No. SC12–1947 (Fla.), p. 24 (“not challeng[ing] the trial court’s findings” but arguing that death was nevertheless a disproportionate punishment). C The State next argues that stare decisis compels us to uphold Florida’s capital sentencing scheme. As the Flor-ida Supreme Court observed, this Court “repeatedly has reviewed and upheld Florida’s capital sentencing statute over the past quarter of a century.” Bottoson v. Moore, 833 So. 2d 693, 695 (2002) (per curiam) (citing Hildwin, 490 U. S. 638 ; Spaziano, 468 U. S. 447 ). “In a comparable situation,” the Florida court reasoned, “the United States Supreme Court held: ‘If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [other courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.’ ” Bottoson, 833 So. 2d, at 695 (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989) ); see also 147 So. 3d, at 446–447 (casebelow). We now expressly overrule Spaziano and Hildwin in relevant part. Spaziano and Hildwin summarized earlier precedent to conclude that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” Hildwin, 490 U. S., at 640–641. Their conclusion was wrong, and irreconcilable with Apprendi. Indeed, today is not the first time we have recognized as much. In Ring, we held that another pre-Apprendi decision—Walton, 497 U. S. 639 —could not “survive the reasoning of Apprendi.” 536 U. S., at 603. Walton, for its part, was a mere application of Hildwin’s holding to Arizona’s capital sentencing scheme. 497 U. S., at 648. “Although ‘ “the doctrine of stare decisis is of fundamental importance to the rule of law[,]” . . . [o]ur precedents are not sacrosanct.’ . . . ‘[W]e have overruled prior decisions where the necessity and propriety of doing so has been established.’ ” Ring, 536 U. S., at 608 (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) ). And in the Apprendi context, we have found that “stare decisis does not compel adherence to a decision whose ‘underpinnings’ have been ‘eroded’ by subsequent developments of constitutional law.” Alleyne, 570 U. S., at ___ (Sotomayor, J., concurring) (slip op., at 2); see also United States v. Gaudin, 515 U. S. 506 –520 (1995) (over-ruling Sinclair v. United States, 279 U. S. 263 (1929) ); Ring, 536 U. S., at 609 (overruling Walton, 497 U. S., at 639); Alleyne, 570 U. S., at ___ (slip op., at 15) (overruling Harris v. United States, 536 U. S. 545 (2002) ). Time and subsequent cases have washed away the logic of Spaziano and Hildwin. The decisions are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty. D Finally, we do not reach the State’s assertion that any error was harmless. See Neder v. United States, 527 U. S. 1 –19 (1999) (holding that the failure to submit an uncontested element of an offense to a jury may be harmless). This Court normally leaves it to state courts to consider whether an error is harmless, and we see no reason to depart from that pattern here. See Ring, 536 U. S., at 609, n. 7. * * * The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional. 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 . SUPREME COURT OF THE UNITED STATES Syllabus HURST v. FLORIDA certiorari to the supreme court of florida No. 14–7505. Argued October 13, 2015—Decided January 12, 2016 Under Florida law, the maximum sentence a capital felon may receive on the basis of a conviction alone is life imprisonment. He may be sentenced to death, but only if an additional sentencing proceeding “results in findings by the court that such person shall be punished by death.” Fla. Stat. §775.082(1). In that proceeding, the sentencing judge first conducts an evidentiary hearing before a jury. §921.141(1). Next, the jury, by majority vote, renders an “advisory sentence.” §921.141(2). Notwithstanding that recommendation, the court must independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death. §921.141(3). A Florida jury convicted petitioner Timothy Hurst of first-degree murder for killing a co-worker and recommended the death penalty. The court sentenced Hurst to death, but he was granted a new sentencing hearing on appeal. At resentencing, the jury again recommended death, and the judge again found the facts necessary to sentence Hurst to death. The Florida Supreme Court affirmed, rejecting Hurst’s argument that his sentence violated the Sixth Amendment in light of Ring v. Arizona, 536 U. S. 584 , in which this Court found unconstitutional an Arizona capital sentencing scheme that permitted a judge rather than the jury to find the facts necessary to sentence a defendant to death. Held: Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring. . (a) Any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. Apprendi v. New Jersey, 530 U. S. 466 . Applying Apprendi to the capital punishment context, the Ring Court had little difficulty concluding that an Arizona judge’s independent factfinding exposed Ring to a punishment greater than the jury’s guilty verdict authorized. 536 U. S., at 604. Ring’s analysis applies equally here. Florida requires not the jury but a judge to make the critical findings necessary to impose the death penalty. That Florida provides an advisory jury is immaterial. See Walton v. Arizona, 497 U. S. 639 . As with Ring, Hurst had the maximum authorized punishment he could receive increased by a judge’s own factfinding. . (b) Florida’s counterarguments are rejected. . (1) In arguing that the jury’s recommendation necessarily included an aggravating circumstance finding, Florida fails to appreciate the judge’s central and singular role under Florida law, which makes the court’s findings necessary to impose death and makes the jury’s function advisory only. The State cannot now treat the jury’s advisory recommendation as the necessary factual finding required by Ring. . (2) Florida’s reliance on Blakely v. Washington, 542 U. S. 296 , is misplaced. There, this Court stated that under Apprendi, a judge may impose any sentence authorized “on the basis of the facts . . . admitted by the defendant,” 542 U. S., at 303. Florida alleges that Hurst’s counsel admitted the existence of a robbery, but Blakely applied Apprendi to facts admitted in a guilty plea, in which the defendant necessarily waived his right to a jury trial, while Florida has not explained how Hurst’s alleged admissions accomplished a similar waiver. In any event, Hurst never admitted to either aggravating circumstance alleged by the State. . (3) That this Court upheld Florida’s capital sentencing scheme in Hildwin v. Florida, 490 U. S. 638 , and Spaziano v. Florida, 468 U. S. 447 , does not mean that stare decisis compels the Court to do so here, see Alleyne v. United States, 570 U. S. ___, ___ (Sotomayor, J., concurring). Time and subsequent cases have washed away the logic of Spaziano and Hildwin. Those decisions are thus overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty. . (4) The State’s assertion that any error was harmless is not addressed here, where there is no reason to depart from the Court’s normal pattern of leaving such considerations to state courts. P. 10. 147 So. 3d 435, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion.

During a Florida jury trial, the State offered substantial evidence linking respondent Hurst to the murder of his co-worker. At the close of Hurst's alibi defense, the judge instructed the jury that it could find Hurst guilty of first-degree murder under two theories: premeditated murder or felony murder for an unlawful killing during a robbery. The jury convicted Hurst, but did not specify which theory it believed. The judge then sentenced him to death. The Florida Supreme Court affirmed, rejecting his argument that his sentence violated the Sixth Amendment in light of Ring v. Florida, 536 U. S. 584, which held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in the maximum punishment. Held: The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough. . (a) In the absence of Ring, this Court has never expressly overruled this Court, and did not do so in Ring. P.. (b) The State fails to appreciate the central and singular role that the judge plays under Florida law. As described above and by the State Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until findings by the court that he shall be punished by death, and the trial court alone must find the facts necessary to sentence a defendant to death and must then find an aggravating circumstance, independent of a jury-finding factfinding, that is necessary for imposition of the death penalty. Moreover, the decisions are overruled to the extent they allow a sentencing judge to find a mitigating circumstance independent of the jury's factfinding. This Court will not reach the State's assertion that any error was harmless. See, e.g., Nederlander v. United States, 519 U.S. 519, 527, n. 6. Pp. 442. 147 So. 3d 435, reversed and remanded. Justice Pariente, joined by two colleagues, dissented from this portion of the court's opinion, reiterating her view that Ring requires any fact that qualifies a capital defendant for a death sentence to be found by a jury. She also refrained from challenging Hurst on his own admission of aggravating circumstances, arguing that death was nevertheless a disproportionate punishment. Respondent 22, in a separate opinion, also dissented, contending that stare decisis compels this Court to uphold Florida's capital sentencing scheme. However, she did note that, under Apprendi v. New Jersey,, a judge may impose any sentence authorized on the basis of the facts reflected in the jury verdict or admitted by the defendant, and that Blakely v. Washington,, did not require jury findings on facts defendants have admitted. In light of Blakely, Florida points to various instances in which respondent Ring could not be sentenced to death unless further findings were made independently of the evidence. That decision, however, was made by a Florida trial judge, and is inapplicable to Florida. Here, the sentencing judge has never waived his right to a waiver of his own right to an appellate trial by applying a Florida factfinding procedure. Thus, the existence of an element that a jury may not find unconstitutional is not required for the sentencing scheme to be upheld. And the State will not depart from the practice of applying the Florida death penalty scheme simply because a jury has an uncontested factfinding element that protects a jury from an error that it may not otherwise consider. Nor will an error be harmless, since it is not an element of an unguested death sentence that protects the right to the death sentence alone, alone, from the death-penalty scheme, and therefore is required to uphold the Florida scheme.. 146 So. 2d 435 (Fla. Supreme Court remanded and reversed) See also: 147 So.3d 435. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST, JJ., joined, and in Parts I, II-A, III, and IV of which STEWART, J., joined. BLACKWElder, C.J., filed an opinion concurring in part and dissenting in part, post, p.. DOUGLAS, BRENNAN, and MARSHALL JJ., took no part in the decision of the case.

2015_15-145

https://www.oyez.org/cases/2015/15-145

. The Bankruptcy Code prohibits debtors from discharging debts “obtained by . . . false pretenses, a false representation, or actual fraud.” 11 U. S. C. §523(a)(2)(A). The Fifth Circuit held that a debt is “obtained by . . . actual fraud” only if the debtor’s fraud involves a false representation to a creditor. That ruling deepened an existing split among the Circuits over whether “actual fraud” requires a false representation or whether it encompasses other traditional forms of fraud that can be accomplished without a false representation, such as a fraudulent conveyance of property made to evade payment to creditors. We granted certiorari to resolve that split and now reverse. I Husky International Electronics, Inc., is a Colorado-based supplier of components used in electronic devices. Between 2003 and 2007, Husky sold its products to Chrysalis Manufacturing Corp., and Chrysalis incurred a debt to Husky of $163,999.38. During the same period, respondent Daniel Lee Ritz, Jr., served as a director of Chrysalis and owned at least 30% of Chrysalis’ common stock. All parties agree that between 2006 and 2007, Ritz drained Chrysalis of assets it could have used to pay its debts to creditors like Husky by transferring large sums of Chrysalis’ funds to other entities Ritz controlled. For instance—and Ritz’ actions were by no means limited to these examples—Ritz transferred $52,600 to CapNet Risk Management, Inc., a company he owned in full; $121,831 to CapNet Securities Corp., a company in which he owned an 85% interest; and $99,386.90 to Dynalyst Manufacturing Corp., a company in which he owned a 25% interest. In May 2009, Husky filed a lawsuit against Ritz seek-ing to hold him personally responsible for Chrysalis’ $163,999.38 debt. Husky argued that Ritz’ intercompany-transfer scheme was “actual fraud” for purposes of a Texas law that allows creditors to hold shareholders responsible for corporate debt. See Tex. Bus. Orgs. Code Ann. §21.223(b) (West 2012). In December 2009, Ritz filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern District of Texas. Husky then initiated an adversarial proceeding in Ritz’ bankruptcy case again seeking to hold Ritz personally liable for Chrysalis’ debt. Husky also contended that Ritz could not discharge that debt in bankruptcy because the same intercompany-transfer scheme constituted “actual fraud” under 11 U. S. C. §523(a)(2)(A)’s exemption to discharge.[1] The District Court held that Ritz was personally liable for the debt under Texas law, but that the debt was not “obtained by . . . actual fraud” under §523(a)(2)(A) and could be discharged in his bankruptcy. The Fifth Circuit affirmed. It did not address whether Ritz was responsible for Chrysalis’ debt under Texas law because it agreed with the District Court that Ritz did not commit “actual fraud” under §523(a)(2)(A). Before the Fifth Circuit, Husky argued that Ritz’ asset-transfer scheme was effectuated through a series of fraudulent conveyances—or transfers intended to obstruct the collection of debt. And, Husky said, such transfers are a recognizable form of “actual fraud.” The Fifth Circuit dis-agreed, holding that a necessary element of “actual fraud” is a misrepresentation from the debtor to the creditor, as when a person applying for credit adds an extra zero to her income or falsifies her employment history. In re Ritz, 787 F. 3d 312, 316 (2015). In transferring Chrysalis’ assets, Ritz may have hindered Husky’s ability to recover its debt, but the Fifth Circuit found that he did not make any false representations to Husky regarding those assets or the transfers and therefore did not commit “actual fraud.” We reverse. The term “actual fraud” in §523(a)(2)(A) encompasses forms of fraud, like fraudulent conveyance schemes, that can be effected without a false representation. II A Before 1978, the Bankruptcy Code prohibited debtors from discharging debts obtained by “false pretenses or false representations.” §35(a)(2) (1976 ed.). In the Bankruptcy Reform Act of 1978, Congress added “actual fraud” to that list. 92Stat. 2590. The prohibition now reads: “A discharge under [Chapters 7, 11, 12, or 13] of this title does not discharge an individual debtor from any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud.” §523(a)(2)(A) (2012 ed.). When “ ‘Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.’ ” United States v. Quality Stores, Inc., 572 U. S. ___, ___ (2014) (slip op., at 7). It is therefore sensible to start with the presumption that Congress did not intend “actual fraud” to mean the same thing as “a false representation,” as the Fifth Circuit’s holding suggests. But the historical meaning of “actual fraud” provides even stronger evidence that the phrase has long encompassed the kind of conduct alleged to have occurred here: a transfer scheme designed to hinder the collection of debt. This Court has historically construed the terms in §523(a)(2)(A) to contain the “elements that the common law has defined them to include.” Field v. Mans, 516 U. S. 59, 69 (1995) . “Actual fraud” has two parts: actual and fraud. The word “actual” has a simple meaning in the context of common-law fraud: It denotes any fraud that “involv[es] moral turpitude or intentional wrong.” Neal v. Clark, 95 U. S. 704, 709 (1878) . “Actual” fraud stands in contrast to “implied” fraud or fraud “in law,” which describe acts of deception that “may exist without the imputation of bad faith or immorality.” Ibid. Thus, anything that counts as “fraud” and is done with wrongful intent is “actual fraud.” Although “fraud” connotes deception or trickery gener-ally, the term is difficult to define more precisely. See 1 J. Story, Commentaries on Equity Jurisprudence §189, p. 221 (6th ed. 1853) (Story) (“Fraud . . . being so various in its nature, and so extensive in its application to human concerns, it would be difficult to enumerate all the instances in which Courts of Equity will grant relief under this head”). There is no need to adopt a definition for all times and all circumstances here because, from the beginning of English bankruptcy practice, courts and legislatures have used the term “fraud” to describe a debtor’s transfer of assets that, like Ritz’ scheme, impairs a creditor’s ability to collect the debt. One of the first bankruptcy acts, the Statute of 13 Elizabeth, has long been relied upon as a restatement of the law of so-called fraudulent conveyances (also known as “fraudulent transfers” or “fraudulent alienations”). See generally G. Glenn, The Law of Fraudulent Conveyances 89–92 (1931). That statute, also called the Fraudulent Conveyances Act of 1571, identified as fraud “faigned covenous and fraudulent Feoffmentes Gyftes Grauntes Alienations [and] Conveyaunces” made with “Intent to delaye hynder or defraude Creditors.” 13 Eliz. ch. 5. In modern terms, Parliament made it fraudulent to hide assets from creditors by giving them to one’s family, friends, or associates. The principles of the Statute of 13 Elizabeth—and even some of its language—continue to be in wide use today. See BFP v. Resolution Trust Corporation, 511 U. S. 531, 540 (1994) (“The modern law of fraudulent transfers had its origin in the Statute of 13 Elizabeth”); id., at 541 (“Every American bankruptcy law has incorporated a fraudulent transfer provision”); Story §353, at 393 (“[T]he statute of 13 Elizabeth . . . has been universally adopted in America, as the basis of our jurisprudence on the same subject”); Boston Trading Group, Inc. v. Burnazos, 835 F. 2d 1504, 1505–1506 (CA1 1987) (Breyer, J.) (“Mass. Gen. Laws ch. 109A, §§1–13 . . . is a uniform state law that codifies both common and statutory law stretching back at least to 1571 and the Statute of Elizabeth”). The degree to which this statute remains embedded in laws related to fraud today clarifies that thecommon-law term “actual fraud” is broad enough toincorporate a fraudulent conveyance. Equally important, the common law also indicates that fraudulent conveyances, although a “fraud,” do not require a misrepresentation from a debtor to a creditor. As a basic point, fraudulent conveyances are not an inducement-based fraud. Fraudulent conveyances typically involve “a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession, or grossly inadequate consideration.” BFP, 511 U. S., at 540–541 (citing Twyne’s Case, 3 Co. Rep. 80b, 76 Eng. Rep. 809 (K. B. 1601)); O. Bump, Fraudulent Conveyances: A Treatise Upon Conveyances Made by Debtors To Defraud Creditors 31–60 (3d ed. 1882)). In such cases, the fraudulent conduct is not in dishonestly inducing a creditor to extend a debt. It is in the acts of concealment and hindrance. In the fraudulent-conveyance context, therefore, the opportunities for a false representation from the debtor to the creditor are limited. The debtor may have the opportunity to put forward a false representation if the creditor inquires into the whereabouts of the debtor’s assets, but that could hardly be considered a defining feature of this kind of fraud. Relatedly, under the Statute of 13 Elizabeth and the laws that followed, both the debtor and the recipient of the conveyed assets were liable for fraud even though the recipient of a fraudulent conveyance of course made no representation, true or false, to the debtor’s creditor. The famous Twyne’s Case, which this Court relied upon in BFP, illustrates this point. See Twyne’s Case, 76 Eng. Rep., at 823 (convicting Twyne of fraud under the Statute of 13 Elizabeth, even though he was the recipient of a debtor’s conveyance). That principle underlies the now-common understanding that a “conveyance which hinders, delays or defrauds creditors shall be void as against [the recipient] unless . . . th[at] party . . . received it in good faith and for consideration.” Glenn, Law of Fraudulent Conveyances §233, at 312. That principle also underscores the point that a false representation has never been a required element of “actual fraud,” and we decline to adopt it as one today. B Ritz concedes that fraudulent conveyances are a formof “actual fraud,”[2] but contends that 11 U. S. C. §523(a)(2)(A)’s particular use of the phrase means something else. Ritz’ strained reading of the provision finds little support. First, Ritz contends that interpreting “actual fraud” in §523(a)(2)(A) to encompass fraudulent conveyances would render duplicative two other exceptions to discharge in §523. Section 523(a)(4) exempts from discharge “any debt . . . for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” And §523(a)(6) exempts “any debt . . . for willful and malicious injury by the debtor to another entity or to the property of another entity.” Ritz makes the unremarkable point that the traditional definition of “actual fraud” will cover some of the same conduct as those exceptions: for example, a trustee who fraudulently conveys away his trust’s assets. But Ritz’ interpretation does not avoid duplication, nor does our interpretation fail to preserve a meaningful difference between §523(a)(2)(A) and §§523(a)(4), (6). Just as a fiduciary who engages in a fraudulent conveyance may find his debt exempted from discharge under either §523(a)(2)(A) or §523(a)(4), so too would a fiduciary who engages in one of the fraudulent misrepresentations that form the core of Ritz’ preferred interpretation of §523(a)(2)(A). The same is true for §523(a)(6). The debtors who commit fraudulent conveyances and the debtors who make false representations under §523(a)(2)(A) could likewise also inflict “willful and malicious injury” under §523(a)(6). There is, in short, overlap, but that overlap appears inevitable. And, of course, our interpretation of “actual fraud” in §523(a)(2)(A) also preserves meaningful distinctions between that provision and §§523(a)(4), (a)(6). Section 523(a)(4), for instance, covers only debts for fraud while acting as a fiduciary, whereas §523(a)(2)(A) has no similar limitation. Nothing in our interpretation alters that distinction. And §523(a)(6) covers debts “for willful and malicious injury,” whether or not that injury is the result of fraud, see Kawaauhau v. Geiger, 523 U. S. 57, 61 (1998) (discussing injuries resulting from “ ‘intentional torts’ ”), whereas §523(a)(2)(A) covers only fraudulent acts. Nothing in our interpretation alters that distinction either. Thus, given the clear differences between these provisions, we see no reason to craft an artificial definition of “actual fraud” merely to avoid narrow redundancies in §523 that appear unavoidable. Ritz also says that our interpretation creates redun-dancy with a separate section of the Bankruptcy Code, §727(a)(2), which prevents a debtor from discharging all of his debts if, within the year preceding the bankruptcy petition, he “transferred, removed, destroyed, mutilated, or concealed” property “with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property.” Although the two provisions could cover some of the same conduct, they are meaningfully different. Section 727(a)(2) is broader than §523(a)(2)(A) in scope—preventing an offending debtor from discharging all debt in bankruptcy. But it is narrower than §523(a)(2)(A) in timing—applying only if the debtor fraudulently conveys assets in the year preceding the bank-ruptcy filing. In short, while §727(a)(2) is a blunt remedy for actions that hinder the entire bankruptcy process, §523(a)(2)(A) is a tailored remedy for behavior connected to specific debts. Ritz’ next point of resistance rests on §523(a)(2)(A)’s requirement that the relevant debt be “for money, prop-erty, services, or . . . credit . . . obtained by . . . actual fraud.” (Emphasis added.) The argument, which the dissent also emphasizes, has two parts: First, it posits that fraudulent conveyances (unlike other forms of actual fraud) cannot be used to “obtai[n]” debt because they function instead to hide valuables that a debtor already possesses. Brief for Respondent 20, 31. There is, the dissent says, no debt at the end of a fraudulent conveyance that could be said to “ ‘resul[t] from’ ” or be “ ‘traceable to’ ” the fraud. Post, at 3 (quoting Field, 516 U. S., at 61, 64). Second, it urges that “actual fraud” not be interpreted to encompass forms of fraud that are incompatible with the provision’s “obtained by” requirement. It is of course true that the transferor does not “obtai[n]” debts in a fraudulent conveyance. But the recipient of the transfer—who, with the requisite intent, also commits fraud—can “obtai[n]” assets “by” his or her participation in the fraud. See, e.g., McClellan v. Cantrell, 217 F. 3d 890 (CA 7 2000); see also supra, at 6. If that recipient later files for bankruptcy, any debts “traceable to” the fraudulent conveyance, see Field, 516 U. S., at 61; post, at 3, will be nondischargable under §523(a)(2)(A). Thus, at least sometimes a debt “obtained by” a fraudulent conveyance scheme could be nondischargeable under §523(a)(2)(A). Such circumstances may be rare because a person who receives fraudulently conveyed assets is not necessarily (or even likely to be) a debtor on the verge of bankruptcy,[3] but they make clear that fraudulent conveyances are not wholly incompatible with the “obtained by” requirement. The dissent presses further still, contending that the phrase “obtained by . . . actual fraud” requires not only that the relevant debts “resul[t] from” or be “traceable to” fraud but also that they “result from fraud at the inception of a credit transaction.” Post, at 3 (emphasis added). Nothing in the text of §523(a)(2)(A) supports that additional requirement. The dissent bases its conclusion on this Court’s opinion in Field, in which the Court noted that certain forms of bankruptcy fraud require a degreeof direct reliance by a creditor on an action taken by a debtor. But Field discussed such “reliance” only in setting forth the requirements of the form of fraud alleged in that case—namely, fraud perpetrated through a misrepresentation to a creditor. See 516 U. S., at 61. The Court was not establishing a “reliance” requirement for frauds that are not premised on such a misrepresentation. Finally, Ritz argues that Congress added the phrase “actual fraud” to §523(a)(2)(A) not to expand the exception’s reach, but to restrict it. In Ritz’ view, “actual fraud” was inserted as the last item in a disjunctive list—“false pretenses, a false representation, or actual fraud”—in order to make clear that the “false pretenses” and “false representation[s]” covered by the provision needed to be intentional. Brief for Respondent 29–31. Ritz asks us, in other words, to ignore what he believes is Congress’ “imprudent use of the word ‘or,’ ” id., at 32, and read the final item in the list to modify and limit the others. In essence, he asks us to change the word “or” to “by.” That is an argument that defeats itself. We can think of no other example, nor could petitioner point to any at oral argument, in which this Court has attempted such an unusual statutory modification. * * * Because we must give the phrase “actual fraud” in §523(a)(2)(A) the meaning it has long held, we interpret “actual fraud” to encompass fraudulent conveyance schemes, even when those schemes do not involve a false representation. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion. So ordered.Notes 1 Husky also alleged that Ritz’ debt should be exempted from discharge under two other exceptions, see 11 U. S. C. §523(a)(4) (excepting debts for fraud “while acting in a fiduciary capacity”); §523(a)(6) (excepting debts for “willful and malicious injury”), but does not press those claims in this petition. 2 See Tr. of Oral Arg. 30 (Justice Kagan: “[Y]ou’re not contesting that fraudulent conveyance is a form of actual fraud; is that right?” Ms. Murphy: “[Y]es, that’s right”); id., at 27 (Ms. Murphy: “[T]o be clear, we don’t dispute that fraudulent conveyance is a form of actual fraud”). 3 Ritz’ situation may be unusual in this regard because Husky contends that Ritz was both the transferor and the transferee in his fraudulent conveyance scheme, having transferred Chrysalis assets to other companies he controlled. We take no position on that contention here and leave it to the Fifth Circuit to decide on remand whether the debt to Husky was “obtained by” Ritz’ asset-transfer scheme.

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 . SUPREME COURT OF THE UNITED STATES Syllabus HUSKY INTERNATIONAL ELECTRONICS, INC. v. RITZ certiorari to the united states court of appeals for the fifth circuit No. 15–145. Argued March 1, 2016—Decided May 16, 2016 Chrysalis Manufacturing Corp. incurred a debt to petitioner Husky International Electronics, Inc., of nearly $164,000. Respondent Daniel Lee Ritz, Jr., Chrysalis’ director and part owner at the time, drained Chrysalis of assets available to pay the debt by transferring large sums of money to other entities Ritz controlled. Husky sued Ritz to recover on the debt. Ritz then filed for Chapter 7 bankruptcy, prompting Husky to file a complaint in Ritz’ bankruptcy case, seeking to hold him personally liable and contending that the debt was not dischargeable because Ritz’ intercompany-transfer scheme constituted “actual fraud” under the Bankruptcy Code’s discharge exceptions. 11 U. S. C. §523(a)(2)(A). The District Court held that Ritz was personally liable under state law but also held that the debt was not “obtained by . . . actual fraud” under §523(a)(2)(A) and thus could be discharged in bankruptcy. The Fifth Circuit affirmed, holding that a misrepresentation from a debtor to a creditor is a necessary element of “actual fraud” and was lacking in this case, because Ritz made no false representations to Husky regarding the transfer of Chrysalis’ assets. Held: The term “actual fraud” in §523(a)(2)(A) encompasses fraudulent conveyance schemes, even when those schemes do not involve a false representation. . (a) It is sensible to presume that when Congress amended the Bankruptcy Code in 1978 and added to debts obtained by “false pretenses or false representations” an additional bankruptcy discharge exception for debts obtained by “actual fraud,” it did not intend the term “actual fraud” to mean the same thing as the already-existing term “false representations.” See United States v. Quality Stores, Inc., 572 U. S. ___, ___. Even stronger evidence that “actual fraud” encompasses the kind of conduct alleged to have occurred here is found in the phrase’s historical meaning. At common law, “actual fraud” meant fraud committed with wrongful intent, Neal v. Clark, 95 U. S. 704 . And the term “fraud” has, since the beginnings of bankruptcy practice, been used to describe asset transfers that, like Ritz’ scheme, impair a creditor’s ability to collect a debt. One of the first bankruptcy Acts, the Fraudulent Conveyances Act of 1571, 13 Eliz., ch. 5, identified as “fraud” conveyances made with “[i]ntent to delay hynder or defraude [c]reditors.” The degree to which that statute remains embedded in fraud-related laws today, see, e.g., BFP v. Resolution Trust Corporation, 511 U. S. 531 , clarifies that the common-law term “actual fraud” is broad enough to incorporate fraudulent conveyances. The common law also indicates that fraudulent conveyances do not require a misrepresentation from a debtor to a creditor, see id., at 541, as they lie not in dishonestly inducing a creditor to extend a debt but in the acts of concealment and hindrance. . (b) Interpreting “actual fraud” in §523(a)(2)(A) to encompass fraudulent conveyances would not, as Ritz contends, render duplicative two of §523’s other discharge exceptions, §§523(a)(4), (6), given that “actual fraud” captures much conduct not covered by those other provisions. Nor does this interpretation create a redundancy in §727(a)(2), which is meaningfully different from §523(a)(2)(A). It is also not incompatible with §523(a)(2)(A)’s “obtained by” requirement. Even though the transferor of a fraudulent conveyance does not obtain assets or debts through the fraudulent conveyance, the transferee—who, with the requisite intent, also commits fraud—does. At minimum, those debts would not be dischargeable under §523(a)(2)(A). Finally, reading the phrase “actual fraud” to restrict, rather than expand, the discharge exception’s reach would untenably require reading the disjunctive “or” in the phrase “false pretenses, a false representation, or actual fraud” to mean “by.” . 787 F. 3d 312, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion.

Husky International Electronics, Inc., is a supplier of electronic devices whose debt to respondent Ritz, Jr., was incurred by respondent. During the same period, respondent served as a director of respondent and owned at least 30% of respondent's stock. Respondent drained respondent of assets it could have used to pay its debts to creditors like Husky by transferring large sums of Chrysalis' funds to other entities Ritz controlled. In June 2009, Ritz filed for Chapter 7 bankruptcy in Federal District Court, seeking to hold him personally responsible for the debt. The District Court held that Ritz was personally liable under Texas law, but that the debt was not obtained by actual fraud under 11 U.S. C. §523(a)(2)(A), which prohibits debtors from discharging debts "obtained by... false pretenses, a false representation, or actual fraud." The Court of Appeals affirmed, but did not address whether respondent did not commit "actual fraud" under the Texas law. The Fifth Circuit dis-agreed, holding that a necessary element of actual fraud is a misrepresentation from the debtor to the creditor, as when a person applying for credit adds an extra zero to her income or falsifies her employment history. Held: The judgment is reversed, and the case is remanded. 787 F. 3d 312, reversed and remanded; see also reversed. (a) The historical meaning of the phrase has long encompassed the kind of conduct alleged to have occurred here: a transfer scheme designed to hinder the collection of debt. . (b) The term fraud, although a fraud, is not an inducement-based fraud. The word has a simple meaning in the context of common-law fraud, which denotes any fraud that involv[es] moral turpitude or intentional wrong. Although the word connotes deception or trickery gener-ally, the term is difficult to define more precisely. From the beginning of English bankruptcy practice, courts and legislatures have used the term "fraud" to describe a debtor's transfer of assets that, like Ritz' scheme, impairs a creditor's ability to collect the debt, and one of the first bankruptcy acts, the Statute of 13 Elizabeth, has long been relied upon as a restatement of the law of so-called fraudulent conveyances (also known as fraudulent transfers) by restating such terms as fraudulent alienations). In modern terms, Parliament made it fraudulent to hide assets from creditors by giving them to one's family, friends, or associates. Similarly, the traditional definition of fraud is that of a debtor for willful and malicious injury, whether or not that injury is the result of fraud. In addition, the common law also indicates that fraudulent conveyances do not require a representation from a debtor to a creditor. This Court has historically construed the terms in §523 to contain the elements that it has defined them to include. See, e.g., Field v. Mans, 516 U. S. 59, 69, 69. As a basic point, fraudulent conveyances are not, as the historical meaning suggests, inducement based fraud. Furthermore, fraudulent conduct is not in dishonestly inducing a creditor to extend a debt, but is in the acts of concealment and hindrance. More importantly, under the English common law and the laws that followed, both the debtor and the recipient of the conveyed assets were liable for fraud even though the recipient fraudulently conveys assets in the year preceding the bank-ruptcy filing. Ritz also alleged that respondent debt should be exempted from discharge under two other exceptions to Chapter 7 discharge, but does not press those claims in this petition. Respondent Husky contends that respondent was both the transferor and the transferee in respondent's fraudulent conveyance scheme, having transferred Chrysalis assets to other companies he controlled. On remand, the Fifth Circuit will determine whether respondent was actually involved in the asset-transfer scheme, and whether the debt to Husky was actually obtained by respondent's. If respondent presses those claims, the case will be remanded for further proceedings consistent with this opinion. P.. (c) Because this Court must give the phrase of the meaning it has long held, it interprets the meaning of that meaning to encompass fraudulent conveyANCE schemes, even when those schemes do not involve a false representation. Accordingly, the phrase must be interpreted to encompass forms of fraud that are incompatible with the provision. There is no merit to respondent's argument that interpreting fraudulance to encompass such forms would render duplicative §523 exceptions to discharge, since a fiduciary who engages in the form of misrepresentations is not necessarily (or even likely) a debtor on the verge of bankruptcy, but the core contending of fraudulent conveyations is that they are not wholly incompatible with §523. Moreover, respondent also alleges that respondent should be exempt from discharge

2015_14-449

https://www.oyez.org/cases/2015/14-449

. The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings. I A Less than one month after Sidney Gleason was paroled from his sentence for attempted voluntary manslaughter, he joined a conspiracy to rob an elderly man at knifepoint.[1] Gleason and a companion “cut up” the elderly man to get $10 to $35 and a box of cigarettes. 299 Kan. 1127, 1136, 329 P. 3d 1102, 1115 (2014). Fearing that their female co-conspirators would snitch, Gleason and his cousin, Damien Thompson, set out to kill co-conspirator Mikiala Martinez. Gleason shot and killed Martinez’s boyfriend, and then Gleason and Thompson drove Martinez to a rural location, where Thompson strangled her for five minutes and then shot her in the chest, Gleason standing by and providing the gun for the final shot. The State ultimately charged Gleason with capital murder for killing Martinez and her boyfriend, first-degree premeditated murder of the boyfriend, aggravating kidnaping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal possession of a firearm. He was convicted on all counts except the attempted first-degree murder charge. Id., at 1134–1135, 1146, 329 P. 3d, at 1114, 1120. The jury also found that the State proved beyond a reasonable doubt the existence of four aggravating circumstances and unanimously agreed to a sentence of death. Id., at 1146–1147, 329 P. 3d, at 1120–1121. B In December 2000, brothers Reginald and Jonathan Carr set out on a crime spree culminating in the Wichita Massacre.[2] On the night of December 7, Reginald Carr and an unknown man carjacked Andrew Schreiber, held a gun to his head, and forced him to make cash withdrawals at various ATMs. On the night of December 11, the brothers followed Linda Ann Walenta, a cellist for the Wichita symphony, home from orchestra practice. One of them approached her vehicle and said he needed help. When she rolled down her window, he pointed a gun at her head. When she shifted into reverse to escape, he shot her three times, ran back to his brother’s car, and fled the scene. One of the gunshots severed Walenta’s spine, and she died one month later as a result of her injuries. On the night of December 14, the brothers burst into a triplex at 12727 Birchwood, where roommates Jason, Brad, and Aaron lived. Jason’s girlfriend, Holly, and Heather, a friend of Aaron’s, were also in the house. Armed with handguns and a golf club, the brothers forced all five into Jason’s bedroom. They demanded that they strip naked and later ordered them into the bedroom closet. They took Holly and Heather from the bedroom, demanded that they perform oral sex and digitally penetrate each other as the Carrs looked on and barked orders. They forced each of the men to have sex with Holly and then with Heather. They yelled that the men would be shot if they could not have sex with the women, so Holly—fearing for Jason’s life—performed oral sex on him in the closet before he was ordered out by the brothers. Jonathan then snatched Holly from the closet. He ordered that she digitally penetrate herself. He set his gun between her knees on the floor. And he raped her. Then he raped Heather. Reginald took Brad, Jason, Holly, and Aaron one-by-one to various ATMs to withdraw cash. When the victims returned to the house, their torture continued. Holly uri-nated in the closet because of fright. Jonathan found an engagement ring hidden in the bedroom that Jason was keeping as a surprise for Holly. Pointing his gun at Jason, he had Jason identify the ring while Holly was sitting nearby in the closet. Then Reginald took Holly from the closet, said he was not going to shoot her yet, and raped her on the dining-room floor strewn with boxes of Christmas decorations. He forced her to turn around, ejaculated into her mouth, and forced her to swallow. In a nearby bathroom, Jonathan again raped Heather and then again raped Holly. At 2 a.m.—three hours after the mayhem began—the brothers decided it was time to leave the house. They attempted to put all five victims in the trunk of Aaron’s Honda Civic. Finding that they would not all fit, they jammed the three young men into the trunk. They directed Heather to the front of the car and Holly to Jason’s pickup truck, driven by Reginald. Once the vehicles arrived at a snow-covered field, they instructed Jason and Brad, still naked, and Aaron to kneel in the snow. Holly cried, “Oh, my God, they’re going to shoot us.” Holly and Heather were then ordered to kneel in the snow. Holly went to Jason’s side; Heather, to Aaron. Holly heard the first shot, heard Aaron plead with the brothers not to shoot, heard the second shot, heard the screams, heard the third shot, and the fourth. She felt the blow of the fifth shot to her head, but remained kneeling. They kicked her so she would fall face-first into the snow and ran her over in the pickup truck. But she survived, because a hair clip she had fastened to her hair that night deflected the bullet. She went to Jason, took off her sweater, the only scrap of clothing the brothers had let her wear, and tied it around his head to stop the bleeding from his eye. She rushed to Brad, then Aaron, and then Heather. Spotting a house with white Christmas lights in the distance, Holly started running toward it for help—naked, skull shattered, and without shoes, through the snow and over barbed-wire fences. Each time a car passed on the nearby road, she feared it was the brothers returning and camouflaged herself by lying down in the snow. She made it to the house, rang the doorbell, knocked. A man opened the door, and she relayed as quickly as she could the events of the night to him, and minutes later to a 911 dispatcher, fearing that she would not live. Holly lived, and retold this play-by-play of the night’s events to the jury. Investigators also testified that the brothers returned to the Birchwood house after leaving the five friends for dead, where they ransacked the place for valuables and (for good measure) beat Holly’s dog, Nikki, to death with a golf club. The State charged each of the brothers with more than 50 counts, including murder, rape, sodomy, kidnaping, burglary, and robbery, and the jury returned separate guilty verdicts. It convicted Reginald of one count of kidnaping, aggravated robbery, aggravated battery, and criminal damage to property for the Schreiber carjacking, and one count of first-degree felony murder for the Walenta shooting. Jonathan was acquitted of all counts relatedto the Schreiber carjacking but convicted of first-degree felony murder for the Walenta shooting. For the Birchwood murders, the jury convicted each brother of 4 counts of capital murder, 1 count of attempted first-degree murder, 5 counts of aggravated kidnaping, 9 counts of aggravated robbery, 20 counts of rape or attempted rape, 3 counts of aggravated criminal sodomy, 1 count each of aggravated burglary and burglary, 1 count of theft, and 1 count of cruelty to animals. The jury also convicted Reg-inald of three counts of unlawful possession of a firearm. 300 Kan. 1, 15–16, 331 P. 3d 544, 573–574 (2014). The State sought the death penalty for each of the four Birchwood murders, and the brothers were sentenced together. The State relied on the guilt-phase evidence, including Holly’s two days of testimony, as evidence of four aggravating circumstances: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crimes for the purpose of receiving money or items of monetary value; that they committed the crimes to prevent arrest or pro-secution; and that they committed the crimes in an especially heinous, atrocious, or cruel manner. Id., at 258–259, 331 P. 3d, at 708. After hearing each brother’s case for mitigation, the jury issued separate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circumstances beyond a reasonable doubt and that those aggravating circumstances outweighed the mitigating circumstances, justifying four separate verdicts of death for each brother for the murders of Jason, Brad, Aaron, and Heather. App. in No. 14–449 etc., pp. 461–492. C The Kansas Supreme Court vacated the death penalties in both cases. It held that the instructions used in both Gleason’s and the Carrs’ sentencing violated the Eighth Amendment because they “failed to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” 299 Kan., at 1196, 329 P. 3d, at 1147 (Gleason); 300 Kan., at 303, 331 P. 3d, at 733 (Reginald Carr); 300 Kan. 340, 369–370, 329 P. 3d 1195, 1213 (2014) (Jonathan Carr). Without that instruction, according to the court, the jury “was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt.” 299 Kan., at 1197, 329 P. 3d, at 1148. This, the court concluded, might have caused jurors to exclude relevant mitigating evidence from their consideration. Ibid. The Kansas Supreme Court also held that the Carrs’ death sentences had to be vacated because of the trial court’s failure to sever their sentencing proceedings, thereby violating the brothers’ Eighth Amendment right “to an individualized capital sentencing determination.” 300 Kan., at 275, 331 P. 3d, at 717; 300 Kan., at 368, 329 P. 3d, at 1212. According to the court, the joint trial “inhibited the jury’s individualized consideration of [Jonathan] because of family characteristics tending to demonstrate future dangerousness that he shared with his brother”; and his brother’s visible handcuffs prejudiced the jury’s consideration of his sentence. 300 Kan., at 275, 331 P. 3d, at 717. As for Reginald, he was prejudiced, according to the Kansas Supreme Court, by Jonathan’s portrayal of him as the corrupting older brother. Id., at 276, 331 P. 3d, at 717. Moreover, Reginald was prejudiced by his brother’s cross-examination of their sister, who testified that she thought Reginald had admitted to her that he was the shooter. Id., at 279, 331 P. 3d, at 719. (She later backtracked and testified, “ ‘I don’t remember who was, you know, shot by who[m].’ ” Ibid.) The Kansas Supreme Court opined that the presumption that the jury followed its instructions to consider each defendant separately was “defeated by logic.” Id., at 280, 331 P. 3d, at 719. “[T]he defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another . . . simply was not amenable to orderly separation and analysis.” Ibid., 331 P. 3d, at 719–720. The Kansas Supreme Court found itself unable to “say that the death verdict was unattributable, at least in part, to this error.” Id., at 282, 331 P. 3d, at 720. We granted certio-rari. 575 U. S. ___ (2015). II We first turn to the Kansas Supreme Court’s contention that the Eighth Amendment required these capital-sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond a reasonable doubt. A Before considering the merits of that contention, we consider Gleason’s challenge to our jurisdiction. According to Gleason, the Kansas Supreme Court’s decision rests on adequate and independent state-law grounds. This argument is a familiar one. We rejected it in Kansas v. Marsh, 548 U. S. 163, 169 (2006) . Like the defendant in that case, Gleason urges that the decision below rests only on a rule of Kansas law announced in State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (2001) (per curiam)—a rule later reiterated in State v. Scott, 286 Kan. 54, 183 P. 3d 801 (2008) ( per curiam). As we stated in Marsh, “Kleypas, itself, rested on federal law.” 548 U. S., at 169. So too does the relevant passage of Scott, which rested on Kleypas’s discussion of the constitutional rule that jurors need not agree on mitigating circumstances. See Scott, supra, at 106–107, 183 P. 3d, at 837–838. The Kansas Supreme Court’s opinion in this case acknowledged as much, saying that “statements from Kleypas implicate the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant mitigating evidence.” 299 Kan., at 1195, 329 P. 3d, at 1147. The Kansas Supreme Court’s opinion leaves no room for doubt that it was relying on the Federal Constitution. It stated that the instruction it required “protects a capital defendant’s Eighth Amendment right to individualized sentencing,” that the absence of the instruction “implicat[ed] Gleason’s right to individualized sentencing under the Eighth Amendment,” and that vacatur of Gleason’s death sentence was the “[c]onsequen[ce]” of Eighth Amendment error. Id., at 1196–1197, 329 P. 3d, at 1147–1148 (emphasis added). For this reason, the criticism leveled by the dissent is misdirected. It generally would have been “none of our business” had the Kansas Supreme Court vacated Gleason’s and the Carrs’ death sentences on state-law grounds. Marsh, 548 U. S., at 184 (Scalia, J., concurring). But it decidedly did not. And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, “review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.” Ibid. “When we correct a state court’s federal errors, we return power to the State, and to its people.” Ibid. The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions. See Sutton, San Antonio Independent School District v. Rodriguez And Its Aftermath, 94 Va. L. Rev. 1963, 1971–1977 (2008). But what a state court cannot do is experiment with our Federal Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant. “Turning a blind eye” in such cases “would change the uniform ‘law of the land’ into a crazy quilt.” Marsh, supra, at 185. And it would enable state courts to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing. B We turn, then, to the merits of the Kansas Supreme Court’s conclusion that the Eighth Amendment requires capital-sentencing courts in Kansas “to affirmatively inform the jury that mitigating circumstances need not be proven beyond a reasonable doubt.” 299 Kan., at 1197, 329 P. 3d, at 1148. Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called “selection phase” of a capital-sentencing proceeding). It is possible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist—and one can require the finding that they did exist to be made beyond a reasonable doubt. Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy—the quality of which, as we know, is not strained. It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury’s discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating-factor determination to be divided into its factual component and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is what our case law is designed to achieve. In any event, our case law does not require capital sentencing courts “to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt.” Ibid. In Buchanan v. Angelone, 522 U. S. 269 (1998) , we upheld a death sentence even though the trial court “failed to provide the jury with express guidance on the concept of mitigation.” Id., at 275. Likewise in Weeks v. Angelone, 528 U. S. 225 (2000) , we reaffirmed that the Court has “never held that the State must structure in a particular way the manner in which juries consider mitigating evidence” and rejected the contention that it was constitutionally deficient to instruct jurors to “ ‘consider a mitigating circumstance if you find there is evidence to support it,’ ” without additional guidance. Id., at 232–233. Equally unavailing is the contention that even if an instruction that mitigating evidence need not be “proven beyond a reasonable doubt” is not always required, it was constitutionally necessary in these cases to avoid confusion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U. S. 370, 380 (1990) (emphasis added). The alleged confusion stemming from the jury instructions used at the defendants’ sentencings does not clear that bar. A meager “possibility” of confusion is not enough. Ibid. As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof. The defendants focus upon the following instruction: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist.” App. to Pet. for Cert. in No. 14–452, p. 133 (Instr. 8).[3] The juxtaposition of aggravating and mitigating circumstances, so goes the argument, caused the jury to speculate that mitigating circumstances must also be proved beyond a reasonable doubt. 299 Kan., at 1197, 329 P. 3d, at 1148. It seems to us quite the opposite. The instruction makes clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt; mitigating circumstances themselves, on the other hand, must merely be “found to exist.” That same description, mitigating circumstances “found to exist,” is contained in three other instructions, App. to Pet. for Cert. in No. 14–452, at 133 (Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly, since it recites the Kansas statute, see Kan. Stat. Ann. §21–4624(e) (1995). “Found to exist” certainly does not suggest proof beyond a reasonable doubt. The instructions as a whole distinguish clearly between aggravating and mitigating circumstances: “The State has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances . . . ,” and the jury must decide unanimously that the State met that burden. App. to Pet. for Cert. in No. 14–452, at 133 (Instrs. 8 and 10) (emphasis added). “Mitigating circumstances,” on the other hand, “do not need to be found by all members of the jury” to “be considered by an individual juror in arriving at his or her sentencing decision.” Id., at 131 (Instr. 7). Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt—nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a fac-tual determination. We reject the Kansas Supreme Court’s decision that jurors were “left to speculate as to the correct burden of proof for mitigating circumstances.” 299 Kan., at 1197, 329 P. 3d, at 1148. For the reasons we have described, no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt. The reality is that jurors do not “pars[e] instructions for subtle shades of meaning in the same way that lawyers might.” Boyde, supra, at 381. The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence. III We turn next to the contention that a joint capital-sentencing proceeding in the Carrs’ cases violated the defendants’ Eighth Amendment right to an “individualized sentencing determination.” 300 Kan., at 276, 331 P. 3d, at 717. The Kansas Supreme Court agreed with the defendants that, because of the joint sentencing proceeding, one defendant’s mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amendment rights. Ibid. It accepted Reginald’s contention that he was prejudiced by his brother’s portrayal of him as the corrupting older brother. And it agreed that Reginald was prejudiced by his brother’s cross-examination of their sister, who equivocated about whether Reginald admitted to her that he was the shooter. (Reginald has all but abandoned that implausible theory of prejudice before this Court and contends only that the State “likely would not have introduced any such testimony” had he been sentenced alone. Brief for Respondent in No. 14–450, p. 34, n. 3.) Jonathan asserted that he was prejudiced by evidence associating him with his dangerous older brother, which caused the jury to perceive him as an incurable sociopath.[4] Both speculate that the evidence assertedly prejudicial to them would have been inadmissible in severed proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceedings, contending that the joinder rendered it impossible for the jury to consider the Carrs’ relative moral culpability and to determine individually whether they were entitled to “mercy.” 300 Kan., at 278, 331 P. 3d, at 718–719. Whatever the merits of defendants’ procedural objections, we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994) , it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991) ; see also Brown v. Sanders, 546 U. S. 212 –221 (2006). The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence. In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. To begin with, the court instructed the jury that it “must give separate consideration to each defendant,” that each was “entitled to have his sentence decided on the evidence and law which is applicable to him,” and that any evidence in the penalty phase “limited to only one defendant should not be considered by you as to the other defendant.” App. to Pet. for Cert. in No. 14–450, at 501 (Instr. 3). The court gave defendant-specific instructions for aggravating and mitigating circumstances. Id., at 502–508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the “individual” or “particular defendant” by using four separate verdict forms for each defendant, one for each murdered occupant of the Birchwood house. Id., at 509 (Instr. 10); App. in No. 14–449 etc., at 461–492. We presume the jury followed these instructions and considered each defendant separately when deciding to impose a sentence of death for each of the brutal murders. Romano, supra, at 13. The contrary conclusion of the Kansas Supreme Court—that the presumption that jurors followed these instructions was “defeated by logic,” 300 Kan., at 280, 331 P. 3d, at 719—is untenable. The Carrs implausibly liken the prejudice resulting from the joint sentencing proceeding to the prejudice infecting the joint trial in Bruton v. United States, 391 U. S. 123 (1968) , where the prosecution admitted hearsay evidence of a codefendant’s confession implicating the defendant. That particular violation of the defendant’s confrontation rights, incriminating evidence of the most persuasive sort, ineradicable, as a practical matter, from the jury’s mind, justified what we have described as a narrow departure from the presumption that jurors follow their instructions, Richardson v. Marsh, 481 U. S. 200, 207 (1987) . We have declined to extend that exception, id., at 211, and have continued to apply the presumption to instructions regarding mitigating evidence in capital-sentencing proceedings, see, e.g., Weeks, 528 U. S., at 234. There is no reason to think the jury could not follow its instruction to consider the defendants separately in this case. Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Joint trial may enable a jury “to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing.” Buchanan v. Kentucky, 483 U. S. 402, 418 (1987) . That the codefendants might have “antagonistic” theories of mitigation, Zafiro v. United States, 506 U. S. 534, 538 (1993) , does not suffice to overcome Kansas’s “interest in promoting the reliability and consistency of its judicial process,” Buchanan, supra, at 418. Limiting instructions, like those used in the Carrs’ sentencing proceeding, “often will suffice to cure any risk of prejudice.” Zafiro, supra, at 539 (citing Richardson, supra, at 211). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of “wanto[n] and freakis[h]” imposition of death sentences. Gregg v. Georgia, 428 U. S. 153 –207 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Better that two defendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather than reasoned judgment,” Romano, supra, at 13–14. Only the most extravagant speculation would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair. It is beyond reason to think that the jury’s death verdicts were caused by the identification of Reginald as the “corrupter” or of Jonathan as the “corrupted,” the jury’s viewing of Reginald’s handcuffs, or the sister’s retracted statement that Reginald fired the final shots. None of that mattered. What these defendants did—acts of almost inconceivable cruelty and depravity—was described in excruciating detail by Holly, who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair. IV When we granted the State’s petition for a writ of certiorari for the Carrs’ cases, we declined to review whether the Confrontation Clause, U. S. Const., Amdt. 6, requires that defendants be allowed to cross-examine witnesses whose statements are recorded in police reports referred to by the State in penalty-phase proceedings. The Kansas Supreme Court did not make the admission of those statements a basis for its vacating of the death sentences, but merely “caution[ed]” that in the resentencing proceedings these out-of-court testimonial statements should be omitted, 300 Kan., at 288, 331 P. 3d, at 724. We are confident that cross-examination regarding these police reports would not have had the slightest effect upon the sen-tences. See Delaware v. Van Arsdall, 475 U. S. 673, 684 (1986) . * * * The judgments of the Supreme Court of Kansas are reversed, and these cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 The facts for this portion of the opinion come from the Kansas Supreme Court, 299 Kan. 1127, 1134–1147, 329 P. 3d 1102, 1113–1121 (2014), and the parties’ briefs. 2 The facts for this portion of the opinion come from the Kansas Supreme Court, 300 Kan. 1, 18–38, 331 P. 3d 544, 575–586 (2014), and witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124 (Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9, 2002), and 24–A Tr. 4–93 (Oct. 10, 2002). 3 The relevant penalty-phase instructions from the Carrs’ sentencing proceedings are materially indistinguishable. See App. to Pet. for Cert. in No. 14–450, pp. 501–510. 4 Jonathan also alleges that he was prejudiced by the jury’s witnessing his brother’s handcuffs, which his brother requested remain visible before the penalty phase commenced. That allegation is mystifying. That his brother’s handcuffs were visible (while his own restraints were not) more likely caused the jury to see Jonathan as the less dangerous of the two.

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 . SUPREME COURT OF THE UNITED STATES Syllabus KANSAS v. CARR certiorari to the supreme court of kansas No. 14–449. Argued October 7, 2015—Decided January 20, 2016[1] A Kansas jury sentenced respondent Sidney Gleason to death for killing a co-conspirator and her boyfriend to cover up the robbery of an elderly man. A Kansas jury sentenced respondents Reginald and Jonathan Carr, brothers, to death after a joint sentencing proceeding. Respondents were convicted of various charges stemming from a notorious crime spree that culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. The Kansas Supreme Court vacated the death sentences in each case, holding that the sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital sentencing determination” was violated by the trial court’s failure to sever their sentencing proceedings. Held: 1. The Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt. . (a) Because the Kansas Supreme Court left no doubt that its ruling was based on the Federal Constitution, Gleason’s initial argument—that this Court lacks jurisdiction to hear his case because the state court’s decision rested on adequate and independent state-law grounds—is rejected. See Kansas v. Marsh, 548 U. S. 163 . . (b) This Court’s capital-sentencing case law does not support requiring a court to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt. See, e.g., Buchanan v. Angelone, 522 U. S. 269 . Nor was such an instruction constitutionally necessary in these particular cases to avoid confusion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence,” Boyde v. California, 494 U. S. 370 , a bar not cleared here. Even assuming that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the record belies the defendants’ contention that the instructions caused jurors to apply such a standard of proof here. The instructions make clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt but that mitigating circumstances must merely be “found to exist,” which does not suggest proof beyond a reasonable doubt. No juror would have reasonably speculated that “beyond a reasonable doubt” was the correct burden for mitigating circumstances. . 2. The Constitution did not require severance of the Carrs’ joint sentencing proceedings. The Eighth Amendment is inapposite when a defendant’s claim is, at bottom, that evidence was improperly admitted at a capital-sentencing proceeding. The question is whether the allegedly improper evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U. S. 1 . In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. The Court presumes that the jury followed its instructions to “give separate consideration to each defendant.” Bruton v. United States, 391 U. S. 123 , distinguished. Joint proceedings are permissible and often preferable when the joined defendants’ criminal conduct arises out of a single chain of events. Buchanan v. Kentucky, 483 U. S. 402 . Limiting instructions, like those given in the Carrs’ proceeding, “often will suffice to cure any risk of prejudice,” Zafiro v. United States, 506 U. S. 534 , that might arise from codefendants’ “antagonistic” mitigation theories, id., at 538. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather than reasoned judgment.” Romano, supra, at 13–14. Only the most extravagant speculation would lead to the conclusion that any supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair when their acts of almost inconceivable cruelty and depravity were described in excruciating detail by the sole survivor, who, for two days, relived the Wichita Massacre with the jury. . No. 14–449, 300 Kan. 340, 329 P. 3d 1195; No. 14–450, 300 Kan. 1, 331 P. 3d 544; and No. 14–452, 299 Kan. 1127, 329 P. 3d 1102, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion. Notes 1 Together with No. 14–450, Kansas v. Carr, and No. 14–452, Kansas v. Gleason, also on certiorari to the same court.

Petitioner brothers set out on a crime spree culminating in the Wichita Massacre. Armed with handguns and a golf club, they forced their way into a triplex and demanded that they strip naked and ordered them into the bedroom closet. They forced each of them to have oral sex with one Holly and then with another Holly, and yelled that the men would be shot if they could not have sex with the women. Holly, fearing for her brother's life, performed oral sex on him in the closet before he was ordered out by the brothers. For each murder, each brother was convicted of 4 counts of capital murder, 1 count of attempted first-degree murder, 9 counts of aggravated robbery, 20 counts of rape or attempted rape, 3 count of aggravated criminal sodomy, and one count each of aggravated burglary and burglary. The State sought the death penalty for each of the four murders, and the brothers were sentenced together. The State relied on guilt-phase evidence, including Holly's two days of testimony, as evidence of four aggravating circumstances: the defendants knowingly or purposely killed or created a great risk of death to more than one person; they committed the crimes for the purpose of receiving money or items of monetary value; they raped Holly and forced her to swallow a Christmas tree; they forced her into the closet, raped her, and sodomized her. After a separate hearing, the jury found that each brother proved beyond a reasonable doubt four mitigating circumstances justifying the death penalties for each murder. The Kansas Supreme Court vacated the death sentences of the brothers, holding that the Eighth Amendment required capital-sentencing courts to instruct the jury that mitigating circumstances need not be proved beyond reasonable doubt. Held: 1. The Constitution does not require the sentencing courts to require the juries to instruct them to deny the jury mitigating circumstances. Gleason urges that the decision below rests only on a rule of Kansas law announced in State v. Kleypas, 272 Kan. 894, 40 P. 3d 139 (per curiam), and the former to be accorded a burden-of-proof instruction. Such a rule does not itself rest on federal law. . 2. Nor does the Constitution require that sentencing courts in Kansas instruct the jurors to accept all relevant evidence for mitigating circumstances, and to abstain from relying on a broader rule of federal law prohibiting jurors from considering evidence that implicates all relevant barriers to prejudgment. Kansas v. Marsh, 548 U. S. 163, 169. If the Constitution requires the mitigating-factor determination to be divided into its factual component and its judgmental component, and the latter to be given a burden of proof, it would produce nothing but jury confusion. See, e.g., id., at 258. P.. 3. Nor is it possible to apply a standard of proof to the joint sentencing proceedings. The facts justifying death set forth in the Kansas statute either did or did not exist; mitigating circumstances themselves, on the other hand, must merely be found to exist. Not once does the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt. Nor would that make much sense, since one of the mitigating circumstances is (curiously) "mercy, which simply is not a fac-tual determination." It would mean nothing, as a practical matter, to tell the jurors that the defendants must deserve mercy beyond areasonable doubt; or must more-likely-than-not deserve it. It is possible to instruct a jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are mitigating, and whether they outweigh the aggravators, to the jury's discretion without a proof of guilt. However, the reality is that jurors do not Parsons instructions for subtle shades of meaning in the same way that lawyers might.. 300 Kan. 1, 15–16, 331 P.3d 544, reversed, and remanded; 300 Kan. 2, 299 Kan. 301, 329 P. 2d 1161, affirmed in part and reversed in part.

2015_14-916

https://www.oyez.org/cases/2015/14-916

. Petitioner Kingdomware Technologies, Inc., a veteran-owned small business, unsuccessfully vied for a federal contract from the Department of Veterans Affairs to provide emergency-notification services. Kingdomware sued, arguing that the Department violated a federal law providing that it “shall award” contracts to veteran-owned small businesses when there is a “reasonable expectation” that two or more such businesses will bid for the contract at “a fair and reasonable price that offers best value to the United States.” 38 U. S. C. §8127(d). This provision is known as the Rule of Two. In this case, we consider whether the Department must use the Rule of Two every time it awards contracts or whether it must use the Rule of Two only to the extent necessary to meet annual minimum goals for contracting with veteran-owned small businesses. We conclude that the Department must use the Rule of Two when awarding contracts, even when the Department will otherwise meet its annual minimum contracting goals. I This case concerns the interplay between several federal statutes governing federal procurement. A In an effort to encourage small businesses, Congress has mandated that federal agencies restrict competition for some federal contracts. The Small Business Act thus requires many federal agencies, including the Department of Veterans Affairs, to set aside contracts to be awarded to small businesses. The Act requires each agency to set “an annual goal that presents, for that agency, the maximum practicable opportunity” for contracting with small businesses, including those “small business concerns owned and controlled by service-disabled veterans.” 15 U. S. C. §644(g)(1)(B). And federal regulations set forth procedures for most agencies to “set aside” contracts for small businesses. See, e.g., 48 CFR §19.502–2(b) (2015). In 1999, Congress expanded small-business opportunities for veterans by passing the Veterans Entrepreneurship and Small Business Development Act, 113Stat. 233. That Act established a 3% governmentwide contracting goal for contracting with service-disabled veteran-owned small businesses. 15 U. S. C. §644(g)(1)(A)(ii). When the Federal Government continually fell behind in achieving these goals, Congress tried to correct the situation. Relevant here, Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006, §§502, 503, 120Stat. 3431–3436 (codified, as amended, at 38 U. S. C. §§8127, 8128). That Act requires the Secretary of Veterans Affairs to set more specific annual goals that encourage contracting with veteran-owned and service-disabled veteran-owned small businesses. §8127(a). The Act’s “Rule of Two,” at issue here, provides that the Department “shall award” contracts by restricting competition for the contract to service-disabled or other veteran-owned small businesses. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers and that “the award can be made at a fair and reasonable price that offers best value to the United States.” §8127(d).[1] Congress provided two exceptions to the Rule. Under those exceptions, the Department may use noncompetitive and sole-source contracts when the contracts are below specific dollar amounts. Under §8127(b), a contracting officer “may use procedures other than competitive procedures” to award contracts to veteran-owned small businesses when the goods or services that are the subject of such contracts are worth less than the simplified acquisition threshold. 38 U. S. C. §8127(b); 41 U. S. C. §134 (establishing a “ ‘simplified acquisition threshold’ ” of $100,000); see also §1908 (authorizing adjustments for inflation); 75 Fed. Reg. 53130 (codified at 48 CFR §2.101 (2010)) (raising the amount to $150,000). And under 38 U. S. C. §8127(c), a contracting officer “may award a contract to a [veteran-owned small business] using procedures other than competitive procedures” if the contract is worth more than the simplified acquisition threshold but less than $5 million, the contracting officer determines that the business is “a responsible source with respect to performance of such contract opportunity,” and the award can be made at “a fair and reasonable price.” 38 U. S. C. §8127(c). In finalizing its regulations meant to implement the Act, the Department stated in a preamble that §8127’s procedures “do not apply to [Federal Supply Schedule] task or delivery orders.” VA Acquisition Regulation, 74 Fed. Reg. 64624 (2009). The Federal Supply Schedule (FSS) generally is a streamlined method for Government agencies to acquire certain supplies and services in bulk, such as office supplies or food equipment. 48 CFR §8.402(a) (2015). Instead of the normal bidding process for each individual order, FSS contracts are ordinarily pre-negotiated between outside vendors and the General Services Administration, which negotiates on behalf of various Government agencies. See §8.402(b); Sharp Electronics Corp. v. McHugh, 707 F. 3d 1367, 1369 (CA Fed 2013). Under FSS contracts, businesses agree to provide “[i]ndefinite delivery” of particular goods or services “at stated prices for given periods of time.” §8.402(a). Agencies receive a list of goods and services available through the FSS. Because the terms of purchasing these goods and services have already been negotiated, contracting officers can acquire these items and services simply by issuing purchase orders. B Kingdomware Technologies, Inc., is a service-disabled veteran-owned small business. Around January 2012, the Department decided to procure an Emergency Notification Service for four medical centers.[2] In an emergency, this service sends important information to Department personnel. The Department sent a request for a price quotation to a non-veteran-owned company through the FSS system. That company responded with a favorable price, which the Department accepted around February 22, 2012. The agreement was for one year, with an option to extend the agreement for two more. The Department exercised the one option to extend the time, and performance was completed in May 2013. Decl. of Corydon Ford Heard III ¶8. Kingdomware challenged the Department’s decision to award the contract to a non-veteran-owned company by filing a bid protest with the Government Accountability Office (GAO). See 31 U. S. C. §3552(a). Kingdomware alleged that the Department procured multiple contracts through the FSS without restricting competition using the Rule of Two, as required by §8127. Kingdomware contended that the Department could not award the contracts at issue here without first checking to see whether at least two veteran-owned small businesses could perform the work at a fair and reasonable price. The GAO issued a nonbinding determination that the Department’s failure to employ the Rule of Two was unlawful and recommended that the Department conduct market research to determine whether there were two veteran-owned businesses that could fulfill the procurement. The Department dis-agreed with the recommendation. Petitioner then filed suit in the Court of Federal Claims and sought declaratory and injunctive relief.[3] The Court of Federal Claims granted summary judgment to the Department. 107 Fed. Cl. 226 (2012). A divided panel of the Federal Circuit affirmed. 754 F. 3d 923 (2014). In the majority’s view, §8127 did not require the Department to use the Rule of Two in all contracting. Id., at 933–934. Instead, the court concluded, mandatory application of the Rule of Two was limited to contracts necessary to fulfill its statutory purpose—to provide a means of satisfying the Department’s annual contracting goals described in §8127(a). Id., at 934. Thus, so long as those goals were satisfied, the Court of Appeals concluded, the Department need not apply the Rule of Two any further. Ibid. Judge Reyna dissented, arguing that §8127 employs mandatory language that “could not be clearer” in requiring the Department to apply the Rule of Two in every instance of contracting. Id., at 935. We granted certiorari to decide whether §8127(d) requires the Department to apply the Rule of Two in all contracting, or whether the statute gives the Department some discretion in applying the rule. 576 U. S. ___ (2015). II Before we reach the merits, we must assess our jurisdiction. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies,” and “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 3–4) (internal quotation marks omitted). Here, no live controversy in the ordinary sense remains because no court is now capable of granting the relief petitioner seeks. When Kingdomware filed this suit four years ago, it sought a permanent injunction and declara-tory relief with respect to a particular procurement. The services at issue in that procurement were completed in May 2013. And the two earlier procurements, which Kingdomware had also protested, were complete in September 2012. See Decl. of Corydon Ford Heard III ¶¶6–8. As a result, no court can enjoin further performance of those services or solicit new bids for the performance of those services. And declaratory relief would have no effect here with respect to the present procurements because the services have already been rendered. Although a case would generally be moot in such circumstances, this Court’s precedents recognize an exception to the mootness doctrine for a controversy that is “ ‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, 523 U. S. 1, 17 (1998) . That exception applies “only in exceptional situations,” where (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Ibid. (internal quotation marks omitted; brackets in original). That exception applies to these short-term contracts. First, the procurements were fully performed in less than two years after they were awarded. We have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement. See Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 –516 (1911). Second, it is reasonable to expect that the Department will refuse to apply the Rule of Two in a future procurement for the kind of services provided by Kingdomware. If Kingdomware’s interpretation of §8127(d) is correct, then the Department must use restricted competition rather than procure on the open market. And Kingdomware, which has been awarded many previous contracts, has shown a reasonable likelihood that it would be awarded a future contract if its interpretation of §8127(d) prevails. See Decl. of Corydon Ford Heard III ¶¶11–15 (explaining that the company continues to bid on similar contracts). Thus, we have jurisdiction because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete. Our interpretation of §8127(d)’s requirements in this case will govern the Department’s future contracting. III On the merits, we hold that §8127 is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. A In statutory construction, we begin “with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) . If the statutory language is unambiguous and “the statutory scheme is coherent and consistent”—as is the case here—“[t]he inquiry ceases.” Ibid. We hold that §8127(d) unambiguously requires the Department to use the Rule of Two before contracting under the competitive procedures. Section 8127(d) requires that “a contracting officer of the Department shall award contracts” to veteran-owned small businesses using restricted competition whenever the Rule of Two is satisfied, “[e]xcept as provided in subsections (b) and (c).” (Emphasis added.) Subsections (b) and (c) provide, in turn, that the Department “may” use noncompetitive procedures and sole-source contracts for lower value acquisitions. §§8127(b), (c). Except when the Department uses the noncompetitive and sole-source contracting procedures in subsections (b) and (c), §8127(d) requires the Department to use the Rule of Two before awarding a contract to another supplier. The text also has no exceptions for orders from the FSS system. Congress’ use of the word “shall” demonstrates that §8127(d) mandates the use of the Rule of Two in all contracting before using competitive procedures. Unlike the word “may,” which implies discretion, the word “shall” usually connotes a requirement. Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (recognizing that “shall” is “mandatory” and “normally creates an obligation impervious to judicial discretion”), with United States v. Rodgers, 461 U. S. 677, 706 (1983) (explaining that “[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion”). Accordingly, the Department shall (or must) prefer veteran-owned small businesses when the Rule of Two is satisfied. The surrounding subsections of §8127 confirm that Congress used the word “shall” in §8127(d) as a command. Like §8127(d), both §8127(b) and §8127(c) provide special procedures “[f]or purposes of meeting the goals under [§8127(a)].” §§8127(b), (c). But, in contrast to §8127(d), those latter two provisions state that “a contracting officer of the Department may use” (or, for §8127(c), “may award”) such contracts. §§8127(b), (c) (emphasis added). When a statute distinguishes between “may” and “shall,” it is generally clear that “shall” imposes a mandatory duty. See United States ex rel. Siegel v. Thoman, 156 U. S. 353 –360 (1895). We see no reason to depart from the usual inference here. We therefore hold that, before contracting with a non-veteran owned business, the Department must first apply the Rule of Two.[4] B The Federal Circuit and the Department offered several reasons for their alternative reading of §8127(d) as a discretionary provision that the Department can disregard for at least some contracting decisions. We disagree with them. To hold that §8127(d) is discretionary, the Federal Circuit relied on §8127(d)’s prefatory clause. 754 F. 3d, at 933. That clause declares that the Rule of Two is designed “for the purposes of” meeting the annual contracting goals that the Department is required to set under §8127(a). The Department originally made a similar argument before changing arguments in its briefing on the merits. Compare Brief in Opposition 13–15 with Brief for United States 24–25. But the prefatory clause has no bearing on whether §8127(d)’s requirement is mandatory or discretionary. The clause announces an objective that Congress hoped that the Department would achieve and charges the Secretary with setting annual benchmarks, but it does not change the plain meaning of the operative clause, §8127(d). See Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U. S. 174, 188 (1889) (explaining that prefatory clauses or preambles cannot change the scope of the operative clause). The Federal Circuit’s interpretation also would produce an anomaly. If the Federal Circuit’s understanding of §8127(d)’s prefatory clause were correct, then §§8127(b) and (c), which also contain “[f]or purposes of meeting the goals” clauses, would cease to apply once the Department meets the Secretary’s goal, and the Department would be required to return to competitive bidding. If we interpreted the “purposes” clause of §8127(d) to mean that its mandate no longer applies if the goals are met, then the identical “purposes” clauses of §§8127(b) and (c) would also render those clauses’ permissive mandates inapplic-able. This would require the Department, once the goals are met, to award bids using the default contracting procedures rather than to use the noncompetitive and single-source provisions in §§8127(b) and (c). Second, the Department argues that the mandatory provision does not apply to “orders” under “pre-existing FSS contracts.” Brief for United States 25. The Department failed to raise this argument in the courts below, and we normally decline to entertain such forfeited arguments. See OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___ (2015) (slip op., at 10). But the Department’s forfeited argument fails in any event. Section 8127(d) applies when the Department “award[s] contracts.” When the Department places an FSS order, that order creates contractual obligations for each party and is a “contract” within the ordinary meaning of that term. See, e.g., Black’s Law Dictionary 389 (10th ed. 2014) (“[a]n agreement between two or more parties creating obligations that are enforce-able or otherwise recognizable at law”). It also creates a “contract” as defined by federal regulations, namely, a “mutually binding legal relationship obligating the seller to furnish the supplies or services . . . and the buyer to pay for them,” including “all types of commitments that obligate the Government to an expenditure of appropriated funds and” (as a general matter) “are in writing.” 48 CFR §2.101 (2015). An FSS order creates mutually binding obligations: for the contractor, to supply certain goods or services, and for the Government, to pay. The placement of the order creates a new contract; the underlying FSS contract gives the Government the option to buy, but it does not require the Government to make a purchase or expend funds. Further confirming that FSS orders are contracts, the Government is not completely bound by the FSS contract’s terms; to the contrary, when placing orders, agencies may sometimes seek different terms than are listed in the FSS. See §8.405–4 (permitting agencies to negotiate some new terms, such as requesting “a price reduction,” when ordering from the FSS). Third, the Department contends that our interpretation fails to appreciate the distinction between FSS orders and contracts. The Department maintains that FSS orders are only for simplified acquisitions, and that using the Rule of Two for these purchases will hamper mundane purchases like “griddles or food slicers.” Brief for United States 21. But this argument understates current practices under the FSS. The Department has expanded use of the FSS well beyond simple procurement. See Brief for Iraq and Afghanistan Veterans of America as Amicus Curiae 14–16. This case proves the point: the contract at issue here concerned complex information technology services over a multiyear period. Moreover, the Department may con-tinue to purchase items that cost less than the simplified acquisition threshold (currently $150,000) through the FSS, if the Department procures them from a veteran-owned small business. See 38 U. S. C. §8127(b). Finally and relatedly, the Department asks us to defer to its interpretation that FSS “orders” are not “contracts.” See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –844 (1984) (establishing deference to an agency’s interpretation of an ambiguous statute). Even assuming, arguendo, that the preamble to the agency’s rulemaking could be owed Chevron deference, we do not defer to the agency when the statute is unambiguous. See id., at 842–843. For the reasons already given, the text of §8127(d) clearly imposes a mandatory duty. Thus, we decline the Department’s invitation to defer to its interpretation. * * * We hold that the Rule of Two contracting procedures in §8127(d) are not limited to those contracts necessary to fulfill the Secretary’s goals under §8127(a). We also hold that §8127(d) applies to orders placed under the FSS. The judgment of the 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 This provision reads in full: 2 We use “Department” when referring to the Government as a party in this litigation. 3 Petitioner’s complaint additionally stated claims for two other bid protests. To simplify the proceedings, the parties entered into a joint stipulation of facts concerning only the one bid protest described above. The details concerning the two other disputed bids are relevant only for mootness analysis since the work related to both bids has been performed. See Part II, infra. 4 We need not decide today precisely what sort of search for veteran-owned small businesses the Department must conduct to comply with the Rule of Two. We do not decide, for example, whether the Department may satisfy its obligations by searching for eligible veteran-owned small businesses within the FSS, or whether it must conduct a broader search for such businesses.

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 . SUPREME COURT OF THE UNITED STATES Syllabus KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES certiorari to the united states court of appeals for the federal circuit No. 14–916. Argued February 22, 2016—Decided June 16, 2016 The Veterans Benefits, Health Care, and Information Technology Act of 2006 requires the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses. 38 U. S. C. §8127(a). To help reach those goals, a separate set-aside provision known as the “Rule of Two” provides that a contracting officer “shall award contracts” by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that “the award can be made at a fair and reasonable price that offers best value to the United States.” §8127(d). Two exceptions provide that the contracting officer “may” use noncompetitive and sole-source contracts for contracts below specific dollar amounts. §§8127(b), (c). In 2012, the Department procured an Emergency Notification Service for four medical centers for a one-year period, with an option to extend the agreement for two more, from a non-veteran-owned business. The Department did so through the Federal Supply Schedule (FSS), a streamlined method that allows Government agencies to acquire particular goods and services under prenegotiated terms. After the initial year, the Department exercised its option for an additional year, and the agreement ended in 2013. Petitioner Kingdomware Technologies, Inc., a service-disabled veteran-owned small business, filed a bid protest with the Government Accountability Office (GAO), alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department’s actions were unlawful, but when the Department declined to follow the GAO’s nonbinding recommendation, Kingdomware filed suit, seeking declaratory and injunctive relief. The Court of Federal Claims granted summary judgment to the Government, and the Federal Circuit affirmed, holding that the Department was only required to apply the Rule of Two when necessary to satisfy its annual goals. Held: 1. This Court has jurisdiction to reach the merits of this case. For a federal court to have Article III jurisdiction “an actual controversy must exist . . . through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U. S. ___, ___. Here, no court is capable of granting petitioner relief initially sought in the complaint because the short-term FSS contracts have been completed by other contractors. However, the controversy is “ ‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, 523 U. S. 1 . The procurements were fully performed in less than two years after they were awarded, and it is reasonable to expect that the Government will refuse to apply the Rule of Two in a future bid by Kingdomware. . 2. Section 8127(d)’s contracting procedures are mandatory and apply to all of the Department’s contracting determinations. . (a) Section 8127(d)’s text unambiguously requires the Department to use the Rule of Two before contracting under the competitive procedures. The word “shall” usually connotes a requirement, unlike the word “may,” which implies discretion. Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26 , with United States v. Rodgers, 461 U. S. 677 . The use of the word “may” in §§8127(b) and (c) confirms this reading; for when a statute distinguishes between “may” and “shall,” the latter generally imposes a mandatory duty. . (b) Alternative readings of §8127(d) are unpersuasive. First, §8127(d)’s prefatory clause, which declares that the Rule of Two is designed “for the purposes of” meeting §8127(a)’s annual contracting goals, has no bearing on whether §8127(d)’s requirement is mandatory or discretionary. The prefatory clause’s announcement of an objective does not change the operative clause’s plain meaning. See Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U. S. 174 . Second, an FSS order is a “contract” within the ordinary meaning of that term; thus, FSS orders do not fall outside §8127(d), which applies when the Department “award[s] contracts.” Third, to say that the Rule of Two will hamper mundane Government purchases misapprehends current FSS practices, which have expanded well beyond simple procurement to, as in this case, contracts concerning complex information technology services over a multiyear period. Finally, because the mandate §8127(d) imposes is unambiguous, this Court declines the invitation to defer to the Department’s declaration that §8127 procedures are inapplicable to FSS orders. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –843. . 754 F. 3d 923, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court.

Section 8127(d) of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Act) requires the Secretary of Veterans Affairs (Secretary) to set more specific annual goals that encourage contracting with veteran-owned and service-disabled veterans-owned small businesses. The Act also requires the Department to use noncompetitive and sole-source contracts when the contracts are below specific dollar amounts. Under §8127(b), a contracting officer may use procedures other than competitive procedures to award contracts to veteran- owned small businesses when the goods or services that are the subject of such contracts are worth less than the simplified acquisition threshold. Subsections (b) and (c) provide that the Department may use such procedures when the contract is below a specific dollar amount, but may use other procedures, such as competitive procedures, to award the contract to a non-veteran-owned business if such business is more than $5 million in size. In an effort to encourage small businesses to acquire certain federal contracts, Congress enacted the Veterans Enterprise and Small Business Development Act (Act), which requires federal agencies, including the Secretary, to set an annual goal that presents, for that agency, the maximum practicable opportunity for contracting with small businesses, including those that are owned and controlled by veterans. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers, and that the award can be made at a fair and reasonable price that offers best value to the United States. Congress provided two exceptions to the Rule of Two: (1) under those exceptions, the Department could use non-competitive, sole source contracts, and (2) under the Rules of Two, if a noncompetitive or sole source contract is less than a $5M acquisition threshold, but if the business is a business that is responsible for the process of finalizing its contract with the VA, and the VA determines that the price is a reasonable price, the contract can be awarded to the small business in question. Petitioner Kingdomware Technologies, Inc., an independent veteran owned small business, unsuccessfully vied for a federal contract to provide emergency-notification services. It filed suit in the Court of Federal Claims and sought declaratory and injunctive relief. The court granted summary judgment to the Department, but the court ultimately held that mandatory application of the Rule of Two was limited to contracts necessary to fulfill its statutory purpose of providing a means of satisfying the Act's annual contracting goals. Held: 1. Section 8127 is mandatory, not discretionary. Its text requires that the Secretary apply the Rule Of Two to all contracting determinations and to award contract to veteran owned businesses. . (a) The Act is unambiguous, and does not allow the Secretary to evade that Rule on the ground that it has already met its contracting goals or on the ground that a Department has placed an order through the FSS. P.. (b) The language of the Act and Congress' use of the word "shall" demonstrate that the word unambiguously requires the use of that Rule in all contracting before using competitive procedures. Unlike the word which usually implies a requirement of discretion, Congress usually implies that discretion is impervious to a degree of judicial discretion. Accordingly, when a statute is satisfied when the Rule is used with certain words surrounding the word, Congress often uses the wordshall as a command. When a statute distinguishes between contracts and contracts, it is generally clear that the same complaining party will be subject to the same action again. See, e.g., Spencer v. Kemna, 523 U. S. 1, 17 (1998). Pp. 468 U.S. 768-769. (c) The Department must use the rule of Two when awarding contracts, even when the Department will otherwise meet its annual minimum contracting goals, since the period of contract performance is too short to allow full judicial review before performance is complete. Here, the procurements were fully performed in less than two years after they were awarded. Thus, the GAO issued a nonbinding determination that the department's failure to employ the Rule was unlawful, and recommended that it conduct market research to determine whether there were two veteran owned businesses that could fulfill the procurement. After the Department disagreed with the recommendation, petitioner Kingdomware filed a suit in Federal District Court, seeking relief and alleging that the procurement contracts were completed in May, 2012, and June, 2013. As to the other procurements, the court issued a bid protest with the Government Accountability Office (GAO), which recommended that the Justice Department investigate the validity of the Department's decision to award one of the contracts to the noncompetitive firms that could meet the procurement goals, and, in turn, ordered the Department through the Federal Securities and Exchange Commission (FSS). The District Court granted summary judgments for the Department. A divided panel of the Court

2015_15-375

https://www.oyez.org/cases/2015/15-375

. Section 505 of the Copyright Act provides that a district court “may . . . award a reasonable attorney’s fee to the prevailing party.” 17 U. S. C. §505. The question pre-sented here is whether a court, in exercising that author-ity, should give substantial weight to the objective reasonableness of the losing party’s position. The answer, as both decisions below held, is yes—the court should. But the court must also give due consideration to all other circumstances relevant to granting fees; and it retains discretion, in light of those factors, to make an award even when the losing party advanced a reasonable claim or defense. Because we are not certain that the lower courts here understood the full scope of that discretion, we return the case for further consideration of the prevailing party’s fee application. I Petitioner Supap Kirtsaeng, a citizen of Thailand, came to the United States 20 years ago to study math at Cornell University. He quickly figured out that respondent John Wiley & Sons, an academic publishing company, sold virtually identical English-language textbooks in the two countries—but for far less in Thailand than in the United States. Seeing a ripe opportunity for arbitrage, Kirtsaeng asked family and friends to buy the foreign editions in Thai bookstores and ship them to him in New York. He then resold the textbooks to American students, reimbursed his Thai suppliers, and pocketed a tidy profit. Wiley sued Kirtsaeng for copyright infringement, claiming that his activities violated its exclusive right to distribute the textbooks. See 17 U. S. C. §§106(3), 602(a)(1). Kirtsaeng invoked the “first-sale doctrine” as a defense. That doctrine typically enables the lawful owner of a book (or other work) to resell or otherwise dispose of it as he wishes. See §109(a). But Wiley contended that the first-sale doctrine did not apply when a book (like those Kirtsaeng sold) was manufactured abroad. At the time, courts were in conflict on that issue. Some thought, as Kirtsaeng did, that the first-sale doctrine permitted the resale of foreign-made books; others maintained, along with Wiley, that it did not. And this Court, in its first pass at the issue, divided 4 to 4. See Costco Wholesale Corp. v. Omega, S. A., 562 U. S. 40 (2010) ( per curiam). In this case, the District Court sided with Wiley; so too did a divided panel of the Court of Appeals for the Second Circuit. See 654 F. 3d 210, 214, 222 (2011). To settle the continuing conflict, this Court granted Kirtsaeng’s petition for certiorari and reversed the Second Circuit in a 6-to-3 decision, thus establishing that the first-sale doctrine allows the resale of foreign-made books, just as it does domestic ones. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. ___, ___ (2013) (slip op., at 3). Returning victorious to the District Court, Kirtsaeng invoked §505 to seek more than $2 million in attorney’s fees from Wiley. The court denied his motion. Relying on Second Circuit precedent, the court gave “substantial weight” to the “objective reasonableness” of Wiley’s infringement claim. See No. 08–cv–07834 (SDNY, Dec. 20, 2013), App. to Pet. for Cert. 18a, 2013 WL 6722887, *4. In explanation of that approach, the court stated that “the imposition of a fee award against a copyright holder with an objectively reasonable”—although unsuccessful—“lit-igation position will generally not promote the purposes of the Copyright Act.” Id., at 11a (quoting Matthew Bender & Co. v. West Publishing Co., 240 F. 3d 116, 122 (CA2 2001) (emphasis deleted)). Here, Wiley’s position was reasonable: After all, several Courts of Appeals and three Justices of the Supreme Court had agreed with it. See App. to Pet. for Cert. 12a. And according to the District Court, no other circumstance “overr[o]de” that objective reasonableness, so as to warrant fee-shifting. Id., at 22a. The Court of Appeals affirmed, concluding in a brief summary order that “the district court properly placed ‘substantial weight’ on the reasonableness of [Wiley’s] position” and committed no abuse of discretion in deciding that other “factors did not outweigh” the reasonableness finding. 605 Fed. Appx. 48, 49, 50 (CA2 2015). We granted certiorari, 577 U. S. ___ (2016), to resolve disagreement in the lower courts about how to address an application for attorney’s fees in a copyright case.[1] II Section 505 states that a district court “may . . . award a reasonable attorney’s fee to the prevailing party.” It thus authorizes fee-shifting, but without specifying standards that courts should adopt, or guideposts they should use, in determining when such awards are appropriate. In Fogerty v. Fantasy, Inc., 510 U. S. 517 (1994) , this Court recognized the broad leeway §505 gives to district courts—but also established several principles and criteria to guide their decisions. See id., at 519 (asking “what standards should inform” the exercise of the trial court’s authority). The statutory language, we stated, “clearly connotes discretion,” and eschews any “precise rule or formula” for awarding fees. Id., at 533, 534. Still, we established a pair of restrictions. First, a district court may not “award[ ] attorney’s fees as a matter of course”; rather, a court must make a more particularized, case-by-case assessment. Id., at 533. Second, a court may not treat prevailing plaintiffs and prevailing defendants any differently; defendants should be “encouraged to litigate [meritorious copyright defenses] to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.” Id., at 527. In addition, we noted with approval “several nonexclusive factors” to inform a court’s fee-shifting decisions: “frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence.” Id., at 534, n. 19. And we left open the possibility of providing further guidance in the future, in response to (and grounded on) lower courts’ evolving experience. See id., at 534–535; Martin v. Franklin Capital Corp., 546 U. S. 132 , n. (2005) (noting that Fogerty was not intended to be the end of the matter). The parties here, though sharing some common ground, now dispute what else we should say to district courts. Both Kirtsaeng and Wiley agree—as they must—that §505 grants courts wide latitude to award attorney’s fees based on the totality of circumstances in a case. See Brief for Petitioner 17; Brief for Respondent 35. Yet both reject the position, taken by some Courts of Appeals, see supra, at 3, n. 1, that Fogerty spelled out the only appropriate limits on judicial discretion—in other words, that each district court should otherwise proceed as it sees fit, assigning whatever weight to whatever factors it chooses. Rather, Kirtsaeng and Wiley both call, in almost identical language, for “[c]hanneling district court discretion towards the purposes of the Copyright Act.” Brief for Petitioner 16; see Brief for Respondent 21 (“[A]n appellate court [should] channel a district court’s discretion so that it . . . further[s] the goals of the Copyright Act”). (And indeed, as discussed later, both describe those purposes identically. See infra, at 6.) But at that point, the two part ways. Wiley argues that giving substantial weight to the reasonableness of a losing party’s position will best serve the Act’s objectives. See Brief for Respondent 24–35. By contrast, Kirtsaeng favors giving special consideration to whether a lawsuit resolved an important and close legal issue and thus “meaningfully clarifie[d]” copyright law. Brief for Petitioner 36; see id., at 41–44. We join both parties in seeing a need for some additional guidance respecting the application of §505. In addressing other open-ended fee-shifting statutes, this Court has emphasized that “in a system of laws discretion is rarely without limits.” Flight Attendants v. Zipes, 491 U. S. 754, 758 (1989) ; see Halo Electronics, Inc. v. Pulse Electronics, Inc., ante, at 8. Without governing standards or principles, such provisions threaten to condone judicial “whim” or predilection. Martin, 546 U. S., at 139; see also ibid. (“[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles” (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.))). At the least, utterly freewheeling inquiries often deprive litigants of “the basic principle of justice that like cases should be decided alike,” Martin, 546 U. S., at 139—as when, for example, one judge thinks the parties’ “motivation[s]” determinative and another believes the need for “compensation” trumps all else, Fogerty, 510 U. S., at 534, n. 19. And so too, such unconstrained discretion prevents individuals from predicting how fee decisions will turn out, and thus from making properly informed judgments about whether to litigate. For those reasons, when applying fee-shifting laws with “no explicit limit or condition,” Halo, ante, at 8, we have nonetheless “found limits” in them—and we have done so, just as both parties urge, by looking to “the large objectives of the relevant Act,” Zipes, 491 U. S., at 759 (internal quotation marks omitted); see supra, at 5. In accord with such precedents, we must consider if either Wiley’s or Kirtsaeng’s proposal well advances the Copyright Act’s goals. Those objectives are well settled. As Fogerty explained, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” 510 U. S., at 527; see U. S. Const., Art. I, §8, cl. 8 (“To promote the Progress of Science and useful Arts”). The statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while also enabling others to build on that work. See Fogerty, 510 U. S., at 526. Accordingly, fee awards under §505 should encourage the types of lawsuits that promote those purposes. (That is why, for example, Fogerty insisted on treating prevailing plaintiffs and prevailing defendants alike—because the one could “further the policies of the Copyright Act every bit as much as” the other. 510 U. S., at 527.) On that much, both parties agree. Brief for Petitioner 37; Brief for Respondent 29–30. The contested issue is whether giving substantial weight to the objective (un)reasonableness of a losing party’s litigating position—or, alternatively, to a lawsuit’s role in settling significant and uncertain legal issues—will predictably encourage such useful copyright litigation. The objective-reasonableness approach that Wiley favors passes that test because it both encourages parties with strong legal positions to stand on their rights and deters those with weak ones from proceeding with litigation. When a litigant—whether plaintiff or defendant—is clearly correct, the likelihood that he will recover fees from the opposing (i.e., unreasonable) party gives him an incentive to litigate the case all the way to the end. The holder of a copyright that has obviously been infringed has good reason to bring and maintain a suit even if the damages at stake are small; and likewise, a person defending against a patently meritless copyright claim has every incentive to keep fighting, no matter that attorney’s fees in a pro-tracted suit might be as or more costly than a settlement. Conversely, when a person (again, whether plaintiff or defendant) has an unreasonable litigating position, the likelihood that he will have to pay two sets of fees discourages legal action. The copyright holder with no reasonable infringement claim has good reason not to bring suit in the first instance (knowing he cannot force a settlement and will have to proceed to judgment); and the infringer with no reasonable defense has every reason to give in quickly, before each side’s litigation costs mount. All of those results promote the Copyright Act’s purposes, by enhancing the probability that both creators and users (i.e., potential plaintiffs and defendants) will enjoy the substantive rights the statute provides. By contrast, Kirtsaeng’s proposal would not produce any sure benefits. We accept his premise that litigation of close cases can help ensure that “the boundaries of copyright law [are] demarcated as clearly as possible,” thus advancing the public interest in creative work. Brief for Petitioner 19 (quoting Fogerty, 510 U. S., at 527). But we cannot agree that fee-shifting will necessarily, or even usually, encourage parties to litigate those cases to judgment. Fee awards are a double-edged sword: They increase the reward for a victory—but also enhance the penalty for a defeat. And the hallmark of hard cases is that no party can be confident if he will win or lose. That means Kirtsaeng’s approach could just as easily discourage as encourage parties to pursue the kinds of suits that “meaningfully clarif[y]” copyright law. Brief for Petitioner 36. It would (by definition) raise the stakes of such suits; but whether those higher stakes would provide an incentive—or instead a disincentive—to litigate hinges on a party’s attitude toward risk. Is the person risk-preferring or risk-averse—a high-roller or a penny-ante type? Only the former would litigate more in Kirtsaeng’s world. See Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428 (1973) (fees “make[ ] the expected value of litigation less for risk-averse litigants, which will encourage [them to] settle[ ]”). And Kirtsaeng offers no reason to think that serious gamblers predominate. See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 , n. 8 (1981) (“Economists disagree over whether business decisionmakers[ ] are ‘risk averse’ ”); CIGNA Corp. v. Amara, 563 U. S. 421, 430 (2011) (“[M]ost individuals are risk averse”). So the value of his standard, unlike Wiley’s, is entirely speculative.[2] What is more, Wiley’s approach is more administrable than Kirtsaeng’s. A district court that has ruled on the merits of a copyright case can easily assess whether the losing party advanced an unreasonable claim or defense. That is closely related to what the court has already done: In deciding any case, a judge cannot help but consider the strength and weakness of each side’s arguments. By contrast, a judge may not know at the conclusion of a suit whether a newly decided issue will have, as Kirtsaeng thinks critical, broad legal significance. The precedent-setting, law-clarifying value of a decision may become apparent only in retrospect—sometimes, not until many years later. And so too a decision’s practical impact (to the extent Kirtsaeng would have courts separately consider that factor). District courts are not accustomed to evaluating in real time either the jurisprudential or the on-the-ground import of their rulings. Exactly how they would do so is uncertain (Kirtsaeng points to no other context in which courts undertake such an analysis), but we fear that the inquiry would implicate our oft-stated concern that an application for attorney’s fees “should not result in a second major litigation.” Zipes, 491 U. S., at 766 (quoting Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) ). And we suspect that even at the end of that post-lawsuit lawsuit, the results would typically reflect little more than edu-cated guesses. Contrary to Kirtsaeng’s view, placing substantial weight on objective reasonableness also treats plaintiffs and defendants even-handedly, as Fogerty commands. No matter which side wins a case, the court must assess whether the other side’s position was (un)reasonable. And of course, both plaintiffs and defendants can (and sometimes do) make unreasonable arguments. Kirtsaeng claims that the reasonableness inquiry systematically favors plaintiffs because a losing defendant “will virtually always be found to have done something culpable.” Brief for Petitioner 29 (emphasis in original). But that conflates two different questions: whether a defendant in fact infringed a copyright and whether he made serious arguments in defense of his conduct. Courts every day see reasonable defenses that ultimately fail (just as they see reasonable claims that come to nothing); in this context, as in any other, they are capable of distinguishing between those defenses (or claims) and the objectively unreason-able variety. And if some court confuses the issue of liability with that of reasonableness, its fee award should be reversed for abuse of discretion.[3] All of that said, objective reasonableness can be only an important factor in assessing fee applications—not the controlling one. As we recognized in Fogerty, §505 con-fers broad discretion on district courts and, in deciding whether to fee-shift, they must take into account a range of considerations beyond the reasonableness of litigating positions. See supra, at 4. That means in any given case a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones). For example, a court may order fee-shifting because of a party’s litigation misconduct, whatever the reasonableness of his claims or defenses. See, e.g., Viva Video, Inc. v. Cabrera, 9 Fed. Appx. 77, 80 (CA2 2001). Or a court may do so to deter repeated instances of copyright infringement or overaggressive assertions of copyright claims, again even if the losing position was reasonable in a particular case. See, e.g., Bridgeport Music, Inc. v. WB Music Corp., 520 F. 3d 588, 593–595 (CA6 2008) (awarding fees against a copyright holder who filed hundreds of suits on an overbroad legal theory, including in a subset of cases in which it was objectively reasonable). Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals. And on that score, Kirtsaeng has raised serious questions about how fee-shifting actually operates in the Second Circuit. To be sure, the Court of Appeals’ framing of the inquiry resembles our own: It calls for a district court to give “substantial weight” to the reasonableness of a losing party’s litigating positions while also considering other relevant circumstances. See 605 Fed. Appx., at 49–50; Matthew Bender, 240 F. 3d, at 122. But the Court of Appeals’ language at times suggests that a finding of reasonableness raises a presumption against granting fees, see ibid.; supra, at 2–3—and that goes too far in cabining how a district court must structure its analysis and what it may conclude from its review of relevant factors. Still more, district courts in the Second Circuit appear to have overly learned the Court of Appeals’ lesson, turning “substantial” into more nearly “dispositive” weight. As Kirtsaeng notes, hardly any decisions in that Circuit have granted fees when the losing party raised a reasonable argument (and none have denied fees when the losing party failed to do so). See Reply Brief 15. For these reasons, we vacate the decision below so that the District Court can take another look at Kirtsaeng’s fee application. In sending back the case for this purpose, we do not at all intimate that the District Court should reach a different conclusion. Rather, we merely ensure that the court will evaluate the motion consistent with the analysis we have set out—giving substantial weight to the reasonableness of Wiley’s litigating position, but also taking into account all other relevant factors. * * * 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 Compare, e.g., Matthew Bender & Co. v. West Publishing Co., 240 F. 3d 116, 122 (CA2 2001) (giving substantial weight to objective reasonableness), with, e.g., Bond v. Blum, 317 F. 3d 385, 397–398 (CA4 2003) (endorsing a totality-of-the-circumstances approach, without according special significance to any factor), and with, e.g., Hogan Systems, Inc. v. Cybersource Int’l, Inc., 158 F. 3d 319, 325 (CA5 1998) (presuming that a prevailing party receives fees). 2 This case serves as a good illustration. Imagine you are Kirtsaeng at a key moment in his case—say, when deciding whether to petition this Court for certiorari. And suppose (as Kirtsaeng now wishes) that the prevailing party in a hard and important case—like this one—will probably get a fee award. Does that make you more likely to file, because you will recoup your own fees if you win? Or less likely to file, because you will foot Wiley’s bills if you lose? Here are some answers to choose from (recalling that you cannot confidently predict which way the Court will rule): (A) Six of one, half a dozen of the other. (B) Depends if I’m feeling lucky that day. (C) Less likely—this is getting scary; who knows how much money Wiley will spend on Supreme Court lawyers? (D) More likely—the higher the stakes, the greater the rush. Only if lots of people answer (D) will Kirtsaeng’s standard work in the way advertised. Maybe. But then again, maybe not. 3 Kirtsaeng also offers statistics meant to show that in practice, even if not in theory, the objective reasonableness inquiry unduly favors plaintiffs; but the Solicitor General as amicus curiae has cast significant doubt on that claim. According to Kirtsaeng, 86% of winning copyright holders, but only 45% of prevailing defendants, have received fee awards over the last 15 years in the Second Circuit (which, recall, gives substantial weight to objective reasonableness). See Reply Brief 17–18; supra, at 2–3. But first, the Solicitor General represents that the overall numbers are actually 77% and 53%, respectively. See Tr. of Oral Arg. 41. And second, the Solicitor General points out that all these percentages include default judgments, which almost invariably give rise to fee awards—but usually of a very small amount—because the defendant has not shown up to oppose either the suit or the fee application. When those cases are taken out, the statistics look fairly similar: 60% for plaintiffs versus 53% for defendants. See id., at 42. And of course, there may be good reasons why copyright plaintiffs and defendants do not make reasonable arguments in perfectly equal proportion.

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 . 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. 15–375. Argued April 25, 2016—Decided June 16, 2016 In Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. ___, this Court held that petitioner Supap Kirtsaeng could invoke the Copyright Act’s “first-sale doctrine,” see 17 U. S. C. §109(a), as a defense to the copyright infringement claim filed by textbook publisher John Wiley & Sons, Inc. Having won his case, Kirtsaeng returned to the District Court to seek more than $2 million in attorney’s fees from Wiley under the Copyright Act’s fee-shifting provision. See §505. The District Court denied Kirtsaeng’s application because, it reasoned, imposing a fee award against a losing party that had taken reasonable positions during litigation (as Wiley had done) would not serve the Act’s purposes. Affirming, the Second Circuit held that the District Court was correct to place “substantial weight” on the reasonableness of Wiley’s position and that the District Court did not abuse its discretion in determining that the other factors did not outweigh the reasonableness finding. Held: 1. When deciding whether to award attorney’s fees under §505, a district court should give substantial weight to the objective reasonableness of the losing party’s position, while still taking into account all other circumstances relevant to granting fees. . (a) Section 505 states that a district court “may . . . award a reasonable attorney’s fee to the prevailing party.” Although the text “clearly connotes discretion” and eschews any “precise rule or formula,” Fogerty v. Fantasy, Inc., 510 U. S. 517 , the Court has placed two restrictions on that authority: First, a court may not “award[ ] attorney’s fees as a matter of course,” id., at 533; and second, a court may not treat prevailing plaintiffs and prevailing defendants differently, id., at 527. The Court also noted “several nonexclusive factors” for courts to consider, e.g., “frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence,” id., at 534, n. 19, and left open the possibility of providing further guidance in the future, id., at 534–535. This Court agrees with both Kirtsaeng and Wiley that additional guidance respecting the application of §505 is proper so as to further channel district court discretion towards the purposes of the Copyright Act. In addressing other open-ended fee-shifting statutes, this Court has emphasized that “in a system of laws discretion is rarely without limits,” and it has “found” those limits by looking to “the large objectives of the relevant Act.” Flight Attendants v. Zipes, 491 U. S. 754 . In accord with such precedents, this Court must determine what approach to fee awards under §505 best advances the well-settled objectives of the Copyright Act, which are to “enrich[ ] the general public through access to creative works” by striking a balance between encouraging and rewarding authors’ creations and enabling others to build on that work. Fogerty, 510 U. S., at 527, 526. Fee awards should thus encourage the types of lawsuits that advance those aims. . (b) Wiley’s approach—to put substantial weight on the reasonableness of a losing party’s position—passes this test because it enhances the probability that creators and users (i.e., plaintiffs and defendants) will enjoy the substantive rights the Act provides. Parties with strong positions are encouraged to stand on their rights, given the likelihood that they will recover fees from the losing (i.e., unreasonable) party; those with weak ones are deterred by the likelihood of having to pay two sets of fees. By contrast, Kirtsaeng’s proposal—to give special consideration to whether a suit meaningfully clarified copyright law by resolving an important and close legal issue—would produce no sure benefits. Even accepting that litigation of close cases advances the public interest, fee-shifting will not necessarily, or even usually, encourage parties to litigate those cases to judgment. While fees increase the reward for a victory, they also enhance the penalty for a defeat—and the parties in hard cases cannot be confident if they will win or lose. Wiley’s approach is also more administrable. A district court that has ruled on the merits of a copyright case can easily assess whether the losing party advanced an unreasonable position. By contrast, a judge may not know whether a newly decided issue will have broad legal significance. . (c) Still, objective reasonableness can be only a substantial factor in assessing fee applications—not the controlling one. In deciding whether to fee-shift, district courts must take into account a range of considerations beyond the reasonableness of litigating positions. . 2. While the Second Circuit properly calls for district courts to give “substantial weight” to the reasonableness of a losing party’s litigating positions, its language at times suggests that a finding of reasonableness raises a presumption against granting fees, and that goes too far in cabining the district court’s analysis. Because the District Court thus may not have understood the full scope of its discretion, it should have the opportunity to reconsider Kirtsaeng’s fee application. On remand, the District Court should continue to give substantial weight to the reasonableness of Wiley’s position but also take into account all other relevant factors. . 605 Fed. Appx. 48, vacated and remanded. Kagan, J., delivered the opinion for a unanimous Court.

Petitioner, a citizen of Thailand, came to the United States 20 years ago to study math at Cornell University. He quickly figured out that respondent Wiley & Sons, an academic publishing company, sold virtually identical English-language textbooks in the two countries, but for far less in Thailand than in the States. Seeing a ripe opportunity for arbitrage, he asked family and friends to buy the foreign editions in Thai bookstores and ship them to him in New York. He then resold the textbooks to American students, reimbursed his suppliers, and pocketed a tidy profit. Wiley sued petitioner for copyright infringement, claiming that his activities violated its exclusive right to distribute the textbooks. Petitioner invoked § 505 of the Copyright Act, which provides that a district court "may... award a reasonable attorney's fee to the prevailing party." The District Court denied petitioner's motion to seek more than $2 million in attorney's fees from Wiley, but the court gave substantial weight to the objective reasonableness of Wiley's infringement claim. The Court of Appeals affirmed. Held: The court, in exercising its discretion to award reasonable fees, must also give due consideration to all other circumstances relevant to granting fees; and it retains discretion, in light of those factors, to make an award even when the losing party advanced a reasonable claim or defense. Although Fogerty v. Fantasy, Inc., 510 U. S. 517 (1994), recognized the broad leeway §505 gives district courts, but also established several principles and criteria to guide their decisions. However, § 505 does not specify standards that courts should adopt, or guideposts they should use, in determining when such awards are appropriate. Here, the District Court did not abuse its discretion. . 654 F. 3d 210, 214, vacated and remanded. BRENNAN, J., wrote the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p..

2015_14-8358

https://www.oyez.org/cases/2015/14-8358

. Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2). The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”). Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.” The Eighth Circuit has reached the contrary result. We granted certiorari to resolve that split. 575 U. S. ___ (2015). We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.” I In April 2000, Avondale Lockhart was convicted of sexual abuse in the first degree under N. Y. Penal Law Ann. §130.65(1) (West Cum. Supp. 2015). The crime involved his then-53-year-old girlfriend. Presentence Investigation Report (PSR), in No. 11–CR–231–01, p. 13, ¶¶47–48. Eleven years later, Lockhart was indicted in the Eastern District of New York for attempting to receive child pornography in violation of 18 U. S. C. §2252(a)(2) and for possessing child pornography in violation of §2252(a)(4)(b). Lockhart pleaded guilty to the possession offense and the Government dismissed the receipt offense. Lockhart’s presentence report calculated a guidelines range of 78 to 97 months for the possession offense. But the report also concluded that Lockhart was subject to §2252(b)(2)’s mandatory minimum because his prior New York abuse conviction related “to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” PSR ¶¶87–88. Lockhart objected, arguing that the statutory phrase “involving a minor or ward” applies to all three listed crimes: “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct.” He therefore contended that his prior conviction for sexual abuse involving an adult fell outside the enhancement’s ambit. The District Court rejected Lockhart’s argument and applied the mandatory minimum. The Second Circuit affirmed his sentence. 749 F. 3d 148 (CA2 2014). II Section 2252(b)(2) reads in full: “Whoever violates, or attempts or conspires to violate [ 18 U. S. C. §2252(a)(4)] shall be fined under this title or imprisoned not more than 10 years, or both, but . . . if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.” This case concerns that provision’s list of state sexual-abuse offenses. The issue before us is whether the limiting phrase that appears at the end of that list—“involving a minor or ward”—applies to all three predicate crimes preceding it in the list or only the final predicate crime. We hold that “involving a minor or ward” modifies only “abusive sexual conduct,” the antecedent immediately preceding it. Although §2252(b)(2)’s list of state predicates is awkwardly phrased (to put it charitably), the provision’s text and context together reveal a straightforward reading. A timeworn textual canon is confirmed by the structure and internal logic of the statutory scheme. A Consider the text. When this Court has interpreted statutes that include a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called the “rule of the last antecedent.” See Barnhart v. Thomas, 540 U. S. 20, 26 (2003) . The rule provides that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Ibid.; see also Black’s Law Dictionary 1532–1533 (10th ed. 2014) (“[Q]ualifying words or phrases modify the words or phrases immediately preceding them and not words or phrases more remote, unless the extension is necessary from the context or the spirit of the entire writing”); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012). This Court has applied the rule from our earliest decisions to our more recent. See, e.g., Sims Lessee v. Irvine, 3 Dall. 425, 444, n. (1799); FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389, n. 4 (1959) ; Barnhart, 540 U. S., at 26. The rule reflects the basic intuition that when a modifier appears at the end of a list, it is easier to apply that modifier only to the item directly before it. That is particularly true where it takes more than a little mental energy to process the individual entries in the list, making it a heavy lift to carry the modifier across them all. For example, imagine you are the general manager of the Yankees and you are rounding out your 2016 roster. You tell your scouts to find a defensive catcher, a quick-footed shortstop, or a pitcher from last year’s World Champion Kansas City Royals. It would be natural for your scouts to confine their search for a pitcher to last year’s championship team, but to look more broadly for catchers and shortstops. Applied here, the last antecedent principle suggests that the phrase “involving a minor or ward” modifies only the phrase that it immediately follows: “abusive sexual conduct.” As a corollary, it also suggests that the phrases “aggravated sexual abuse” and “sexual abuse” are not so constrained. Of course, as with any canon of statutory interpretation, the rule of the last antecedent “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart, 540 U. S., at 26; see also Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a 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”). For instance, take “ ‘the laws, the treaties, and the constitution of the United States.’ ” Post, at 7, n. 1 (Kagan, J., dissenting). A reader intuitively applies “of the United States” to “the laws,” “the treaties” and “the constitution” because (among other things) laws, treaties, and the constitution are often cited together, because readers are used to seeing “of the United States” modify each of them, and because the listed items are simple and parallel without unexpected internal modifiers or structure. Section 2252(b)(2), by contrast, does not contain items that readers are used to seeing listed together or a concluding modifier that readers are accustomed to applying to each of them. And the varied syntax of each item in the list makes it hard for the reader to carry the final modifying clause across all three. More importantly, here the interpretation urged by the rule of the last antecedent is not overcome by other indicia of meaning. To the contrary, §2252(b)(2)’s context fortifies the meaning that principle commands. B Our inquiry into §2252(b)(2)’s context begins with the internal logic of that provision. Section 2252(b)(2) establishes sentencing minimums and maximums for three categories of offenders. The first third of the section imposes a 10-year maximum sentence on offenders with no prior convictions. The second third imposes a 10-year minimum and 20-year maximum on offenders who have previously violated a federal offense listed within various chapters of the Federal Criminal Code. And the last third imposes the same minimum and maximum on offenders who have previously committed state “sexual abuse,aggravated sexual abuse, or abusive sexual conduct involving a minor or ward” as well as a number of state crimes related to the possession and distribution of child pornography. Among the chapters of the Federal Criminal Code that can trigger §2252(b)(2)’s recidivist enhancement are crimes “under . . . chapter 109A.” Chapter 109A criminal- izes a range of sexual-abuse offenses involving adults or minors and wards.[1] And it places those federal sexual-abuse crimes under headings that use language nearly identical to the language §2252(b)(2) uses to enumerate the three categories of state sexual-abuse predicates. The first section in Chapter 109A is titled “Aggravated sexual abuse.” 18 U. S. C. §2241. The second is titled “Sexual abuse.” §2242. And the third is titled “Sexual abuse of a minor or ward.” §2243. Applying the rule of the last antecedent, those sections mirror precisely the order, precisely the divisions, and nearly precisely the words used to describe the three state sexual-abuse predicate crimes in §2252(b)(2): “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct involving a minor or ward.” This similarity appears to be more than a coincidence. We cannot state with certainty that Congress used Chapter 109A as a template for the list of state predicates set out in §2252(b)(2), but we cannot ignore the parallel, particularly because the headings in Chapter 109A were in place when Congress amended the statute to add §2252(b)(2)’s state sexual-abuse predicates.[2] If Congress had intended to limit each of the state predicates to conduct “involving a minor or ward,” we doubt it would have followed, or thought it needed to follow, so closely the structure and language of Chapter 109A.[3] The conclusion that Congress followed the federal template is supported by the fact that Congress did nothing to indicate that offenders with prior federal sexual-abuse convictions are more culpable, harmful, or worthy of enhanced punishment than offenders with nearly identical state priors. We therefore see no reason to interpret §2252(b)(2) so that “[s]exual abuse” that occurs in the Second Circuit courthouse triggers the sentence enhancement, but “sexual abuse” that occurs next door in the Manhattan munici-pal building does not. III A Lockhart argues, to the contrary, that the phrase “involving a minor or ward” should be interpreted to modify all three state sexual-abuse predicates. He first contends, as does our dissenting colleague, that the so-called series-qualifier principle supports his reading. This principle, Lockhart says, requires a modifier to apply to all items in a series when such an application would represent a natural construction. Brief for Petitioner 12; post, at 4. This Court has long acknowledged that structural or contextual evidence may “rebut the last antecedent inference.” Jama v. Immigration and Customs Enforcement, 543 U. S. 335 , n. 4 (2005). For instance, in Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345 (1920) , on which Lockhart relies, this Court declined to apply the rule of the last antecedent where “[n]o reason appears why” a modifying clause is not “applicable as much to the first and other words as to the last” and where “special reasons exist for so construing the clause in question.” Id., at 348. In United States v. Bass, 404 U. S. 336 (1971) , this Court declined to apply the rule of the last antecedent where “there is no reason consistent with any discernable purpose of the statute to apply” the limiting phrase to the last antecedent alone. Id., at 341. Likewise, in Jama, the Court suggested that the rule would not be appropriate where the “modifying clause appear[s] . . . at the end of a single, integrated list.” 543 U. S., at 344, n. 4. And, most recently, in Paroline v. United States, 572 U. S. ___ (2014), the Court noted that the rule need not be applied “in a mechanical way where it would require accepting ‘unlikely premises.’ ” Id., at ___ (slip op., at 9). But in none of those cases did the Court describe, much less apply, a countervailing grammatical mandate that could bear the weight that either Lockhart or the dissent places on the series qualifier principle. Instead, the Court simply observed that sometimes context weighs against the application of the rule of the last antecedent. Barnhart, 540 U. S., at 26. Whether a modifier is “applicable as much to the first . . . as to the last” words in a list, whether a set of items form a “single, integrated list,” and whether the application of the rule would require acceptance of an “unlikely premise” are fundamentally contextual questions. Lockhart attempts to identify contextual indicia that he says rebut the rule of the last antecedent, but those indicia hurt rather than help his prospects. He points out that the final two state predicates, “sexual abuse” and “abusive sexual conduct,” are “nearly synonymous as a matter of everyday speech.” Brief for Petitioner 17. And, of course, anyone who commits “aggravated sexual abuse” has also necessarily committed “sexual abuse.” So, he posits, the items in the list are sufficiently similar that a limiting phrase could apply equally to all three of them. But Lockhart’s effort to demonstrate some similarity among the items in the list of state predicates reveals far too much similarity. The three state predicate crimes are not just related on Lockhart’s reading; they are hopelessly redundant. Any conduct that would qualify as “aggravated sexual abuse . . . involving a minor or ward” or “sexual abuse . . . involving a minor or ward” would also qualify as “abusive sexual conduct involving a minor or ward.” We take no position today on the meaning of the terms “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct,” including their similarities and differences. But it is clear that applying the limiting phrase to all three items would risk running headlong into the rule against superfluity by transforming a list of separate predicates into a set of synonyms describing the same predicate. See Bailey v. United States, 516 U. S. 137, 146 (1995) (“We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning”). Applying the limiting phrase “involving a minor or ward” more sparingly, by contrast, preserves some distinction between the categories of state predicates by limiting only the third category to conduct “involving a minor or ward.” We recognize that this interpretation does not eliminate all superfluity between “aggravated sexual abuse” and “sexual abuse.” See United States v. Atlantic Research Corp., 551 U. S. 128, 137 (2007) (“[O]ur hesitancy to construe statutes to render language superfluousdoes not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage”). But there is a ready explanation for the redundancy that remains: It follows the categories in Chapter 109A’s federal template. See supra, at 6. We see no similar explanation for Lockhart’s complete collapse of the list. The dissent offers a suggestion rooted in its impressions about how people ordinarily speak and write. Post, at 1–4. The problem is that, as even the dissent acknowledges, §2252(b)(2)’s list of state predicates is hardly intuitive. No one would mistake its odd repetition and inelegant phrasing for a reflection of the accumulated wisdom of everyday speech patterns. It would be as if a friend asked you to get her tart lemons, sour lemons, or sour fruit from Mexico. If you brought back lemons from California, but your friend insisted that she was using customary speech and obvi-ously asked for Mexican fruit only, you would be forgiven for disagreeing on both counts. Faced with §2252(b)(2)’s inartful drafting, then, do we interpret the provision by viewing it as a clear, commonsense list best construed as if conversational English? Or do we look around to see if there might be some provenance to its peculiarity? With Chapter 109A so readily at hand, we are unpersuaded by our dissenting colleague’s invocation of basic examples from day-to-day life. Whatever the validity of the dissent’s broader point, this simply is not a case in which colloquial practice is of much use. Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch. B Lockhart next takes aim at our construction of §2252(b)(2) to avoid disparity between the state and federal sexual-abuse predicates. He contends that other dispar-ities between state and federal predicates in §2252(b)(2) indicate that parity was not Congress’ concern. For example, §2252(b)(2) imposes the recidivist enhancement on offenders with prior federal convictions under Chapter 71 of Title 18, which governs obscenity. See §§1461–1470. Yet §2252(b)(2) does not impose a similar enhancementfor offenses under state obscenity laws. Similarly, §2252(b)(2)’s neighbor provision, §2252(b)(1), creates a mandatory minimum for sex trafficking involving children, but not sex trafficking involving adults. However, our construction of §2252(b)(2)’s sexual-abuse predicates does not rely on a general assumption that Congress sought full parity between all of the federal and state predicates in §2252(b)(2). It relies instead on contextual cues particular to the sexual-abuse predicates. To enumerate the state sexual-abuse predicates, Congress used language similar to that in Chapter 109A of the Federal Criminal Code, which describes crimes involving both adults and children. See supra, at 6. We therefore assume that the same language used to describe the state sexual-abuse predicates also describes conduct involving both adults and children. C Lockhart, joined by the dissent, see post, at 9–11, next says that the provision’s legislative history supports the view that Congress deliberately structured §2252(b)(2) to treat state and federal predicates differently. They rely on two sources. The first is a reference in a Report from the Senate Judiciary Committee on the Child Pornography Prevention Act of 1996, 110Stat. 3009–26. That Act was the first to add the language at issue here—“aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward”—to the U. S. Code. (It was initially added to §2252(b)(1), then added two years later to §2252(b)(2)). The Report noted that the enhancement applies to persons with prior convictions “under any State child abuse law or law relating to the production, receipt or distribution of child pornography.” See S. Rep. No. 104–358, p. 9 (1996). But that reference incompletely describes the state pornography production and distribution predicates, which cover not only “production, receipt, or distributing of child pornography,” as the Report indicates, but also “production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography,” §2252(b)(2). For the reasons discussed, we have no trouble concluding that the Report also incompletely describes the state sexual-abuse predicates. Lockhart and the dissent also rely on a letter sent from the Department of Justice (DOJ) to the House of Representative’s Committee on the Judiciary commenting on the proposed “Child Protection and Sexual Predator Punishment Act of 1998.” H. R. Rep. No. 105–557, pp. 26–34 (1998). In the letter, DOJ provides commentary on the then-present state of §§2252(b)(1) and 2252(b)(2), noting that although there is a “5-year mandatory minimum sentence for individuals charged with receipt or distribution of child pornography and who have prior state convictions for child molestation” pursuant to §2252(b)(1), there is “no enhanced provision for those individuals charged with possession of child pornography who have prior convictions for child abuse” pursuant to §2252(b)(2). Id., at 31. That letter, they say, demonstrates that DOJ understood the language at issue here to impose a sentencing enhancement only for prior state convictions involving children. We doubt that DOJ was trying to describe the full reach of the language in §2252(b)(1), as the dissent suggests. To the contrary, there are several clues that the letter was relaying on just one of the provision’s many salient features. For instance, the letter’s references to “child molestation” and “child abuse” do not encompass a large number of state crimes that are unambiguously covered by “abusive sexual conduct involving a minor or ward”—namely, crimes involving “wards.” Wards can be minors, but they can also be adults. See, e.g., §2243(b) (defining “wards” as persons who are “in official detention” and “under . . . custodial, supervisory, or disciplinary authority”). More-over, we doubt that DOJ intended to express a belief that the potentially broad scope of serious crimes encompassed by “aggravated sexual abuse, sexual abuse, and abusive sexual conduct” reaches no further than state crimes that would traditionally be characterized as “child molestation” or “child abuse.” Thus, Congress’ amendment to the provision did give “DOJ just what it wanted,” post, at 10. But the amendment also did more than that. We therefore think it unnecessary to restrict our interpretation of the provision to the parts of it that DOJ chose to highlight in its letter. Just as importantly, the terse descriptions of the provision in the Senate Report and DOJ letter do nothing to explain why Congress would have wanted to apply the mandatory minimum to individuals convicted in federal court of sex-ual abuse or aggravated sexual abuse involving an adult, but not to individuals convicted in state court of the same. The legislative history, in short, “hardly speaks with [a] clarity of purpose” through which we can discern Congress’ statutory objective. Universal Camera Corp. v. NLRB, 340 U. S. 474, 483 (1951) . The best explanation Lockhart can muster is a basic administrability concern: Congress “knew what conduct it was capturing under federal law and could be confident that all covered federal offenses were proper predicates. But Congress did not have the same familiarity with the varied and mutable sexual-abuse laws of all fifty states.” Brief for Petitioner 27. Perhaps Congress worried that state laws punishing relatively minor offenses like public lewdness or indecent exposure involving an adult would be swept into §2252(b)(2). Id., at 28. But the risk Lockhart identifies is minimal. Whether the terms in §2252(b)(2) are given their “generic” meaning, see Descamps v. United States, 570 U. S. ___ (2013); Taylor v. United States, 495 U. S. 575 (1990) , or are defined in light of their federal counterparts—which we do not decide—they are unlikely to sweep in the bizarre or unexpected state offenses that worry Lockhart. D Finally, Lockhart asks us to apply the rule of lenity. We have used the lenity principle to resolve ambiguity in favor of the defendant only “at the end of the process of construing what Congress has expressed” when the ordinary canons of statutory construction have revealed no satisfactory construction. Callanan v. United States, 364 U. S. 587, 596 (1961) . That is not the case here. To be sure, Lockhart contends that if we applied a different principle of statutory construction—namely, his “series-qualifier principle”—we would arrive at an alternative construction of §2252(b)(2). But the arguable availability of multiple, divergent principles of statutory construction cannot automatically trigger the rule of lenity. Cf. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395, 401 (1950) (“[T]here are two opposing canons on almost every point”). Here, the rule of the last antecedent is well supported by context and Lockhart’s alternative is not. We will not apply the rule of lenity to override a sensible grammatical principle buttressed by the statute’s text and structure. * * * We conclude that the text and structure of §2252(b)(2) confirm that the provision applies to prior state convictions for “sexual abuse” and “aggravated sexual abuse,” whether or not the convictions involved a minor or ward. We therefore hold that Lockhart’s prior conviction for sexual abuse of an adult is encompassed by §2252(b)(2). The judgment of the Court of Appeals, accordingly, is affirmed. So ordered.Notes 1 For example, §2241(a) of Chapter 109A prohibits forced sexual acts against “another person”—not just a person under a certain age. Section 2241(c) specially criminalizes sexual acts “with another person who has not attained the age of 12 years,” and §2243(b) does the same for sexual acts with wards who are “in official detention” or “under the custodial, supervisory, or disciplinary authority of the person so engaging.” 2 See 18 U. S. C. §2241 (1994 ed.) (“Aggravated sexual abuse”); §2242 (“Sexual abuse”); §2243 (“Sexual abuse of a minor or ward”). 3 The dissent points out that §2252(b)(2) (2012 ed.) did not also borrow from the heading of the fourth section in Chapter 109A (or, we note, from the fifth, sixth, seventh, or eighth sections) in defining its categories of state sexual-abuse predicates. Post, at 14-15 (Kagan, J. dissenting). But the significance of the similarity between the three state predicates in §2252(b)(2) and the wording, structure, and order of the first three sections of Chapter 109A is not diminished by the fact that Congress stopped there (especially when the remaining sections largely set out derivations from, definitions of, and penalties for the first three). See, e.g., §2244 (listing offenses derived from §§2241, 2242, and 2243); §2245 (creating an enhancement for offenses under Chapter 109A resulting in death); §2246 (listing definitions).

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 . SUPREME COURT OF THE UNITED STATES Syllabus LOCKHART v. UNITED STATES certiorari to the united states court of appeals for the second circuit No. 14–8358. Argued November 3, 2015—Decided March 1, 2016 Petitioner Avondale Lockhart pleaded guilty to possessing child pornography in violation of 18 U. S. C. §2252(a)(4). Because Lockhart had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence enhancement provided in §2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Lockhart argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the District Court applied the mandatory minimum. The Second Circuit affirmed. Held: Lockhart’s prior conviction is encompassed by §2252(b)(2). . (a) A natural reading of the text supports that conclusion. The “rule of the last antecedent,” a canon of statutory interpretation stating that “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 , clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” ibid., but §2252(b)(2)’s context reinforces its application in this case. . (b) Section 2252(b)(2)’s enhancement can also be triggered by, inter alia, a prior federal sexual abuse offense enumerated in Chapter 109A of the Federal Criminal Code. Interpreting §2252(b)(2) using the “rule of the last antecedent,” the headings in Chapter 109A mirror precisely the order, precisely the divisions, and nearly precisely the words used to describe the state sexual-abuse predicates. Applying the modifier “involving a minor or ward” to all three items in §2252(b)(2)’s list, by contrast, would require this Court to interpret the state predicates in a way that departs from the federal template. If Congress had intended that result, it is doubtful that Congress would have followed so closely the structure and language of Chapter 109A. . (c) Lockhart’s counterarguments are rejected. . (1) Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345 , United States v. Bass, 404 U. S. 336 , and Jama v. Immigration and Customs Enforcement, 543 U. S. 335 , do not require this Court to apply Lockhart’s countervailing series-qualifier principle. In those cases, the Court simply observed that the last-antecedent rule may be overcome by contextual indicia of meaning. Lockhart’s attempts to identify such indicia are unavailing. He claims that the state predicates are so similar that a limiting phrase could apply equally to all three. But by transforming a list of separate predicates into a set of near-synonyms, Lockhart’s reading results in too much redundancy and risks running headlong into the rule against superfluity. . (2) Lockhart contends that the existence of other disparities between §2252(b)(2)’s state and federal sexual-abuse predicates indicate that parity was not Congress’ concern. However, this Court’s construction relies on contextual cues particular to the sexual-abuse predicates, not on a general assumption that Congress sought full parity between all state and federal predicates. . (3) The provision’s legislative history “hardly speaks with [a] clarity of purpose,” Universal Camera Corp. v. NLRB, 340 U. S. 474 , and does nothing to explain why Congress would have wanted to structure §2252(b)(2) to treat state and federal predicates differently. . (4) Finally, Lockhart suggests the rule of lenity is triggered here, where applying his series-qualifier principle would lead to an alternative construction of §2252(b)(2). The rule of lenity is used to resolve ambiguity only when the ordinary canons have revealed no satisfactory construction. Here, however, the rule of the last antecedent is well supported by context, and Lockhart’s alternative is not. P. 14. 749 F. 3d 148, affirmed. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, and Alito, JJ., joined. Kagan, J., filed a dissenting opinion, in which Breyer, J., joined.

Section 2252(b)(2) of the New York Penal Law Ann. §130.65(1) provides that "[w]heWhoever violates, or attempts or conspires to violate [18 U.S. C. §2252(a)(4)] shall be fined under this title or imprisoned not more than 10 years, or both, but... if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under the laws of any State relating to [sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward] or the production, possession, receipt, mailing, sale, distribution, or transportation of child pornography, such person shall be punished for not less than10 years nor more than 20 years...." Held: The phrase that appears at the end of that list of state sexual-abuse offenses modifies only that predicate crime. . (a) The canon of statutory interpretation that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme is not an absolute, and can assuredly be overcome by other indicia of meaning. To the contrary, the rule urged by the rule of the last antecedent is not overcome by such indicia as structural or contextual evidence may rebut, or by a sensible grammatical principle buttressed by the statute's text and structure. More importantly, here the interpretation urged by that rule is not overcome by the so-called series-qualifier principle, which requires a modifier to apply to all items in a series when such an application would represent a natural construction. This rule fortifies the meaning that principle commands. Cf. Jama v. Immigration and Customs Enforcement, 543 U. S. 335, n. 4. It is clear that applying the limiting phrase to all three items in this list would risk running headlong into the rule against superfluity by transforming a list of separate predicates into a set of synonyms describing the same predicate. Moreover, the fact that Congress did nothing to indicate that offenders with prior federal sexual abuse convictions are more culpable, harmful, or worthy of enhanced punishment than offenders with nearly identical state priors is no reason to interpret the phrase so that exual abuse that occurs in the Second Circuit courthouse triggers the sentence enhancement, but not so that the crimes in the Manhattan munici-pal building do not.. 749 F. 3d 148 (CA2 2014), affirmed. JUSTICE SCALIA concluded that the phrase in question modifies all of the items in the list of predicate crimes. The Court of Appeals joined several other Courts of Appeals in holding that the sentence and maximum provisions modified only "abusive sexual conduct." The rule reflects the basic intuition that when a modifier appears in a list, it is easier to apply that modifier only to the item directly before it, particularly where it takes more than a little mental energy to process the individual entries in the lists, making it a heavy lift to carry the modifier across them all. However, applying the phrase more sparingly, by contrast, preserves some distinction between the categories of state predicates by limiting only the third category to conduct that does not involve a child or ward. There is a ready explanation for the redundancy that remains: It follows the categories in Chapter 109A's federal template, and there is no similar explanation for Lockhart's complete collapse of the list. Pp. 468 U. s. 586-565. CHIEF JUSTICE BLACKMUN concurred in the judgment. BLACKMUN, J., filed a concurring opinion, post, p.. REHNQUIST J., took no part in the consideration or decision of the case.

2015_14-419

https://www.oyez.org/cases/2015/14-419

in which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join. A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree. I In October 2012, a federal grand jury charged the petitioner, Sila Luis, with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. See §1349; §371; 42 U. S. C. §1320a–7b(b)(2)(A). The Government claimed that Luis had fraudulently obtained close to $45 million, almost all of which she had already spent. Believing it would convict Luis of the crimes charged, and hoping to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties (often referred to as criminal forfeitures, which can include innocent—not just tainted—assets, a point of critical importance here), the Government sought a pretrial order prohibiting Luis from dissipating her assets. See 18 U. S. C. §1345(a)(2). And the District Court ultimately issued an order prohibiting her from “dissipating, or otherwise disposing of . . . assets, real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” App. to Pet. for Cert. A–6. The Government and Luis agree that this court order will prevent Luis from using her own untainted funds, i.e., funds not connected with the crime, to hire counsel to defend her in her criminal case. See App. 161 (stipulating “that an unquantified amount of revenue not connected to the indictment [had] flowed into some of the accounts” subject to the restraining order); ibid. (similarly stipulating that Luis used “revenue not connected to the indictment” to pay for real property that she possessed). Al-though the District Court recognized that the order mightprevent Luis from obtaining counsel of her choice, it held “that there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.” 966 F. Supp. 2d 1321, 1334 (SD Fla. 2013). The Eleventh Circuit upheld the District Court. See 564 Fed. Appx. 493, 494 (2014) ( per curiam) (referring to, e.g., Kaley v. United States, 571 U. S. ___ (2014); Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 631 (1989) ; United States v. Monsanto, 491 U. S. 600, 616 (1989) ). We granted Luis’ petition for certiorari. II The question presented is “[w]hether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.” Pet. for Cert. ii. We see no reasonable way to interpret the relevant statutes to avoid answering this constitutional question. Cf. Monsanto, supra, at 614. Hence, we answer it, and our answer is that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead us to thisconclusion. A No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the “Assistance of Counsel.” In Gideon v. Wainwright, 372 U. S. 335 (1963) , the Court explained: “ ‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’ ” Id., at 344–345 (quoting Powell v. Alabama, 287 U. S. 45 –69 (1932)). It is consequently not surprising: first, that this Court’s opinions often refer to the right to counsel as “fundamental,” id., at 68; see Grosjean v. American Press Co., 297 U. S. 233 –244 (1936) (similar); Johnson v. Zerbst, 304 U. S. 458 –463 (1938) (similar); second, that commentators describe the right as a “great engin[e] by which an innocent man can make the truth of his innocence visible,” Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 643 (1996); see Herring v. New York, 422 U. S. 853, 862 (1975) ; third, that we have understood the right to require that the Government provide counsel for an indigent defendant accused of all but the least serious crimes, see Gideon, supra, at 344; and fourth, that we have considered the wrongful deprivation of the right to counsel a “structural” error that so “affec[ts] the framework within which the trial proceeds” that courts may not even ask whether the error harmed the defendant. United States v. Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quotation marks omitted); see id., at 150. Given the necessarily close working relationship between lawyer and client, the need for confidence, and the critical importance of trust, neither is it surprising that the Court has held that the Sixth Amendment grants a defendant “a fair opportunity to secure counsel of his own choice.” Powell, supra, at 53; see Gonzalez-Lopez, supra, at 150 (describing “these myriad aspects of representation”). This “fair opportunity” for the defendant to secure counsel of choice has limits. A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party. See Wheat v. United States, 486 U. S. 153, 159 (1988) . And an indigent defendant, while entitled to adequate representation, has no right to have the Government pay for his preferred representational choice. See Caplin & Drysdale, 491 U. S., at 624. We nonetheless emphasize that the constitutional right at issue here is fundamental: “[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Ibid. B The Government cannot, and does not, deny Luis’ right to be represented by a qualified attorney whom she chooses and can afford. But the Government would underminethe value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney. The Government points out that, while freezing the funds may have this consequence, there are important interests on the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay for statutory penalties (including forfeiture of untainted assets) and restitution, should it secure convictions. And it points to two cases from this Court, Caplin & Drysdale, supra, at 619, and Monsanto, 491 U. S., at 615, which, in the Government’s view, hold that the Sixth Amendment does not pose an obstacle to its doing so here. In our view, however, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference. 1 The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime. The Government may well be able to freeze, perhaps to seize, assets of the latter, “tainted” kind before trial. As a matter of property law the defendant’s ownership interest is imperfect. The robber’s loot belongs to the victim, not to the defendant. See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878) (“The great principle that no one can be deprived of his property without his assent, except by the processes of the law, requires . . . that the property wrongfully transferred or stolen should be restored to its rightful owner”). The cocaine is contraband, long considered forfeitable to the Government wherever found. See, e.g., 21 U. S. C. §881(a) (“[Controlled substances] shall be subject to forfeiture to the United States and no property right shall exist in them”); Carroll v. United States, 267 U. S. 132, 159 (1925) (describing the seizure of “contraband forfeitable prop-erty”). And title to property used to commit a crime (orotherwise “traceable” to a crime) often passes to the Government at the instant the crime is planned or committed. See, e.g., §853(c) (providing that the Government’s ownership interest in such property relates back to the time of the crime). The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant. That fact undermines the Government’s reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was “tainted,” and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of ) the assets. In Caplin & Drysdale, the Court considered a post-conviction forfeiture that took from a convicted defendant funds he would have used to pay his lawyer. The Court held that the forfeiture was constitutional. In doing so, however, it emphasized that the forfeiture statute at issue provided that “ ‘[a]ll right, title, and interest in property [constituting or derived from any proceeds obtained from the crime] vests in the United States upon the commission of the act giving rise to [the] forfeiture.’ ” 491 U. S., at 625, n. 4 (quoting §853(c)) (emphasis added). It added that the law had “long-recognized” as “lawful” the “practice of vesting title to any forfeitable asset[s] in the United State[s] at the time of the crim[e].” Id., at 627. It pointed out that the defendant did not “claim, as a general proposition, that the [vesting] provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in the Government, as of the date of the criminal act in question.” Id., at 627–628. And, given the vesting language, the Court explained that the defendant “did not hold good title” to the property. Id., at 627. The Court therefore concluded that “[t]here is no constitutional principle that gives one person [namely, the defendant] the right to give another’s [namely, the Government’s] property to a third party,” namely, the lawyer. Id., at 628. In Monsanto, the Court considered a pretrial restraining order that prevented a not-yet-convicted defendant from using certain assets to pay for his lawyer. The defendant argued that, given this difference, Caplin & Drysdale’s conclusion should not apply. The Court noted, however, that the property at issue was forfeitable under the same statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the application of that statute to Monsanto’s case concerned only the pretrial restraint of assets that were traceable to the crime, see 491 U. S., at 602–603; thus, the statute passed title to those funds at the time the crime was committed (i.e., before the trial), see §853(c). The Court said that Caplin & Drysdale had already “weigh[ed] . . . th[e] very interests” at issue. Monsanto, supra, at 616. And it “rel[ied] on” its “conclusion” in Caplin & Drysdale to dispose of, and to reject, the defendant’s “similar constitutional claims.” 491 U. S., at 614. Justice Kennedy prefers to read Caplin & Drysdale and Monsanto broadly, as holding that “the Government, having established probable cause to believe that Luis’ substitute [i.e., innocent] assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from spending those funds prior to trial.” Post, at 6–7 (dissenting opinion). In other words, he believes that those cases stand for the proposition that property—whether tainted or untainted—is subject to pretrial restraint, so long as the property might someday be subject to forfeiture. But this reading asks too much of our precedents. For one thing, as discussed, Caplin & Drysdale and Monsanto involved the restraint only of tainted assets, and thus we had no occasion to opine in those cases about the constitutionality of pretrial restraints of other, untainted assets. For another thing, Justice Kennedy’s broad rule ignores the statutory background against which Caplin & Drysdale and Monsanto were decided. The Court in those cases referenced §853(c) more than a dozen times. And it acknowledged that whether property is “forfeitable” or subject to pretrial restraint under Congress’ scheme is a nuanced inquiry that very much depends on who has the superior interest in the property at issue. See Caplin & Drysdale, supra, at 626–628; Monsanto, 491 U. S., at 616. We see this in, for example, §853(e)(1), which explicitly authorizes restraining orders or injunctions against “property described in subsection (a) of this section” (i.e., tainted assets). We see this too in §853(e)(1)(B), which requires the Government—in certain circumstances—to give “notice to persons appearing to have an interest in the property and opportunity for hearing” before obtaining a restraining order against such property. We see this in §853(c), which allows “bona fide purchaser[s] for value” to keep property that would otherwise be subject to forfeiture. And we see this in §853(n)(6)(A), which exempts certain property from forfeiture when a third party can show a vested interest in the property that is “superior” to that of the Government. The distinction that we have discussed is thus an important one, not a technicality. It is the difference between what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose restrictions upon (or seize) property that the Government had probable cause to believe was the proceeds of, or traceable to, a crime. See Monsanto, supra, at 615. The relevant statute said that the Government took title to those tainted assets as of the time of the crime. See §853(c). And the defendants in those cases consequently had to concede that the disputed property was in an important sense the Government’s at the time the court imposed the restrictions. See Caplin & Drysdale, supra, at 619–620; Monsanto, supra, at 602–603. This is not to say that the Government “owned” the tainted property outright (in the sense that it could take possession of the property even before obtaining a conviction). See post, at 7–10 (Kennedy, J., dissenting). Rather, it is to say that the Government even before trial had a “substantial” interest in the tainted property sufficient to justify the property’s pretrial restraint. See Caplin & Drysdale, supra, at 627 (“[T]he property rights given the Government by virtue of [§853(c)’s relation-back provision] are more substantial than petitioner acknowledges”); United States v. Stowell, 133 U. S. 1, 19 (1890) (“As soon as [the possessor of the forfeitable asset committed the violation] . . . , the forfeiture . . . took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, as a recorded deed” (emphasis added)). If we analogize to bankruptcy law, the Government, by application of §853(c)’s relation-back provision, became something like a secured creditor with a lien on the defendant’s tainted assets superior to that of most any other party. See 4 Collier on Bankruptcy ¶506.03[1] (16th ed. 2015). For this reason, §853(c) has operated in our cases as a significant limitation on criminal defendants’ prop-erty rights in such assets—even before conviction. SeeMonsanto, supra, at 613 (“Permitting a defendant to use [tainted] assets for his private purposes that, under this [relation-back] provision, will become the property of the United States if a conviction occurs cannot be sanctioned”); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting that the Court had previously authorized injunctions against the further dissipation of property where, among other things, “the creditor (the Government) asserted an equitable lien on the property”). Here, by contrast, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any equivalent governmental interest in that property. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Al-though such creditors someday might collect from a debtor’s general assets, they cannot be said to have any present claim to, or interest in, the debtor’s property. See id., at 330 (“[B]efore judgment . . . an unsecured creditor has no rights at law or in equity in the property of his debtor”); see also 5 Collier on Bankruptcy ¶541.05[1][b] (“[G]eneral unsecured creditor[s]” have “no specific property interest in the goods held or sold by the debtor”). The competing property interests in the tainted- and untainted-asset contexts therefore are not “exactly the same.” Post, at 2 (Kagan, J., dissenting). At least regarding her untainted assets, Luis can at this point reasonably claim that the property is still “mine,” free and clear. 2 This distinction between (1) what is primarily “mine” (the defendant’s) and (2) what is primarily “yours” (the Government’s) does not by itself answer the constitutional question posed, for the law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. A holder of a reversionary interest, for example, can prevent the owner of a life estate from wasting the property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170, 37 S. E. 189, 190 (1900). Those who later may become beneficiaries of a trust are sometimes able to prevent the trustee from dissipating the trust’s assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901). And holders of a contingent, future executory interest in property (an interest that might become possessory at some point down the road) can, in limited circumstances, enjoin the activities of the current owner. See, e.g., Dees v. Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909) (“[E]quity w[ill] interfere . . . only when it is made to appear that the contingency . . . is reasonably certain to happen, and the waste is . . . wanton and conscienceless”). The Government here seeks a somewhat analogous order, i.e., an order that will preserve Luis’ untainted assets so that they will be available to cover the costs of forfeiture and restitution if she is convicted, and if the court later determines that her tainted assets are insufficient or otherwise unavailable. The Government finds statutory authority for its request in language authorizing a court to enjoin a criminal defendant from, for example, disposing of innocent “property of equivalent value” to that of tainted property. 18 U. S. C. §1345(a)(2)(B)(i). But Luis needs some portion of those same funds to pay for the lawyer of her choice. Thus, the legal conflict arises. And, in our view, insofar as innocent (i.e., untainted) funds are needed to obtain counsel of choice, we believe that the Sixth Amendment prohibits the court order that the Government seeks. Three basic considerations lead us to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, supra, at 3–5, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law, see Powell, 287 U. S.,at 68–69. And that right includes “the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Caplin & Drysdale, 491 U. S., at 624. The order at issue in this case would seriously undermine that constitutional right. On the other side we find interests that include the Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims’ interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets—say, “tainted” property—that might be used for forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S., at 148 (“Deprivation of the right” to counsel of the defendant’s choice “is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants”). Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system. Second, relevant legal tradition offers virtually no significant support for the Government’s position. Rather, tradition argues to the contrary. Describing the 18th-century English legal world (which recognized only a limited right to counsel), Blackstone wrote that “only” those “goods and chattels” that “a man has at the time of conviction shall be forfeited.” 4 W. Blackstone, Commentaries on the Laws of England 388 (1765) (emphasisadded); see 1 J. Chitty, Practical Treatise on the CriminalLaw 737 (1816) (“[T]he party indicted may sell any of [his property] . . . to assist him in preparing for his defense on the trial”). Describing the common law as understood in 19th-century America (which recognized a broader right to counsel), Justice Story wrote: “It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture . . . was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offense; but the right attached only by the conviction of the offender. . . . In the contemplation of the common law, the offender’s right was not divested until the conviction.” The Palmyra, 12 Wheat. 1, 14 (1827). See generally Powell, supra, at 60–61 (describing the scope of the right to counsel in 18th-century Britain and colonial America). As we have explained, supra, at 6–10, cases such as Caplin & Drysdale and Monsanto permit the Government to freeze a defendant’s assets pretrial, but the opinions in those cases highlight the fact that the property at issue was “tainted,” i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent” property—property with no connection to the charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfeitures from the preconviction restraint at issue here. As far as Luis’ Sixth Amendment right to counsel of choice is concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny this constitutional right. See Gonzalez-Lopez, supra, at 148. Third, as a practical matter, to accept the Government’s position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To permit the Government to freeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place. The statutory provision before us authorizing the present restraining order refers only to “banking law violation[s]” and “Federal health care offense[s].” 18 U. S. C. §1345(a)(2). But, in the Government’s view, Congress could write more statutes authorizing pretrial restraints in cases involving other illegal behavior—after all, a broad range of such behavior can lead to postconviction forfeiture of untainted assets. See, e.g., §1963(m) (providing for forfeiture of innocent, substitute assets for any violation of the Racketeer Influenced and Corrupt Organizations Act). Moreover, the financial consequences of a criminal conviction are steep. Even beyond the forfeiture itself, criminal fines can be high, and restitution orders expensive. See, e.g., §1344 ($1 million fine for bank fraud); §3571 (mail and wire fraud fines of up to $250,000 for individuals and $500,000 for organizations); United States v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5 million restitution award against an individual defendant in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d 947, 949 (CA7 2011) ($37.6 million remedial sanction for fraud). How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer—particularly if they lack “tainted assets” because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect? See Powell, 287 U. S., at 69; Amar, 84 Geo. L. J., at 643 (“[T]he Sixth Amendment is generally designed to elicit truth and protect innocence”). These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. Dept. of Justice, Bureau of Justice Statistics, D. Farole & L. Langton, Census of Public Defender Offices, 2007: County-based and Local Public Defender Offices, 2007, p. 10 (Sept. 2010). And as one amicus points out, “[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources.” Brief for New York Council of Defense Lawyers 11. The upshot is a substantial risk that accept-ing the Government’s views would—by increasing the government-paid-defender workload—render less effective the basic right the Sixth Amendment seeks to protect. 3 We add that the constitutional line we have drawn should prove workable. That line distinguishes between a criminal defendant’s (1) tainted funds and (2) innocent funds needed to pay for counsel. We concede, as Justice Kennedy points out, post, at 12–13, that money is fungible; and sometimes it will be difficult to say whether a particular bank account contains tainted or untainted funds. But the law has tracing rules that help courts implement the kind of distinction we require in this case. With the help of those rules, the victim of a robbery, for example, will likely obtain the car that the robber used stolen money to buy. See, e.g., 1 G. Palmer, Law of Restitution §2.14, p. 175 (1978) (“tracing” permits a claim against “an asset which is traceable to or the product of” tainted funds); 4 A. Scott, Law of Trusts §518, pp. 3309–3314 (1956) (describing the tracing rules governing commingled accounts). And those rules will likely also prevent Luis from benefiting from many of the money transfers and purchases Justice Kennedy describes. See post, at 12–13. Courts use tracing rules in cases involving fraud, pension rights, bankruptcy, trusts, etc. See, e.g., Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U. S. ___, ___–___ (2016) (slip op., at 8–9). They consequently have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. See, e.g., 18 U. S. C. §1345(b) (“The court shall proceed as soon as practicable to the hearing and determination of [actions to freeze a defendant’s tainted or untainted assets]”); 28 U. S. C. §2412(d) (courts must determine reasonable attorneys’ fees under the Equal Access to Justice Act); see also Kaley, 571 U. S., at ___, and n. 3 (slip op., at 3, and n. 3) (“Since Monsanto, the lower courts have generally provided a hearing. . . . [to determine] whether probable cause exists to believe that the assets in dispute are traceable . . . to the crime charged in the indictment”). We therefore see little reason to worry, as Justice Kennedy seems to, that defendants will “be allowed to circumvent [the usual forfeiture rules] by using . . . funds to pay for a high, or even the highest, priced defense team [they] can find.” Post, at 7. * * * For the reasons stated, we conclude that the defendant in this case has a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assistance of counsel. On the assumptions made here, the District Court’s order prevents Luis from exercising that right. We consequently vacate the judgment of the Court of Appeals and remand the case for further proceedings. It is so ordered. APPENDIX Title 18 U. S. C. §1345 provides: “(a)(1) If a person is— “(A) violating or about to violate this chapter or section 287, 371 (insofar as such violation involves a conspiracy to defraud the United States or any agency thereof), or 1001 of this title; “(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or “(C) committing or about to commit a Federal health care offense; “the Attorney General may commence a civil action in any Federal court to enjoin such violation. “(2) If a person is alienating or disposing of property, or intends to alienate or dispose of property, obtained as a result of a banking law violation (as defined in section 3322(d) of this title) or a Federal health care offense or property which is traceable to such violation, the Attorney General may commence a civil action in any Federal court— “(A) to enjoin such alienation or disposition of property; or “(B) for a restraining order to— “(i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and “(ii) appoint a temporary receiver to administer such restraining order. “(3) A permanent or temporary injunction or restraining order shall be granted without bond. “(b) The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.”

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 . SUPREME COURT OF THE UNITED STATES Syllabus LUIS v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 14–419. Argued November 10, 2015—Decided March 30, 2016 A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3), as relevant here, other “property of equivalent value.” 18 U. S. C. §1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis’ possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. Held: The judgment is vacated, and the case is remanded. 564 Fed. Appx. 493, vacated and remanded. Justice Breyer, joined by The Chief Justice, Justice Ginsburg, and Justice Sotomayor, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this conclusion. . (a) The Sixth Amendment right to counsel grants a defendant “a fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U. S. 45 , that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 . This Court has consistently referred to the right to counsel of choice as “fundamental.” . (b) While the Government does not deny Luis’ fundamental right to be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right by taking from Luis the ability to use funds she needs to pay for her chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will be available later to help pay for statutory penalties and restitution, for example. The Government further argues that two previous cases from this Court, Caplin & Drysdale, supra, at 619, and United States v. Monsanto, 491 U. S. 600 , support the issuance of a restraining order in this case. However, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference. . (1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may well be able to freeze before trial “tainted” assets—e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the defendant’s ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used to commit a crime (or otherwise “traceable” to a crime) passes to the Government at the instant the crime is planned or committed. See 21 U. S. C. §853(c). But here, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any equivalent governmental interest in that property. . (2) This distinction does not by itself answer the constitutional question because the law of property may allow a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. However, insofar as innocent funds are needed to obtain counsel of choice, the Sixth Amendment prohibits the court order sought here. Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government’s interest in securing its punishment of choice, as well as the victim’s interest in securing restitution. These latter interests are important, but—compared to the right to counsel—they seem to lie somewhat further from the heart of a fair, effective criminal justice system. Second, relevant, common-law legal tradition offers virtually no significant support for the Government’s position and in fact argues to the contrary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent” property. Third, as a practical matter, accepting the Government’s position could erode the right to counsel considerably. It would, in fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep financial consequences. These defendants, often rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. The upshot is a substantial risk that accepting the Government’s views would render less effective the basic right the Sixth Amendment seeks to protect. . (3) The constitutional line between a criminal defendant’s tainted funds and innocent funds needed to pay for counsel should prove workable. Money may be fungible, but courts, which use tracing rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. . Justice Thomas concluded that the rule that a pretrial freeze of untainted assets violates a defendant’s Sixth Amendment right to counsel of choice rests strictly on the Sixth Amendment’s text and common-law backdrop. . (a) The Sixth Amendment abolished the common-law rule that generally prohibited representation in felony cases. “The right to select counsel of one’s choice” is thus “the root meaning” of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140 –148. Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned property to pay for an attorney, the right to counsel—originally understood to protect only the right to hire counsel of choice—would be meaningless. Without pretrial protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of choice, eviscerating the Sixth Amendment’s original meaning and purpose. The modern, judicially created right to government-appointed counsel does not obviate these concerns. . (b) History confirms this textual understanding. The common-law forfeiture tradition provides an administrable rule for the Sixth Amendment’s protection: A criminal defendant’s untainted assets are protected from government interference before trial and judgment, but his tainted assets may be seized before trial as contraband or through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original meaning of the right to counsel does real work. Here, the incursion of the pretrial asset freeze into untainted assets, for which there is no historical tradition, violates the Sixth Amendment. . (c) This conclusion leaves no room for an atextual balancing analysis. . Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Ginsburg and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Kennedy, J., filed a dissenting opinion, in which Alito, J., joined. Kagan, J., filed a dissenting opinion.

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. Those assets include: (1) property that is untainted by the crime, (2) property "traceable to the crime," and (3) other "property of equivalent value." Petitioner was charged with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. Believing that it would convict her of the crimes charged, and hoping to preserve the remaining $2 million in petitioner's possession for payment of restitution and other criminal penalties, the District Court issued a pretrial order prohibiting petitioner from dissipating her assets and from disposing of the assets up to the equivalent value of the proceeds of the fraud. The court ultimately issued an order prohibiting her from using her own untainted funds to hire counsel to defend her criminal case, holding that there was no Sixth Amendment right to use untainted, substitute assets for hire counsel. The Court of Appeals affirmed. Held: 1. The pretrial restraint of petitioner's legitimate, untainted assets violates the Fifth and Sixth Amendments. . (a) Given the necessarily close working relationship between lawyer and client, the need for confidence, and the critical importance of trust, the Sixth Amendment grants a defendant a fair opportunity to secure counsel of his own choice. Cf. Caplin & Drysdale,; Monsanto, 491 U. S. 600, 616. P.. (b) The Government cannot, and does not, deny petitioner a right to be represented by an otherwise qualified attorney whom she chooses and can afford. But the Government would underminethe value of that right by taking from her the ability to use the funds she needs to pay for her chosen attorney. As far as petitioner is concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny her constitutional right. And to permit the Government to freeze her untainted asset would unleash a principle of constitutional law that would have no obvious stopping place. See, e.g., Caplin, supra, at 619. Moreover, to accept the Government's position could well erode the right to counsel to a considerably greater extent than has already been indicated. To permit petitioner to freeze her assets pretrial would unleash an unconstitutional principle of federal law. If innocent (i.e., untainted) funds are needed to obtain counsel of her choice, the court will believe that the Government has a superior interest in the tainted assets than in the untainted ones. Moreover, since petitioner has no right to hire her own attorney, she will be allowed to circumvent the preconviction restraints by using the funds in her own hands.. 2. The constitutional line drawn should prove workable. The line between a Criminal defendant's tainted funds and innocent funds needed to pay for a lawyer is a nuanced inquiry that very much depends on who has the superior interest at issue. Here, petitioner can at least reasonably claim that the property is still "mine, free and clear.... This distinction between the tainted and untainted-asset contexts does not by itself answer the constitutional question posed, for the law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. And the law has tracing rules that help courts implement the kind of distinction that this Court requires in this case. Courts use these rules in cases involving fraud, pension rights, bankruptcy, trusts, etc., and consequently have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. Pp. 467 U.S. 616-645. 966 F. Supp. 2d 1321, vacated and remanded. The Chief Justice, Justice Ginsburg, and Justice Sotomayor join. On the facts of this case, the Government cannot deny petitioner her right to have her attorney, but the court would be just as likely to punish her for her tainted assets as it would punish petitioner for her innocent assets. This Court has precedent in both cases involving postconviction forfeitures of tainted assets, as well as in cases in which the Government operated as a superior party to the criminal defendants. Although the interests in securing restitution (notably, from funds belonging to the defendant, not the victims) would lie somewhat further from the heart of a fair, effective criminal justice system, Justice Kennedy's broad rule ignores the statutory background against which those cases were decided. Nor do the relevant legal tradition offers virtually no significant support for petitioner's position.. Pp (c) To accept the position of the Government could well implicate the constitutional line that the Court has drawn, and that line is thus workable, that line distinguishes between a criminal and an innocent

2015_14-1096

https://www.oyez.org/cases/2015/14-1096

. The Immigration and Nationality Act (INA or Act) imposes certain adverse immigration consequences on an alien convicted of an “aggravated felony.” The INA defines that term by listing various crimes, most of which are identified as offenses “described in” specified provisions of the federal criminal code. Immediately following that list, the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are “in violation of Federal[,] State[,]” or foreign law. 108 Stat. 4322, 8 U. S. C. §1101(a)(43). In this case, we must decide if a state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one—namely, the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction (i.e., Congress’s power to enact the law). We hold that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony. I The INA makes any alien convicted of an “aggravated felony” after entering the United States deportable. See §1227(a)(2)(A)(iii). Such an alien is also ineligible for several forms of discretionary relief, including cancellation of removal—an order allowing a deportable alien to remain in the country. See §1229b(a)(3). And because of his felony, the alien faces expedited removal proceedings. See §1228(a)(3)(A). The Act defines the term “aggravated felony” by way of a long list of offenses, now codified at §1101(a)(43). In all, that provision’s 21 subparagraphs enumerate some 80 different crimes. In more than half of those subparagraphs, Congress specified the crimes by citing particular federal statutes. According to that common formulation, an offense is an aggravated felony if it is “described in,” say, 18 U. S. C. §2251 (relating to child pornography), §922(g) (relating to unlawful gun possession), or, of particular relevance here, §844(i) (relating to arson and explosives). 8 U. S. C. §§1101(a)(43)(E), (I). Most of the remaining subparagraphs refer to crimes by their generic labels, stating that an offense is an aggravated felony if, for example, it is “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). Following the entire list of crimes, §1101(a)(43)’s penultimate sentence reads: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” So, putting aside the 15-year curlicue, the penultimate sentence provides that an offense listed in §1101(a)(43) is an aggravated felony whether in violation of federal, state, or foreign law. Petitioner Jorge Luna Torres, who goes by the name George Luna, immigrated to the United States as a child and has lived here ever since as a lawful permanent resident. In 1999, he pleaded guilty to attempted arson in the third degree, in violation of New York law; he was sentenced to one day in prison and five years of probation. Seven years later, immigration officials discovered his conviction and initiated proceedings to remove him from the country. During those proceedings, Luna applied for cancellation of removal. But the Immigration Judge found him ineligible for that discretionary relief because his arson conviction qualified as an aggravated felony. See App. to Pet. for Cert. 21a–22a. The Board of Immigration Appeals (Board) affirmed, based on a comparison of the federal and New York arson statutes. See id., at 15a–17a. The INA, as just noted, provides that “an offense described in” 18 U. S. C. §844(i), the federal arson and explosives statute, is an aggravated felony. Section 844(i), in turn, makes it a crime to “maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by means of fire or an explosive, any building [or] vehicle . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” For its part, the New York law that Luna was convicted under prohibits “intentionally damag[ing],” or attempting to damage, “a building or motor vehicle by starting a fire or causing an explosion.” N. Y. Penal Law Ann. §§110, 150.10 (West 2010). The state law, the Board explained, thus matches the federal statute element-for-element with one exception: The New York law does not require a connection to interstate commerce. According to the Board, that single difference did not matter because the federal statute’s commerce element is “jurisdictional”—that is, its function is to establish Congress’s power to legislate. See App. to Pet for Cert. 16a–17a. Given that the two laws’ substantive (i.e., non-jurisdictional) elements map onto each other, the Board held, the New York arson offense is “described in” 18 U. S. C. §844(i). The Court of Appeals for the Second Circuit denied Luna’s petition for review of the Board’s ruling. See 764 F. 3d 152 (2014). The court’s decision added to a Circuit split over whether a state offense is an aggravated felony when it has all the elements of a listed federal crime except one requiring a connection to interstate commerce.[1] We granted certiorari. 576 U. S. ___ (2015). II The issue in this case arises because of the distinctive role interstate commerce elements play in federal criminal law. In our federal system, “Congress cannot punish felonies generally,” Cohens v. Virginia, 6 Wheat. 264, 428 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one, like the interstate commerce requirement of §844(i). The substantive elements “primarily define[ ] the behavior that the statute calls a ‘violation’ of federal law,” Scheidler v. National Organization for Women, Inc., 547 U. S. 9, 18 (2006) —or, as the Model Penal Code puts the point, they relate to “the harm or evil” the law seeks to prevent, §1.13(10). The jurisdictional element, by contrast, ties the substantive offense (here, arson) to one of Congress’s constitutional powers (here, its authority over interstate commerce), thus spelling out the warrant for Congress to legislate. See id., at 17–18 (explaining that Congress intends “such statu-tory terms as ‘affect commerce’ or ‘in commerce’ . . . as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) that grants Congress that authority”). For obvious reasons, state criminal laws do not include the jurisdictional elements common in federal statutes.[2] State legislatures, exercising their plenary police powers, are not limited to Congress’s enumerated powers; and so States have no reason to tie their substantive offenses to those grants of authority. See, e.g., United States v. Lopez, 514 U. S. 549, 567 (1995) . In particular, state crimes do not contain interstate commerce elements because a State does not need such a jurisdictional hook. Accordingly, even state offenses whose substantive elements match up exactly with a federal law’s will part ways with respect to interstate commerce. That slight discrepancy creates the issue here: If a state offense lacks an interstate commerce element but otherwise mirrors one of the federal statutes listed in §1101(a)(43), does the state crime count as an aggravated felony? Or, alternatively, does the jurisdictional difference reflected in the state and federal laws preclude that result, no matter the laws’ substantive correspondence? Both parties begin with the statutory text most directly at issue, disputing when a state offense (here, arson) is “described in” an enumerated federal statute (here, 18 U. S. C. §844(i)). Luna, armed principally with Black’s Law Dictionary, argues that “described in” means “expressed” or “set forth” in—which, he says, requires the state offense to include each one of the federal law’s elements. Brief for Petitioner 15–16.[3] The Government, brandishing dictionaries of its own, contends that the statutory phrase has a looser meaning—that “describing entails . . . not precise replication,” but “convey[ance of ] an idea or impression” or of a thing’s “central features.” Brief for Respondent 17.[4] On that view, “described in,” as opposed to the more precise “defined in” sometimes found in statutes, denotes that the state offense need only incorporate the federal law’s core, substantive elements. But neither of those claims about the bare term “described in” can resolve this case. Like many words, “describe” takes on different meanings in different contexts. Consider two ways in which this Court has used the word. In one case, “describe” conveyed exactness: A contractual provision, we wrote, “describes the subject [matter] with great particularity[,] . . . giv[ing] the precise number of pounds [of tobacco], the tax for which each pound was liable, and the aggregate of the tax.” Ryan v. United States, 19 Wall. 514, 517 (1874). In another case, not: “The disclosure provision is meant,” we stated, “to describe the law to consumers in a manner that is concise and comprehensible to the layman—which necessarily means that it will be imprecise.” CompuCredit Corp. v. Greenwood, 565 U. S. 95, 102 (2012) . So staring at, or even looking up, the words “described in” cannot answer whether a state offense must replicate every last element of a listed federal statute, including its jurisdictional one, to qualify as an aggravated felony. In considering that issue, we must, as usual, “interpret the relevant words not in a vacuum, but with reference to the statutory context.” Abramski v. United States, 573 U. S. ___, ___ (2014) (slip op., at 9).[5] Here, two contextual considerations decide the matter. The first is §1101(a)(43)’s penultimate sentence, which shows that Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. The second is a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes. We address each factor in turn. A Section 1101(a)(43)’s penultimate sentence, as noted above, provides: “The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” See supra, at 2. That sentence (except for the time limit on foreign convictions) declares the source of criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. That is true of the crimes identified by reference to federal statutes (as here, an offense described in 18 U. S. C. §844(i)), as well as those employing generic labels (for example, murder). As even Luna recognizes, state and foreign analogues of the enumerated federal crimes qual-ify as aggravated felonies. See Brief for Petitioner 21 (contesting only what properly counts as such an analogue). The whole point of §1101(a)(43)’s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law. Luna’s jot-for-jot view of “described in” would substantially undercut that function by excluding from the Act’s coverage all state and foreign versions of any enumerated federal offense that (like §844(i)) contains an interstate commerce element. Such an element appears in about half of §1101(a)(43)’s listed statutes—defining, altogether, 27 serious crimes.[6] Yet under Luna’s reading, only those federal crimes, and not their state and foreign counterparts, would provide a basis for an alien’s removal—because, as explained earlier, only Congress must ever show a link to interstate commerce. See supra, at 4–5. No state or foreign legislature needs to incorporate a commerce element to establish its jurisdiction, and so none ever does. Accordingly, state and foreign crimes will never precisely replicate a federal statute containing a commerce element. And that means, contrary to §1101(a)(43)’s penultimate sentence, that the term “aggravated felony” would not apply to many of the Act’s listed offenses irrespective of whether they are “in violation of Federal[,] State[, or foreign] law”; instead, that term would apply exclusively to the federal variants.[7] Indeed, Luna’s view would limit the penultimate sentence’s effect in a peculiarly perverse fashion—excluding state and foreign convictions for many of the gravest crimes listed in §1101(a)(43), while reaching those convictions for less harmful offenses. Consider some of the state and foreign crimes that would not count as aggravated felonies on Luna’s reading because the corresponding federal law has a commerce element: most child pornography offenses, including selling a child for the purpose of manufacturing such material, see §1101(a)(43)(I); demanding or receiving a ransom for kidnapping, see §1101(a)(43)(H); and possessing a firearm after a felony conviction, see §1101(a)(43)(E)(ii). Conversely, the term “aggravated felony” in Luna’s world would include state and foreign convictions for such comparatively minor offenses as operating an unlawful gambling business, see §1101(a)(43)(J), and possessing a firearm not identified by a serial number, see §1101(a)(43)(E)(iii), because Congress chose, for whatever reason, not to use a commerce element when barring that conduct. And similarly, the term would cover any state or foreign conviction for such nonviolent activity as receiving stolen property, see §1101(a)(43)(G), or forging documents, see §1101(a)(43)(R), because the INA happens to use generic labels to describe those crimes. This Court has previously refused to construe §1101(a)(43) so as to produce such “haphazard”—indeed, upside-down—coverage. Nijhawan v. Holder, 557 U. S. 29, 40 (2009) . We see no reason to follow a different path here: Congress would not have placed an alien convicted by a State of running an illegal casino at greater risk of removal than one found guilty under the same State’s law of selling a child.[8] In an attempt to make some sense of his reading, Luna posits that Congress might have believed that crimes having an interstate connection are generally more serious than those lacking one—for example, that interstate child pornography is “worse” than the intrastate variety. Brief for Petitioner 35. But to begin with, that theory cannot explain the set of crazy-quilt results just described: Not even Luna maintains that Congress thought local acts of selling a child, receiving explosives, or demanding a ransom are categorically less serious than, say, operating an unlawful casino or receiving stolen property (whether or not in interstate commerce). And it is scarcely more plausible to view an interstate commerce element in any given offense as separating serious from non-serious conduct: Why, for example, would Congress see an alien who carried out a kidnapping for ransom wholly within a State as materially less dangerous than one who crossed state lines in committing that crime? The essential harm of the crime is the same irrespective of state borders. Luna’s argument thus misconceives the function of interstate commerce elements: Rather than distinguishing greater from lesser evils, they serve (as earlier explained) to connect a given substantive offense to one of Congress’s enumerated powers. See supra, at 4–5. And still more fundamentally, Luna’s account runs counter to the penultimate sentence’s central message: that the national, local, or foreign character of a crime has no bearing on whether it is grave enough to warrant an alien’s automatic removal.[9] Luna (and the dissent, see post, at 6) must therefore fall back on a different defense: that his approach would exclude from the universe of aggravated felonies fewer serious state and foreign offenses than one might think. To make that argument, Luna relies primarily on a part of the Act specifying that the term “aggravated felony” shall include “a crime of violence (as defined in [ 18 U. S. C. §16]) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(F); see 18 U. S. C. §16 (defining “crime of violence” as involving the use of “physical force” against the person or property of another). According to Luna, many state and foreign offenses failing to match the Act’s listed federal statutes (for want of an interstate commerce element) would count as crimes of violence and, by that alternative route, trigger automatic removal. A different statutory phrase, or so Luna says, would thus plug the holes opened by his construction of the “described in” provisions. Luna’s argument does not reassure us. We agree that state counterparts of some enumerated federal offenses would qualify as aggravated felonies through the “crime of violence” provision. But not nearly all such offenses, and not even the worst ones. Consider again some of the listed offenses described earlier. See supra, at 10. The “crime of violence” provision would not pick up demanding a ransom for kidnapping. See 18 U. S. C. §875(a) (defining the crime without any reference to physical force). It would not cover most of the listed child pornography offenses, involving the distribution, receipt, and possession of such materials. It would not reach felon-in-possession laws and other firearms offenses. And indeed, it would not reach arson in the many States defining that crime to include the destruction of one’s own property. See Jordison v. Gonzales, 501 F. 3d 1134, 1135 (CA9 2007) (holding that a violation of California’s arson statute does not count as a crime of violence for that reason); Tr. of Oral Arg. 28–29 (Solicitor General agreeing with that interpretation).[10] So under Luna’s reading, state and foreign counterparts to a broad swath of listed statutes would remain outside §1101(a)(43)’s coverage merely because they lack an explicit interstate commerce connection. And for all the reasons discussed above, that result would significantly restrict the penultimate sentence’s force and effect, and in an utterly random manner.[11] B Just as important, a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws supports reading §1101(a)(43) to include state analogues lacking an interstate commerce requirement. As already explained, the substantive elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element connects the law to one of Congress’s enumerated powers, thus establishing legislative authority. See supra, at 4–5; ALI, Model Penal Code §1.13(10) (1962). Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But still, they are not created equal for every purpose. To the contrary, courts have often recognized—including when comparing federal and state offenses—that Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment. Consider the law respecting mens rea. In general, courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense. See Elonis v. United States, 575 U. S. ___, ___ (2015) (slip op., at 10). That is so even when the “statute by its terms does not contain” any demand of that kind. United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994) . In such cases, courts read the statute against a “background rule” that the defendant must know each fact making his conduct illegal. Staples v. United States, 511 U. S. 600, 619 (1994) . Or otherwise said, they infer, absent an express indication to the contrary, that Congress intended such a mental-state requirement. Except when it comes to jurisdictional elements. There, this Court has stated, “the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute.” United States v. Feola, 420 U. S. 671, 677, n. 9 (1975) ; see United States v. Yermian, 468 U. S. 63, 68 (1984) (“Jurisdictional language need not contain the same culpability requirement as other elements of the offense”); Model Penal Code §2.02. So when Congress has said nothing about the mental state pertaining to a jurisdictional element, the default rule flips: Courts assume that Congress wanted such an element to stand outside the otherwise applicable mens rea requirement. In line with that practice, courts have routinely held that a criminal defendant need not know of a federal crime’s interstate commerce connection to be found guilty. See, e.g., United States v. Jinian, 725 F. 3d 954, 964–966 (CA9 2013); United States v. Lindemann, 85 F. 3d 1232, 1241 (CA7 1996); United States v. Blackmon, 839 F. 2d 900, 907 (CA2 1988). Those courts have recognized, as we do here, that Congress viewed the commerce element as distinct from, and subject to a different rule than, the elements describing the substantive offense. Still more strikingly, courts have distinguished between the two kinds of elements in contexts, similar to this one, in which the judicial task is to compare federal and state offenses. The Assimilative Crimes Act (ACA), 18 U. S. C. §13(a), subjects federal enclaves, like military bases, to state criminal laws except when they punish the same conduct as a federal statute. The ACA thus requires courts to decide when a federal and a state law are sufficiently alike that only the federal one will apply. And we have held that, in making that assessment, courts should ignore jurisdictional elements: When the “differences among elements” of the state and federal crimes “reflect jurisdictional, or other technical, considerations” alone, then the state law will have no effect in the area. Lewis v. United States, 523 U. S. 155, 165 (1998) ; see also id., at 182 (Kennedy, J., dissenting) (agreeing that courts should “look beyond . . . jurisdictional elements,” and focus only on substantive ones, in determining whether “the elements of the two crimes are the same”). In such a case, we reasoned—just as we do now—that Congress meant for the federal jurisdictional element to be set aside. And lower courts have uniformly adopted the same approach when comparing federal and state crimes in order to apply the federal three-strikes statute. That law imposes mandatory life imprisonment on a person convicted on three separate occasions of a “serious violent felony.” 18 U. S. C. §3559(c)(1). Sounding very much like the INA, the three-strikes statute defines such a felony to include “a Federal or State offense, by whatever designation and wherever committed, consisting of” specified crimes (e.g., murder, manslaughter, robbery) “as described in” listed federal criminal statutes. §3559(c)(2)(F). In deciding whether a state crime of conviction thus corresponds to an enumerated federal statute, every court to have faced the issue has ignored the statute’s jurisdictional element. See, e.g., United States v. Rosario-Delgado, 198 F. 3d 1354, 1357 (CA11 1999) (per curiam); United States v. Wicks, 132 F. 3d 383, 386–387 (CA7 1997). Judge Wood, writing for the Seventh Circuit, highlighted the phrase “a Federal or State offense, by whatever designation and wherever committed”—the three-strikes law’s version of §1101(a)(43)’s penultimate sentence. “It is hard to see why Congress would have used this language,” she reasoned, “if it had meant that every detail of the federal offense, including its jurisdictional element[ ], had to be replicated in the state offense.” Id., at 386–387. Just so, too, in the INA—whose “aggravated felony” provisions operate against, and rely on, an established legal backdrop distinguishing between jurisdictional and substantive elements.[12] Luna objects to drawing that line on the ground that it is too hard to tell the difference between the two. See Brief for Petitioner 26–28 (discussing, in particular, statutes criminalizing the destruction of federal property and sending threats via the Postal Service). But that contention collides with the judicial experience just described. Courts regularly separate substantive from jurisdictional elements in applying federal criminal statutes’ mens rea requirements; so too in implementing other laws that require a comparison of federal and state offenses. And from all we can see, courts perform that task with no real trouble: Luna has not pointed to any divisions between or within Circuits arising from the practice. We do not deny that some tough questions may lurk on the margins—where an element that makes evident Congress’s regulatory power also might play a role in defining the behavior Congress thought harmful. But a standard interstate commerce element, of the kind appearing in a great many federal laws, is almost always a simple jurisdictional hook—and courts may as easily acknowledge that fact in enforcing the INA as they have done in other contexts. C Luna makes a final argument opposing our reading of §1101(a)(43): If Congress had meant for “ordinary state-law” crimes like arson to count as aggravated felonies, it would have drafted the provision to make that self-evident. Brief for Petitioner 20. Congress, Luna submits, would have used the generic term for those crimes—e.g., “arson”—rather than demanding that the state law of conviction correspond to a listed federal statute. See id., at 20–23. Or else, Luna (and the dissent) suggests, see id., at 24; post, at 13, Congress would have expressly distinguished between substantive and jurisdictional elements, as it did in an unrelated law mandating the pretrial detention of any person convicted of a federal offense “described in [a certain federal statute], or of a State or local offense that would have been an offense described in [that statute] if a circumstance giving rise to Federal jurisdiction had existed,” 18 U. S. C. §3142(e)(2)(A). But as an initial matter, Congress may have had good reason to think that a statutory reference would capture more accurately than a generic label the range of state convictions warranting automatic deportation. The clause of §1101(a)(43) applying to Luna’s case well illustrates the point. By referring to 18 U. S. C. §844(i), that provision incorporates not only the garden-variety arson offenses that a generic “arson” label would cover, but various explosives offenses too. See Brief for Petitioner 23, n. 7 (conceding that had Congress used the term “arson,” it would have had to separately identify the explosives crimes encompassed in §844(i)). And the elements of generic arson are themselves so uncertain as to pose problems for a court having to decide whether they are present in a given state law. See Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295, 364, 387–435 (1986) (describing multiple conflicts over what conduct the term “arson” includes). Nor is the clause at issue here unusual in those respects: Section 1101(a)(43) includes many other statutory references that do not convert easily to generic labels. See, e.g., §1101(a)(43)(E)(ii) (listing federal statutes defining various firearms offenses). To be sure, Congress used such labels to describe some crimes qualifying as aggravated felonies—for example, “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A). But what is good for some crimes is not for others. The use of a federal statutory reference shows only that Congress thought it the best way to identify certain substantive crimes—not that Congress wanted (in conflict with the penultimate sentence) to exclude state and foreign versions of those offenses for lack of a jurisdictional element. Still more, Congress’s omission of statutory language specifically directing courts to ignore those elements cannot tip the scales in Luna’s favor. We have little doubt that “Congress could have drafted [§1101(a)(43)] with more precision than it did.” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409, 422 (2005) . But the same could be said of many (even most) statutes; as to that feature, §1101(a)(43) can join a well-populated club. And we have long been mindful of that fact when interpreting laws. Rather than expecting (let alone demanding) perfection in drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress could have expressed itself more clearly. See, e.g., ibid.; Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. 33, 41 (2008) ; Scarborough v. United States, 431 U. S. 563 –571, 575 (1977). The question, then, is not: Could Congress have indicated (or even did Congress elsewhere indicate) in more crystalline fashion that comparisons of federal and state offenses should disregard elements that merely establish legislative jurisdiction? The question is instead, and more simply: Is that the right and fair reading of the statute before us? And the answer to that question, given the import of §1101(a)(43)’s penultimate sentence and the well-settled background rule distinguishing between jurisdictional and substantive elements, is yes. III That reading of §1101(a)(43) resolves this case. Luna has acknowledged that the New York arson law differs from the listed federal statute, 18 U. S. C. §844(i), in only one respect: It lacks an interstate commerce element. See Pet. for Cert. 3. And Luna nowhere contests that §844(i)’s commerce element—featuring the terms “in interstate or foreign commerce” and “affecting interstate or foreign commerce”—is of the standard, jurisdictional kind. See Tr. of Oral Arg. 12, 19; Scheidler, 547 U. S., at 17–18 (referring to the phrases “affect commerce” and “in commerce” as conventional “jurisdictional language”). For all the reasons we have given, such an element is properly ignored when determining if a state offense counts as an aggravated felony under §1101(a)(43). We accordingly affirm the judgment of the Second Circuit. It is so ordered.Notes 1 Compare Espinal-Andrades v. Holder, 777 F. 3d 163 (CA4 2015) (finding an aggravated felony in that circumstance); Spacek v. Holder, 688 F. 3d 536 (CA8 2012) (same); Nieto Hernandez v. Holder, 592 F. 3d 681 (CA5 2009) (same); Negrete-Rodriguez v. Mukasey, 518 F. 3d 497 (CA7 2008) (same); United States v. Castillo-Rivera, 244 F. 3d 1020 (CA9 2001) (same), with Bautista v. Attorney General, 744 F. 3d 54 (CA3 2014) (declining to find an aggravated felony). 2 That flat statement is infinitesimally shy of being wholly true. We have found a handful of state criminal laws with an interstate commerce element, out of the tens (or perhaps hundreds) of thousands of state crimes on the books. Mississippi, for example, lifted essentially verbatim the text of the federal money laundering statute when drafting its own, and thus wound up with such an element. See Miss. Code Ann. §97–23–101 (rev. 2014). But because the incidence of such laws is so vanishingly small, and the few that exist play no role in Luna’s arguments, we proceed without qualifying each statement of the kind above. 3 Black’s Law Dictionary 401 (5th ed. 1979) (defining “describe” as to “express, explain, set forth, relate, recount, narrate, depict, delineate, portray”). Luna also cites Webster’s New Collegiate Dictionary 307 (1976), which defines “describe” to mean “to represent or give an account of in words.” 4 See American Heritage Dictionary of the English Language 490 (5th ed. 2011) (defining “describe” as “[t]o convey an idea or impression of ”); Webster’s Third New International Dictionary 610 (1986) (defining “describe” as “to convey an image or notion of” or “trace or traverse the outline of ”). 5 The dissent disagrees, contending that the word “describe” decides this case in Luna’s favor because a “description cannot refer to features that the thing being described does not have.” Post, at 5 (opinion of Sotomayor, J.). Says the dissent: If a Craigslist ad “describes” an apartment as having an “in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet,” it does not describe an apartment lacking rooftop access. Ibid. That is true enough, but irrelevant. The dissent is right that when someone describes an object by a list of specific characteristics, he means that the item has each of those attributes. But things are different when someone uses a more general descriptor—even when that descriptor (as here, a federal statute) itself has a determinate set of elements. It would be natural, for example, to say (in the exact syntax of §1101(a)(43)) that a person followed the itinerary for a journey through Brazil that is “described in” a Lonely Planet guide if he traveled every leg of the tour other than a brief “detour north to Petrópolis.” The Lonely Planet, On the Road: Destination Brazil, http://media.lonelyplanet.com/shop/pdfs/brazil-8-getting-started.pdf (all Internet materials as last visited May 16, 2016). And similarly, a person would say that she had followed the instructions for setting up an iPhone that are “described in” the user’s manual even if she in fact ignored the one (specifically highlighted there) telling her to begin by “read[ing] important safety information” to “avoid injury.” Apple, Set Up iPhone, http://help.apple.com/iphone/9/#iph3bf43d79. 6 See 8 U. S. C. §1101(a)(43)(D) (“an offense described in” 18 U. S. C. §1956, which criminalizes laundering of monetary instruments); ibid. (“an offense described in” 18 U. S. C. §1957, which criminalizes engaging in monetary transactions involving property derived from specified unlawful activities); §1101(a)(43)(E)(i) (three “offense[s] described in” 18 U. S. C. §§842(h)–(i), 844(d), which criminalize activities involving explosives); ibid. (“an offense described in” 18 U. S. C. §844(e), which criminalizes threatening to cause death, injury, or property damage using explosives); ibid. (“an offense described in” 18 U. S. C. §844(i), which criminalizes using fire or explosives to cause property damage); §1101(a)(43)(E)(ii) (six “offense[s] described in” 18 U. S. C. §§922(g)(1)–(5), ( j), which criminalize possessing a firearm in various circumstances); ibid. (two “offense[s] described in” 18 U. S. C. §§922(n), 924(b),which criminalize transporting or receiving a firearm under certain circumstances); §1101(a)(43)(E)(iii) (“an offense described in” 26 U. S. C. §5861( j), which criminalizes transporting an unregistered firearm); §1101(a)(43)(H) (“an offense described in” 18 U. S. C. §875, which criminalizes making a threat to kidnap or a ransom demand); ibid. (“an offense described in” 18 U. S. C. §1202(b), which criminalizes possessing, receiving, or transmitting proceeds of a kidnapping); §1101(a)(43)(I) (“an offense described in” 18 U. S. C. §2251, which criminalizes sexually exploiting a child); ibid. (“an offense described in” 18 U. S. C. §2251A, which criminalizes selling a child for purposes of child pornography); ibid. (“an offense described in 18 U. S. C. §2252, which criminalizes various activities relating to child pornography); §1101(a)(43)(J) (“an offense described in” 18 U. S. C. §1962, which criminalizes activities relating to racketeering); ibid. (“an offense described in” 18 U. S. C. §1084, which criminalizes transmitting information to facilitate gambling); §1101(a)(43)(K)(ii) (“an offense described in” 18 U. S. C. §2421, which criminalizes transporting a person for purposes of prostitution); ibid. (“an offense described in” 18 U. S. C. §2422, which criminalizes coercing or enticing a person to travel for purposes of prostitution); ibid. (“an offense described in” 18 U. S. C. §2423, which criminalizes transporting a child for purposes of prostitution); §1101(a)(43)(K)(iii) (“an offense described in” 18 U. S. C. §1591(a)(1), which criminalizes sex trafficking of children, or of adults by force, fraud, or coercion). 7 The dissent replies: What’s the big deal? See post, at 10. After all, it reasons, some listed federal statutes—specifically, those prohibiting treason, levying war against the United States, and disclosing national defense information—will lack state or foreign analogues even under our construction. See ibid. But Congress’s inclusion of a few federal offenses that, by their nature, have no state or foreign analogues hardly excuses expelling from the Act’s coverage the countless state and foreign versions of 27 other serious crimes. 8 Luna’s position, in addition to producing this bizarre patchwork of coverage, conflicts with our ordinary assumption that Congress, when drafting a statute, gives each provision independent meaning. See United States v. Butler, 297 U. S. 1, 65 (1936) (“These words cannot be meaningless, else they would not have been used”). Until its most recent amendment, §1101(a)(43)(J ) provided that the term “aggravated felony” included any “offense described in [ 18 U. S. C. §1962] (relating to racketeer influenced corrupt organizations) for which a sentence of 5 years’ imprisonment or more may be imposed.” 8 U. S. C. §1101(a)(43)(J ) (1994 ed., Supp. I). (That provision now incorporates two more federal crimes, and uses one year of prison as the threshold.) The federal racketeering statute cited has an interstate commerce element; analogous state and foreign laws (per usual) do not, and therefore would fall outside §1101(a)(43)(J ) on Luna’s reading. But if Congress had meant to so exclude those state and foreign counterparts, then §1101(a)(43)(J )’s final clause—“for which a sentence of 5 years’ imprisonment may be imposed”—would have been superfluous, because federal racketeering is always punishable by more than five years’ imprisonment, see 18 U. S. C. §1963(a). That language’s presence shows that Congress thought §1101(a)(43)(J ) would sweep in some state and foreign laws: The final clause served to filter out such statutes when—but only when—they applied to less serious conduct than the federal racketeering offense. 9 The dissent attempts a variant of Luna’s “not so serious” argument, but to no better effect. Claims the dissent: Even if Congress could not have viewed “interstate crimes [as] worse than wholly intrastate crimes,” it might have thought that, say, “arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes.” Post, at 14 (emphasis added). But we see no call to suppose that Congress regarded state prosecutions as Grapefruit League versions of the Big Show. Cf. Mistretta v. United States, 488 U. S. 361, 427 (1989) (Scalia, J., dissenting). In our federal system, “States possess primary authority for defining and enforcing” criminal laws, including those prohibiting the gravest crimes. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) . For that reason, even when U. S. Attorneys have jurisdiction, they are generally to defer to, rather than supplant, state prosecutions of serious offenses. See U. S. Attorneys’ Manual: Principles of Federal Prosecution §9–27.240 (1997). And still more obviously, the dissent’s theory fails with respect to foreign convictions. That a foreign sovereign prosecutes a given crime reflects nothing about its gravity, but only about its location. 10 In all those States, arsons of every description (whether of one’s own or another’s property) would fall outside the “crime of violence” provision. See Tr. of Oral Arg. 29, 46 (Solicitor General noting that the categorical approach to comparing federal and state crimes produces that effect). And contrary to the dissent’s suggestion, post, at 6, n. 2, that would be true of the most dangerous arsons, as well as of less serious ones. The dissent similarly fails to take into account the categorical approach’s rigorous requirements when discussing a couple of the non-arson offenses discussed above. (Still others, the dissent wholly ignores.) It speculates that if the exact right state charge is filed, some of that conduct “may” qualify, through the crime-of-violence provision or some other route, as an aggravated felony. Ibid. “May” is very much the operative word there, because—depending on the elements of the state offense chosen—that conduct also “may not.” And the dissent never explains why Congress would have left the deportation of dangerous felons to such prosecutorial happenstance. 11 The dissent well-nigh embraces those consequences, arguing that a narrow reading of “aggravated felony” would make more convicted criminals removable under other statutory provisions, all of which allow for relief at the Attorney General’s discretion. See post, at 8, 15 (lamenting that aliens convicted of aggravated felonies may not “even appeal[ ] to the mercy of the Attorney General”). But Congress made a judgment that aliens convicted of certain serious offenses (irrespective of whether those convictions were based on federal, state, or foreign law) should be not only removable but also ineligible for discretionary relief. It is not our place to second-guess that decision. 12 The dissent declares our discussion of the three-strikes law, the Assimilative Crime Act (ACA), and mens rea “unhelpful” on the ground that all three contexts are somehow “differ[ent].” Post, at 10–13. But what makes them relevantly so the dissent fails to explain. First, the dissent errs in suggesting that the uniform judicial interpretation of the three-strikes law ignores only “place-based jurisdiction elements” (because, so says the dissent, of the phrase “wherever committed”). Post, at 13. As Judge Wood’s analysis indicates, that is a theory of the dissent’s own creation; the actual appellate decisions apply to all jurisdictional elements, not just territorial ones. Next, the dissent goes wrong in claiming that the ACA is not pertinent because this Court adopted a different method for matching substantive elements under that law than under the INA. See post, at 12. For even as the Court made that choice, it unanimously agreed that, however substantive elements should be compared, jurisdictional elements should be disregarded. See Lewis v. United States, 523 U. S. 155, 165 (1998) ; id., at 182 (Kennedy, J., dissenting). And finally, the dissent does nothing to undermine our point on mens rea by noting that Congress very occasionally dispenses with that requirement for substantive elements. See post, at 11. As just shown, the default rule respecting mental states flips as between jurisdictional and substantive elements, see supra, at 15–16—reflecting the view (also at play in the three-strikes and ACA contexts) that Congress generally means to treat the two differently. That leaves the dissent with nothing except its observation that when applying the beyond-a-reasonable-doubt and jury-trial requirements, the Court does not distinguish between jurisdictional and substantive elements. See post, at 10. But the dissent forgets that those commands are constitutional in nature; a principle of statutory interpretation distinguishing between the two kinds of elements, as best reflecting Congress’s intent, could not bear on those mandates.

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 . SUPREME COURT OF THE UNITED STATES Syllabus LUNA TORRES v. LYNCH, ATTORNEY GENERAL certiorari to the united states court of appeals for the second circuit No. 14–1096. Argued November 3, 2015—Decided May 19, 2016 Any alien convicted of an “aggravated felony” after entering the United States is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal. 8 U. S. C. §§1227(a)(2)(A)(iii), (3). An “aggravated felony” is defined as any of numerous offenses listed in §1101(a)(43), each of which is typically identified either as an offense “described in” a specific federal statute or by a generic label (e.g., “murder”). Section 1101(a)(43)’s penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. Petitioner Jorge Luna Torres (Luna), a lawful permanent resident, pleaded guilty in a New York court to attempted third-degree arson. When immigration officials discovered his conviction, they initiated removal proceedings. The Immigration Judge determined that Luna’s arson conviction was for an “aggravated felony” and held that Luna was therefore ineligible for discretionary relief. The Board of Immigration Appeals affirmed. It found the federal and New York arson offenses to be identical except for the former’s requirement that the crime have a connection to interstate or foreign commerce. Because the federal statute’s commerce element serves only a jurisdictional function, the Board held, New York’s arson offense is “described in” the federal statute, 18 U. S. C. §844(i), for purposes of determining whether an alien has been convicted of an aggravated felony. The Second Circuit denied review. Held: A state offense counts as a §1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce. Because Congress lacks general constitutional authority to punish crimes, most federal offenses include a jurisdictional element to tie the substantive crime to one of Congress’s enumerated powers. State legislatures are not similarly constrained, and so state crimes do not need such a jurisdictional hook. That discrepancy creates the issue here—whether a state offense lacking a jurisdictional element but otherwise mirroring a particular federal offense can be said to be “described” by that offense. Dictionary definitions of the word “described” do not clearly resolve this question one way or the other. Rather, two contextual considerations decide this case: §1101(a)(43)’s penultimate sentence and a well-established background principle that distinguishes between substantive and jurisdictional elements in criminal statutes. . (a) Section §1101(a)(43)’s penultimate sentence shows that Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. But Luna’s view would substantially undercut that function by excluding from the Act’s coverage all state and foreign versions of any enumerated federal offense containing an interstate commerce element. And it would do so in a particularly perverse fashion—excluding state and foreign convictions for many of §1101(a)(43)’s gravest crimes (e.g., most child pornography offenses), while reaching convictions for far less harmful offenses (e.g., operating an unlawful gambling business). Luna theorizes that such haphazard coverage might reflect Congress’s belief that crimes with an interstate connection are generally more serious than those without. But it is implausible that Congress viewed the presence of an interstate commerce element as separating serious from non-serious conduct. Luna’s theory misconceives the function of interstate commerce elements and runs counter to the penultimate sentence’s central message—that the state, federal, or foreign nature of a crime is irrelevant. And his claim that many serious crimes excluded for want of an interstate commerce element would nonetheless count as §1101(a)(43)(F) “crime[s] of violence” provides little comfort: That alternative would not include nearly all such offenses, nor even the worst ones. . (b) The settled practice of distinguishing between substantive and jurisdictional elements in federal criminal statutes also supports reading §1101(a)(43) to include state analogues that lack only an interstate commerce requirement. Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment. See, e.g., United States v. Yermian, 468 U. S. 63 . And that is true where, as here, the judicial task is to compare federal and state offenses. See Lewis v. United States, 523 U. S. 155 . . 764 F. 3d 152, affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Thomas and Breyer, JJ., joined.

The Immigration and Nationality Act (INA) makes any alien convicted of an "aggravated felony" deportable. The Act defines that term by listing various crimes, most of which are identified as offenses "described in" specified provisions of the federal criminal code. Immediately following that list, the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are in violation of federal, state, or foreign law. Petitioner, an alien who immigrated to the United States as a child and has lived here ever since as a lawful permanent resident, pleaded guilty to attempted arson in New York law, and was sentenced to a day in prison and five years of probation. Seven years later, immigration officials removed him from the country, and he applied for cancellation of removal, but the Immigration Judge found him ineligible because his arson conviction qualified as an aggravated felony. The Board of Immigration Appeals (Board) affirmed. Held: A state crime of that kind, such as the New York arson, lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction. . (a) The absence of such a jurisdictional element is immaterial. Section 1101(a)(43) of the INA defines the term as including, in addition to its jurisdictional one, the term (here, arson) which relates to the behavior that the statute calls a "violation of federal law," and which ties the substantive offense to one of Congress' constitutional powers, including its authority over interstate commerce, thus spelling out the warrant for Congress to legislate. Moreover, state criminal laws do not include the jurisdictional elements common in federal statutes, and so States have no reason to tie their substantive offenses to those grants of authority. Even state crimes whose substantive elements match up exactly with a federal law's will part ways with respect to interstate commerce. In contrast, §1101(43) defines the source of criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether the offenses are made illegal by the Federal Government, a State, or a foreign country. That is true of the crimes identified by reference to federal statutes. State legislatures, exercising their plenary police powers, are not limited to Congress' enumerated powers, and thus States have no reason to tie such offenses to such grants. And even state crimes that have no state or foreign analogues do not contain interstate commerce elements because a State does not need such a jurisdictional hook. Thus, state and foreign counterparts to a broad swath of listed federal statutes would remain outside the Act's coverage merely because they lack an explicit interstate commerce connection. For all the reasons discussed above, that result would significantly restrict the penultimate sentence's force and effect, and in an utterly random manner. Pp. 764 F. 3d 152. (b) A settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws supports the reading of § 1101 (43) to include state analogues lacking an interstate commerce requirement. Such elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But they are not created equal for every purpose. To the contrary, courts have often recognized (including when comparing federal and state offenses)that Congress uses substantive and such elements for different reasons and does not expect them to receive identical treatment.... In addition to producing this bizarre patchwork of coverage, this Court has routinely construed statutes to have a particular meaning even as it acknowledged that Congress could have expressed itself more clearly. And, in line with that practice, courts routinely have routinely held that a criminal defendant need not know of a federal crime's interstate commerce nexus to be found guilty. But the question, then, is not: Could Congress have indicated (or even did Congress elsewhere indicate) in more crystalline fashion that comparisons of state and federal offenses should disregard elements that merely establish legislative jurisdiction? The question is instead, and more simply, is that the right and fair reading of the statute before this Court? And the answer to that question, given the import of §§1101 and43) and the well-settled background rule distinguishing between jurisdictional and substantive elements, is yes. Cf. United States v. Lopez, 514 U. S. 549, 567. 8 U.S. 716. See, e.g., id., at 10. Luna has acknowledged that the arson law differs from the listed federal statute in only one respect, and she nowhere contests that §844(i)'s commerce element is of the standard, jurisdictional kind. She also misreads a provision of the Assimilative Crime Act (ACA) specifying that a crime of violence shall include a crime for which the term of imprisonment is at least one year. See Pet. for Cert. 3. And she misplaces the fact that many state and local offenses

2015_15-6092

https://www.oyez.org/cases/2015/15-6092

. The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense—i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception. I A ACCA prescribes a 15-year mandatory minimum sentence if a defendant is convicted of being a felon in possession of a firearm following three prior convictions for a “violent felony.” §924(e)(1). (Absent that sentence enhancement, the felon-in-possession statute sets a 10-year maximum penalty. See §924(a)(2).) ACCA defines the term “violent felony” to include any felony, whether state or federal, that “is burglary, arson, or extortion.” §924(e)(2)(B)(ii). In listing those crimes, we have held, Congress referred only to their usual or (in our terminol-ogy) generic versions—not to all variants of the offenses. See Taylor v. United States, 495 U. S. 575, 598 (1990) . That means as to burglary—the offense relevant in this case—that Congress meant a crime “contain[ing] the following elements: an unlawful or unprivileged entry into . . . a building or other structure, with intent to commit a crime.” Ibid. To determine whether a prior conviction is for generic burglary (or other listed crime) courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. See id., at 600–601. Distinguishing between elements and facts is therefore central to ACCA’s operation. “Elements” are the “constituent parts” of a crime’s legal definition—the things the “prosecution must prove to sustain a conviction.” Black’s Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see Richardson v. United States, 526 U. S. 813, 817 (1999) ; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty, see McCarthy v. United States, 394 U. S. 459, 466 (1969) . Facts, by contrast, are mere real-world things—extraneous to the crime’s legal requirements. (We have sometimes called them “brute facts” when distinguishing them from elements. Richardson, 526 U. S., at 817.) They are “circumstance[s]” or “event[s]” having no “legal effect [or] consequence”: In particular, they need neither be found by a jury nor admitted by a defendant. Black’s Law Dictionary 709. And ACCA, as we have always understood it, cares not a whit about them. See, e.g., Taylor, 495 U. S., at 599–602. A crime counts as “burglary” under the Act if its elements are the same as, or narrower than, those of the generic offense. But if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA “burglary”—even if the defendant’s actual conduct (i.e., the facts of the crime) fits within the generic offense’s boundaries. The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or “indivisible”) set of elements to define a single crime. The court then lines up that crime’s elements alongside those of the generic offense and sees if they match. So, for example, this Court found that a California statute swept more broadly than generic burglary because it criminalized entering a location (even if lawfully) with the intent to steal, and thus encompassed mere shoplifting. See id., at 591; Descamps v. United States, 570 U. S. ___, ___–___ (2013) (slip op., at 5–6). Accordingly, no conviction under that law could count as an ACCA predicate, even if the defendant in fact made an illegal entry and so committed burglary in its generic form. See id., at ___–___ (slip op., at 22–23). Some statutes, however, have a more complicated (sometimes called “divisible”) structure, making the comparison of elements harder. Id., at ___ (slip op., at 5). A single statute may list elements in the alternative, and thereby define multiple crimes. Suppose, for example, that the California law noted above had prohibited “the lawful entry or the unlawful entry” of a premises with intent to steal, so as to create two different offenses, one more serious than the other. If the defendant were convicted of the offense with unlawful entry as an element, then his crime of conviction would match generic burglary and count as an ACCA predicate; but, conversely, the conviction would not qualify if it were for the offense with lawful entry as an element. A sentencing court thus requires a way of figuring out which of the alternative elements listed—lawful entry or unlawful entry—was integral to the defendant’s conviction (that is, which was necessarily found or admitted). See id., at ___ (slip op., at 6). To address that need, this Court approved the “modified categorical approach” for use with statutes having multiple alternative elements. See, e.g., Shepard v. United States, 544 U. S. 13, 26 (2005) . Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. See ibid.; Taylor, 495 U. S., at 602. The court can then compare that crime, as the categorical approach commands, with the relevant generic offense. This case concerns a different kind of alternatively phrased law: not one that lists multiple elements disjunctively, but instead one that enumerates various factual means of committing a single element. See generally Schad v. Arizona, 501 U. S. 624, 636 (1991) (plurality opinion) (“[L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes”). To use a hypothetical adapted from two of our prior decisions, suppose a statute requires use of a “deadly weapon” as an element of a crime and further provides that the use of a “knife, gun, bat, or similar weapon” would all qualify. See Descamps, 570 U. S., at ___ (slip op., at 16); Richardson, 526 U. S., at 817. Because that kind of list merely specifies diverse means of satisfying a single element of a single crime—or otherwise said, spells out various factual ways of committing some component of the offense—a jury need not find (or a defendant admit) any particular item: A jury could convict even if some jurors “conclude[d] that the defendant used a knife” while others “conclude[d] he used a gun,” so long as all agreed that the defendant used a “deadly weapon.” Ibid.; see Descamps, 570 U. S., at ___ (slip op., at 14) (describing means, for this reason, as “legally extraneous circumstances”). And similarly, to bring the discussion back to burglary, a statute might—indeed, as soon discussed, Iowa’s burglary law does—itemize the various places that crime could occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make any specific findings (or a defendant admissions) on that score. The issue before us is whether ACCA treats this kind of statute as it does all others, imposing a sentence enhancement only if the state crime’s elements correspond to those of a generic offense—or instead whether the Act makes an exception for such a law, so that a sentence can be enhanced when one of the statute’s specified means creates a match with the generic offense, even though the broader element would not. B Petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. See §922(g). At sentencing, the Government asked the District Court to impose ACCA’s 15-year minimum penalty based on Mathis’s five prior convictions for burglary under Iowa law. Iowa’s burglary statute, all parties agree, covers more conduct than generic burglary does. See Brief for Petitioner 36; Brief for United States 44. The generic offense requires unlawful entry into a “building or other structure.” Taylor, 495 U. S., at 598; supra, at 2. Iowa’s statute, by contrast, reaches a broader range of places: “any building, structure, [or] land, water, or air vehicle.” Iowa Code §702.12 (2013) (emphasis added). And those listed locations are not alternative elements, going toward the creation of separate crimes. To the contrary, they lay out alternative ways of satisfying a single locational element, as the Iowa Supreme Court has held: Each of the terms serves as an “alternative method of committing [the] single crime” of burglary, so that a jury need not agree on which of the locations was actually involved. State v. Duncan, 312 N. W. 2d 519, 523 (Iowa 1981); see State v. Rooney, 862 N. W. 2d 367, 376 (Iowa 2015) (discussing the single “broadly phrased . . . element of place” in Iowa’s burglary law). In short, the statute defines one crime, with one set of elements, broader than generic burglary—while specifying multiple means of fulfilling its locational element, some but not all of which (i.e., buildings and other structures, but not vehicles) satisfy the generic definition. The District Court imposed an ACCA enhancement on Mathis after inspecting the records of his prior convictions and determining that he had burgled structures, rather than vehicles. See App. 34–35. The Court of Appeals for the Eighth Circuit affirmed. 786 F. 3d 1068 (2015). It acknowledged that Iowa’s burglary statute, by covering vehicles in addition to structures, swept more broadly than generic burglary. See id., at 1074. But it noted that if structures and vehicles were separate elements, each part of a different crime, then a sentencing court could invoke the modified categorical approach and look to old record materials to see which of those crimes the defendant had been convicted of. See id., at 1072–1074. And the Court of Appeals thought nothing changed if structures and vehicles were not distinct elements but only alternative means: “Whether [such locations] amount to alternative elements or merely alternative means to fulfilling an element,” the Eighth Circuit held, a sentencing court “must apply the modified categorical approach” and inspect the records of prior cases. Id., at 1075. If the court found from those materials that the defendant had in fact committed the offense in a way that satisfied the definition of generic burglary—here, by burgling a structure rather than a vehicle—then the court should treat the conviction as an ACCA predicate. And that was so, the Court of Appeals stated, even though the elements of the crime of conviction, in encompassing both types of locations, were broader than those of the relevant generic offense. See id., at 1074–1075. In this circumstance, the court thus found, ACCA’s usual elements-based inquiry would yield to a facts-based one. That decision added to a Circuit split over whether ACCA’s general rule—that a defendant’s crime of conviction can count as a predicate only if its elements match those of a generic offense—gives way when a statute happens to list various means by which a defendant can satisfy an element.[1] We granted certiorari to resolve that division, 577 U. S. ___ (2016), and now reverse. II A As just noted, the elements of Mathis’s crime of conviction (Iowa burglary) cover a greater swath of conduct than the elements of the relevant ACCA offense (generic burglary). See supra, at 5–6. Under our precedents, that undisputed disparity resolves this case. We have often held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. How a given defendant actually perpetrated the crime—what we have referred to as the “underlying brute facts or means” of commission, Richardson, 526 U. S., at 817—makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence. Those longstanding principles, and the reasoning that underlies them, apply regardless of whether a statute omits or instead specifies alternative possible means of commission. The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime’s elements and compare them with the generic definition. Taylor set out the essential rule governing ACCA cases more than a quarter century ago. All that counts under the Act, we held then, are “the elements of the statute of conviction.” 495 U. S., at 601. So, for example, the label a State assigns to a crime—whether “burglary,” “breaking and entering,” or something else entirely—has no relevance to whether that offense is an ACCA predicate. See id., at 590–592. And more to the point here: The same is true of “the particular facts underlying [the prior] convictions”—the means by which the defendant, in real life, committed his crimes. Id., at 600. That rule can seem counterintuitive: In some cases, a sentencing judge knows (or can easily discover) that the defendant carried out a “real” burglary, even though the crime of conviction also extends to other conduct. No matter. Under ACCA, Taylor stated, it is impermissible for “a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case.” Id., at 601. Accordingly, a sentencing judge may look only to “the elements of the [offense], not to the facts of [the] defendant’s conduct.” Ibid. That simple point became a mantra in our subsequent ACCA decisions.[2] At the risk of repetition (perhaps downright tedium), here are some examples. In Shepard: ACCA “refers to predicate offenses in terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of crimes.” 544 U. S., at 19 (alteration in original). In James v. United States: “[W]e have avoided any inquiry into the underlying facts of [the defendant’s] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law.” 550 U. S. 192, 214 (2007) . In Sykes v. United States: “[W]e consider [only] the elements of the offense[,] without inquiring into the specific conduct of this particular offender.” 564 U. S. 1, 7 (2011) (quoting James, 550 U. S., at 202; emphasis in original). And most recently (and tersely) in Descamps: “The key [under ACCA] is elements, not facts.” 570 U. S., at ___ (slip op., at 5). Our decisions have given three basic reasons for adhering to an elements-only inquiry. First, ACCA’s text favors that approach. By enhancing the sentence of a defendant who has three “previous convictions” for generic burglary, §924(e)(1)—rather than one who has thrice committed that crime—Congress indicated that the sentencer should ask only about whether “the defendant had been convicted of crimes falling within certain categories,” and not about what the defendant had actually done. Taylor, 495 U. S., at 600. Congress well knows how to instruct sentencing judges to look into the facts of prior crimes: In other statutes, using different language, it has done just that. See United States v. Hayes, 555 U. S. 415, 421 (2009) (concluding that the phrase “an offense . . . committed” charged sentencers with considering non-elemental facts); Nijhawan v. Holder, 557 U. S. 29, 36 (2009) (construing an immigration statute to “call[ ] for a ‘circumstance-specific,’ not a ‘categorical’ interpretation”). But Congress chose another course in ACCA, focusing on only “the elements of the statute of conviction.” Taylor, 495 U. S., at 601. Second, a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. This Court has held that only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. See Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) . That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. See Shepard, 544 U. S., at 25 (plurality opinion); id., at 28 (Thomas, J., concurring in part and concurring in judgment) (stating that such an approach would amount to “constitutional error”). He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about “what the defendant and state judge must have understood as the factual basis of the prior plea” or “what the jury in a prior trial must have accepted as the theory of the crime.” See id., at 25 (plurality opinion); Descamps, 570 U. S., at ___ (slip op., at 14). He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. And third, an elements-focus avoids unfairness to defendants. Statements of “non-elemental fact” in the records of prior convictions are prone to error precisely because their proof is unnecessary. Id., at ___ (slip op., at 15). At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he “may have good reason not to”—or even be precluded from doing so by the court. Ibid. When that is true, a prosecutor’s or judge’s mistake as to means, reflected in the record, is likely to go uncorrected. See ibid.[3] Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence. Those three reasons stay as strong as ever when a statute, instead of merely laying out a crime’s elements, lists alternative means of fulfilling one (or more) of them. ACCA’s use of the term “convictions” still supports an elements-based inquiry; indeed, that language directly refutes an approach that would treat as consequential a statute’s reference to factual circumstances not essential to any conviction. Similarly, the Sixth Amendment problems associated with a court’s exploration of means rather than elements do not abate in the face of a statute like Iowa’s: Whether or not mentioned in a statute’s text, alternative factual scenarios remain just that—and so remain off-limits to judges imposing ACCA enhancements. And finally, a statute’s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. Whatever the statute says, or leaves out, about diverse ways of committing a crime makes no difference to the defendant’s incentives (or lack thereof ) to contest such matters. For these reasons, the court below erred in applying the modified categorical approach to determine the means by which Mathis committed his prior crimes. 786 F. 3d, at 1075. ACCA, as just explained, treats such facts as irrelevant: Find them or not, by examining the record or anything else, a court still may not use them to enhance a sentence. And indeed, our cases involving the modified categorical approach have already made exactly that point. “[T]he only [use of that approach] we have ever allowed,” we stated a few Terms ago, is to determine “which element[s] played a part in the defendant’s conviction.” Descamps, 570 U. S., at ___, ___ (slip op., at 5, 8) (emphasis added); see Taylor, 495 U. S., at 602 (noting that the modified approach may be employed only to determine whether “a jury necessarily had to find” each element of generic burglary). In other words, the modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque. See Descamps, 570 U. S., at ___ (slip op., at 8).[4] It is not to be repurposed as a technique for discovering whether a defendant’s prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense. B The Government and Justice Breyer claim that our longtime and exclusive focus on elements does not resolve this case because (so they say) when we talked about “elements,” we did not really mean it. “[T]he Court used ‘elements,’ ” the Government informs us, “not to distinguish between ‘means’ and ‘elements,’ ” but instead to refer to whatever the statute lists—whether means or elements. Brief for United States 8; see id., at 19. In a similar vein, Justice Breyer posits that every time we said the word “element,” we “used the word generally, simply to refer to the matter at issue,” without “intend[ing] to set forth a generally applicable rule.” Post, at 11–12 (dissenting opinion). But a good rule of thumb for reading our decisions is that what they say and what they mean are one and the same; and indeed, we have previously insisted on that point with reference to ACCA’s elements-only approach. In Descamps, the sole dissenting Justice made an argument identical to the one now advanced by the Government and Justice Breyer: that our prior caselaw had not intended to distinguish between statutes listing alternative elements and those setting out “merely alternative means” of commission. 570 U. S., at ___ (slip op., at 7) (opinion of Alito, J.).[5] The Court rejected that contention, stating that “[a]ll those decisions rested on the explicit premise that the laws contain[ed] statutory phrases that cover several different crimes, not several different methods of committing one offense”—in other words, that they listed alternative elements, not alternative means. Id., at ___, n. 2 (slip op., at 9, n. 2) (ellipsis and internal quotation marks omitted); see, e.g., Johnson v. United States, 559 U. S. 133, 144 (2010) ; Nijhawan, 557 U. S., at 35. That premise was important, we explained, because an ACCA penalty may be based only on what a jury “necessarily found” to convict a defendant (or what he necessar-ily admitted). Descamps, 570 U. S., at ___, ___ (slip op., at 11, 17). And elements alone fit that bill; a means, or (as we have called it) “non-elemental fact,” is “by definition[ ] not necessary to support a conviction.” Id., at ___, n. 3, __ (slip op., at 11, n. 3, 15); see supra, at 2.[6] Accordingly, Descamps made clear that when the Court had earlier said (and said and said) “elements,” it meant just that and nothing else. For that reason, this Court (including Justice Breyer) recently made clear that a court may not look behind the elements of a generally drafted statute to identify the means by which a defendant committed a crime. See Descamps, 570 U. S., at ___ (slip op., at 2). Consider if Iowa defined burglary as involving merely an unlawful entry into a “premises”—without any further elaboration of the types of premises that exist in the world (e.g., a house, a building, a car, a boat). Then, all agree, ACCA’s elements-focus would apply. No matter that the record of a prior conviction clearly indicated that the defendant burgled a house at 122 Maple Road—and that the jury found as much; because Iowa’s (hypothetical) law included an element broader than that of the generic offense, the defendant could not receive an ACCA sentence. Were that not so, this Court stated, “the categorical approach [would be] at an end”; the court would merely be asking “whether a particular set of facts leading to a conviction conforms to a generic ACCA offense.” Id., at ___ (slip op., at 19). That conclusion is common ground, and must serve as the baseline for anything Justice Breyer (or the Government) here argues. And contrary to his view, that baseline not only begins but also ends the analysis, because nothing material changes if Iowa’s law further notes (much as it does) that a “premises” may include “a house, a building, a car, or a boat.” That fortuity of legislative drafting affects neither the oddities of applying the categorical approach nor the reasons for doing so. On the one hand, a categorical inquiry can produce the same counter-intuitive conse-quences however a state law is written. Whether or not the statute lists various means of satisfying the “premises” element, the record of a prior conviction is just as likely to make plain that the defendant burgled that house on Maple Road and the jury knew it. On the other hand (and as already shown), the grounds—constitutional, statutory, and equitable—that we have offered for nonetheless using the categorical approach lose none of their force in the switch from a generally phrased statute (leaving means implicit) to a more particular one (expressly enumerating them). See supra, at 11. In every relevant sense, both functional and legal, the two statutes—one saying just “premises,” the other listing structures and vehicles—are the same. And so the same rule must apply: ACCA disregards the means by which the defendant committed his crime, and looks only to that offense’s elements. C The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction, and then compare that element (along with all others) to those of the generic crime. See ibid. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution. Given ACCA’s indifference to how a defendant actually committed a prior offense, the court may ask only whether the elements of the state crime and generic offense make the requisite match. This threshold inquiry—elements or means?—is easy in this case, as it will be in many others. Here, a state court decision definitively answers the question: The listed premises in Iowa’s burglary law, the State Supreme Court held, are “alternative method[s]” of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle. See Duncan, 312 N. W. 2d, at 523; supra, at 6. When a ruling of that kind exists, a sentencing judge need only follow what it says. See Schad, 501 U. S., at 636 (plurality opinion). Likewise, the statute on its face may resolve the issue. If statutory alternatives carry different punishments, then under Apprendi they must be elements. See, e.g., Colo. Rev. Stat. §18–4–203 (2015); Vt. Stat. Ann., Tit. 13, §1201 (Cum. Supp. 2015); see also 530 U. S., at 490 (requiring a jury to agree on any circumstance increasing a statutory penalty); supra, at 10. Conversely, if a statutory list is drafted to offer “illustrative examples,” then it includes only a crime’s means of commission. United States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see United States v. Cabrera-Umanzor, 728 F. 3d 347, 353 (CA4 2013). And a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means). See, e.g., Cal. Penal Code Ann. §952 (West 2008). Armed with such authoritative sources of state law, federal sentencing courts can readily determine the nature of an alternatively phrased list. And if state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself. As Judge Kozinski has explained, such a “peek at the [record] documents” is for “the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.” Rendon v. Holder, 782 F. 3d 466, 473–474 (CA9 2015) (opinion dissenting from denial of reh’g en banc).[7] (Only if the answer is yes can the court make further use of the materials, as previously described, see supra, at 12–13.) Suppose, for example, that one count of an indictment and correlative jury instructions charge a defendant with burgling a “building, structure, or vehicle”—thus reiterating all the terms of Iowa’s law. That is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use a single umbrella term like “premises”: Once again, the record would then reveal what the prosecutor has to (and does not have to) demonstrate to prevail. See Descamps, 570 U. S., at ___ (slip op., at 17). Conversely, an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime. Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy “Taylor’s demand for certainty” when determining whether a defendant was convicted of a generic offense. Shepard, 544 U. S., at 21. But between those documents and state law, that kind of indeterminacy should prove more the exception than the rule. III Our precedents make this a straightforward case. For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements. Courts must ask whether the crime of conviction is the same as, or narrower than, the relevant generic offense. They may not ask whether the defendant’s conduct—his particular means of committing the crime—falls within the generic definition. And that rule does not change when a statute happens to list possible alternative means of commission: Whether or not made explicit, they remain what they ever were—just the facts, which ACCA (so we have held, over and over) does not care about. Some have raised concerns about this line of decisions, and suggested to Congress that it reconsider how ACCA is written. See, e.g., Chambers v. United States, 555 U. S. 122, 133 (2009) (Alito, J., concurring in judgment); Descamps, 570 U. S., at ___ (slip op., at 2) (Kennedy, J., concurring). But whether for good or for ill, the elements-based approach remains the law. And we will not introduce inconsistency and arbitrariness into our ACCA decisions by here declining to follow its requirements. Everything this Court has ever said about ACCA runs counter to the Government’s position. That alone is sufficient reason to reject it: Coherence has a claim on the law. Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s convictions under that law cannot give rise to an ACCA sentence. We accordingly reverse the judgment of the Court of Appeals. It is so ordered.Notes 1 Compare 786 F. 3d 1068 (CA8 2015) (case below) (recognizing such an exception); United States v. Ozier, 796 F. 3d 597 (CA6 2015) (same); United States v. Trent, 767 F. 3d 1046 (CA10 2014) (same), with Rendon v. Holder, 764 F. 3d 1077 (CA9 2014) (rejecting that exception); Omargharib v. Holder, 775 F. 3d 192 (CA4 2014) (same). 2 So too in our decisions applying the categorical approach outside the ACCA context—most prominently, in immigration cases. See, e.g., Kawashima v. Holder, 565 U. S. 478 –483 (2012) (stating that a judge must look to the “formal element[s] of a conviction[,] rather than to the specific facts underlying the crime,” in deciding whether to deport an alien for committing an “aggravated felony”). 3 To see the point most clearly, consider an example arising in the immigration context: A defendant charged under a statute that criminalizes “intentionally, knowingly, or recklessly” assaulting another—as exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s statement that he committed the crime intentionally (as opposed to recklessly) if those mental states are interchangeable means of satisfying a single mens rea element. But such a statement, if treated as reliable, could make a huge difference in a deportation proceeding years in the future, because an intentional assault (unlike a reckless one) qualifies as a “crime involving moral turpitude,” and so requires removal from the country. See In re Gomez-Perez, No. A200–958–511, p. 2 (BIA 2014). 4 Descamps made the point at some length, adding that the modified categorical approach “retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates ‘several different . . . crimes.’ If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.” 570 U. S., at ___ (slip op., at 8) (citation omitted). 5 In another solo dissent, Justice Alito today switches gears, arguing not that our precedent is consistent with his means-based view, but instead that all of our ACCA decisions are misguided because all follow from an initial wrong turn in Taylor v. United States, 495 U. S. 575 (1990) . See post, at 2–3. To borrow the driving metaphor of his own dissent, Justice Alito thus locates himself entirely off the map of our caselaw. But that is not surprising; he has harshly criticized the categorical approach (and Apprendi too) for many years. See, e.g., Johnson v. United States, 576 U. S. ___, ___–___ (2015) (Alito, J., dissenting) (slip op., at 8–13); Descamps, 570 U. S., at ___–___ (Alito, J., dissenting) (slip op., at 4–5); Moncrieffe v. Holder, 569 U. S. ___, ___–___ (2013) (Alito, J., dissenting) (slip op., at 10–11); Chambers v. United States, 555 U. S. 122 –134 (2009) (Alito, J., concurring in judgment); see also Hurst v. Florida, 577 U. S. ___, ___ (2016) (Alito, J., dissenting) (slip op., at 2); Alleyne v. United States, 570 U. S. ___, ___–___ (2013) (Alito, J., dissenting) (slip op., at 1–2). 6 Justice Breyer’s dissent rests on the idea that, contrary to that long-accepted definition, a jury sometimes does “necessarily ha[ve] to find” a means of commission, see post, at 6 (quoting Taylor, 495 U. S., at 602)—but Descamps specifically refuted that argument too. In that case, Justice Alito made the selfsame claim: A jury, he averred, should be treated as having “necessarily found” any fact, even though non-elemental, that a later sentencing court can “infer[ ]” that the jury agreed on “as a practical matter.” 570 U. S., at ___ (Alito, J., dissenting) (slip op., at 15). The Court rejected that view, explaining that its ACCA decisions had always demanded that a jury necessarily agree as a legal matter—which meant on elements and not on means. See id., at ___, n. 3 (slip op., at 10, n. 3). The requirement, from the Court’s earliest decisions, was that a judge could impose a 15-year sentence based only on a legal “certainty,” not on his inference (however reasonable in a given case) about what a prior factfinder had thought. Shepard, 544 U. S., at 23; see Taylor, 495 U. S., at 602; supra, at 10. Or otherwise said, the relevant question was whether a defendant was legally convicted of a certain offense (with a certain set of elements), not whether a sentencing judge believes that the factfinder would have convicted him of that offense had it been on the books. See Carachuri-Rosendo v. Holder, 560 U. S. 563, 576 (2010) (rejecting such a “hypothetical” approach given a similar statute’s directive to “look to the conviction itself”). 7 Descamps previously recognized just this way of discerning whether a statutory list contains means or elements. See 570 U. S., at ___, n. 2 (slip op., at 8–9, n. 2). The Court there noted that indictments, jury instructions, plea colloquies and plea agreements will often “reflect the crime’s elements” and so can reveal—in some cases better than state law itself—whether a statutory list is of elements or means. Ibid. Accordingly, when state law does not resolve the means-or-elements question, courts should “resort[ ] to the [record] documents” for help in making that determination. Ibid.

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 . SUPREME COURT OF THE UNITED STATES Syllabus MATHIS v. UNITED STATES certiorari to the united states court of appeals for the eighth circuit No. 15–6092. Argued April 26, 2016—Decided June 23, 2016 The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions “for a violent felony,” including “burglary, arson, or extortion.” 18 U. S. C. §§924(e)(1), (e)(2)(B)(ii). To determine whether a prior conviction is for one of those listed crimes, courts apply the “categorical approach”—they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime. See Taylor v. United States, 495 U. S. 575 –601. “Elements” are the constituent parts of a crime’s legal definition, which must be proved beyond a reasonable doubt to sustain a conviction; they are distinct from “facts,” which are mere real-world things—extraneous to the crime’s legal requirements and thus ignored by the categorical approach. When a statute defines only a single crime with a single set of elements, application of the categorical approach is straightforward. But when a statute defines multiple crimes by listing multiple, alternative elements, the elements-matching required by the categorical approach is more difficult. To decide whether a conviction under such a statute is for a listed ACCA offense, a sentencing court must discern which of the alternative elements was integral to the defendant’s conviction. That determination is made possible by the “modified categorical approach,” which permits a court to look at a limited class of documents from the record of a prior conviction to determine what crime, with what elements, a defendant was convicted of before comparing that crime’s elements to those of the generic offense. See, e.g., Shepard v. United States, 544 U. S. 13 . This case involves a different type of alternatively worded statute—one that defines only one crime, with one set of elements, but which lists alternative factual means by which a defendant can satisfy those elements. Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because of his five prior Iowa burglary convictions, the Government requested an ACCA sentence enhancement. Under the generic offense, burglary requires unlawful entry into a “building or other structure.” Taylor, 495 U. S., at 598. The Iowa statute, however, reaches “any building, structure, [or] land, water, or air vehicle.” Iowa Code §702.12. Under Iowa law, that list of places does not set out alternative elements, but rather alternative means of fulfilling a single locational element. The District Court applied the modified categorical approach, found that Mathis had burgled structures, and imposed an enhanced sentence. The Eighth Circuit affirmed. Acknowledging that the Iowa statute swept more broadly than the generic statute, the court determined that, even if “structures” and “vehicles” were not separate elements but alternative means of fulfilling a single element, a sentencing court could still invoke the modified categorical approach. Because the record showed that Mathis had burgled structures, the court held, the District Court’s treatment of Mathis’s prior convictions as ACCA predicates was proper. Held: Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s prior convictions cannot give rise to ACCA’s sentence enhancement. . (a) This case is resolved by this Court’s precedents, which have repeatedly held, and in no uncertain terms, that a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The “underlying brute facts or means” by which the defendant commits his crime, Richardson v. United States, 526 U. S. 813 , make no difference; even if the defendant’s conduct, in fact, fits within the definition of the generic offense, the mismatch of elements saves him from an ACCA sentence. ACCA requires a sentencing judge to look only to “the elements of the [offense], not to the facts of [the] defendant’s conduct.” Taylor, 495 U. S., at 601. This Court’s cases establish three basic reasons for adhering to an elements-only inquiry. First, ACCA’s text, which asks only about a defendant’s “prior convictions,” indicates that Congress meant for the sentencing judge to ask only whether “the defendant had been convicted of crimes falling within certain categories,” id., at 600, not what he had done. Second, construing ACCA to allow a sentencing judge to go any further would raise serious Sixth Amendment concerns because only a jury, not a judge, may find facts that increase the maximum penalty. See Apprendi v. New Jersey, 530 U. S. 466 . And third, an elements-focus avoids unfairness to defendants, who otherwise might be sentenced based on statements of “non-elemental fact[s]” that are prone to error because their proof is unnecessary to a conviction. Descamps v. United States, 570 U. S. ___, ___. Those reasons remain as strong as ever when a statute, like Iowa’s burglary statute, lists alternative means of fulfilling one (or more) of a crime’s elements. ACCA’s term “convictions” still supports an elements-based inquiry. The Sixth Amendment problems associated with a court’s exploration of means rather than elements do not abate in the face of a statute like Iowa’s: Alternative factual scenarios remain just that, and thus off-limits to sentencing judges. Finally, a statute’s listing of disjunctive means does nothing to mitigate the possible unfairness of basing an increased penalty on something not legally necessary to a prior conviction. Accordingly, whether means are listed in a statute or not, ACCA does not care about them; rather, its focus, as always, remains on a crime’s elements. . (b) The first task for a court faced with an alternatively phrased statute is thus to determine whether the listed items are elements or means. That threshold inquiry is easy here, where a State Supreme Court ruling answers the question. A state statute on its face could also resolve the issue. And if state law fails to provide clear answers, the record of a prior conviction itself might prove useful to determining whether the listed items are elements of the offense. If such record materials do not speak plainly, a sentencing judge will be unable to satisfy “Taylor’s demand for certainty.” Shepard, 544 U. S., at 21. But between the record and state law, that kind of indeterminacy should prove more the exception than the rule. . 786 F. 3d 1068, reversed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Sotomayor, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Alito, J., filed a dissenting opinion.

The Armed Career Criminal Act (ACCA or Act) imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a "violent felony," including, inter alia, a "burglary, arson, or extortion." To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction, i.e., the offense as commonly understood. The Act defines the term to include any felony, whether state or federal, that "contain[s] the following elements: an unlawful or unprivileged entry into... a building or other structure, with intent to commit a crime...." To determine whether the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense, a sentencing court must look to a limited class of documents to determine what crime, with what elements, a defendant was convicted of. A sentencing court may then compare that crime, as the categorical approach commands, with the relevant generic offense. The District Court imposed an additional ACCA enhancement on the defendant after inspecting the records of his prior convictions and determining that he had burgled structures, rather than vehicles, and the Court of Appeals affirmed. Held: The prior crime does not qualify as a predicate under the Act when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. . (a) The text of the Act favors an elements-only inquiry. By enhancing the sentence of a defendant who has three generic burglary convictions, Congress indicated that the sentencer should ask only about whether the defendant had been convicted of crimes falling within certain categories, and not about what he had actually done. And Congress well knows how to instruct sentencing judges to look into the facts of prior crimes: In other statutes, using different language, it has done just that. However, Congress chose another course in ACCA, focusing on only the elements, while ignoring the particular facts of the case. Thus, a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. Moreover, the grounds that this Court has offered for the use of such a construction have offered for more than 25 years for the same kind of categorical rule. Here, a state court decision definitively answers the question: The listed premises in Iowa burglary law are not alternative elements, going toward the creation of separate crimes. Rather, they lay out alternative ways of satisfying a single locational element, so that a jury need not agree on which of the locations was actually involved in the earlier prosecution. Similarly, the Iowa statute, by covering vehicles in addition to structures, swept more broadly than generic burglary. In this circumstance, the court found, ACCA's usual elements-based inquiry would yield to a facts-based one. That decision added to a Circuit split over whether the general rule gives way when a statute happens to list various means by which a defendant can satisfy an element. (b) A state crime cannot qualify as such a predicate if it is broader than those of a listed generic offense (generic burglary). A categorical inquiry is as straightforward as any of the elements listed. If the record of a prior conviction clearly indicates that the defendant burgled a house at 122 Maple Road, and that the jury found as much, a court still may not use them to enhance a sentence. But if the record fails to provide clear answers, federal judges have another place to look: the record. Descamps previously recognized just this way of discerning whether a statutory list contains means or elements. See, e.g., Taylor, 495 U. S., at ___ (slip op., at 8). In contrast, the modified approach serves, and serves solely, as a tool to identify elements of a crime when the statute's disjunctive phrasing renders one or more of them opaque. It is not to be repurposed as a technique for discovering whether a defendant's prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense; and, whether for good or for ill, the elements based approach remains the law. This Court will not introduce inconsistency and arbitrariness into ACCA decisions by declining to follow its requirements. Pp. 489 U.S. 574-607. 792 F. 3d 1068, reversed. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in Parts I, II, and III of which BRENNAN, MARSHALL, BLACKMUN, and SCALIA, joined. WHITE, J

2015_15-474

https://www.oyez.org/cases/2015/15-474

. In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies. To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. Supp. App. 47–48. The Government also argued more broadly that these activities constituted “official action” because they related to Vir-ginia business development, a priority of Governor Mc-Donnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official—without more—does not count as an “official act.” At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.” I A On November 3, 2009, petitioner Robert McDonnell was elected the 71st Governor of Virginia. His campaign slogan was “Bob’s for Jobs,” and his focus in office was on promoting business in Virginia. As Governor, McDonnell spoke about economic development in Virginia “on a daily basis” and attended numerous “events, ribbon cuttings,” and “plant facility openings.” App. 4093, 5241. He also referred thousands of constituents to meetings with members of his staff and other government officials. According to longtime staffers, Governor McDonnell likely had more events at the Virginia Governor’s Mansion to promote Virginia business than had occurred in “any other administration.” Id., at 4093. This case concerns Governor McDonnell’s interactions with one of his constituents, Virginia businessman Jonnie Williams. Williams was the CEO of Star Scientific, a Virginia-based company that developed and marketed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped to obtain Food and Drug Administration approval of Anatabloc as an anti-inflammatory drug. An important step in securing that approval was initiating independent research studies on the health benefits of anatabine. Star Scientific hoped Virginia’s public universities would undertake such studies, pursuant to a grant from Virginia’s Tobacco Commission. Governor McDonnell first met Williams in 2009, when Williams offered McDonnell transportation on his private airplane to assist with McDonnell’s election campaign. Shortly after the election, Williams had dinner with Governor and Mrs. McDonnell at a restaurant in New York. The conversation turned to Mrs. McDonnell’s search for a dress for the inauguration, which led Williams to offer to purchase a gown for her. Governor McDonnell’s counsel later instructed Williams not to buy the dress, and Mrs. McDonnell told Williams that she would take a rain check. Id., at 2203–2209. In October 2010, Governor McDonnell and Williams met again on Williams’s plane. During the flight, Williams told Governor McDonnell that he “needed his help” moving forward on the research studies at Virginia’s public universities, and he asked to be introduced to the person that he “needed to talk to.” Id., at 2210–2211. Governor McDonnell agreed to introduce Williams to Dr. William Hazel, Virginia’s Secretary of Health and Human Resources. Williams met with Dr. Hazel the following month, but the meeting was unfruitful; Dr. Hazel was skeptical of the science behind Anatabloc and did not assist Williams in obtaining the studies. Id., at 2211–2217, 3738–3749. Six months later, Governor McDonnell’s wife, Maureen McDonnell, offered to seat Williams next to the Governor at a political rally. Shortly before the event, Williams took Mrs. McDonnell on a shopping trip and bought her $20,000 worth of designer clothing. The McDonnells later had Williams over for dinner at the Governor’s Mansion, where they discussed research studies on Anatabloc. Id., at 6560. Two days after that dinner, Williams had an article about Star Scientific’s research e-mailed to Mrs. McDonnell, which she forwarded to her husband. Less than an hour later, Governor McDonnell texted his sister to discuss the financial situation of certain rental properties they owned in Virginia Beach. Governor McDonnell also e-mailed his daughter to ask about expenses for her upcoming wedding. The next day, Williams returned to the Governor’s Mansion for a meeting with Mrs. McDonnell. At the meeting, Mrs. McDonnell described the family’s financial problems, including their struggling rental properties in Virginia Beach and their daughter’s wedding expenses. Mrs. McDonnell, who had experience selling nutritional supplements, told Williams that she had a background in the area and could help him with Anatabloc. According to Williams, she explained that the “Governor says it’s okay for me to help you and—but I need you to help me. I need you to help me with this financial situation.” Id., at 2231. Mrs. McDonnell then asked Williams for a $50,000 loan, in addition to a $15,000 gift to help pay for her daughter’s wedding, and Williams agreed. Williams testified that he called Governor McDonnell after the meeting and said, “I understand the financial problems and I’m willing to help. I just wanted to make sure that you knew about this.” Id., at 2233. According to Williams, Governor McDonnell thanked him for his help. Ibid. Governor McDonnell testified, in contrast, that he did not know about the loan at the time, and that when he learned of it he was upset that Mrs. McDonnell had requested the loan from Williams. Id., at 6095–6096. Three days after the meeting between Williams and Mrs. McDonnell, Governor McDonnell directed his assistant to forward the article on Star Scientific to Dr. Hazel. In June 2011, Williams sent Mrs. McDonnell’s chief of staff a letter containing a proposed research protocol for the Anatabloc studies. The letter was addressed to Governor McDonnell, and it suggested that the Governor “use the attached protocol to initiate the ‘Virginia Study’ of Anatabloc at the Medical College of Virginia and the University of Virginia School of Medicine.” Id., at 2254. Governor McDonnell gave the letter to Dr. Hazel. Id., at 6121–6122. Williams testified at trial that he did not “recall any response” to the letter. Id., at 2256. In July 2011, the McDonnell family visited Williams’s vacation home for the weekend, and Governor McDonnell borrowed Williams’s Ferrari while there. Shortly thereafter, Governor McDonnell asked Dr. Hazel to send an aide to a meeting with Williams and Mrs. McDonnell to discuss research studies on Anatabloc. The aide later testified that she did not feel pressured by Governor or Mrs. McDonnell to do “anything other than have the meeting,” and that Williams did not ask anything of her at the meeting. Id., at 3075. After the meeting, the aide sent Williams a “polite blow-off” e-mail. Id., at 3081. At a subsequent meeting at the Governor’s Mansion, Mrs. McDonnell admired Williams’s Rolex and mentioned that she wanted to get one for Governor McDonnell. Williams asked if Mrs. McDonnell wanted him to purchase a Rolex for the Governor, and Mrs. McDonnell responded, “Yes, that would be nice.” Id., at 2274. Williams did so, and Mrs. McDonnell later gave the Rolex to Governor McDonnell as a Christmas present. In August 2011, the McDonnells hosted a lunch event for Star Scientific at the Governor’s Mansion. According to Williams, the purpose of the event was to launch Anatabloc. See id., at 2278. According to Governor McDonnell’s gubernatorial counsel, however, it was just lunch. See id., at 3229–3231. The guest list for the event included researchers at the University of Virginia and Virginia Commonwealth University. During the event, Star Scientific distributed free samples of Anatabloc, in addition to eight $25,000 checks that researchers could use in preparing grant proposals for studying Anatabloc. Governor McDonnell asked researchers at the event whether they thought “there was some scientific validity” to Anatabloc and “whether or not there was any reason to explore this further.” Id., at 3344. He also asked whether this could “be something good for the Commonwealth, particularly as it relates to economy or job creation.” Ibid. When Williams asked Governor McDonnell whether he would support funding for the research studies, Governor McDonnell “very politely” replied, “I have limited decision-making power in this area.” Id., at 3927. In January 2012, Mrs. McDonnell asked Williams for an additional loan for the Virginia Beach rental properties, and Williams agreed. On February 3, Governor McDonnell followed up on that conversation by calling Williams to discuss a $50,000 loan. Several days later, Williams complained to Mrs. McDonnell that the Virginia universities were not returning Star Scientific’s calls. She passed Williams’s complaint on to the Governor. While Mrs. McDonnell was driving with Governor McDonnell, she also e-mailed Governor McDonnell’s counsel, stating that the Governor “wants to know why nothing has developed” with the research studies after Williams had provided the eight $25,000 checks for preparing grant proposals, and that the Governor “wants to get this going” at the universities. Id., at 3214, 4931. According to Governor McDonnell, how-ever, Mrs. McDonnell acted without his knowledge or per-mission, and he never made the statements she attributed to him. Id., at 6306–6308. On February 16, Governor McDonnell e-mailed Williams to check on the status of documents related to the $50,000 loan. A few minutes later, Governor McDonnell e-mailed his counsel stating, “Please see me about Anatabloc issues at VCU and UVA. Thanks.” Id., at 3217. Governor McDonnell’s counsel replied, “Will do. We need to be careful with this issue.” Ibid. The next day, Governor McDonnell’s counsel called Star Scientific’s lobbyist in order to “change the expectations” of Star Scientific regarding the involvement of the Governor’s Office in the studies. Id., at 3219. At the end of February, Governor McDonnell hosted a healthcare industry reception at the Governor’s Mansion, which Williams attended. Mrs. McDonnell also invited a number of guests recommended by Williams, including researchers at the Virginia universities. Governor McDonnell was present, but did not mention Star Scientific, Williams, or Anatabloc during the event. Id., at 3671–3672. That same day, Governor McDonnell and Williams spoke about the $50,000 loan, and Williams loaned the money to the McDonnells shortly thereafter. Id., at 2306, 2353. In March 2012, Governor McDonnell met with Lisa Hicks-Thomas, the Virginia Secretary of Administration, and Sara Wilson, the Director of the Virginia Department of Human Resource Management. The purpose of the meeting was to discuss Virginia’s health plan for state employees. At that time, Governor McDonnell was taking Anatabloc several times a day. He took a pill during the meeting, and told Hicks-Thomas and Wilson that the pills “were working well for him” and “would be good for” state employees. Id., at 4227. Hicks-Thomas recalled Governor McDonnell asking them to meet with a representative from Star Scientific; Wilson had no such recollection. Id., at 4219, 4227. After the discussion with Governor McDonnell, Hicks-Thomas and Wilson looked up Anatabloc on the Internet, but they did not set up a meeting with Star Scientific or conduct any other follow-up. Id., at 4220, 4230. It is undisputed that Virginia’s health plan for state employees does not cover nutritional supplements such as Anatabloc. In May 2012, Governor McDonnell requested an additional $20,000 loan, which Williams provided. Throughout this period, Williams also paid for several rounds of golf for Governor McDonnell and his children, took the McDonnells on a weekend trip, and gave $10,000 as a wedding gift to one of the McDonnells’ daughters. In total, Williams gave the McDonnells over $175,000 in gifts and loans. B In January 2014, Governor McDonnell was indicted for accepting payments, loans, gifts, and other things of value from Williams and Star Scientific in exchange for “performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star Scientific’s products.” Supp. App. 46. The charges against him comprised one count of conspiracy to commit honest services fraud, three counts of honest services fraud, one count of conspiracy to commit Hobbs Act extortion, six counts of Hobbs Act extortion, and two counts of making a false statement. See 18 U. S. C. §§1343, 1349 (honest services fraud); §1951(a) (Hobbs Act extortion); §1014 (false statement). Mrs. McDonnell was indicted on similar charges, plus obstructing official proceedings, based on her alleged involvement in the scheme. See §1512(c)(2) (obstruction). The theory underlying both the honest services fraud and Hobbs Act extortion charges was that Governor McDonnell had accepted bribes from Williams. See Skilling v. United States, 561 U. S. 358, 404 (2010) (construing honest services fraud to forbid “fraudulent schemes to deprive another of honest services through bribes or kickbacks”); Evans v. United States, 504 U. S. 255, 260, 269 (1992) (construing Hobbs Act extortion to include “ ‘taking a bribe’ ”). The parties agreed that they would define honest services fraud with reference to the federal bribery statute, 18 U. S. C. §201. That statute makes it a crime for “a public official or person selected to be a public official, directly or indirectly, corruptly” to demand, seek, receive, accept, or agree “to receive or accept anything of value” in return for being “influenced in the performance of any official act.” §201(b)(2). An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” §201(a)(3). The parties also agreed that obtaining a “thing of value . . . knowing that the thing of value was given in return for official action” was an element of Hobbs Act extortion, and that they would use the definition of “official act” found in the federal bribery statute to define “official action” under the Hobbs Act. 792 F. 3d 478, 505 (CA4 2015) (internal quotation marks omitted). As a result of all this, the Government was required to prove that Governor McDonnell committed or agreed to commit an “official act” in exchange for the loans and gifts from Williams. See Evans, 504 U. S., at 268 (“the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment of the quid pro quo is not an element of the offense”). The Government alleged that Governor McDonnell had committed at least five “official acts”: (1) “arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc”; (2) “hosting, and . . . attending, events at the Governor’s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific’s products to doctors for referral to their patients”; (3) “contacting other government officials in the [Governor’s Office] as part of an effort to encourage Vir-ginia state research universities to initiate studies of anatabine”; (4) “promoting Star Scientific’s products and facilitating its relationships with Virginia government officials by allowing [Williams] to invite individuals important to Star Scientific’s business to exclusive events at the Governor’s Mansion”; and (5) “recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.” Supp. App. 47–48(indictment). The case proceeded to a jury trial, which lasted five weeks. Pursuant to an immunity agreement, Williams testified that he had given the gifts and loans to the McDonnells to obtain the Governor’s “help with the testing” of Anatabloc at Virginia’s medical schools. App. 2234. Governor McDonnell acknowledged that he had requested loans and accepted gifts from Williams. He testified, however, that setting up meetings with government officials was something he did “literally thousands of times” as Governor, and that he did not expect his staff “to do anything other than to meet” with Williams. Id., at 6042. Several state officials testified that they had discussed Anatabloc with Williams or Governor McDonnell, but had not taken any action to further the research studies. Id., at 3739–3750 (Dr. Hazel), 3075–3077 (aide to Dr. Hazel), 4218–4220 (Sara Wilson), 4230–4231 (Lisa Hicks-Thomas). A UVA employee in the university research office, who had never spoken with the Governor about Anatabloc, testified that she wrote a pro/con list concerning research studies on Anatabloc. The first “pro” was the “[p]erception to Governor that UVA would like to work with local companies,” and the first “con” was the “[p]olitical pressure from Governor and impact on future UVA requests from the Governor.” Id., at 4321, 4323 (Sharon Krueger). Following closing arguments, the District Court instructed the jury that to convict Governor McDonnell it must find that he agreed “to accept a thing of value in exchange for official action.” Supp. App. 68. The court described the five alleged “official acts” set forth in the indictment, which involved arranging meetings, hosting events, and contacting other government officials. The court then quoted the statutory definition of “official act,” and—as the Government had requested—advised the jury that the term encompassed “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” Id., at 69–70. Governor McDonnell had requested the court to further instruct the jury that the “fact that an activity is a routine activity, or a ‘settled practice,’ of an office-holder does not alone make it an ‘official act,’ ” and that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts,’ even if they are settled practices of the official,” because they “are not decisions on matters pending before the government.” 792 F. 3d, at 513 (internal quotation marks omitted). He also asked the court to explain to the jury that an “official act” must intend to or “in fact influence a specific official decision the government actually makes—such as awarding a contract, hiring a government em-ployee, issuing a license, passing a law, or implementing a regulation.” App. to Pet. for Cert. 147a. The District Court declined to give Governor McDonnell’s proposed instruction to the jury. The jury convicted Governor McDonnell on the honest services fraud and Hobbs Act extortion charges, but acquitted him on the false statement charges. Mrs. McDonnell was also convicted on most of the charges against her. Although the Government requested a sentence of at least ten years for Governor McDonnell, the District Court sentenced him to two years in prison. Mrs. McDonnell received a one-year sentence. Following the verdict, Governor McDonnell moved to vacate his convictions on the ground that the jury instructions “were legally erroneous because they (i) allowed the jury to convict [him] on an erroneous understanding of ‘official act,’ and (ii) allowed a conviction on the theory that [he] accepted things of value that were given for future unspecified action.” 64 F. Supp. 3d 783, 787 (ED Va. 2014). The District Court denied the motion. Id., at 802. In addition, Governor McDonnell moved for acquittal on the basis that there was insufficient evidence to convict him, and that the Hobbs Act and honest services statute were unconstitutionally vague. Crim. No. 3:14–CR–12 (ED Va., Dec. 1, 2014), Supp. App. 80, 82–92. That motion was also denied. See id., at 92–94. (He also raised other challenges to his convictions, which are not at issue here.) Governor McDonnell appealed his convictions to the Fourth Circuit, challenging the definition of “official action” in the jury instructions on the ground that it deemed “virtually all of a public servant’s activities ‘official,’ no matter how minor or innocuous.” 792 F. 3d, at 506. He also reiterated his challenges to the sufficiency of the evidence and the constitutionality of the statutes under which he was convicted. Id., at 509, n. 19, 515. The Fourth Circuit affirmed, and we granted certiorari. 577 U. S. ___ (2016). Mrs. McDonnell’s separate appeal remains pending before the Court of Appeals. II The issue in this case is the proper interpretation of the term “official act.” Section 201(a)(3) defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” According to the Government, “Congress used intentionally broad language” in §201(a)(3) to embrace “any decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such official’s official capac-ity.” Brief for United States 20–21 (Government’s emphasis; alteration and internal quotation marks omitted). The Government concludes that the term “official act” therefore encompasses nearly any activity by a public official. In the Government’s view, “official act” specifically includes arranging a meeting, contacting another public official, or hosting an event—without more—concerning any subject, including a broad policy issue such as Vir-ginia economic development. Id., at 47–49; Tr. of Oral Arg. 28–30. Governor McDonnell, in contrast, contends that statu-tory context compels a more circumscribed reading, limiting “official acts” to those acts that “direct[ ] a particular resolution of a specific governmental decision,” or that pressure another official to do so. Brief for Petitioner 44, 51. He also claims that “vague corruption laws” such as §201 implicate serious constitutional concerns, militating “in favor of a narrow, cautious reading of these criminal statutes.” Id., at 21. Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.” A The text of §201(a)(3) sets forth two requirements for an “official act”: First, the Government must identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official. Second, the Government must prove that the public official made a decision or took an action “on” that question, matter, cause, suit, proceeding, or controversy, or agreed to do so. The issue here is whether arranging a meeting, contacting another official, or hosting an event—without more—can be a “question, matter, cause, suit, proceeding or controversy,” and if not, whether it can be a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The first inquiry is whether a typical meeting, call, or event is itself a “question, matter, cause, suit, proceeding or controversy.” The Government argues that nearly any activity by a public official qualifies as a question or matter—from workaday functions, such as the typical call, meeting, or event, to the broadest issues the government confronts, such as fostering economic development. We conclude, however, that the terms “question, matter, cause, suit, proceeding or controversy” do not sweep so broadly. The last four words in that list—“cause,” “suit,” “proceeding,” and “controversy”—connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination. See, e.g., Crimes Act of 1790, §21, 1Stat. 117 (using “cause,” “suit,” and “controversy” in a related statutory context to refer to judicial proceedings); Black’s Law Dictionary 278–279, 400, 1602–1603 (4th ed. 1951) (defining “cause,” “suit,” and “controversy” as judicial proceedings); 18 U. S. C. §201(b)(3) (using “proceeding” to refer to trials, hearings, or the like “before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer”). Al-though it may be difficult to define the precise reach of those terms, it seems clear that a typical meeting, telephone call, or event arranged by a public official does not qualify as a “cause, suit, proceeding or controversy.” But what about a “question” or “matter”? A “question” could mean any “subject or aspect that is in dispute, open for discussion, or to be inquired into,” and a “matter” any “subject” of “interest or relevance.” Webster’s Third New International Dictionary 1394, 1863 (1961). If those meanings were adopted, a typical meeting, call, or event would qualify as a “question” or “matter.” A “question” may also be interpreted more narrowly, however, as “a subject or point of debate or a proposition being or to be voted on in a meeting,” such as a question “before the senate.” Id., at 1863. Similarly, a “matter” may be limited to “a topic under active and usually serious or practical consideration,” such as a matter that “will come before the committee.” Id., at 1394. To choose between those competing definitions, we look to the context in which the words appear. Under the familiar interpretive canon noscitur a sociis, “a word is known by the company it keeps.” Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961) . While “not an inescapable rule,” this canon “is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Ibid. For example, in Gustafson v. Alloyd Co., 513 U. S. 561 (1995) , a statute defined the word “prospectus” as a “prospectus, notice, circular, advertisement, letter, or communication.” Id., at 573–574 (internal quotation marks omitted). We held that although the word “communication” could in the abstract mean any type of communication, “it is apparent that the list refers to documents of wide dissemination,” and that inclusion “of the term ‘communication’ in that list suggests that it too refers to a public communication.” Id., at 575. Applying that same approach here, we conclude that a “question” or “matter” must be similar in nature to a “cause, suit, proceeding or controversy.” Because a typical meeting, call, or event arranged by a public official is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not qualify as a “question” or “matter” under §201(a)(3). That more limited reading also comports with the presumption “that statutory language is not superfluous.” Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 299, n. 1 (2006) . If “question” and “matter” were as unlimited in scope as the Government argues, the terms “cause, suit, proceeding or controversy” would serve no role in the statute—every “cause, suit, proceeding or controversy” would also be a “question” or “matter.” Under a more confined interpretation, however, “question” and “matter” may be understood to refer to a formal exercise of governmental power that is similar in nature to a “cause, suit, proceeding or controversy,” but that does not necessarily fall into one of those prescribed categories. Because a typical meeting, call, or event is not itself a question or matter, the next step is to determine whether arranging a meeting, contacting another official, or hosting an event may qualify as a “decision or action” on a different question or matter. That requires us to first establish what counts as a question or matter in this case. In addition to the requirements we have described, §201(a)(3) states that the question or matter must be “pending” or “may by law be brought” before “any public official.” “Pending” and “may by law be brought” suggest something that is relatively circumscribed—the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete. In particular, “may by law be brought” conveys something within the specific duties of an official’s position—the function conferred by the authority of his office. The word “any” conveys that the matter may be pending either before the public official who is performing the official act, or before another public official. The District Court, however, determined that the relevant matter in this case could be considered at a much higher level of generality as “Virginia business and economic development,” or—as it was often put to the jury—“Bob’s for Jobs.” Supp. App. 88; see, e.g., App. 1775, 2858, 2912, 3733. Economic development is not naturally described as a matter “pending” before a public official—or something that may be brought “by law” before him—any more than “justice” is pending or may be brought by law before a judge, or “national security” is pending or may be brought by law before an officer of the Armed Forces. Under §201(a)(3), the pertinent “question, matter, cause, suit, proceeding or controversy” must be more focused and concrete. For its part, the Fourth Circuit found at least three questions or matters at issue in this case: (1) “whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc”; (2) “whether the state-created Tobacco Indemnification and Community Revitalization Commission” would “allocate grant money for the study of anatabine”; and (3) “whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug.” 792 F. 3d, at 515–516. We agree that those qualify as questions or matters under §201(a)(3). Each is focused and concrete, and each involves a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing. The question remains whether—as the Government argues—merely setting up a meeting, hosting an event, or calling another official qualifies as a decision or action on any of those three questions or matters. Although the word “decision,” and especially the word “action,” could be read expansively to support the Government’s view, our opinion in United States v. Sun-Diamond Growers of Cal., 526 U. S. 398 (1999) , rejects that interpretation. In Sun-Diamond, the Court stated that it was not an “official act” under §201 for the President to host a championship sports team at the White House, the Secretary of Education to visit a high school, or the Secretary of Agriculture to deliver a speech to “farmers concerning various matters of USDA policy.” Id., at 407. We recognized that “the Secretary of Agriculture always has before him or in prospect matters that affect farmers, just as the President always has before him or in prospect matters that affect college and professional sports, and the Secretary of Education matters that affect high schools.” Ibid. But we concluded that the existence of such pending matters was not enough to find that any action related to them constituted an “official act.” Ibid. It was possible to avoid the “absurdities” of convicting individuals on corruption charges for engaging in such conduct, we explained, “through the definition of that term,” i.e., by adopting a more limited definition of “official acts.” Id., at 408. It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so. For example, a decision or action to initiate a research study—or a decision or action on a qualifying step, such as narrowing down the list of potential research topics—would qualify as an “official act.” A public official may also make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy” by using his official position to exert pressure on another official to perform an “official act.” In addition, if a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an “official act” by another official, that too can qualify as a decision or action for purposes of §201(a)(3). See United States v. Birdsall, 233 U. S. 223, 234 (1914) (finding “official action” on the part of subordinates where their superiors “would necessarily rely largely upon the reports and advice of subordinates . . . who were more directly acquainted with” the “facts and circumstances of particular cases”). Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so. See Evans, 504 U. S., at 268. The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the “official act,” so long as he agrees to do so. A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an “official act” in return. See ibid. It is up to the jury, under the facts of the case, to determine whether the public official agreed to perform an “official act” at the time of the alleged quid pro quo. The jury may consider a broad range of pertinent evidence, including the nature of the transaction, to answer that question. Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. Simply expressing support for the research study at a meeting, event, or call—or sending a subordinate to such a meeting, event, or call—similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an “official act.” Otherwise, if every action somehow related to the research study were an “official act,” the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless. Of course, this is not to say that setting up a meeting, hosting an event, or making a phone call is always an innocent act, or is irrelevant, in cases like this one. If an official sets up a meeting, hosts an event, or makes a phone call on a question or matter that is or could be pending before another official, that could serve as evidence of an agreement to take an official act. A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter. And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal. The Government relies on this Court’s decision in Birdsall to support a more expansive interpretation of “official act,” but Birdsall is fully consistent with our reading of §201(a)(3). We held in Birdsall that “official action” could be established by custom rather than “by statute” or “a written rule or regulation,” and need not be a formal part of an official’s decisionmaking process. 233 U. S., at 230–231. That does not mean, however, that every decision or action customarily performed by a public official—such as the myriad decisions to refer a constituent to another official—counts as an “official act.” The “official action” at issue in Birdsall was “advis[ing] the Commissioner of Indian Affairs, contrary to the truth,” that the facts of the case warranted granting leniency to certain defendants convicted of “unlawfully selling liquor to Indians.” Id., at 227–230. That “decision or action” fits neatly within our understanding of §201(a)(3): It reflected a decision or action to advise another official on the pending question whether to grant leniency. In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.” B In addition to being inconsistent with both text and precedent, the Government’s expansive interpretation of “official act” would raise significant constitutional concerns. Section 201 prohibits quid pro quo corruption—the exchange of a thing of value for an “official act.” In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo. See Brief for United States 14, 27; Tr. of Oral Arg. 34–35, 44–46. But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse. This concern is substantial. White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Government’s “breathtaking expansion of public-corruption law would likely chill federal officials’ interactions with the people they serve and thus damage their ability effectively to perform their duties.” Brief for Former Federal Officials as Amici Curiae 6. Six former Virginia attorneys general—four Democrats and two Republicans—also filed an amicus brief in this Court echoing those concerns, as did 77 former state attorneys general from States other than Virginia—41 Democrats, 35 Republicans, and 1 independent. Brief for Former Virginia Attorneys General as Amici Curiae 1–2, 16; Brief for 77 Former State Attorneys General (Non-Virginia) as Amici Curiae 1–2. None of this, of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it. But the Government’s legal interpretation is not confined to cases involving extravagant gifts or large sums of money, and we cannotconstrue a criminal statute on the assumption that the Government will “use it responsibly.” United States v. Stevens, 559 U. S. 460, 480 (2010) . The Court in Sun-Diamond declined to rely on “the Government’s discretion” to protect against overzealous prosecutions under §201, concluding instead that “a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter.” 526 U. S., at 408, 412. A related concern is that, under the Government’s interpretation, the term “official act” is not defined “with sufficient definiteness that ordinary people can understand what conduct is prohibited,” or “in a manner that does not encourage arbitrary and discriminatory enforcement.” Skilling, 561 U. S., at 402–403 (internal quotation marks omitted). Under the “ ‘standardless sweep’ ” of the Government’s reading, Kolender v. Lawson, 461 U. S. 352, 358 (1983) , public officials could be subject to prosecution, without fair notice, for the most prosaic interactions. “Invoking so shapeless a provision to condemn someone to prison” for up to 15 years raises the serious concern that the provision “does not comport with the Constitution’s guarantee of due process.” Johnson v. United States, 576 U. S. ___, ___ (2015) (slip op., at 10). Our more constrained interpretation of §201(a)(3) avoids this “vagueness shoal.” Skilling, 561 U. S., at 368. The Government’s position also raises significant federalism concerns. A State defines itself as a sovereign through “the structure of its government, and the character of those who exercise government authority.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) . That includes the prerogative to regulate the permissible scope of interactions between state officials and their constituents. Here, where a more limited interpretation of “official act” is supported by both text and precedent, we decline to “construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards” of “good government for local and state officials.” McNally v. United States, 483 U. S. 350, 360 (1987) ; see also United States v. Enmons, 410 U. S. 396 –411 (1973) (rejecting a “broad concept of extortion” that would lead to “an unprecedented incursion into the criminal jurisdiction of the States”). III A Governor McDonnell argues that his convictions must be vacated because the jury was improperly instructed on the meaning of “official act” under §201(a)(3) of the federal bribery statute. According to Governor McDonnell, the District Court “refused to convey any meaningful limits on ‘official act,’ giving an instruction that allowed the jury to convict [him] for lawful conduct.” Brief for Petitioner 51. We agree. The jury instructions included the statutory definition of “official action,” and further defined the term to include “actions that have been clearly established by settled practice as part of a public official’s position, even if the action was not taken pursuant to responsibilities explicitly assigned by law.” Supp. App. 69–70. The instructions also stated that “official actions may include acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” Id., at 70. In light of our interpretation of the term “official acts,” those instructions lacked important qualifications, rendering them significantly overinclusive. First, the instructions did not adequately explain to the jury how to identify the “question, matter, cause, suit, proceeding or controversy.” As noted, the Fourth Circuit held that “the Government presented evidence of three questions or matters”: (1) “whether researchers at any of Virginia’s state universities would initiate a study of Anatabloc”; (2) “whether the state-created Tobacco Indemnification and Community Revitalization Commission” would “allocate grant money for the study of anatabine”; and (3) “whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug.” 792 F. 3d, at 515–516. The problem with the District Court’s instructions is that they provided no assurance that the jury reached its verdict after finding those questions or matters. The testimony at trial described how Governor McDonnell set up meetings, contacted other officials, and hosted events. It is possible the jury thought that a typical meeting, call, or event was itself a “question, matter, cause, suit, proceeding or controversy.” If so, the jury could have convicted Governor McDonnell without finding that he committedor agreed to commit an “official act,” as properly defined. To prevent this problem, the District Court should have instructed the jury that it must identify a “question, matter, cause, suit, proceeding or controversy” involving the formal exercise of governmental power. Second, the instructions did not inform the jury that the “question, matter, cause, suit, proceeding or controversy” must be more specific and focused than a broad policy objective. The Government told the jury in its closing argument that “[w]hatever it was” Governor McDonnell had done, “it’s all official action.” App. to Pet. for Cert. 263a–264a. Based on that remark, and the repeated references to “Bob’s for Jobs” at trial, the jury could have thought that the relevant “question, matter, cause, suit, proceeding or controversy” was something as nebulous as “Virginia business and economic development,” as the District Court itself concluded. Supp. App. 87–88 (“The alleged official actions in this case were within the range of actions on questions, matters, or causes pending before McDonnell as Governor as multiple witnesses testified that Virginia business and economic development was a top priority in McDonnell’s administration”). To avoid that misconception, the District Court should have instructed the jury that the pertinent “question, matter, cause, suit, proceeding or controversy” must be something specific and focused that is “pending” or “may by law be brought before any public official,” such as the question whether to initiate the research studies. Third, the District Court did not instruct the jury that to convict Governor McDonnell, it had to find that he made a decision or took an action—or agreed to do so—on the identified “question, matter, cause, suit, proceeding or controversy,” as we have construed that requirement. At trial, several of Governor McDonnell’s subordinates testified that he asked them to attend a meeting, not that he expected them to do anything other than that. See, e.g., App. 3075, 3739–3740, 4220. If that testimony reflects what Governor McDonnell agreed to do at the time he accepted the loans and gifts from Williams, then he did not agree to make a decision or take an action on any of the three questions or matters described by the Fourth Circuit. The jury may have disbelieved that testimony or found other evidence that Governor McDonnell agreed to exert pressure on those officials to initiate the research studies or add Anatabloc to the state health plan, but it is also possible that the jury convicted Governor McDonnell without finding that he agreed to make a decision or take an action on a properly defined “question, matter, cause, suit, proceeding or controversy.” To forestall that possibility, the District Court should have instructed the jury that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter. Because the jury was not correctly instructed on the meaning of “official act,” it may have convicted Governor McDonnell for conduct that is not unlawful. For that reason, we cannot conclude that the errors in the jury instructions were “harmless beyond a reasonable doubt.” Neder v. United States, 527 U. S. 1, 16 (1999) (internal quotation marks omitted). We accordingly vacate Governor McDonnell’s convictions. B Governor McDonnell raises two additional claims. First, he argues that the charges against him must be dismissed because the honest services statute and the Hobbs Act are unconstitutionally vague. See Brief for Petitioner 58–61. We reject that claim. For purposes of this case, the parties defined honest services fraud and Hobbs Act extortion with reference to §201 of the federal bribery statute. Because we have interpreted the term “official act” in §201(a)(3) in a way that avoids the vagueness concerns raised by Governor McDonnell, we decline to invalidate those statutes under the facts here. See Skilling, 561 U. S., at 403 (seeking “to construe, not condemn, Congress’ enactments”). Second, Governor McDonnell argues that the charges must be dismissed because there is insufficient evidence that he committed an “official act,” or that he agreed to do so. Brief for Petitioner 44–45. Because the parties have not had an opportunity to address that question in light of the interpretation of §201(a)(3) adopted by this Court, we leave it for the Court of Appeals to resolve in the first instance. If the court below determines that there is sufficient evidence for a jury to convict Governor McDonnell of committing or agreeing to commit an “official act,” his case may be set for a new trial. If the court instead determines that the evidence is insufficient, the charges against him must be dismissed. We express no view on that question. * * * There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court. 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 . SUPREME COURT OF THE UNITED STATES Syllabus McDONNELL v. UNITED STATES certiorari to the united states court of appeals for the fourth circuit No. 15–474. Argued April 27, 2016—Decided June 27, 2016 Petitioner, former Virginia Governor Robert McDonnell, and his wife, Maureen McDonnell, were indicted by the Federal Government on honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies. To convict the McDonnells, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. An “official act” is defined as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.” 18 U. S. C. §201(a)(3). According to the Government, Governor McDonnell committed at least five “official acts,” including “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning the research studies. The case was tried before a jury. The District Court instructed the jury that “official act” encompasses “acts that a public official customarily performs,” including acts “in furtherance of longer-term goals” or “in a series of steps to exercise influence or achieve an end.” Supp. App. 69–70. Governor McDonnell requested that the court further instruct the jury that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts,’ ” but the District Court declined to give that instruction. 792 F. 3d 478, 513 (internal quotation marks omitted). The jury convicted Governor McDonnell. Governor McDonnell moved to vacate his convictions on the ground that the definition of “official act” in the jury instructions was erroneous. He also moved for acquittal, arguing that there was insufficient evidence to convict him, and that the Hobbs Act and honest services statute were unconstitutionally vague. The District Court denied the motions, and the Fourth Circuit affirmed. Held: 1. An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.” . (a) The Government argues that the term “official act” encompasses nearly any activity by a public official concerning any subject, including a broad policy issue such as Virginia economic development. Governor McDonnell, in contrast, contends that statutory context compels a more circumscribed reading. Taking into account text, precedent, and constitutional concerns, the Court rejects the Government’s reading and adopts a more bounded interpretation of “official act.” . (b) Section 201(a)(3) sets forth two requirements for an “official act.” First, the Government must identify a “question, matter, cause, suit, proceeding or controversy” that “may at any time be pending” or “may by law be brought” before a public official. Second, the Government must prove that the public official made a decision or took an action “on” that “question, matter, cause, suit, proceeding or controversy,” or agreed to do so. . (1) The first inquiry is whether a typical meeting, call, or event is itself a “question, matter, cause, suit, proceeding or controversy.” The terms “cause,” “suit,” “proceeding,” and “controversy” connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination. Although it may be difficult to define the precise reach of those terms, a typical meeting, call, or event does not qualify. “Question” and “matter” could be defined more broadly, but under the familiar interpretive canon noscitur a sociis, a “word is known by the company it keeps.” Jarecki v. G. D. Searle & Co., 367 U. S. 303 . Because a typical meeting, call, or event is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not count as a “question” or “matter” under §201(a)(3). That more limited reading also comports with the presumption “that statutory language is not superfluous.” Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291 , n. 1. . (2) Because a typical meeting, call, or event is not itself a question or matter, the next step is to determine whether arranging a meeting, contacting another official, or hosting an event may qualify as a “decision or action” on a different question or matter. That first requires the Court to establish what counts as a question or matter in this case. Section 201(a)(3) states that the question or matter must be “pending” or “may by law be brought” before “any public official.” “Pending” and “may by law be brought” suggest something that is relatively circumscribed—the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete. “May by law be brought” conveys something within the specific duties of an official’s position. Although the District Court determined that the relevant matter in this case could be considered at a much higher level of generality as “Virginia business and economic development,” Supp. App. 88, the pertinent matter must instead be more focused and concrete. The Fourth Circuit identified at least three such questions or matters: (1) whether researchers at Virginia’s state universities would initiate a study of Anatabloc; (2) whether Virginia’s Tobacco Commission would allocate grant money for studying anatabine; and (3) whether Virginia’s health plan for state employees would cover Anatabloc. The Court agrees that those qualify as questions or matters under §201(a)(3). . (3) The question remains whether merely setting up a meeting, hosting an event, or calling another official qualifies as a decision or action on any of those three questions or matters. It is apparent from United States v. Sun-Diamond Growers of Cal., 526 U. S. 398 , that the answer is no. Something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on the question or matter, or agree to do so. For example, a decision or action to initiate a research study would qualify as an “official act.” A public official may also make a decision or take an action by using his official position to exert pressure on another official to perform an “official act,” or by using his official position to provide advice to another official, knowing or intending that such advice will form the basis for an “official act” by another official. A public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that he agree to do so. Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. . (c) The Government’s expansive interpretation of “official act” would raise significant constitutional concerns. Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. The Government’s position could cast a pall of potential prosecution over these relationships. This concern is substantial, as recognized by White House counsel from every administration from that of President Reagan to President Obama, as well as two bipartisan groups of former state attorneys general. The Government’s interpretation also raises due process and federalism concerns. . 2. Given the Court’s interpretation of “official act,” the District Court’s jury instructions were erroneous, and the jury may have convicted Governor McDonnell for conduct that is not unlawful. Because the errors in the jury instructions are not harmless beyond a reasonable doubt, the Court vacates Governor McDonnell’s convictions. . (a) The jury instructions lacked important qualifications, rendering them significantly overinclusive. First, they did not adequately explain to the jury how to identify the pertinent “question, matter, cause, suit, proceeding or controversy.” It is possible the jury thought that a typical meeting, call, or event was itself a “question, matter, cause, suit, proceeding or controversy.” If so, the jury could have convicted Governor McDonnell without finding that he committed or agreed to commit an “official act,” as properly defined. Second, the instructions did not inform the jury that the “question, matter, cause, suit, proceeding or controversy” must be more specific and focused than a broad policy objective. As a result, the jury could have thought that the relevant “question, matter, cause, suit, proceeding or controversy” was something as nebulous as Virginia economic development, and convicted Governor McDonnell on that basis. Third, the District Court did not instruct the jury that to convict Governor McDonnell, it had to find that he made a decision or took an action—or agreed to do so—on the identified “question, matter, cause, suit, proceeding or controversy,” as properly defined. At trial, several of Governor McDonnell’s subordinates testified that he asked them to attend a meeting, not that he expected them to do anything other than that. If that testimony reflects what Governor McDonnell agreed to do at the time he accepted the loans and gifts from Williams, then he did not agree to make a decision or take an action on any of the three questions or matters described by the Fourth Circuit. . (b) Governor McDonnell raises two additional claims. First, he argues that the honest services statute and the Hobbs Act are unconstitutionally vague. The Court rejects that claim. For purposes of this case, the parties defined those statutes with reference to §201 of the federal bribery statute. Because the Court interprets the term “official act” in §201(a)(3) in a way that avoids the vagueness concerns raised by Governor McDonnell, it declines to invalidate those statutes under the facts here. Second, Governor McDonnell argues that there is insufficient evidence that he committed an “official act,” or agreed to do so. Because the parties have not had an opportunity to address that question in light of the Court’s interpretation of “official act,” the Court leaves it for the Court of Appeals to resolve in the first instance. . 792 F. 3d 478, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

Petitioner Robert McDonnell was elected 71st Governor of Virginia in a general election. His campaign slogan was Bob's for Jobs, and his focus in office was on promoting business in Virginia. To convict the McDonnells of bribery, the Government was required to show that McDonnell committed (or agreed to commit) an "official act" in exchange for the loans and gifts. The parties did not agree on what counts as an official act, and the District Court instructed the jury according to the Government's broad understanding of what constitutes anofficial act. The jury convicted McDonnell on most of the bribery charges, but acquitted his wife, and sentenced her to prison. Following the verdict, McDonnell moved to vacate his convictions on the ground that the jury instructions were legally erroneous because they allowed the jury to convict McDonnell on an erroneous understanding of the term, and to allow a conviction on the theory that he accepted things of value that were given for future unspecified action. The District Court denied the motion. The Court of Appeals affirmed. Held: The judgment is vacated and the case is remanded for a new trial. ;;. 692 F. 3d 783, vacated and remanded. 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..

2015_14-510

https://www.oyez.org/cases/2015/14-510

. Petitioner Menominee Indian Tribe of Wisconsin (Tribe) seeks equitable tolling to preserve contract claims not timely presented to a federal contracting officer. Because the Tribe cannot establish extraordinary circumstances that stood in the way of timely filing, we hold that equit-able tolling does not apply. I Congress enacted the Indian Self-Determination and Education Assistance Act (ISDA), Pub. L. 93–638, 88Stat. 2203, 25 U. S. C. §450 et seq., in 1975 to help Indian tribes assume responsibility for aid programs that benefit their members. Under the ISDA, tribes may enter into “self-determination contracts” with federal agencies to take control of a variety of federally funded programs. §450f. A contracting tribe is eligible to receive the amount of money that the Government would have otherwise spent on the program, see §450j–1(a)(1), as well as reimbursement for reasonable “contract support costs,” which include administrative and overhead costs associated with carrying out the contracted programs, §§450j–1(a)(2), (3), (5). In 1988, Congress amended the ISDA to apply the Contract Disputes Act of 1978 (CDA), 41 U. S. C. §7101 et seq., to disputes arising under the ISDA. See 25 U. S. C. §450m–1(d); Indian Self-Determination and Education Assistance Act Amendments of 1988, §206(2), 102Stat. 2295. As part of its mandatory administrative process for resolving contract disputes, the CDA requires contractors to present “[e]ach claim” they may have to a contracting officer for decision. 41 U. S. C. §7103(a)(1). Congress later amended the CDA to include a 6-year statute of limitations for presentment of each claim. Federal Acquisition Streamlining Act of 1994, 41 U. S. C. §7103(a)(4)(A). Under the CDA, the contracting officer’s decision is generally final, unless challenged through one of the statutorily authorized routes. §7103(g). A contractor dissatisfied with the officer’s decision may either take an administrative appeal to a board of contract appeals or file an action for breach of contract in the United States Court of Federal Claims. §§7104(a), (b)(1), 7105(b). Both routes then lead to the United States Court of Appeals for the Federal Circuit for any further review. 28 U. S. C. §1295(a)(3); 41 U. S. C. §7107(a)(1); see 25 U. S. C. §450m–1(d). Under the ISDA, tribal contractors have a third option. They may file a claim for money damages in federal district court, §§450m–1(a), (d), and if they lose, they may pursue an appeal in one of the regional courts of appeals, 28 U. S. C. §1291. Tribal contractors have repeatedly complained that the Federal Government has not fully honored its obligations to pay contract support costs. Three lawsuits making such claims are relevant here. The first was a class action filed by the Ramah Navajo Chapter alleging that the Bureau of Indian Affairs (BIA) systematically underpaid certain contract support costs. Ramah Navajo Chapter v. Lujan, No. 1:90–cv–0957 (D NM) (filed Oct. 4, 1990). In 1993, Ramah successfully moved for certification of a nationwide class of all tribes that had contracted with the BIA under the ISDA. See Order and Memorandum Opinion in Ramah Navajo Chapter v. Lujan, No. 1:90–cv–0957 (D NM, Oct. 1, 1993), App. 35–40. The Government argued that each tribe needed to present its claims to a contracting officer before it could participate in the class. Id., at 37–38. But the trial court held that tribal contractors could participate in the class without presentment, because the suit alleged systemwide flaws in the BIA’s contracting scheme, not merely breaches of individual contracts. Id., at 39. The Government did not appeal the certification order, and the Ramah class action proceeded to further litigation and settlement. The second relevant ISDA suit raised similar claims about contract support costs but arose from contracts with the Indian Health Service (IHS). Cherokee Nation of Okla. v. United States, No. 6:99–cv–0092 (ED Okla.) (filed Mar. 5, 1999). In Cherokee Nation, two tribes filed a putative class action against IHS. On February 9, 2001, the District Court denied class certification without addressing whether tribes would need to present claims to join the class. Cherokee Nation of Okla. v. United States, 199 F. R. D. 357, 363–366 (ED Okla.). The two plaintiff tribes did not appeal the denial of class certification but proceeded to the merits on their own, eventually prevailing before this Court in a parallel suit. See Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631 (2005) . The third relevant case is the one now before us. In this case, the Tribe presented its contract support claims (for contract years 1995 through 2004) to IHS on September 7, 2005, shortly after our Cherokee Nation ruling. As relevant here, the contracting officer denied the Tribe’s claims based on its 1996, 1997, and 1998 contracts because, inter alia, those claims were barred by the CDA’s 6-year statute of limitations.[1] The Tribe challenged the denials in the United States District Court for the District of Columbia, arguing, based on theories of class-action and equitable tolling, that the limitations period should be tolled for the 707 days that the putative Cherokee Nation class had been pending. See American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974) (class-action tolling); Holland v. Florida, 560 U. S. 631 (2010) (equitable tolling). Initially, the District Court held that the limitations period was jurisdictional and thus forbade tolling of any sort. 539 F. Supp. 2d 152, 154, and n. 2 (DDC 2008). On appeal, the United States Court of Appeals for the District of Columbia Circuit concluded that the limitations period was not jurisdictional and thus did not necessarily bar tolling. 614 F. 3d 519, 526 (2010). But the court held that the Tribe was ineligible for class-action tolling during the pendency of the putative Cherokee Nation class, because the Tribe’s failure to present its claims to IHS made it “ineligible to participate in the class action at the time class certification [was] denied.” 614 F. 3d, at 527 (applying American Pipe). The court then remanded the case to the District Court to determine the Tribe’s eligibility for equitable tolling. On remand, the District Court concluded that the Tribe’s asserted reasons for failing to present its claims within the specified time “do not, individually or collec-tively, amount to an extraordinary circumstance” that could warrant equitable tolling. 841 F. Supp. 2d 99, 107 (DC 2012) (internal quotation marks omitted). This time, the Court of Appeals affirmed. 764 F. 3d 51 (CADC 2014). It explained that, “[t]o count as sufficiently ‘extraordinary’ to support equitable tolling, the circumstances that caused a litigant’s delay must have been beyond its control,” and “cannot be a product of that litigant’s own misunderstanding of the law or tactical mistakes in litigation.” Id., at 58. Because none of the Tribe’s proffered circumstances was beyond its control, the court held, there were no extraordinary circumstances that could merit equitable tolling. The Court of Appeals’ decision created a split with the Federal Circuit, which granted another tribal entity equitable tolling under similar circumstances. See Arctic Slope Native Assn., Ltd. v. Sebelius, 699 F. 3d 1289 (CA Fed. 2012). We granted certiorari to resolve the conflict. 576 U. S. ___ (2015). II The Court of Appeals denied the Tribe’s request for equitable tolling by applying the test that we articulated in Holland v. Florida, 560 U. S. 631 . Under Holland, a litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: “(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 649 (internal quotation marks omitted). The Tribe calls this formulation of the equitable tolling test overly rigid, given the doctrine’s equitable nature. First, it argues that diligence and extraordinary circumstances should be considered together as two factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe’s diligence in connection with its finding that no extraordinary circumstances existed. But we have expressly characterized equitable tolling’s two components as “elements,” not merely factors of indeterminate or commensurable weight. Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005) (“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements”). And we have treated the two requirements as distinct elements in practice, too, rejecting requests for equitable tolling where a litigant failed to satisfy one without addressing whether he satisfied the other. See, e.g., Lawrence v. Florida, 549 U. S. 327 –337 (2007) (rejecting equitable tolling without addressing diligence because habeas petitioner fell “far short of showing ‘extraordinary circumstances’ ”); Pace, supra, at 418 (holding, without resolving litigant’s argument that he had “satisfied the extraordinary circumstance test,” that, “[e]ven if we were to accept [his argument], he would not be entitled to relief because he has not established the requisite diligence”). Second, the Tribe objects to the Court of Appeals’ interpretation of the “extraordinary circumstances” prong as requiring a litigant seeking tolling to show an “external obstacl[e]” to timely filing, i.e., that “the circumstances that caused a litigant’s delay must have been beyond its control.” 764 F. 3d, at 58–59. The Tribe complains that this “external obstacle” formulation amounts to the same kind of “ ‘overly rigid per se approach’ ” we rejected in Holland. Brief for Petitioner 32 (quoting 560 U. S., at 653). But in truth, the phrase “external obstacle” merely reflects our requirement that a litigant seeking tolling show “that some extraordinary circumstance stood in his way.” Id., at 649 (emphasis added; internal quotation marks omitted). This phrasing in Holland (and in Pace before that) would make little sense if equitable tolling were available when a litigant was responsible for its own delay. Indeed, the diligence prong already covers those affairs within the litigant’s control; the extraordinary-circumstances prong, by contrast, is meant to cover matters outside its control. We therefore reaffirm that the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.[2] III The Tribe offers no circumstances that meet this standard. Its mistaken reliance on the putative Cherokee Nation class action was not an obstacle beyond its control.[3] As the Tribe conceded below, see 614 F. 3d, at 526–527, it could not have been a member of the putative Cherokee Nation class because it did not present its claims to an IHS contracting officer before class certification was denied. Before then, the Tribe had unilateral authority to present its claims and to join the putative class. Presentment was blocked not by an obstacle outside its control, but by the Tribe’s mistaken belief that presentment was unneeded. The Tribe’s mistake, in essence, was its inference that the reasoning of the Ramah class certification decision (allowing tribes to participate—without presentment—in the class challenging underpayment of BIA contract support costs) applied to the putative Cherokee Nation class. This mistake was fundamentally no different from “a garden variety claim of excusable neglect,” Irwin v. Department of Veterans Affairs, 498 U. S. 89, 96 (1990) , “such as a simple ‘miscalculation’ that leads a lawyer to miss a filing deadline,” Holland, supra, at 651 (quoting Lawrence, supra, at 336). And it is quite different from relying on actually binding precedent that is subsequently reversed.[4] The Tribe’s other excuses are even less compelling. Its belief that presentment was futile was not an obstacle beyond its control but a species of the same mistake that kept it out of the putative Cherokee Nation class. And the fact that there may have been significant risk and expense associated with presenting and litigating its claims is far from extraordinary. As the District Court noted below, “it is common for a litigant to be confronted with significant costs to litigation, limited financial resources, an uncertain outcome based upon an uncertain legal landscape, and impending deadlines. These circumstances are not ‘extraordinary.’ ” 841 F. Supp. 2d, at 107. Finally, the Tribe also urges us to consider the special relationship between the United States and Indian tribes, as articulated in the ISDA. See 25 U. S. C. §450a(b) (“Congress declares its commitment to the maintenance of the Federal Government’s unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole”). We do not question the “general trust relationship between the United States and the Indian tribes,” but any specific obligations the Government may have under that relationship are “governed by statute rather than the common law.” United States v. Jicarilla Apache Nation, 564 U. S. 162, 165 (2011) . The ISDA and CDA establish a clear procedure for the resolution of disputes over ISDA contracts, with an unambiguous 6-year deadline for presentment of claims. The “general trust relationship” does not override the clear language of those statutes.[5] IV For these reasons, the judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed. It is so ordered.Notes 1 Because the contract claims accrued no later than the end of each calendar-year contract, the District Court determined, the statute of limitations for the 1996, 1997, and 1998 contracts had run by January 1st of the years 2003, 2004, and 2005, respectively. 539 F. Supp. 2d 152, 154, n. 1 (DC 2008). The Tribe does not dispute the timing of accrual before this Court. 2 Holland v. Florida, 560 U. S. 631 (2010) , is a habeas case, and we have never held that its equitable-tolling test necessarily applies outside the habeas context. Nevertheless, because we agree that the Tribe cannot meet Holland’s test, we have no occasion to decide whether an even stricter test might apply to a nonhabeas case. Nor does the Tribe argue that a more generous test than Holland’s should apply here. 3 Because we conclude that the Tribe’s mistake of law was not outside its control, we need not decide whether a mistake of law, however reasonable, could ever be extraordinary. 4 The Court of Appeals speculated, without deciding, that such a development might merit tolling, but like that court we have no occasion to decide the question. 5 Because we hold that there were no extraordinary circumstances, we need not decide whether the Tribe was diligently pursuing its rights. We also need not accept the Tribe’s invitation to assess prejudice to the Government, because the absence of prejudice to the opposing party “is not an independent basis for invoking the doctrine [of equitable tolling] and sanctioning deviations from established procedures.” Baldwin County Welcome Center v. Brown, 466 U. S. 147, 152 (1984) (per curiam). Rather, the absence of prejudice is “a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify such tolling is identified.” Ibid. (emphasis added).

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 . SUPREME COURT OF THE UNITED STATES Syllabus MENOMINEE INDIAN TRIBE OF WISCONSIN v. UNITED STATES et al. certiorari to the united states court of appeals for the district of columbia circuit No. 14–510. Argued December 1, 2015—Decided January 25, 2016 Pursuant to the Indian Self-Determination and Education Assistance Act (ISDA), petitioner Menominee Indian Tribe of Wisconsin contracted with the Indian Health Service (IHS) to operate what would otherwise have been a federal program and to receive an amount of money equal to what the Government would have spent on operating the program itself, including reimbursement for reasonable contract support costs. 25 U. S. C. §§450f, 450j–1(a). After other tribal entities successfully litigated complaints against the Federal Government for failing to honor its obligation to pay contract support costs, the Menominee Tribe presented its own contract support claims to the IHS in accordance with the Contract Disputes Act of 1978 (CDA), which requires contractors to present each claim to a contracting officer for decision, 41 U. S. C. §7103(a)(1). The contracting officer denied some of the Tribe’s claims because they were not presented within the CDA’s 6-year limitations period. See §7103(a)(4)(A). The Tribe challenged the denials in Federal District Court, arguing that the limitations period should be tolled for the nearly two years in which a putative class action, brought by tribes with parallel complaints, was pending. As relevant here, the District Court eventually denied the Tribe’s equitable-tolling claim, and the Court of Appeals affirmed, holding that no extraordinary circumstances beyond the Tribe’s control caused the delay. Held: Equitable tolling does not apply to the presentment of petitioner’s claims. . (a) To be entitled to equitable tolling of a statute of limitations, a litigant must establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U. S. 631 . The Tribe argues that diligence and extraordinary circumstances should be considered together as factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe’s diligence in connection with its finding that no extraordinary circumstances existed. But this Court has expressly characterized these two components as “elements,” not merely factors of indeterminate or commensurable weight, Pace v. DiGuglielmo, 544 U. S. 408 , and has treated them as such in practice, see Lawrence v. Florida, 549 U. S. 327 –337. The Tribe also objects to the Court of Appeals’ interpretation of the “extraordinary circumstances” prong as requiring the showing of an “external obstacle” to timely filing. This Court reaffirms that this prong is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control. . (b) None of the Tribe’s excuses satisfy the “extraordinary circumstances” prong of the test. The Tribe had unilateral authority to present its claims in a timely manner. Its claimed obstacles, namely, a mistaken reliance on a putative class action and a belief that presentment was futile, were not outside the Tribe’s control. And the significant risk and expense associated with presenting and litigating its claims are far from extraordinary. Finally, the special relationship between the United States and Indian tribes, as articulated in the ISDA, does not override clear statutory language. . 764 F. 3d 51, affirmed. Alito, J., delivered the opinion for a unanimous Court.

The Indian Self-Determination and Education Assistance Act (ISDA) was enacted in 1975 to help Indian tribes assume responsibility for aid programs that benefit their members. Under the ISDA, tribes may enter into self-determination contracts with federal agencies to take control of a variety of federally funded programs. A contracting tribe is eligible to receive the amount of money that the Government would have otherwise spent on the program, as well as reimbursement for reasonable "contract support costs," which include administrative and overhead costs associated with carrying out the contracted programs. As part of its mandatory administrative process for resolving contract disputes, the CDA requires contractors to present any claim they may have to a contracting officer for decision, 41 U.S.C. §7103(a)(1). Under the Contract Disputes Act of 1978 (CDA), the contracting officer's decision is generally final, unless challenged through one of the statutorily authorized routes. A contractor dissatisfied with the officer decision may either appeal to a board of contract appeals or file an action for breach of contract in the United States Court of Federal Claims. The Tribe, claiming that the Bureau of Indian Affairs (BIA) systematically underpaid certain contract support costs, successfully moved for certification of a nationwide class of all tribes that had contracted with the BIA under ISDA. However, the trial court held that tribal contractors could participate in the class without presentment of the individual contracts because the flaws in the system alleged breaches in the contract support scheme. Ultimately, the District Court denied the Tribe contract support claims based on its 1996, 1997, and 1998 contracts, concluding that the Tribe was ineligible for class-action tolling during the pendency of the putative Cherokee Nation class, because the Tribe's failure to present its claims to IHS made it ineligible to participate in that class at the time class certification was denied. The Court of Appeals affirmed. Held: Equit-able tolling does not apply to preserve contract claims not timely presented to a federal contracting officer. . (a) The second prong of the equitable tolling test is met only where the circumstances that caused a litigant's delay are both extraordinary and beyond its control. Here, the Tribe offers no circumstances that meet this standard. Its mistaken reliance on putative Nation class action was not an obstacle beyond its control, but was a species of the same mistake that kept it out of that class. And the fact that there may have been significant risk and expense associated with presenting and litigating its claims is far from extraordinary. Because the contract claims accrued no later than the end of each calendar-year contract, the statute of limitations for the contracts had run by January 1st of the years 2003, 2004, and 2005, respectively. Thus, the parties did not appeal the denial of class certification, but proceeded to the merits on their own, eventually prevailing before this Court in a parallel suit. Petitioner Menominee Indian Tribe of Wisconsin (Tribe) does not dispute the timing of accrual. Although the Tribe cannot meet Holland v. Florida, 560 U. S. 631 (2010), this Court has no occasion to decide whether an even stricter test might apply to a nonhabeas case, nor does the Tribe argue that a more generous test than Holland's should apply here. Moreover, because there were no extraordinary circumstances, this Court need not decide whether the Tribe diligently pursuing its rights. P.. 764 F. 3d 51, affirmed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed a dissenting opinion, post, p..

2015_14-1132

https://www.oyez.org/cases/2015/14-1132

. Section 27 of the Securities Exchange Act of 1934 (Exchange Act), 48Stat. 992, as amended, 15 U. S. C. §78a, et seq., grants federal district courts exclusive jurisdiction “of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules or regulations thereunder.” §78aa(a). We hold today that the jurisdictional test established by that provision is the same as the one used to decide if a case “arises under” a federal law. See 28 U. S. C. §1331. I Respondent Greg Manning held more than two million shares of stock in Escala Group, Inc., a company traded on the NASDAQ. Between 2006 and 2007, Escala’s share price plummeted and Manning lost most of his investment. Manning blames petitioners, Merrill Lynch and several other financial institutions (collectively, Merrill Lynch), for devaluing Escala during that period through “naked short sales” of its stock. A typical short sale of a security is one made by a borrower, rather than an owner, of stock. In such a transaction, a person borrows stock from a broker, sells it to a buyer on the open market, and later purchases the same number of shares to return to the broker. The short seller’s hope is that the stock price will decline between the time he sells the borrowed shares and the time he buys replacements to pay back his loan. If that happens, the seller gets to pocket the difference (minus associated transaction costs). In a “naked” short sale, by contrast, the seller has not borrowed (or otherwise obtained) the stock he puts on the market, and so never delivers the promised shares to the buyer. See “Naked” Short Selling Antifraud Rule, Securities Exchange Commission (SEC) Release No. 34–58774, 73 Fed. Reg. 61667 (2008). That practice (beyond its effect on individual purchasers) can serve “as a tool to drive down a company’s stock price”—which, of course, injures shareholders like Manning. Id., at 61670. The SEC regulates such short sales at the federal level: The Commission’s Regulation SHO, issued under the Exchange Act, prohibits short sellers from intentionally failing to deliver securities and thereby curbs market manipulation. See 17 CFR §§242.203–242.204 (2015). In this lawsuit, Manning (joined by six other former Escala shareholders) alleges that Merrill Lynch facilitated and engaged in naked short sales of Escala stock, in violation of New Jersey law. His complaint asserts that Merrill Lynch participated in “short sales at times when [it] neither possessed, nor had any intention of obtaining[,] sufficient stock” to deliver to buyers. App. to Pet. for Cert. 57a, Amended Complaint ¶39. That conduct, Manning charges, contravened provisions of the New Jersey RacketeerInfluenced and Corrupt Organizations Act (RICO), New Jersey Criminal Code, and New Jersey Uniform Securities Law; it also, he adds, ran afoul of the New Jersey common law of negligence, unjust enrichment, and interference with contractual relations. See id., at 82a–101a, ¶¶88–161. Manning chose not to bring any claims under federal securities laws or rules. His complaint, however, referred explicitly to Regulation SHO, both describing the purposes of that rule and cataloguing past accusations against Merrill Lynch for flouting its requirements. See id., at 51a–54a, ¶¶28–30; 75a–82a, ¶¶81–87. And the complaint couched its description of the short selling at issue here in terms suggesting that Merrill Lynch had again violated that regulation, in addition to infringing New Jersey law. See id., at 57a–59a, ¶¶39–43. Manning brought his complaint in New Jersey state court, but Merrill Lynch removed the case to Federal District Court. See 28 U. S. C. §1441 (allowing removal of any civil action of which federal district courts have original jurisdiction). Merrill Lynch asserted federal jurisdiction on two grounds. First, it invoked the general federal question statute, §1331, which grants district courts jurisdiction of “all civil actions arising under” federal law. Second, it maintained that the suit belonged in federal court by virtue of §27 of the Exchange Act. That provision, in relevant part, grants district courts exclusive jurisdiction of “all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder.” 15 U. S. C. §78aa(a). Manning moved to remand the case to state court, arguing that neither statute gave the federal court authority to adjudicate his collection of state-law claims. The District Court denied his motion. See No. 12–4466 (D NJ, Mar. 18, 2013), App. to Pet. for Cert. 24a–38a. The Court of Appeals for the Third Circuit reversed, ordering a remand of the case to state court. See 772 F. 3d 158 (2014). The Third Circuit first decided that the fed-eral question statute, 28 U. S. C. §1331, did not confer juris-diction of the suit, because all Manning’s claims were “brought under state law” and none “necessarily raised” a federal issue. 772 F. 3d, at 161, 163. Nor, the court held, did §27 of the Exchange Act make the district court the appropriate forum. Relying on this Court’s construction of a nearly identical jurisdictional provision, the Court of Appeals found that §27 covers only those cases involving the Exchange Act that would satisfy the “arising under” test of the federal question statute. See id., at 166–167 (citing Pan American Petroleum Corp. v. Superior Court of Del. for New Castle Cty., 366 U. S. 656 (1961) ). Because the District Court lacked jurisdiction of Manning’s suit under §1331, so too it was not the exclusive forum under §27. Merrill Lynch sought this Court’s review solely as to whether §27 commits Manning’s case to federal court. See Pet. for Cert. i. Because of a Circuit split about that provision’s meaning,[1] we granted certiorari. 576 U. S. ___ (2015). We now affirm. II Like the Third Circuit, we read §27 as conferring exclusive federal jurisdiction of the same suits as “aris[e] under” the Exchange Act pursuant to the general federal question statute. See 28 U. S. C. §1331. The text of §27 more readily supports that meaning than it does either of the parties’ two alternatives. This Court’s precedents interpreting identical statutory language positively compel that conclusion. And the construction fits with our practice of reading jurisdictional laws, so long as consistent with their language, to respect the traditional role of state courts in our federal system and to establish clear and administrable rules. A Section 27, as noted earlier, provides federal district courts with exclusive jurisdiction “of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder.” 15 U. S. C. §78aa(a); see supra, at 3.[2] Much the same wording appears in nine other federal jurisdictional provisions—mostly enacted, like §27, as part of New Deal-era regulatory statutes.[3] Merrill Lynch argues that the “plain, unambiguous language” of §27 requires an expansive understanding of its scope. Brief for Petitioners 23. Whenever (says Merrill Lynch) a plaintiff’s complaint either explicitly or implic-itly “assert[s]” that “the defendant breached an Exchange Act duty,” then the suit is “brought to enforce” that duty and a federal court has exclusive jurisdiction. Id., at 22; Reply Brief 10–11; see Tr. of Oral Arg. 7–8 (confirming that such allegations need not be express). That is so, Merrill Lynch contends, even if the plaintiff, as in this case, brings only state-law claims in his complaint—that is, seeks relief solely under state law. See Reply Brief 3–6. And it is so, Merrill Lynch continues, even if the plaintiff can prevail on those claims without proving that the alleged breach of an Exchange Act duty—here, the violation of Regulation SHO—actually occurred. See id., at 7–13; Tr. of Oral Arg. 3 (“[T]he words ‘brought to enforce’ [donot focus] on what the court would necessarily have to decide”). But a natural reading of §27’s text does not extend so far. “Brought” in this context means “commenced,” Black’s Law Dictionary 254 (3d ed. 1933); “to” is a word “expressing purpose [or] consequence,” The Concise Oxford Dictionary 1288 (1931); and “enforce” means “give force [or] effect to,” 1 Webster’s New International Dictionary of the English Language 725 (1927). So §27 confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement. That language, in emphasizing what the suit is designed to accomplish, stops short of embracing any complaint that happens to mention a duty established by the Exchange Act. Consider, for example, a simple state-law action for breach of contract, in which the plaintiff alleges, for atmospheric reasons, that the defendant’s conduct also violated the Exchange Act—or still less, that the defendant is a bad actor who infringed that statute on another occasion. On Merrill Lynch’s view, §27 would cover that suit; indeed, Merrill Lynch points to just such incidental assertions as the basis for federal jurisdiction here. See Brief for Petitioners 20–21; supra, at 3. But that hypothetical suit is “brought to enforce” state contract law, not the Exchange Act—because the plaintiff can get all the relief he seeks just by showing the breach of an agreement, without proving any violation of federal securities law. The suit, that is, can achieve all it is supposed to even if issues involving the Exchange Act never come up. Critiquing Merrill Lynch’s position on similar grounds, Manning proposes a far more restrictive interpretation of §27’s language—one going beyond what he needs to prevail. See Brief for Respondents 27–33. According to Manning, a suit is “brought to enforce” the Exchange Act’s duties or liabilities only if it is brought directly under that statute—that is, only if the claims it asserts (and not just the duties it means to vindicate) are created by the Exchange Act. On that view, everything depends (as Justice Holmes famously said in another jurisdictional context) on which law “creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916) . If a complaint asserts a right of action deriving from the Exchange Act (or an associated regulation), the suit must proceed in federal court. But if, as here, the complaint brings only state-created claims, then the case belongs in a state forum. And that is so, Manning claims, even if—contrary to what the Third Circuit held below—the success of the state claim necessarily hinges on proving that the defendant breached an Exchange Act duty. See Brief for Respondents 31. Manning’s view of the text’s requirements, although better than Merrill Lynch’s, veers too far in the opposite direction. There is no doubt, as Manning says, that a suit asserting an Exchange Act cause of action fits within §27’s scope: Bringing such a suit is the prototypical way of enforcing an Exchange Act duty. But it is not the only way. On rare occasions, as just suggested, a suit raising a state-law claim rises or falls on the plaintiff’s ability to prove the violation of a federal duty. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308 –315 (2005); Smith v. Kansas City Title & Trust Co., 255 U. S. 180, 201 (1921) . If in that manner, a state-law action necessarily depends on a showing that the defendant breached the Exchange Act, then that suit could also fall within §27’s compass. Suppose, for example, that a state statute simply makes illegal “any violation of the Exchange Act involving naked short selling.” A plaintiff seeking relief under that state law must undertake to prove, as the cornerstone of his suit, that the defendant infringed a requirement of the federal statute. (Indeed, in this hypothetical, that is the plaintiff’s only project.) Accordingly, his suit, even though asserting a state-created claim, is also “brought to enforce” a duty created by the Exchange Act. An existing jurisdictional test well captures both classes of suits “brought to enforce” such a duty. As noted earlier, 28 U. S. C. §1331 provides federal jurisdiction of all civil actions “arising under” federal law. See supra, at 3. This Court has found that statutory term satisfied in either of two circumstances. Most directly, and most often, federal jurisdiction attaches when federal law creates the cause of action asserted. That set of cases is what Manning highlights in offering his view of §27. But even when “a claim finds its origins” in state law, there is “a special and small category of cases in which arising under jurisdiction still lies.” Gunn v. Minton, 568 U. S. ___, ___ (2013) (slip op., at 6) (internal quotation marks omitted). As this Court has explained, a federal court has jurisdiction of a state-law claim if it “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance” of federal and state power. Grable, 545 U. S., at 314; see Gunn, 568 U. S., at ___ (slip op., at 6) (framing the same standard as a four-part test). That description typically fits cases, like those described just above, in which a state-law cause of action is “brought to enforce” a duty created by the Exchange Act because the claim’s very success depends on giving effect to a federal requirement. Accordingly, we agree with the court below that §27’s jurisdictional test matches the one we have formulated for §1331, as applied to cases involving the Exchange Act. If (but only if) such a case meets the “arising under” standard, §27 commands that it go to federal court.[4] Merrill Lynch objects that our rule construes “completely different language”—i.e., the phrases “arising under”and “brought to enforce” in §1331 and §27, respectively—“to mean exactly the same thing.” Reply Brief 7. We cannot deny that point. But we think it far less odd than Merrill Lynch does. After all, the test for §1331 jurisdiction is not grounded in that provision’s particular phrasing. This Court has long read the words “arising under” in Article III to extend quite broadly, “to all cases in which a federal question is ‘an ingredient’ of the action.” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986) (quoting Osborn v. Bank of United States, 9 Wheat. 738, 823 (1824)). In the statutory context, however, we opted to give those same words a narrower scope “in the light of [§1331’s] history[,] the demands of reason and coherence, and the dictates of sound judicial policy.” Romero v. International Terminal Operating Co., 358 U. S. 354, 379 (1959) . Because the resulting test does not turn on §1331’s text, there is nothing remarkable in its fitting as, or even more, neatly a differently worded statutory provision. Nor can Merrill Lynch claim that Congress’s use of the new “brought to enforce” language in §27 shows an intent to depart from a settled (even if linguistically ungrounded) test for statutory “arising under” jurisdiction. That is because no such well-defined test then existed. As we recently noted, our caselaw construing §1331 was for many decades—including when the Exchange Act passed—highly “unruly.” Gunn, 568 U. S., at __ (slip op., at 6) (referring to the “canvas” of our old opinions as “look[ing] like one that Jackson Pollock got to first”). Against that muddled backdrop, it is impossible to infer that Congress, in enacting §27, wished to depart from what we now understand as the “arising under” standard. B This Court has reached the same conclusion before. In two unrelated decisions, we addressed the “brought to enforce” language at issue here. See Pan American, 366 U. S. 656 ; Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367 (1996) . Each time, we viewed that phrase as coextensive with our construction of “arising under.” Pan American involved §22 of the Natural Gas Act (NGA), 15 U. S. C. §717u—an exclusive jurisdiction provision containing language materially indistinguishable from §27’s.[5] The case began in state court when a natural gas purchaser sued a producer for breach of a contract setting sale prices. Prior to the alleged breach, the producer had filed those contractual rates with the Federal Power Commission, as the NGA required. Relying on that submission (which the complaint did not mention), the producer claimed that the buyer’s suit was “brought to enforce” a liability deriving from the NGA—i.e., a filed rate—and so must proceed in federal court. See 366 U. S., at 662. This Court rejected the argument. Our decision explained that §22’s use of the term “brought to enforce,” rather than “arising under,” made no difference to the jurisdictional analysis. The inquiry, we wrote, was “not affected by want” of the language contained in the federal question statute. Id., at 665, n. 2. The “limitation[s]” associated with “arising under” jurisdiction, we continued, were “clearly implied” in §22’s alternative phrasing. Ibid. In short, the linguistic distinction between the two jurisdictional provisions did not extend to their meaning. Pan American thus went on to analyze the jurisdictional issue in the manner set out in our “arising under” precedents. Federal question jurisdiction lies, the Court wrote, only if “it appears from the face of the complaint that determination of the suit depends upon a question of federal law.” Id., at 663. That inquiry focuses on “the particular claims a suitor makes” in his complaint—meaning, whether the plaintiff seeks relief under state or federal law. Id., at 662. In addition, the Court suggested, a federal court could adjudicate a suit stating only a state-law claim if it included as “an element, and an essential one,” the violation of a federal right. Id., at 663 (quoting Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936) ). With those principles of “arising under” jurisdiction laid out, the Court held that §22 did not enable a federal court to resolve the buyer’s case, because he could prevail merely by proving breach of the contract. See 366 U. S., at 663–665. Pan American establishes, then, that an action “brought to enforce” a duty or liability created by a federal statute is nothing more (and nothing less) than an action “arising under” that law. Merrill Lynch reads Pan American more narrowly, as holding only that §22 does not confer federal jurisdiction when a complaint (unlike Manning’s) fails to reference federal law at all. See Brief for Petitioners 32–33, 38. But that argument ignores Pan American’s express statement of equivalence between §27’s language and the federal question statute’s: “Brought to enforce” has the same “limitation[s]” (meaning, the same scope) as “arising under.” 366 U. S., at 665, n. 2. And just as important, Merrill Lynch disregards Pan American’s analytical structure: The decision proceeds by reviewing this Court’s “arising under” precedents, articulating the principles animating that caselaw, and then applying those tenets to the dispute at hand. Id., at 662–665. The Court thus showed (as well as told) that “brought to enforce” jurisdiction mirrors that of “arising under.” As a fallback, Merrill Lynch claims that Pan American is irrelevant here because it relied on legislative history distinct to the NGA in finding §22’s “brought to enforce” language coterminous with “arising under.” See Brief for Petitioners 38–39. The premise of that argument is true enough: In support of its holding, the Court quoted a Committee Report describing §22 as conferring federal jurisdiction “over cases arising under the act.” 366 U. S., at 665, n. 2. But we cannot accept the conclusion Merrill Lynch draws from that statement: that courts should give two identically worded statutory provisions, passed less than five years apart, markedly different meanings. Indeed, the result of Merrill Lynch’s approach is still odder, for what of the eight other jurisdictional provisions containing “brought to enforce” language? See n. 3, supra. Presumably, Merrill Lynch would have courts inspect each of their legislative histories to decide whether to read those statutes as reproducing the “arising under” standard, adopting Merrill Lynch’s alternative view, or demanding yet another jurisdictional test. We are hard pressed to imagine a less sensible way of construing the repeated iterations of the phrase “brought to enforce” in the jurisdictional provisions of the Federal Code. In any event, this Court in Matsushita addressed §27 itself, and once again equated the “brought to enforce” and “arising under” standards. That decision arose from a state-law action against corporate directors for breach of fiduciary duty. The issue was whether the state court handling the suit could approve a settlement releasing, in addition to the state claims actually brought, potential Exchange Act claims that §27 would have committed to federal court. In deciding that the state court could do so, we described §27—not once, not twice, but three times—as conferring exclusive jurisdiction of suits “arising under” the Exchange Act. See 516 U. S., at 380 (Section 27 “confers exclusive jurisdiction upon the federal courts for suits arising under the [Exchange] Act”); id., at 381 (Section 27 “prohibits state courts from adjudicating claims arising under the Exchange Act”); id., at 385 (Section 27 “prohibit[s] state courts from exercising jurisdiction over suits arising under the Exchange Act”) (emphases added). Over and over, then, the Court took as a given that §27’s jurisdictional test mimicked the one in the general federal question statute. And still more: The Matsushita Court thought clear that the suit as filed—which closely resembled Manning’s in its mix of state and federal law—fell outside §27’s grant of exclusive jurisdiction. As just noted, the claims brought in the Matsushita complaint sought relief for breach of a state-law duty. But in support of those claims, the plaintiffs charged, much as Manning did here, that the defendants’ conduct also violated federal securities laws. See 516 U. S., at 370; supra, at 2–3. We found the presence of that accusation insufficient to trigger §27. “[T]he cause pleaded,” we wrote, remained “a state common-law action,” 516 U. S., at 382, n. 7: Notwithstanding the potential federal issue, the suit “was not ‘brought to enforce’ any rights or obligations under the [Exchange] Act,” id., at 381. The Court thus rejected the very position Merrill Lynch takes here—i.e., that §27 precludes a state court from adjudicating any case, even if brought under state law, in which the plaintiff asserts an Exchange Act breach. C Construing §27, consistent with both text and precedent, to cover suits that arise under the Exchange Act serves the goals we have consistently underscored in interpreting jurisdictional statutes. Our reading, unlike Merrill Lynch’s, gives due deference to the important role of state courts in our federal system. And the standard we adopt is more straightforward and administrable than the alternative Merrill Lynch offers. Out of respect for state courts, this Court has time and again declined to construe federal jurisdictional statutes more expansively than their language, most fairly read, requires. We have reiterated the need to give “[d]ue regard [to] the rightful independence of state governments”—and more particularly, to the power of the States “to provide for the determination of controversies in their courts.” Romero, 358 U. S., at 380 (quoting Healy v. Ratta, 292 U. S. 263, 270 (1934) ; Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 109 (1941) . Our decisions, as we once put the point, reflect a “deeply felt and traditional reluctance . . . to expand the jurisdiction of federal courts through a broad reading of jurisdictional statutes.” Romero, 358 U. S., at 379.[6] That interpretive stance serves, among other things, to keep state-law actions like Manning’s in state court, and thus to help maintainthe constitutional balance between state and federaljudiciaries. Nor does this Court’s concern for state court prerogatives disappear, as Merrill Lynch suggests it should, in the face of a statute granting exclusive federal jurisdiction. See Brief for Petitioners 23–27. To the contrary, when a statute mandates, rather than permits, federal jurisdiction—thus depriving state courts of all ability to adjudicate certain claims—our reluctance to endorse “broad reading[s],” Romero, 358 U. S., at 379, if anything, grows stronger. And that is especially so when, as here, the construction offered would place in federal court actions bringing only claims created by state law—even if those claims might raise federal issues. To be sure, a grant of exclusive federal jurisdiction, as Merrill Lynch reminds us, indicates that Congress wanted “greater uniformity of construction and more effective and expert application” of federal law than usual. Brief for Petitioners 24 (quoting Matsushita, 516 U. S., at 383). But “greater” and “more” do not mean “total,” and the critical question remains how far such a grant extends. In resolving that issue, we will not lightly read the statute to alter the usual constitu-tional balance, as it would by sending actions with all state-law claims to federal court just because a complaint references a federal duty. Our precedents construing other exclusive grants of federal jurisdiction illustrate those principles. In Pan American, for example, we denied that a state court’s resolution of state-law claims potentially implicating the NGA’s meaning would “jeopardize the uniform system of regulation” that the statute established. 366 U. S., at 665. We reasoned that this Court’s ability to review state court decisions of federal questions would sufficiently protect federal interests. And similarly, in Tafflin v. Levitt, 493 U. S. 455 –467 (1990), we permitted state courts to adjudicate civil RICO actions that might raise issues about the scope of federal crimes alleged as predicate acts, even though federal courts have exclusive jurisdiction “of all offenses against the laws of the United States,” 18 U. S. C. §3231. There, we expressed confidence that state courts would look to federal court interpretations of the relevant criminal statutes. Accordingly, we saw “no significant danger of inconsistent application of federal criminal law” and no “incompatibility with federal interests.” Tafflin, 493 U. S., at 464–465, 467 (internal quotation marks omitted). So too here, when state courts, in deciding state-law claims, address possible issues of the Exchange Act’s meaning. Not even Merrill Lynch thinks those decisions wholly avoidable: It admits that §27 does nothing to prevent state courts from resolving Exchange Act questions that result from defenses or counterclaims. See Brief for Petitioners 32–33; Pan American, 366 U. S., at 664–665. We see little difference, in terms of the uniformity-based policies Merrill Lynch invokes, if those issues instead appear in a complaint like Manning’s. And indeed, Congress likely contemplated that some complaints intermingling state and federal questions would be brought in state court: After all, Congress specifically affirmed the capacity of such courts to hear state-law securities actions, which predictably raise issues coinciding, overlapping, or intersecting with those under the Act itself. See 15 U. S. C. §78bb(a)(2); Matsushita, 516 U. S., at 383. So, for example, it is hardly surprising in a suit like this one, alleging short sales in violation of state securities law, that a plaintiff might say the defendant previously breached a federal prohibition of similar conduct. See supra, at 2–3 (describing Manning’s complaint). And it is less troubling for a state court to consider such an issue than to lose all ability to adjudicate a suit raising only state-law causes of action. Reading §27 in line with our §1331 caselaw also promotes “administrative simplicity[, which] is a major virtue in a jurisdictional statute.” Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010) . Both judges and litigants are familiar with the “arising under” standard and how it works. For the most part, that test provides ready answers to jurisdictional questions. And an existing body of precedent gives guidance whenever borderline cases crop up. See supra, at 8–9. By contrast, no one has experience with Merrill Lynch’s alternative standard, which would spring out of nothing to govern suits involving not only the Exchange Act but up to nine other discrete spheres of federal law. See n. 3, supra (listing statutes with “brought to enforce” language); supra, at 12–13 (noting Merrill Lynch’s backup claim that legislative histories might compel different tests for different statutes). Adopting such an untested approach, and forcing courts to toggle back and forth between it and the “arising under” standard, would undermine consistency and predictability in litigation. That result disserves courts and parties alike. Making matters worse, Merrill Lynch’s rule is simple for plaintiffs to avoid—or else, excruciating for courts to police. Under that rule, a plaintiff electing to bring state-law claims in state court will purge his complaint of any references to federal securities law, so as to escape re-moval. Such omissions, after all, will do nothing to change the way the plaintiff can present his case at trial; they will merely make the complaint less informative. Recognizing the potential for that kind of avoidance, Merrill Lynch argues that a judge should go behind the face of a complaint to determine whether it is the product of “artful pleading.” See Tr. of Oral Arg. 7 (If the plaintiffs “had just literally whited out, deleted the references to Reg[ulation] SHO,” the court should still understand the complaint to allege a breach of that rule; “the fact [that the plaintiffs] didn’t cite it wouldn’t change the fact”). We have no idea how a court would make that judgment, and get cold comfort from Merrill Lynch’s assurance that the question would arise not in this case but in “the next third, fourth, fifth case down the road.” Id., at 8. Jurisdictional tests are built for more than a single dispute: That Merrill Lynch’s threatens to become either a useless drafting rule or a tortuous inquiry into artful pleading is one more good reason to reject it. III Section 27 provides exclusive federal jurisdiction of the same class of cases as “arise under” the Exchange Act for purposes of §1331. The text of §27, most naturally read, supports that rule. This Court has adopted the same view in two prior cases. And that reading of the statute promotes the twin goals, important in interpreting jurisdictional grants, of respecting state courts and providing administrable standards. Our holding requires remanding Manning’s suit to state court. The Third Circuit found that the District Court did not have jurisdiction of Manning’s suit under §1331 because all his claims sought relief under state law and none necessarily raised a federal issue. See supra, at 3. Merrill Lynch did not challenge that ruling, and we therefore take it as a given. And that means, under our decision today, that the District Court also lacked jurisdiction under §27. Accordingly, we affirm the judgment below. It is so ordered.Notes 1 Compare 772 F. 3d 158 (CA3 2014) (case below) with Barbara v. New York Stock Exchange, Inc., 99 F. 3d 49, 55 (CA2 1996) (construing §27 more narrowly), Sparta Surgical Corp. v. National Assn. of Securities Dealers, Inc., 159 F. 3d 1209, 1211–1212 (CA9 1998) (construing §27 more broadly), and Hawkins v. National Assn. of Securities Dealers, Inc., 149 F. 3d 330, 331–332 (CA5 1998) (per curiam) (same). 2 Section 27 also grants federal courts exclusive jurisdiction of “violations of [the Exchange Act] or the rules and regulations thereunder.” 15 U. S. C. §78aa(a). Manning argues that the “violations” language applies only to criminal proceedings and SEC enforcement actions. See Brief for Respondents 28. Merrill Lynch, although not conceding that much, believes the “violations” clause irrelevant here because, in private suits for damages, it goes no further than the “brought to enforce” language quoted in the text. See Reply Brief 1, n. 1. Given that both parties have thus taken the “violations” language off the table, we do not address its meaning. 3 See Securities Act of 1933, 15 U. S. C. §77v(a); Federal Power Act of 1935, 16 U. S. C. §825p; Connally Hot Oil Act of 1935, 15 U. S. C. §715i(c); Natural Gas Act of 1938, 15 U. S. C. §717u; Trust Indenture Act of 1939, 15 U. S. C. §77vvv(b); Investment Company Act of 1940, 15 U. S. C. §80a–43; Investment Advisers Act of 1940, 15 U. S. C. §80b–14(a); International Wheat Agreement Act of 1949, 7 U. S. C. §1642(e); Interstate Land Sales Full Disclosure Act of 1968, 15 U. S. C. §1719. 4 The concurrence adopts a slightly different approach, placing in federal court Exchange Act claims plus all state-law claims necessarily raising an Exchange Act issue. See post, at 2–3 (Thomas, J., concurring in judgment). In other words, the concurrence would not ask, as the “arising under” test does, whether the federal issue embedded in such a state-law claim is also substantial, actually disputed, and capable of resolution in federal court without disrupting the congressionally approved federal-state balance. See post, at 6–7; Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308, 314 (2005) . But this Court has not construed any jurisdictional statute, whether using the words “brought to enforce” or “arising under” (or for that matter, any other), to draw the concurrence’s line. For as long as we have contemplated exercising federal jurisdiction over state-law claims necessarily raising federal issues, we have inquired as well into whether those issues are “really and substantially” disputed. See, e.g., Hop-kins v. Walker, 244 U. S. 486, 489 (1917) ; Shulthis v. McDougal, 225 U. S. 561, 569 (1912) . And similarly, we have long emphasized the need in such circumstances to make “sensitive judgments about congressional intent, judicial power, and the federal system.” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 810 (1986) . At this late juncture, we see no virtue in trying to pull apart these interconnected strands of necessity and substantiality-plus. Indeed, doing so here—and thus creating a gap between our “brought to enforce” and “arising under” standards—would conflict with this Court’s precedent and undermine important goals of interpreting jurisdictional statutes. See infra, at 10–14 (discussing our prior decisions equating the two tests), 14–17 (highlighting the need to respect state courts and the benefits of using a single, time-tested standard). 5 Section 22 grants federal courts exclusive jurisdiction “of all suits in equity and actions at law brought to enforce any liability or duty created by . . . [the NGA] or any rule, regulation, or order thereunder.” 52Stat. 833. 6 The Romero Court continued: “A reluctance which must be even more forcefully felt when the expansion is proposed, for the first time, eighty-three years after the jurisdiction has been conferred.” 358 U. S., at 379. The Exchange Act was passed a mere 82 years ago, but we believe the point still stands.

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 . SUPREME COURT OF THE UNITED STATES Syllabus MERRILL LYNCH, PIERCE, FENNER & SMITH INC. et al. v. MANNING et al. certiorari to the united states court of appeals for the third circuit No. 14–1132. Argued December 1, 2015—Decided May 16, 2016 Respondent Greg Manning held over two million shares of stock in Escala Group, Inc. He claims that he lost most of his investment when the share price plummeted after petitioners, Merrill Lynch and other financial institutions (collectively, Merrill Lynch), devalued Escala through “naked short sales” of its stock. Unlike a typical short sale, where a person borrows stock from a broker, sells it to a buyer on the open market, and later purchases the same number of shares to return to the broker, the seller in a “naked” short sale does not borrow the stock he puts on the market, and so never delivers the promised shares to the buyer. This practice, which can injure shareholders by driving down a stock’s price, is regulated by the Securities and Exchange Commission’s Regulation SHO, which prohibits short-sellers from intentionally failing to deliver securities, thereby curbing market manipulation. Manning and other former Escala shareholders (collectively, Manning) filed suit in New Jersey state court, alleging that Merrill Lynch’s actions violated New Jersey law. Though Manning chose not to bring any claims under federal securities laws or rules, his complaint referred explicitly to Regulation SHO, cataloguing past accusations against Merrill Lynch for flouting its requirements and suggesting that the transactions at issue had again violated the regulation. Merrill Lynch removed the case to Federal District Court, asserting federal jurisdiction on two grounds. First, it invoked the general federal question statute, 28 U. S. C. §1331, which grants district courts jurisdiction of “all civil actions arising under” federal law. It also invoked §27 the Securities Exchange Act of 1934 (Exchange Act), which grants federal district courts exclusive jurisdiction “of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules or regulations thereunder.” 15 U. S. C. §78aa(a). Manning moved to remand the case to state court, arguing that neither statute gave the federal court authority to adjudicate his state-law claims. The District Court denied his motion, but the Third Circuit reversed. The court first decided that §1331 did not confer jurisdiction, because Manning’s claims all arose under state law and did not necessarily raise any federal issues. Nor was the District Court the appropriate forum under §27 of the Exchange Act, which, the court held, covers only those cases that would satisfy §1331’s “arising under” test for general federal jurisdiction. Held: The jurisdictional test established by §27 is the same as §1331’s test for deciding if a case “arises under” a federal law. . (a) Section 27’s text more readily supports this meaning than it does the parties’ two alternatives. Merrill Lynch argues that §27’s plain language requires an expansive rule: Any suit that either explicitly or implicitly asserts a breach of an Exchange Act duty is “brought to enforce” that duty even if the plaintiff seeks relief solely under state law. Under the natural reading of that text, however, §27 confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement. The “brought to enforce” language thus stops short of embracing any complaint that happens to mention a duty established by the Exchange Act. Meanwhile, Manning’s far more restrictive interpretation—that a suit is “brought to enforce” only if it is brought directly under that statute—veers too far in the opposite direction. Instead, §27’s language is best read to capture both suits brought under the Exchange Act and the rare suit in which a state-law claim rises and falls on the plaintiff’s ability to prove the violation of a federal duty. An existing jurisdictional test well captures both of these classes of suits “brought to enforce” such a duty: 28 U. S. C. §1331’s provision of federal jurisdiction of all civil actions “arising under” federal law. Federal jurisdiction most often attaches when federal law creates the cause of action asserted, but it may also attach when the state-law claim “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance” of federal and state power. Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U. S. 308 . . (b) This Court’s precedents interpreting the term “brought to enforce” have likewise interpreted §27’s jurisdictional grant as coextensive with the Court’s construction of §1331’s “arising under” standard. See Pan American, 366 U. S. 656 ; Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367 . . (c) Construing §27, consistent with both text and precedent, to cover suits that arise under the Exchange Act serves the goals the Court has consistently underscored in interpreting jurisdictional statutes. It gives due deference to the important role of state courts. And it promotes “administrative simplicity[, which] is a major virtue in a jurisdictional statute.” Hertz Corp. v. Friend, 559 U. S. 77 . Both judges and litigants are familiar with the “arising under” standard and how it works, and that test generally provides ready answers to jurisdictional questions. . 772 F. 3d 158, affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment, in which Sotomayor, J., joined.

Respondent, who owned more than two million shares of stock in a company traded on the NASDAQ, lost most of his investment when his stock price plummeted. He then brought suit in a New Jersey state court, alleging that petitioners, Merrill Lynch, and several other financial institutions (collectively, petitioners), had devalued the company through naked short sales of its stock. Respondent chose not to bring any claims under federal securities laws or rules, but referred explicitly to Regulation SHO issued under the Securities Exchange Act of 1934 (Exchange Act) which prohibits short sellers from intentionally failing to deliver securities and curbs market manipulation. The complaint couched its description of the short selling at issue here in terms suggesting that Merrill Lynch had again violated that regulation, in addition to infringing New Jersey law. Merrill Lynch removed the case to Federal District Court, which denied respondent's motion to remand. The Court of Appeals reversed, ordering a remand to state court. Held: The fed-eral question statute, 28 U. S. C. §1331, does not confer juris-diction of the suit, because all of respondent's claims were brought under state law and nonenecessarily raised a federal issue. Nor did §27 of the Exchange Act make the district court the appropriate forum under §27. Because the District Court lacked jurisdiction of respondent under that statute, so too it was not the exclusive forum under 27. 72 F. 3d 158, affirmed. Reported below: ;;. (a) The text of §27 more readily supports that meaning than it does either of the parties. The text fits with this Court's practice of reading jurisdictional laws, so long as consistent with their language, to respect the traditional role of state courts in our federal system and to establish clear and administrable rules. Cf. Pan American Petroleum Corp. v. Superior Court of Del. for New Castle Cty., 366 U.S. 656. . (b) A suit asserting an Exchange Act cause of action fits within §27, which provides federal district courts with exclusive jurisdiction of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder. Much the same wording appears in other federal jurisdictional provisions, mostly enacted, like §27 here, as part of New Deal-era regulatory statutes. Here, whenever a plaintiff (as here) either explicitly or implic-itly assert[s] that the defendant breached a duty, then the suit is "brought to enforce" that duty and a federal court has exclusive jurisdiction. Such a suit, even though asserting a state-created claim, is also also Brought to enforce a duty created by the Act. An existing jurisdictional test well captures both classes of suits that are brought to enforcement such a duty. See, e.g., Grable & Sons Metal Products, Inc. v Darue Engineering & Mfg., 545-717u. A grant of exclusive federal jurisdiction would mean that federal courts could approve state-law suits on the basis of federal law, and would alter the traditional balance between federal and state courts. To the contrary, when a statute mandates, rather than permits, federal jurisdiction, our reluctance to endorse broad reading of jurisdictional statutes reflects a deep rooted reluctance to expand the jurisdiction of federal courts through a broad reading. This Court has not construed any jurisdictional statute, whether using the words, or both, of the phrase, and has found that either phrase equates with or complements the term, and that granting exclusive jurisdiction in §27 does not mean that courts should give two identically worded statutory provisions, passed less than five years apart, markedly different meanings. Nor does this Court have a concern for state court prerogatives disappear, as Merrill Lynch suggests it should, in the face of a statute granting exclusive federal jurisdiction.. Pp. (c) Nor does Merrill Lynch claim that its use of the new language does not show an intent to depart from a settled (even if linguistically ungrounded) test for statutory "arising under" jurisdiction, because no such well-defined test then existed. P.. (d) The Court adopts a slightly different approach, placing in federal court Exchange Act claims plus all state law claims necessarily raising Exchange Act issues. Accordingly, the concurrence would not ask, as the test does, whether the federal issue embedded in such a state law claim is also substantial, actually disputed, and capable of resolution in federal courts without disrupting the congressionally approved federal-state balance. Although this Court has used the same test in two prior cases, it has adopted the same view in two subsequent cases, and it promotes the twin goals, important in interpreting jurisdictional grants, of respecting state courts and providing administrable standards. See, for example, Tafflin v.

2015_14-8913

https://www.oyez.org/cases/2015/14-8913

. This case involves the Federal Sentencing Guidelines. In sentencing petitioner, the District Court applied a Guidelines range higher than the applicable one. The error went unnoticed by the court and the parties, so no timely objection was entered. The error was first noted when, during briefing to the Court of Appeals for the Fifth Circuit, petitioner himself raised the mistake. The Court of Appeals refused to correct the error because, in its view, petitioner could not establish a reasonable probability that but for the error he would have received a different sentence. Under that court’s decisions, if a defendant’s ultimate sentence falls within what would have been the correct Guidelines range, the defendant, on appeal, must identify “additional evidence” to show that use of the incorrect Guidelines range did in fact affect his sentence. Absent that evidence, in the Court of Appeals’ view, a defendant who is sentenced under an incorrect range but whose sentence is also within what would have been the correct range cannot demonstrate he has been prejudiced by the error. Most Courts of Appeals have not adopted so rigid a standard. Instead, in recognition of the Guidelines’ central role in sentencing, other Courts of Appeals have concluded that a district court’s application of an incorrect Guidelines range can itself serve as evidence of an effect on substantial rights. See, e.g., United States v. Sabillon-Umana, 772 F. 3d 1328, 1333 (CA10 2014) (application of an erroneous Guidelines range “ ‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’ ” that range); United States v. Vargem, 747 F. 3d 724, 728–729 (CA9 2014); United States v. Story, 503 F. 3d 436, 440 (CA6 2007). These courts recognize that, in most cases, when a district court adopts an incorrect Guidelinesrange, there is a reasonable probability that the defendant’s sentence would be different absent the error. This Court granted certiorari to reconcile the difference in approaches. I A The Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year. Congress directed the United States Sentencing Commission (USSC or Commission) to establish the Guidelines. 28 U. S. C. §994(a)(1). The goal was to achieve “ ‘uniformity in sentencing . . . imposed by different federal courts for similar criminal conduct,’ as well as ‘proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.’ ” Rita v. United States, 551 U. S. 338, 349 (2007) . To those ends, the Commission engaged in “a deliberative and dynamic process” to create Guidelines that account for a variety of offenses and circumstances. USSC, Guidelines Manual §2, ch. 1, pt. A, intro. comment., p. 14 (Nov. 2015) (USSG). As part of that process, the Commission considered the objectives of federal sentencing identified in the Sentencing Reform Act of 1984—the same objectives that federal judges must consider when sentencing defendants. Compare 28 U. S. C. §991(b) with 18 U. S. C. §3553(a). The result is a set of elaborate, detailed Guidelines that aim to embody federal sentencing objectives “both in principle and in practice.” Rita, supra, at 350. Uniformity and proportionality in sentencing are achieved, in part, by the Guidelines’ significant role in sentencing. See Peugh v. United States, 569 U. S. ___, ___ (2013) (slip op., at 10). The Guidelines enter the sentencing process long before the district court imposes the sentence. The United States Probation Office first prepares a presentence report which includes a calculation of the advisory Guidelines range it considers to be applicable. Fed. Rules Crim. Proc. 32(d)(1)(A)–(C); see generally 18 U. S. C. §3552(a). The applicable Guidelines range is based on the seriousness of a defendant’s offense (indicated by his “offense level”) and his criminal history (indi-cated by his “criminal history category”). Rules 32(d)(1)(B)–(C). The presentence report explains the basis for the Probation Office’s calculations and sets out the sentencing options under the applicable statutes and Guidelines. Rule 32(d)(1). It also contains detailed information about the defendant’s criminal history and personal characteristics, such as education and employment his-tory. Rule 32(d)(2). At the outset of the sentencing proceedings, the district court must determine the applicable Guidelines range. Peugh, supra, at ___ (slip op., at 10). To do so, the court considers the presentence report as well as any objections the parties might have. The court then entertains the parties’ arguments regarding an appropriate sentence, including whether the sentence should be within the Guidelines range or not. Although the district court has discretion to depart from the Guidelines, the court “must consult those Guidelines and take them into account when sentencing.” United States v. Booker, 543 U. S. 220, 264 (2005) . B The Guidelines are complex, and so there will be instances when a district court’s sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed. In that circumstance, because the defendant failed to object to the miscalculation, appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b). Rule 52, in both its parts, is brief. It states: “(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. “(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The starting point for interpreting and applying paragraph (b) of the Rule, upon which this case turns, is the Court’s decision in United States v. Olano, 507 U. S. 725 (1993) . Olano instructs that a court of appeals has discretion to remedy a forfeited error provided certain conditions are met. First, there must be an error that has not been intentionally relinquished or abandoned. Id., at 732–733. Second, the error must be plain—that is to say, clear or obvious. Id., at 734. Third, the error must have affected the defendant’s substantial rights, ibid., which in the ordinary case means he or she must “show a reasonable probability that, but for the error,” the outcome of the proceeding would have been different, United States v. Dominguez Benitez, 542 U. S. 74, 76, 82 (2004) . Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Olano, supra, at 736 (brackets omitted). II The petitioner here, Saul Molina-Martinez, pleaded guilty to being unlawfully present in the United States after having been deported following an aggravated felony conviction, in violation of 8 U. S. C. §§1326(a) and (b). As required, the Probation Office prepared a presentence report that related Molina-Martinez’s offense of conviction, his criminal history, his personal characteristics, and the available sentencing options. The report also included the Probation Office’s calculation of what it believed to be Molina-Martinez’s Guidelines range. The Probation Office calculated Molina-Martinez’s total offense level as 21. It concluded that Molina-Martinez’s criminal history warranted 18 points, which included 11 points for five aggravated burglary convictions from 2011. Those 18 criminal history points resulted in a criminal history category of VI. That category, combined with an offense level of 21, resulted in a Guidelines range of 77 to 96 months. At the sentencing hearing Molina-Martinez’s counsel and the Government addressed the court. The Government acknowledged that the Probation Office had “recommended the low end on this case, 77 months.” App. 30. But, the prosecution told the court, it “disagree[d] with that recommendation,” and was “asking for a high end sentence of 96 months”—the top of the Guidelines range. Ibid. Like the Probation Office, counsel for Molina-Martinez urged the court to enter a sentence at the bottom of the Guidelines range. Counsel asserted that “77 months is a severe sentence” and that “after the 77 months, he’ll be deported with probably a special release term.” Id., at 32. A sentence of 77 months, counsel continued, “is more than adequate to ensure he doesn’t come back again.” Ibid. After hearing from the parties, the court stated it was adopting the presentence report’s factual findings and Guidelines calculations. It then ordered Molina-Martinez’s sentence: “It’s the judgment of the Court that the defendant, Saul Molina-Martinez, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 77 months. Upon release from imprisonment, Defendant shall be placed on supervised release for a term of three years without supervision.” Id.,at 33. The court provided no further explanation for thesentence. On appeal, Molina-Martinez’s attorney submitted a brief pursuant to Anders v. California, 386 U. S. 738 (1967) . The attorney explained that, in his opinion, there were no nonfrivolous grounds for appeal. Molina-Martinez, however, submitted a pro se response to his attorney’s Anders brief. In it he identified for the first time what he believed to be an error in the calculation of his criminal history points under the Guidelines. The Court of Appeals concluded that Molina-Martinez’s argument did not appear frivolous. It directed his lawyer to file either a supplemental Anders brief or a brief on the merits of the Guidelines issue. Molina-Martinez, through his attorney, filed a merits brief arguing that the Probation Office and the District Court erred in calculating his criminal history points, resulting in the application of a higher Guidelines range. The error, Molina-Martinez explained, occurred because the Probation Office failed to apply §4A1.2(a)(2) of the Guidelines. See USSG §4A1.2(a)(2) (Nov. 2012). That provision addresses how multiple sentences imposed on the same day are to be counted for purposes of determining a defendant’s criminal history. It instructs that, when prior sentences were imposed on the same day, they should be counted as a single sentence unless the offenses “were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” Ibid. Molina-Martinez’s presentence report included five aggravated burglary convictions for which he had been sentenced on the same day. The Probation Office counted each sentence separately, which resulted in the imposition of 11 criminal history points. Molina-Martinez contended this was error because none of the offenses were separated by an intervening arrest and because he had been sentenced for all five burglaries on the same day. Under a correct calculation, in his view, the burglaries should have resulted in 5 criminal history points instead of 11. That would have lowered his criminal history category from VI to V. The correct criminal history category, in turn, would have resulted in a Guidelines range of 70 to 87 months rather than 77 to 96 months. Had the correct range been used, Molina-Martinez’s 77-month sentence would have been in the middle of the range, not at the bottom. Molina-Martinez acknowledged that, because he did not object in the District Court, he was entitled to relief only if he could satisfy Rule 52(b)’s requirements. He nevertheless maintained relief was warranted because the error was plain, affected his substantial rights, and impugned the fairness, integrity, and public reputation of judicial proceedings. The Court of Appeals disagreed. It held that Molina-Martinez had not established that the District Court’s application of an incorrect Guidelines range affected his substantial rights. It reasoned that, when a correct sentencing range overlaps with an incorrect range, the reviewing court “ ‘do[es] not assume, in the absence of additional evidence, that the sentence [imposed] affects a defendant’s substantial rights.’ ” 588 Fed. Appx. 333, 335 (CA5 2014) (per curiam); see also United States v. Blocker, 612 F. 3d 413, 416 (CA5 2010). Molina-Martinez, the court ruled, had not put forth the additional evidence necessary to show that the error affected his substantial rights. “The mere fact that the court sentenced Molina-Martinez to a low-end sentence,” the Court of Appeals reasoned, “is insufficient on its own to show that Molina-Martinez would have received a similar low-end sentence had the district court used the correct Guidelines range.” 588 Fed. Appx., at 335. Instead, Molina-Martinez needed to identify “ ‘additional evidence’ ” in the record showing that the Guidelines had an effect on the District Court’s selection of his sentence. Ibid. The court noted that “the district court made no explicit statement suggesting that the Guidelines range was a primary factor in sentencing.” Ibid. And the court did not view as probative “the parties’ anchoring of their sentencing arguments in the Guidelines” or “the district court’s refusal to grant the government’s request for a high-end sentence of 96 months.” Ibid. This Court granted certiorari to resolve the disagreement among Courts of Appeals over how to determine whether the application of an incorrect Guidelines range at sentencing affected the defendant’s substantial rights. See 576 U. S. ___ (2015). III The Court of Appeals for the Fifth Circuit stands generally apart from other Courts of Appeals with respect to its consideration of unpreserved Guidelines errors. This Court now holds that its approach is incorrect. Nothing in the text of Rule 52(b), its rationale, or the Court’s precedents supports a requirement that a defendant seeking appellate review of an unpreserved Guidelines error make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings. This is so even if the ultimate sentence falls within both the correct and incorrect range. When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error. A Today’s holding follows from the essential framework the Guidelines establish for sentencing proceedings. The Court has made clear that the Guidelines are to be the sentencing court’s “starting point and . . . initial benchmark.” Gall v. United States, 552 U. S. 38, 49 (2007) . Federal courts understand that they “ ‘must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.’ ” Peugh, 569 U. S., at ___ (slip op., at 10). The Guidelines are “the framework for sentencing” and “anchor . . . the district court’s discretion.” Id., at ___, ___ (slip op., at 11, 18) “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.’ ” Id., at ___ (slip op., at 11). The Guidelines’ central role in sentencing means that an error related to the Guidelines can be particularly serious. A district court that “improperly calculat[es]” a defendant’s Guidelines range, for example, has committed a “significant procedural error.” Gall, supra, at 51. That same principle explains the Court’s ruling that 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.” Peugh, 569 U. S., at ___ (slip op., at 13). The Commission’s statistics demonstrate the real and pervasive effect the Guidelines have on sentencing.In most cases district courts continue to impose “either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government’smotion.” Id., at ___ (slip op., at 12); see USSC, 2014Annual Report and 2014 Sourcebook of Federal Sen-tencing Statistics S–50 (19th ed.) (Table N) (2014 Sourcebook). In less than 20% of cases since 2007 have district courts “imposed above- or below-Guidelines sentences absent a Government motion.” Peugh, supra, at ___–___ (slip op., at 12–13); see also 2011 Annual Report and 2011 Sourcebook of Federal Sentencing Statistics 63 (16th ed.) (Figure G); 2015 Annual Report and 2015 Sourcebook of Federal Sentencing Statistics (20th ed.) (Figure G), on-line at http://www.ussc.gov/sites/default/files/pdf/research-and - publications / annual - reports - and - sourcebooks / 2015/FigureG.pdf (as last visited Apr. 15, 2016). As the Court has recognized, “when a Guidelines range moves up or down, offenders’ sentences [tend to] move with it.” Peugh, supra, at ___ (slip op., at 13); USSC, Final Quarterly Data Report, FY 2014, pp. 32–37 (Figures C to H). These realities have led the Court to observe that there is “consider-able empirical evidence indicating that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges.” Peugh, supra, at ___ (slip op., at 12). These sources confirm that the Guidelines are not only the starting point for most federal sentencing proceedings but also the lodestar. The Guidelines inform and instruct the district court’s determination of an appropriate sentence. In the usual case, then, the systemic function of the selected Guidelines range will affect the sentence. This fact is essential to the application of Rule 52(b) to a Guidelines error. From the centrality of the Guidelines in the sentencing process it must follow that, when a defendant shows that the district court used an incorrect range, he should not be barred from relief on appeal simply because there is no other evidence that the sentencing outcome would have been different had the correct range been used. In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome. And, again in most cases, that will suffice for relief if the other requirements of Rule 52(b) are met. There may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist. The sentencing process is particular to each defendant, of course, and a reviewing court must consider the facts and circumstances of the case before it. See United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 13) (“Our essential point is that particular facts and circumstances matter”). The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range. Judges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropriate. And that explanation could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines. The Government remains free to “poin[t] to parts of the record”—including relevant statements by the judge—“to counter any ostensible showing of prejudice the defendant may make.” United States v. Vonn, 535 U. S. 55, 68 (2002) . Where, however, the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights. Indeed, in the ordinary case a defendant will satisfy his burden to show prejudice by pointing to the application of an incorrect, higher Guidelines range and the sentence he received thereunder. Absent unusual circumstances, he will not be required to show more. The Court of Appeals’ rule to the contrary fails to take account of the dynamics of federal sentencing. In a significant number of cases the sentenced defendant will lack the additional evidence the Court of Appeals’ rule would require, for sentencing judges often say little about the degree to which the Guidelines influenced their determination. District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors. This Court has told judges that they need not provide extensive explanations for within-Guidelines sentences because “[c]ircumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning.” Rita, 551 U. S., at 356–357. In these situations, reviewing courts may presume that a sentence imposed within a properly calculated Guidelines range is reason-able. Id., at 341. As a result, the cases where the Guidelines are most likely to have influenced the district court’s sentencing decision—those where the court chose a sentence within what it believed to be the applicable Guidelines range—are also the cases least likely to provide the defendant with evidence of the Guidelines’ influence beyond the sentence itself. The defendants in these cases should not be prevented by a categorical rule from establishing on appeal that there is a reasonable probability the Guidelines range applied by the sentencing court had an effect on their within-Guidelines sentence. B This case illustrates the unworkable nature of the Court of Appeals’ additional evidence rule. Here the court held that Molina-Martinez could not establish an effect on his substantial rights. Yet the record points to a different conclusion. The District Court said nothing specific about why it chose the sentence it imposed. It merely “adopt[ed] the . . . guideline applications in the presentence investigation report,” App. 33, which set the range at 77 to 96 months; rejected the Government’s argument for a sentence at the top of the Guidelines range; and agreed with the defendant’s request for, and the Probation Office’s recommendation of, a sentence at the bottom of the range. As intended, the Guidelines served as the starting point for the sentencing and were the focal point for the proceedings that followed. The 77-month sentence the District Court selected is conspicuous for its position as the lowest sentence within what the District Court believed to be the applicable range. As Molina-Martinez explained to the Court of Appeals, the District Court’s selection of a sentence at the bottom of the range, despite the Government’s request for the maximum Guidelines sentence, “evinced an intention . . . to give the minimum recommended by the Guidelines.” Brief for Appellant in No. 13–40324 (CA5), p. 18. The District Court said nothing to suggest that it would have imposed a 77-month sentence regardless of the Guidelines range. Given these circumstances, there is at least a reasonable probability that the District Court would have imposed a different sentence had it known that 70 months was in fact the lowest sentence the Commission deemed appropriate. IV The Government contends that permitting a defendant to establish prejudice through the fact of a Guidelines error alone eliminates the main difference between Rules 52(a) and 52(b)—which party must prove whether the complained-of error had an effect. Brief for United States 21. As noted, Rule 52(a) states: “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” When a defendant makes a timely objection, the Government can rely on Rule 52(a) to argue that the error does not warrant correction because it was harmless. Although Rules 52(a) and (b) both require an inquiry into whether the complained-of error was prejudicial, there is “ ‘one important difference’ ” between the subparts—under (b), but not (a), “ ‘[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.’ ” Brief for United States 18 (quoting Olano, 507 U. S., at 734). In the Government’s view, ruling for Molina-Martinez will require the Government to prove the harmlessness of every Guidelines error raised on appeal regardless of whether it was preserved. Brief for United States 27–28. The holding here does not lead to that result. The decision today simply states that courts reviewing sentencing errors cannot apply a categorical rule requiring additional evidence in cases, like this one, where the district court applied an incorrect range but nevertheless sentenced the defendant within the correct range. Rejection of that rule means only that a defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights. The Government expresses concern over the judicial resources needed for the resentencing proceedings that might result from the Court’s holding. It is doubtful today’s holding will result in much of an increased burden. As already noted, today’s holding is consistent with the approach taken by most Courts of Appeals. See, e.g., Sabillon-Umana, 772 F. 3d, at 1333 (collecting cases). Yet only a small fraction of cases are remanded for resentencing because of Guidelines related errors. See 2014 Sourcebook S–6, S–153 (Tables 2 and 62) (of the roughly 75,000 cases sentenced in 2014, only 620 resulted in a remand for resentencing because of a statutory or Guidelines related error). Under the Olano framework, appellate courts retain broad discretion in determining whether a remand for resentencing is necessary. Courts have, for example, developed mechanisms short of a full remand to determine whether a district court in fact would have imposed a different sentence absent the error. See, e.g., United States v. Currie, 739 F. 3d 960, 967 (CA7 2014) (ordering “limited remand so that the district judge [could] consider, and state on the record, whether she would have imposed the same sentence . . . knowing that [the defendant] was subject to a five-year rather than a ten-year statutory minimum term of imprisonment”). And even when a Court of Appeals does decide that resentencing is appropriate, “a remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retrial does.” United States v. Wernick, 691 F. 3d 108, 117–118 (CA2 2012); see also Sabillon-Umana, supra, at 1334 (noting that the “cost of correction is . . . small” because “[a] remand for sentencing . . . doesn’t require that a defendant be released or retried”). The Government’s concern about additional, burdensome procedures appears unfounded, and, in any event, does not warrant reading into Rule 52(b) a requirement that does not exist. * * * In the ordinary case the Guidelines accomplish their purpose. They serve as the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence. It follows, then, that in most cases the Guidelines range will affect the sentence. When that is so, a defendant sentenced under an incorrect Guidelines range should be able to rely on that fact to show a reasonable probability that the district court would have imposed a different sentence under the correct range. That probability is all that is needed to establish an effect on substantial rights for purposes of obtaining relief under Rule 52(b). The contrary judgment of the 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.

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 . SUPREME COURT OF THE UNITED STATES Syllabus MOLINA-MARTINEZ v. UNITED STATES certiorari to the united states court of appeals for the fifth circuit No. 14–8913. Argued January 12, 2016—Decided April 20, 2016 The Federal Sentencing Guidelines first enter the sentencing process when the United States Probation Office prepares a presentence report containing, as relevant here, an advisory Guidelines range based on the seriousness of a defendant’s offense and the extent of his criminal history. A district court may depart from the Guidelines, but it “must consult [them] and take them into account when sentencing.” United States v. Booker, 543 U. S. 220 . Given the Guidelines’ complexity, a District Court’s use of an incorrect Guidelines range may go unnoticed. That error can be remedied on appeal pursuant to Federal Rule of Criminal Procedure 52(b), provided that (1) there is an error that was not intentionally relinquished or abandoned, United States v. Olano, 507 U. S. 725 –733; (2) the error is plain, i.e., clear or obvious, id., at 734; and (3) the error affected the defendant’s substantial rights, ibid., which in the ordinary case means he or she must “show a reasonable probability that, but for the error,” the outcome of the proceeding would have been different, United States v. Dominguez Benitez, 542 U. S. 74 . Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Olano, 507 U. S., at 736 (brackets omitted). Petitioner Molina-Martinez pleaded guilty to being unlawfully present in the United States after having been deported following an aggravated felony conviction. The Guidelines range in his presentence report was 77 to 96 months. He requested, and the Probation Office recommended, a 77-month sentence, while the Government requested 96 months. The District Court, with little explanation, sentenced him to the lowest end of what it believed to be the applicable Guidelines range—77 months. On appeal, Molina-Martinez argued for the first time that the Probation Office and the District Court miscalculated his Guidelines range, which should have been 70 to 87 months, and noted that his 77-month sentence would have been in the middle of the correct range, not at the bottom. The Fifth Circuit agreed that the District Court used an incorrect Guidelines range but found that Molina-Martinez could not satisfy Rule 52(b)’s requirement that the error affect his substantial rights. It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, identify “additional evidence” showing that use of the incorrect Guidelines range in fact affected his sentence. Held: Courts reviewing Guidelines errors cannot apply a categorical “additional evidence” rule in cases, like this one, where a district court applies an incorrect range but sentences the defendant within the correct range. . (a) The Guidelines establish the essential framework for sentencing proceedings. Sentencing courts “ ‘must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.’ ” Peugh v. United States, 569 U. S. ___, ___. Sentencing Commission statistics confirm that the Guidelines inform and instruct the district court’s determination of an appropriate sentence. In the usual case, the systemic function of the selected Guidelines range will affect a defendant’s sentence. As a result, a defendant who shows that the district court mistakenly deemed applicable an incorrect, higher range will, in the ordinary case, have demonstrated a reasonable probability of a different outcome. That showing will suffice for relief if Rule 52(b)’s other requirements are met. . (b) The unworkable nature of the Fifth Circuit’s “additional evidence” rule is evident here, where the record shows that the District Court gave little explanation for the sentence it selected, rejected the Government’s request for a sentence at the top of the erroneous Guidelines range, and chose the sentence requested by the defendant and recommended by the Probation Office—a sentence at the bottom of the erroneous Guidelines range. This demonstrates that the Guidelines served as the starting point for the sentencing and were the focal point for the proceedings that followed. Given the sentence the District Court chose, and because the court said nothing to suggest that it would have imposed the same sentence regardless of the Guidelines range, there is at least a reasonable probability that the court would have imposed a different sentence had it known that 70 months was the lowest sentence the Commission deemed appropriate. . (c) Rejection of the Fifth Circuit’s rule means only that a defendant can rely on the application of an incorrect Guidelines range to show an effect on his substantial rights, not that the Government will have to prove that every Guidelines error was harmless. And the Government’s concern over the judicial resources needed for the resentencing proceedings that might result from today’s holding is unfounded because the holding is consistent with the approach taken by most Courts of Appeals and because remanding for resentencing is less costly than remanding for retrial. . 588 Fed. Appx. 333, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.

The Federal Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year. The goal is to achieve uniformity in sentencing and proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity. The Guidelines enter the sentencing process long before the district court imposes the sentence, and the United States Probation Office prepares a presentence report that includes a calculation of the advisory Guidelines range it considers to be applicable. The report also includes a report by the Probation Offence Bureau containing detailed calculations of the Guidelines range. The District Court, in sentencing petitioner, applied a Guidelines range higher than the applicable one. At the sentencing hearing, petitioner, through his attorney, identified for the first time what he believed to be an error in the calculation of his criminal history points under the Guidelines. The Court of Appeals refused to correct the error on the ground that, in most cases, when a district court adopts an incorrect Guidelines range, there is a reasonable probability that the defendant's sentence would be different absent the error. Held: The judgment is reversed. ;. Reversed. 881 F.2d 724 (CA5), reversed. PER CURIAM. The judgment below is vacated and remanded. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join, concurring in the judgment.

2015_14-723

https://www.oyez.org/cases/2015/14-723

.[1]* When a third party injures a participant in an employee benefits plan under the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq., the plan frequently pays covered medical expenses. The terms of these plans often include a subrogation clause requiring a participant to reimburse the plan if the participant later recovers money from the third party for his injuries. And under ERISA §502(a)(3), 29 U. S. C. §1132(a)(3), plan fiduciaries can file civil suits “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.”[2] In this case, we consider what happens when a participant obtains a settlement fund from a third party, but spends the whole settlement on nontraceable items (for instance, on services or consumable items like food). We evaluate in particular whether a plan fiduciary can sue under §502(a)(3) to recover from the participant’s remaining assets the medical expenses it paid on the participant’s behalf. We hold that, when a participant dissipates the whole settlement on nontraceable items, the fiduciary cannot bring a suit to attach the participant’s general assets under §502(a)(3) because the suit is not one for “appropriate equitable relief.” In this case, it is unclear whether the participant dissipated all of his settlement in this manner, so we remand for further proceedings. I Petitioner Robert Montanile was a participant in a health benefits plan governed by ERISA and administered by respondent, the Board of Trustees of the National Elevator Industry Health Benefit Plan (Board of Trustees or Board). The plan must pay for certain medical ex-penses that beneficiaries or participants incur. The plan may demand reimbursement, however, when a participant recovers money from a third party for medical expenses. The plan states: “Amounts that have been recovered by a [ participant] from another party are assets of the Plan . . . and are not distributable to any person or entity without the Plan’s written release of its subrogation interest.” App. 45. The plan also provides that “any amounts” that a participant “recover[s] from another party by award, judgment, settlement or otherwise . . . will promptly be applied first to reimburse the Plan in full for benefits advanced by the Plan . . . and without reduction for attorneys’ fees, costs, expenses or damages claimed by the covered person.” Id., at 46. Participants must notify the plan and obtain its consent before settling claims. In December 2008, a drunk driver ran through a stop sign and crashed into Montanile’s vehicle. The accident severely injured Montanile, and the plan paid at least $121,044.02 for his initial medical care. Montanile signed a reimbursement agreement reaffirming his obligation to reimburse the plan from any recovery he obtained “as a result of any legal action or settlement or otherwise.” Id., at 51 (emphasis deleted). Thereafter, Montanile filed a negligence claim against the drunk driver and made a claim for uninsured motorist benefits under Montanile’s car insurance. He obtained a $500,000 settlement. Montanile then paid his attorneys $200,000 and repaid about $60,000 that they had advanced him. Thus, about $240,000 remained of the settlement. Montanile’s attorneys held most of that sum in a client trust account. This included enough money to satisfy Montanile’s obligations to the plan. The Board of Trustees sought reimbursement from Montanile on behalf of the plan, and Montanile’s attorney argued that the plan was not entitled to any recovery. The parties attempted but failed to reach an agreement about reimbursement. After discussions broke down, Montanile’s attorney informed the Board that he would distribute the remaining settlement funds to Montanile unless the Board objected within 14 days. The Board did not respond within that time, so Montanile’s attorney gave Montanile the remainder of the funds. Six months after negotiations ended, the Board sued Montanile in District Court under ERISA §502(a)(3), 29 U. S. C. §1132(a)(3), seeking repayment of the $121,044.02 the plan had expended on his medical care. The Board asked the court to enforce an equitable lien upon any settlement funds or any property which are “ ‘in [ Montanile’s] actual or constructive possession.’ ” 593 Fed. Appx. 903, 906 (CA11 2014) (quoting complaint). Because Montanile had already taken possession of the settlement funds, the Board also sought an order enjoining Montanile from dissipating any such funds. Montanile then stipulated that he still possessed some of the settlement proceeds. The District Court granted summary judgment to the Board. No. 12–80746–Civ. (SD Fla., Apr. 18, 2014), 2014 WL 8514011, *1. The court rejected Montanile’s argument that, because he had by that time spent almost all of the settlement funds, there was no specific, identifiable fund separate from his general assets against which the Board’s equitable lien could be enforced. Id., at *8–*11. The court held that, even if Montanile had dissipated some or all of the settlement funds, the Board was entitled to reimbursement from Montanile’s general assets. Id., at *10–*11. The court entered judgment for the Board in the amount of $121,044.02. The Court of Appeals for the Eleventh Circuit affirmed. It reasoned that a plan can always enforce an equitable lien once the lien attaches, and that dissipation of the specific fund to which the lien attached cannot destroy the underlying reimbursement obligation. The court therefore held that the plan can recover out of a participant’s general assets when the participant dissipates the specifically identified fund. 593 Fed. Appx., at 908. We granted certiorari to resolve a conflict among the Courts of Appeals over whether an ERISA fiduciary can enforce an equitable lien against a defendant’s general assets under these circumstances.[3] 575 U. S. ___ (2015). We hold that it cannot, and accordingly reverse the judgment of the Eleventh Circuit and remand for further proceedings. II A As previously stated, §502(a)(3) of ERISA authorizes plan fiduciaries like the Board of Trustees to bring civil suits “to obtain other appropriate equitable relief . . . to enforce . . . the terms of the plan.” 29 U. S. C. §1132(a)(3). Our cases explain that the term “equitable relief” in §502(a)(3) is limited to “those categories of relief that were typically available in equity” during the days of the divided bench (meaning, the period before 1938 when courts oflaw and equity were separate). Mertens v. Hewitt Associates, 508 U. S. 248, 256 (1993) . Under this Court’s precedents, whether the remedy a plaintiff seeks “is legal or equitable depends on [(1)] the basis for [the plaintiff’s] claim and [(2)] the nature of the underlying remedies sought.” Sereboff v. Mid Atlantic Medical Services, Inc., 547 U. S. 356, 363 (2006) (internal quotation marks omitted). Our precedents also prescribe a framework for resolving this inquiry. To determine how to characterize the basis of a plaintiff’s claim and the nature of the remedies sought, we turn to standard treatises on equity, which establish the “basic contours” of what equitable relief was typically available in premerger equity courts. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 217 (2002) . We have employed this approach in three earlier cases where, as here, the plan fiduciary sought reimbursement for medical expenses after the plan beneficiary or participant recovered money from a third party. Under these precedents, the basis for the Board’s claim is equitable. But our cases do not resolve whether the remedy the Board now seeks—enforcement of an equitable lien by agreement against the defendant’s general assets—is equitable in nature. First, in Great-West, we held that a plan with a claim for an equitable lien was—in the circumstances presented- seeking a legal rather than an equitable remedy. In that case, a plan sought to enforce an equitable lien by obtaining a money judgment from the defendants. The plan could not enforce the lien against the third-party settlement that the defendants had obtained because the defendants never actually possessed that fund; the fund went directly to the defendants’ attorneys and to a restricted trust. We held that the plan sought a legal rem-edy, not an equitable one, even though the plan claimed that the money judgment was a form of restitution. Id., at 208–209, 213–214. We explained that restitution in equity typically involved enforcement of “a constructive trust or an equitable lien, where money or property identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant’s possession.” Id., at 213. But the restitution sought in Great-West was legal—not equitable—because the specific funds to which the fiduciaries “claim[ed] an entitlement . . . [we]re not in [the defendants’] possession.” Id., at 214. Since both the basis for the claim and the particular remedy sought were not equitable, the plan could not sue under §502(a)(3). Next, in Sereboff, we held that both the basis for the claim and the remedy sought were equitable. The plan there sought reimbursement from beneficiaries who had retained their settlement fund in a separate account. 547 U. S., at 359–360. We held that the basis for the plan’s claim was equitable because the plan sought to enforce an equitable lien by agreement, a type of equitable lien created by an agreement to convey a particular fund to another party. See id., at 363–364. The lien existed in Sereboff because of the beneficiaries’ agreement with the plan to convey the proceeds of any third-party settlement. We explained that a claim to enforce such a lien is equitable because the plan “could rely on a familiar rul[e] of equity” to collect—specifically, the rule “that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.” Ibid. (internal quotation marks omitted; alteration in original). The underlying remedies that the plan sought also were equitable, because the plan “sought specifically identifiable funds that were within the possession and control” of the beneficiaries—not recovery from the beneficiaries’ “assets generally.” Id., at 362–363 (internal quotation marks omitted). Finally, in US Airways, Inc. v. McCutchen, 569 U. S. ___ (2013), we reaffirmed our analysis in Sereboff and again concluded that a plan sought to enforce an equitable claim by seeking equitable remedies. As in Sereboff, “the basis for [the plan’s] claim was equitable” because the plan’s terms created an equitable lien by agreement on a third-party settlement. See 569 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). And, as in Sereboff, “[t]he nature of the recovery requested” by the plan “was equitable because [it] claimed specifically identifiable funds within the [beneficiaries’] control—that is, a portion of the settlement they had gotten.” 569 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). Under these principles, the basis for the Board’s claim here is equitable: The Board had an equitable lien by agreement that attached to Montanile’s settlement fund when he obtained title to that fund. And the nature of the Board’s underlying remedy would have been equitable had it immediately sued to enforce the lien against the settlement fund then in Montanile’s possession. That does not resolve this case, however. Our prior cases do not address whether a plan is still seeking an equitable remedy when the defendant, who once possessed the settlement fund, has dissipated it all, and the plan then seeks to recover out of the defendant’s general assets. B To resolve this issue, we turn to standard equity trea-tises. As we explain below, those treatises make clear that a plaintiff could ordinarily enforce an equitable lien only against specifically identified funds that remain in the defendant’s possession or against traceable items that the defendant purchased with the funds (e.g., identifiable property like a car). A defendant’s expenditure of the entire identifiable fund on nontraceable items (like food or travel) destroys an equitable lien. The plaintiff then may have a personal claim against the defendant’s general assets—but recovering out of those assets is a legal remedy, not an equitable one. Equitable remedies “are, as a general rule, directed against some specific thing; they give or enforce a right to or over some particular thing . . . rather than a right to recover a sum of money generally out of the defendant’s assets.” 4 S. Symons, Pomeroy’s Equity Jurisprudence §1234, p. 694 (5th ed. 1941) (Pomeroy). Equitable liens thus are ordinarily enforceable only against a specifically identified fund because an equitable lien “is simply a right of a special nature over the thing . . . so that the very thing itself may be proceeded against in an equitable action.” Id., §1233, at 692; see also Restatement of Restitution §215, Comment a, p. 866 (1936) (Restatement) (enforcement of equitable lien requires showing that the defendant “still holds the property or property which is in whole or in part its product”); 1 D. Dobbs, Law of Remedies §1.4, p. 19 (2d ed. 1993) (Dobbs) (similar). This general rule’s application to equitable liens includes equitable liens by agreement, which depend on “the notion . . . that the contract creates some right or interest in or over specific property,” and are enforceable only if “the decree of the court can lay hold of” that specific property. 4 Pomeroy §1234, at 694–695. If, instead of preserving the specific fund subject to the lien, the defendant dissipated the entire fund on nontraceable items, that complete dissipation eliminated the lien. Even though the defendant’s conduct was wrongful, the plaintiff could not attach the defendant’s general assets instead. Absent specific exceptions not relevant here, “where a person wrongfully dispose[d] of the property of another but the property cannot be traced into any product, the other . . . cannot enforce a constructive trust or lien upon any part of the wrongdoer’s property.” Restatement §215(1), at 866 (emphasis added); see also Great-West, 534 U. S., at 213–214 (citing Restatement §160). The plaintiff had “merely a personal claim against the wrongdoer”—a quintessential action at law. Id., §215(1), at 866. In sum, at equity, a plaintiff ordinarily could not enforce any type of equitable lien if the defendant once possessed a separate, identifiable fund to which the lien attached, but then dissipated it all. The plaintiff could not attach the defendant’s general assets instead because those assets were not part of the specific thing to which the lien attached. This rule applied to equitable liens by agreement as well as other types of equitable liens. III The Board of Trustees nonetheless maintains that it can enforce its equitable lien against Montanile’s general assets. We consider the Board’s arguments in turn. A First, the Board argues that, while equity courts ordinarily required plaintiffs to trace a specific, identifiable fund in the defendant’s possession to which the lien attached, there is an exception for equitable liens by agreement. The Board asserts that equitable liens by agreement require no such tracing, and can be enforced against a defendant’s general assets. According to the Board, we recognized this exception in Sereboff by distinguishing between equitable restitution (where a lien attaches because the defendant misappropriated property from the plaintiff ) and equitable liens by agreement. The Board misreads Sereboff, which left untouched the rule that all types of equitable liens must be enforced against a specifically identified fund in the defendant’s possession. See 1 Dobbs §4.3(3), at 601, 603. The question we faced in Sereboff was whether plaintiffs seeking an equitable lien by agreement must “identify an asset they originally possessed, which was improperly acquired and converted into property the defendant held.” 547 U. S., at 365. We observed that such a requirement, although characteristic of restitutionary relief, does not “appl[y] to equitable liens by agreement or assignment.” Ibid. (discussing Barnes v. Alexander, 232 U. S. 117 (1914) ). That is because the basic premise of an equitable lien by agreement is that, rather than physically taking the plaintiff’s property, the defendant constructively possesses a fund to which the plaintiff is entitled. But the plaintiff must still identify a specific fund in the defendant’s possession to enforce the lien. See id., at 123 (“Having a lien upon the fund, as soon as it was identified they could follow it into the hands of the appellant”). B Second, the Board contends that historical equity practice supports enforcement of its equitable lien against Montanile’s general assets. The Board identifies three methods that equity courts purportedly employed to effectuate this principle: substitute money decrees, deficiency judgments, and the swollen assets doctrine. This argument also fails. We have long rejected the argument that “equitable relief” under §502(a)(3) means “whatever relief a court of equity is empowered to provide in the particular case atissue,” including ancillary legal remedies. Mertens, 508 U. S., at 256. In “many situations . . . an equity court could establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority.” Ibid. (internal quotation marks omitted). But these legal remedies were not relief “typically available in equity,” and interpreting them as such would eliminate any limit on the meaning of “equitable relief” and would “render the modifier superfluous.” Id., at 256, 258 (emphasis deleted); see also Great-West, supra, at 210. As we have explained—and as the Board conceded at oral argument—as a general rule, plaintiffs cannot enforce an equitable lien against a defendant’s general assets. See Part II–B, supra. The Board contends that there is an exception if the defendant wrongfully dissipates the equitable lien to thwart its enforcement. But none of the Board’s examples show that such relief was “typically available” in equity.[4] The specific methods by which equity courts might have awarded relief from a defendant’s general assets only confirm that the Board seeks legal, not equitable, remedies. While equity courts sometimes awarded money decrees as a substitute for the value of the equitable lien, they were still legal remedies, because they were “wholly pecuniary and personal.” 4 Pomeroy §1234, at 694. The same is true with respect to deficiency judgments. Equity courts could award both of these remedies as part of their ancillary jurisdiction to award complete relief. But the treatises make clear that when equity courts did so, “the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a court of law.” 1 id., §231, at 410; see also 1 Dobbs §2.7, at 180–181, and §4.3(3), at 602 (similar); New Federal Equity Rules 10 (rev. 5th ed. 1925) (authorizing equity courts to award such relief). But legal remedies—even legal remedies that a court of equity could sometimes award—are not “equitable relief” under §502(a)(3). See Mertens, supra, at 256–258. The swollen assets doctrine also does not establish that the relief the Board seeks is equitable. Under the Board’s view of this doctrine, even if a defendant spends all of a specifically identified fund, the mere fact that the defendant wrongfully had assets that belonged to another increased the defendant’s available assets, and justifies recovery from his general assets. But most equity courts and treatises rejected that theory. See Taft, Note, A Defense of a Limited Use of the Swollen Assets Theory Where Money Has Wrongfully Been Mingled With Other Money, 39 Colum. L. Rev. 172, 175 (1939) (describing the swollen assets doctrine as “often . . . rejected by the courts”); see also Oesterle, Deficiencies of the Restitutionary Right to Trace Misappropriated Property in Equity and in UCC §9–306, 68 Cornell L. Rev. 172, 189, and n. 33 (1983) (similar). To the extent that courts endorsed any version of the swollen assets theory, they adopted a more limited rule: that commingling a specifically identified fund—to which a lien attached—with a different fund of the defendant’s did not destroy the lien. Instead, that commingling allowed the plaintiff to recover the amount of the lien from the entire pot of money. See Restatement §209, at 844; Scott, The Right To Follow Money Wrong-fully Mingled With Other Money, 27 Harv. L. Rev. 125, 125–126 (1913). Thus, even under the version of the swollen assets doctrine adopted by some courts, recovery out of Montanile’s general assets—in the absence of commingling—would not have been “typically available” relief. C Finally, the Board argues that ERISA’s objectives—of enforcing plan documents according to their terms and of protecting plan assets—would be best served by allowing plans to enforce equitable liens against a participant’s general assets. The Board also contends that, unless plans can enforce reimbursement provisions against a defendant’s general assets, plans will lack effective or cost-efficient remedies, and participants will dissipate any settlement as quickly as possible, before fiduciaries can sue. We have rejected these arguments before, and do so again. “[ V ]ague notions of a statute’s ‘basic purpose’ are . . . inadequate to overcome the words of its text regarding the specific issue under consideration.” Mertens, supra, at 261. Had Congress sought to prioritize the Board’s policy arguments, it could have drafted §502(a)(3) to mirror ERISA provisions governing civil actions. One of those provisions, for instance, allows participants and beneficiaries to bring civil actions “to enforce [their] rights under the terms of the plan” and does not limit them to equitable relief. Great-West, 534 U. S., at 221 (quoting 29 U. S. C. §1132(a)(1)(B) (1994 ed.)). In any event, our interpretation of §502(a)(3) promotes ERISA’s purposes by “allocat[ing] liability for plan-related misdeeds in reasonable proportion to respective actors’ power to control and prevent the misdeeds.” Mertens, supra, at 262. More than a decade has passed since we decided Great-West, and plans have developed safeguards against participants’ and beneficiaries’ efforts to evade reimbursement obligations. Plans that cover medical expenses know how much medical care that participants and beneficiaries require, and have the incentive to investigate and track expensive claims. Plan provisions—like the ones here—obligate participants and beneficiaries to notify the plan of legal process against third parties and to give the plan a right of subrogation. The Board protests that tracking and participating in legal proceedings is hard and costly, and that settlements are often shrouded in secrecy. The facts of this case undercut that argument. The Board had sufficient notice of Montanile’s settlement to have taken various steps to preserve those funds. Most notably, when negotiations broke down and Montanile’s lawyer expressed his intent to disburse the remaining settlement funds to Montanile unless the plan objected within 14 days, the Board could have—but did not—object. Moreover, the Board could have filed suit immediately, rather than waiting half a year. IV Because the lower courts erroneously held that the plan could recover out of Montanile’s general assets, they did not determine whether Montanile kept his settlement fund separate from his general assets or dissipated the entire fund on nontraceable assets. At oral argument, Montanile’s counsel acknowledged “a genuine issue of . . . material fact on how much dissipation there was” anda lack of record evidence as to whether Montanile mixed the settlement fund with his general assets. A remandis necessary so that the District Court can make that determination. * * * We reverse the judgment of the Eleventh Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 * Justice Alito joins this opinion, except for Part III–C. 2 In full, the provision states: “A civil action may be brought— . . . (3) by a participant, beneficiary, or fiduciary (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). 3 Compare Thurber v. Aetna Life Ins. Co., 712 F. 3d 654 (CA2 2013), Funk v. CIGNA Group Ins., 648 F. 3d 182 (CA3 2011), Cusson v. Liberty Life Assurance Co. of Boston, 592 F. 3d 215 (CA1 2010), Longaberger Co. v. Kolt, 586 F. 3d 459 (CA6 2009), and Gutta v. Standard Select Trust Ins. Plans, 530 F. 3d 614 (CA7 2008), with Treasurer, Trustees of Drury Industries, Inc. Health Care Plan & Trust v. Goding, 692 F. 3d 888 (CA8 2012), and Bilyeu v. Morgan Stanley Long Term Disability Plan, 683 F. 3d 1083 (CA9 2012). 4 The Board also interprets CIGNA Corp. v. Amara, 563 U. S. 421 (2011) , as all but overruling Mertens v. Hewitt Associates, 508 U. S. 248 (1993) , and Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002) , in favor of the Board’s broad interpretation of “equitable relief ” under §502(a)(3). But CIGNA reaffirmed that “traditionally speaking, relief that sought a lien or a constructive trust was legal relief, not equitable relief, unless the funds in question were ‘particular funds or property in the defendant’s possession.’ ” 563 U. S, at 439 (quoting Great-West, supra, at 213; emphasis deleted). In any event, the Court’s discussion of §502(a)(3) in CIGNA was not essential to resolving that case, and—as our later analysis in US Airways, Inc. v. McCutchen, 569 U. S. ___ (2013), reinforces—our interpretation of “equitable relief” in Mertens, Great-West, and Sereboff v. Mid Atlantic Medical Services, Inc., 547 U. S. 356 (2006) , remains unchanged. See McCutchen, supra, at ___–___ (slip op., at 5–6).

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 . SUPREME COURT OF THE UNITED STATES Syllabus MONTANILE v. BOARD OF TRUSTEES OF THE NATIONAL ELEVATOR INDUSTRY HEALTH BENEFIT PLAN certiorari to the united states court of appeals for the eleventh circuit No. 14–723. Argued November 9, 2015—Decided January 20, 2016 Employee benefits plans regulated by the Employee Retirement Income Security Act of 1974 (ERISA or Act) often contain subrogation clauses requiring a plan participant to reimburse the plan for medical expenses if the participant later recovers money from a third party for his injuries. Here, petitioner Montanile was seriously injured by a drunk driver, and his ERISA plan paid more than $120,000 for his medical expenses. Montanile later sued the drunk driver, obtaining a $500,000 settlement. Pursuant to the plan’s subrogation clause, respondent plan administrator (the Board of Trustees of the National Elevator Industry Health Benefit Plan, or Board), sought reimbursement from the settlement. Montanile’s attorney refused that request and subsequently informed the Board that the fund would be transferred from a client trust account to Montanile unless the Board objected. The Board did not respond, and Montanile received the settlement. Six months later, the Board sued Montanile in Federal District Court under §502(a)(3) of ERISA, which authorizes plan fiduciaries to file suit “to obtain . . . appropriate equitable relief . . . to enforce . . . the terms of the plan.” 29 U. S. C. §1132(a)(3). The Board sought an equitable lien on any settlement funds or property in Montanile’s possession and an order enjoining Montanile from dissipating any such funds. Montanile argued that because he had already spent almost all of the settlement, no identifiable fund existed against which to enforce the lien. The District Court rejected Montanile’s argument, and the Eleventh Circuit affirmed, holding that even if Montanile had completely dissipated the fund, the plan was entitled to reimbursement from Montanile’s general assets. Held: When an ERISA-plan participant wholly dissipates a third-party settlement on nontraceable items, the plan fiduciary may not bring suit under §502(a)(3) to attach the participant’s separate assets. . (a) Plan fiduciaries are limited by §502(a)(3) to filing suits “to obtain . . . equitable relief.” Whether the relief requested “is legal or equitable depends on [1] the basis for [the plaintiff’s] claim and [2] the nature of the underlying remedies sought.” Sereboff v. Mid Atlantic Medical Services, Inc., 547 U. S. 356 . . (1) This Court’s precedents establish that the basis for the Board’s claim—the enforcement of a lien created by an agreement to convey a particular fund to another party—is equitable. See Sereboff, 547 U. S., at 363–364. The Court’s precedents also establish that the nature of the Board’s underlying remedy—enforcement of a lien against “specifically identifiable funds that were within [Montanile’s] possession and control,” id., at 362–363—would also have been equitable had the Board immediately sued to enforce the lien against the fund. But those propositions do not resolve the question here: whether a plan is still seeking an equitable remedy when the defendant has dissipated all of a separate settlement fund, and the plan then seeks to recover out of the defendant’s general assets. . (2) This Court holds today that a plan is not seeking equitable relief under those circumstances. In premerger equity courts, a plaintiff could ordinarily enforce an equitable lien, including, as here, an equitable lien by agreement, only against specifically identified funds that remained in the defendant’s possession or against traceable items that the defendant purchased with the funds. See 4 S. Symons, Pomeroy’s Equity Jurisprudence §1234, pp. 692–695. If a defendant dissipated the entire fund on nontraceable items, the lien was eliminated and the plaintiff could not attach the defendant’s general assets instead. See Restatement of Restitution, §215(1), p. 866. . (b) The Board’s arguments in favor of the enforcement of an equitable lien against Montanile’s general assets are unsuccessful. Sereboff does not contain an exception to the general asset-tracing requirement for equitable liens by agreement. See 547 U. S., at 365. Nor does historical equity practice support the enforcement of an equitable lien against general assets. And the Board’s claim that ERISA’s objectives are best served by allowing plans to enforce such liens is a “vague notio[n] of [the] statute’s ‘basic purpose’ . . . inadequate to overcome the words of its text regarding the specific issue under consideration.” Mertens v. Hewitt Associates, 508 U. S. 248 . . (c) The case is remanded for the District Court to determine, in the first instance, whether Montanile kept his settlement fund separate from his general assets and whether he dissipated the entire fund on nontraceable assets. P. 14. 593 Fed. Appx. 903, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined, and in which Alito, J., joined except for Part III–C. Ginsburg, J., filed a dissenting opinion.

When a third party injures a participant in an employee benefits plan under the Employee Retirement Income Security Act of 1974 (ERISA), the plan frequently pays covered medical expenses. The terms of these plans often include a subrogation clause requiring a participant to reimburse the plan if the participant later recovers money from the third party for his injuries. And under ERISA §502(a)(3), plan fiduciaries can file civil suits to obtain appropriate equitable relief to enforce the plan. Petitioner Montanile (hereafter respondent Board of Trustees or Board) was a member of a health benefits plan governed by ERISA and administered by respondent Board. The plan may demand reimbursement, however, when a participant recover money from a third-party for medical expenses, but may not distributable to any person or entity without the plan's written release of its interest. After petitioner filed a negligence claim against the drunk driver and made a claim for uninsured motorist benefits under his car insurance, he obtained a $500,000 settlement. He then paid his attorneys $200,000 and repaid about $60,000 that they had advanced him. Thus, about $240,000 remained of the settlement, but his attorneys held most of that sum in a client trust account. The Board sought reimbursement on behalf of the plan on the basis of its obligation to distribute the remaining settlement funds unless the plan complied within 14 days. The District Court granted summary judgment to the Board, rejecting respondent Board's argument that, because he had by that time spent almost all the settlement funds, there was no specific, identifiable fund separate from his general assets against which the equitable lien could be enforced, and that dissipation of the specific fund to which the lien attached could destroy the underlying reimbursement obligation. The Court of Appeals affirmed, holding that the plan can recover out of a participant's general assets when the participant dissipates the specifically identified fund. Held: 1. An ERISA fiduciary can enforce an equitable lien against a defendant in general assets under the circumstances of this case. . (a) Under the standard treatises on equity that establish the basic contours of what equitable relief was typically available in equity courts during the days of the divided bench (meaning, the period before 1938 when courts oflaw and equity were separate), whether the remedy a plaintiff seeks is legal or equitable depends on [(1)] the basis for the plaintiff's claim and [(2)] the nature of the underlying remedies sought. Sereboff v. Mid Atlantic Medical Services, Inc., 547 U. S. 356, (internal quotation marks omitted). To determine whether a plan is still seeking an equitable remedy when the defendant, who once possessed the settlement fund, has dissipated it all, and the plan then seeks to recover from him out of the general assets, a plaintiff cannot bring a suit to attach the participant to the general asset because the suit is not one for equitable equitable relief. Here, the Board had a lien by agreement that attached to petitioner's settlement fund when he obtained title to that fund. And the nature of the Board's underlying remedy would have been equitable had it immediately sued to enforce its lien, but that does not resolve this case, since prior cases do not address whether the plan was still seeking equitable remedies. See, e.g., Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 217. Pp. 475-477. (b) There is an exception for equitable liens by agreement, which, although characteristic of restitutionary relief, does not reappl[y] to equitable lienses by agreement or assignment. That is, a defendant must still identify a specific fund in the defendant's possession. But recovering out of those assets is a legal remedy, not an equitable one. Nor do plans lack effective or cost-efficient remedies, and participants will dissipate any settlement as quickly as possible before they sue.. 2. Nor can an ERISA plan be enforceable against petitioner general assets. Under standard equity trea-tises, such as those used in this case (which make clear that a plaintiff ordinarily could not enforce any type of equitable lian if the defendant once possessed a separate, identifiable fund in petitioner's possession, but then dissipated that fund on nontraceable items), there is no such exception. There is no merit to the argument that ERISA does not support enforcement of its equitable Lien against petitioner, since plans have developed safeguards against participants' and beneficiaries' efforts to evade reimbursement obligations. Even though the defendant was wrongful, the plaintiff could not attach the defendant. Moreover, the facts undercut that argument. The Board had sufficient notice of petitioner settlement to have taken various steps to preserve those funds. Most equity courts and treatises rejected the theory that, even if a defendant spends all of a specified fund, the mere fact that the defendant

2015_14-280

https://www.oyez.org/cases/2015/14-280

. This is another case in a series of decisions involving the sentencing of offenders who were juveniles when their crimes were committed. In Miller v. Alabama, 567 U. S. ___ (2012), the Court held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing. In the wake of Miller, the question has arisen whether its holding is retroactive to juvenile offenders whose convictions and sentences were final when Miller was decided. Courts have reached different conclusions on this point. Compare, e.g., Martin v. Symmes, 782 F. 3d 939, 943 (CA8 2015); Johnson v. Ponton, 780 F. 3d 219, 224–226 (CA4 2015); Chambers v. State, 831 N. W. 2d 311, 331 (Minn. 2013); and State v. Tate, 2012–2763, p. 17 (La. 11/5/13), 130 So. 3d 829, 841, with Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 661–667, 1 N. E. 3d 270, 278–282 (2013); Aiken v. Byars, 410 S. C. 534, 548, 765 S. E. 2d 572, 578 (2014); State v. Mares, 2014 WY 126, ¶¶47–63, 335 P. 3d 487, 504–508; and People v. Davis, 2014 IL 115595, ¶41, 6 N. E. 3d 709, 722. Certiorari was granted in this case to resolve the question. I Petitioner is Henry Montgomery. In 1963, Montgomery killed Charles Hurt, a deputy sheriff in East Baton Rouge, Louisiana. Montgomery was 17 years old at the time of the crime. He was convicted of murder and sentenced to death, but the Louisiana Supreme Court reversed his conviction after finding that public prejudice had pre-vented a fair trial. State v. Montgomery, 181 So. 2d 756, 762 (La. 1966). Montgomery was retried. The jury returned a verdict of “guilty without capital punishment.” State v. Montgomery, 242 So. 2d 818 (La. 1970). Under Louisiana law, this verdict required the trial court to impose a sentence of life without parole. The sentence was automatic upon the jury’s verdict, so Montgomery had no opportunity to present mitigation evidence to justify a less severe sentence. That evidence might have included Montgomery’s young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation. Montgomery, now 69 years old, has spent almost his entire life in prison. Almost 50 years after Montgomery was first taken into custody, this Court decided Miller v. Alabama, 567 U. S. ___. Miller held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “ ‘cruel and unusual punishments.’ ” Id., at ___ (slip op., at 2). “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence,” mandatory life without parole “poses too great a risk of disproportionate punishment.” Id., at ___ (slip op., at 17). Miller required that sentencing courts consider a child’s “diminished culpability and heightened capacity for change” before condemning him or her to die in prison. Ibid. Although Miller did not foreclose a sentencer’s ability to impose life without parole on a juvenile, the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect “ ‘irreparable corruption.’ ” Ibid. (quoting Roper v. Simmons, 543 U. S. 551, 573 (2005) ). After this Court issued its decision in Miller, Montgomery sought collateral review of his mandatory life-without-parole sentence. In Louisiana there are two principal mechanisms for collateral challenge to the lawfulness of imprisonment. Each begins with a filing in the trial court where the prisoner was convicted and sentenced. La. Code Crim. Proc. Ann., Arts. 882, 926 (West 2008). The first procedure permits a prisoner to file an application for postconviction relief on one or more of seven grounds set forth in the statute. Art. 930.3. The Louisiana Supreme Court has held that none of those grounds provides a basis for collateral review of sentencing errors. See State ex rel. Melinie v. State, 93–1380 (La. 1/12/96), 665 So. 2d 1172 (per curiam). Sentencing errors must instead be raised through Louisiana’s second collateral review procedure. This second mechanism allows a prisoner to bring a collateral attack on his or her sentence by filing a motion to correct an illegal sentence. See Art. 882. Montgomery invoked this procedure in the East Baton Rouge Parish District Court. The state statute provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence.” Ibid. An illegal sentence “is primarily restricted to those instances in which the term of the prisoner’s sentence is not authorized by the statute or statutes which govern the penalty” for the crime of conviction. State v. Mead, 2014–1051, p. 3 (La. App. 4 Cir. 4/22/15), 165 So. 3d 1044, 1047; see also State v. Alexander, 2014–0401 (La. 11/7/14), 152 So. 3d 137 (per curiam). In the ordinary course Louisiana courts will not consider a challenge to a disproportionate sentence on collateral review; rather, as a general matter, it appears that prisoners must raise Eighth Amendment sentencing chal-lenges on direct review. See State v. Gibbs, 620 So. 2d 296, 296–297 (La. App. 1993); Mead, 165 So. 3d, at 1047. Louisiana’s collateral review courts will, however, consider a motion to correct an illegal sentence based on a decision of this Court holding that the Eighth Amendment to the Federal Constitution prohibits a punishment for a type of crime or a class of offenders. When, for example, this Court held in Graham v. Florida, 560 U. S. 48 (2010) , that the Eighth Amendment bars life-without-parole sentences for juvenile nonhomicide offenders, Louisiana courts heard Graham claims brought by prisoners whose sentences had long been final. See, e.g., State v. Shaffer, 2011–1756, pp. 1–4 (La. 11/23/11), 77 So. 3d 939, 940–942 (per curiam) (considering motion to correct an illegal sentence on the ground that Graham rendered illegal a life-without-parole sentence for a juvenile nonhomicide offender). Montgomery’s motion argued that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied Montgomery’s motion on the ground that Miller is not retroactive on collateral review. Montgomery then filed an application for a supervisory writ. The Louisiana Supreme Court denied the application. 2013–1163 (6/20/14), 141 So. 3d 264. The court relied on its earlier decision in State v. Tate, 2012–2763, 130 So. 3d 829, which held that Miller does not have retroactive effect in cases on state collateral review. Chief Justice Johnson and Justice Hughes dissented in Tate, and Chief Justice Johnson again noted his dissent in Montgomery’s case. This Court granted Montgomery’s petition for certiorari. The petition presented the question “whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.” Pet. for Cert. i. In addition, the Court directed the parties to address the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?” 575 U. S. ___ (2015). II The parties agree that the Court has jurisdiction to decide this case. To ensure this conclusion is correct, the Court appointed Richard D. Bernstein as amicus curiae to brief and argue the position that the Court lacks jurisdiction. He has ably discharged his assigned responsibilities. Amicus argues that a State is under no obligation to give a new rule of constitutional law retroactive effect in its own collateral review proceedings. As those proceedings are created by state law and under the State’s plenary control, amicus contends, it is for state courts to define applicable principles of retroactivity. Under this view, the Louisiana Supreme Court’s decision does not implicate a federal right; it only determines the scope of relief avail-able in a particular type of state proceeding—a question of state law beyond this Court’s power to review. If, however, the Constitution establishes a rule and requires that the rule have retroactive application, then a state court’s refusal to give the rule retroactive effect is reviewable by this Court. Cf. Griffith v. Kentucky, 479 U. S. 314, 328 (1987) (holding that on direct review, a new constitutional rule must be applied retroactively “to all cases, state or federal”). States may not disregard a controlling, constitutional command in their own courts. See Martin v. Hunter’s Lessee, 1 Wheat. 304, 340–341, 344 (1816); see also Yates v. Aiken, 484 U. S. 211, 218 (1988) (when a State has not “placed any limit on the issues that it will entertain in collateral proceedings . . . it has a duty to grant the relief that federal law requires”). Amicus’ argument therefore hinges on the premise that this Court’s retroactivity precedents are not a constitutional mandate. Justice O’Connor’s plurality opinion in Teague v. Lane, 489 U. S. 288 (1989) , set forth a framework for retroactiv-ity in cases on federal collateral review. Under Teague, a new constitutional rule of criminal procedure does not apply, as a general matter, to convictions that were final when the new rule was announced. Teague recognized, however, two categories of rules that are not subject to its general retroactivity bar. First, courts must give retroactive effect to new substantive rules of constitutional law. Substantive rules include “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Penry v. Lynaugh, 492 U. S. 302, 330 (1989) ; see also Teague, supra, at 307. Although Teague describes new substantive rules as an exception to the bar on retroactive application of procedural rules, this Court has recognized that substantive rules “are more accurately characterized as . . . not subject to the bar.” Schriro v. Summerlin, 542 U. S. 348, 352, n. 4 (2004). Second, courts must give retroactive effect to new “ ‘ “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding.’ ” Id., at 352; see also Teague, 489 U. S., at 312–313. It is undisputed, then, that Teague requires the retroactive application of new substantive and watershed procedural rules in federal habeas proceedings. Amicus, however, contends that Teague was an interpretation of the federal habeas statute, not a constitutional command; and so, the argument proceeds, Teague’s retroactivity holding simply has no application in a State’s own collateral review proceedings. To support this claim, amicus points to language in Teague that characterized the Court’s task as “ ‘defin[ing] the scope of the writ.’ ” Id., at 308 (quoting Kuhlmann v. Wilson, 477 U. S. 436, 447 (1986) (plurality opinion)); see also 489 U. S., at 317 (White, J., concurring in part and concurring in judgment) (“If we are wrong in construing the reach of the habeas corpus statutes, Congress can of course correct us . . . ”); id., at 332 (Brennan, J., dissenting) (“No new facts or arguments have come to light suggesting that our [past] reading of the federal habeas statute . . . was plainly mistaken”). In addition, amicus directs us to Danforth v. Minnesota, 552 U. S. 264 (2008) , in which a majority of the Court held that Teague does not preclude state courts from giving retroactive effect to a broader set of new constitutional rules than Teague itself required. 552 U. S., at 266. The Danforth majority concluded that Teague’s general rule of nonretroactivity for new constitutional rules of criminal procedure “was an exercise of this Court’s power to interpret the federal habeas statute.” 552 U. S., at 278. Since Teague’s retroactivity bar “limit[s] only the scope of federal habeas relief,” the Danforth majority reasoned, States are free to make new procedural rules retroactive on state collateral review. 552 U. S., at 281–282. Amicus, however, reads too much into these statements. Neither Teague nor Danforth had reason to address whether States are required as a constitutional matter to give retroactive effect to new substantive or watershed procedural rules. Teague originated in a federal, not state, habeas proceeding; so it had no particular reason to discuss whether any part of its holding was required by the Constitution in addition to the federal habeas statute. And Danforth held only that Teague’s general rule of nonretroactivity was an interpretation of the federal habeas statute and does not prevent States from providing greater relief in their own collateral review courts. The Danforth majority limited its analysis to Teague’s general retroactivity bar, leaving open the question whether Teague’s two exceptions are binding on the States as a matter of constitutional law. 552 U. S., at 278; see also id., at 277 (“[T]he case before us now does not involve either of the ‘Teague exceptions’ ”). In this case, the Court must address part of the question left open in Danforth. The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts. This holding is limited to Teague’s first exception for substantive rules; the constitutional status of Teague’s exception for watershed rules of procedure need not be addressed here. This Court’s precedents addressing the nature of substantive rules, their differences from procedural rules, and their history of retroactive application establish that the Constitution requires substantive rules to have retroactive effect regardless of when a conviction became final. The category of substantive rules discussed in Teague originated in Justice Harlan’s approach to retroactivity. Teague adopted that reasoning. See 489 U. S., at 292, 312 (discussing Mackey v. United States, 401 U. S. 667, 692 (1971) (opinion concurring in judgments in part and dissenting in part); and Desist v. United States, 394 U. S. 244 , n. 2 (1969) (Harlan, J., dissenting)). Justice Harlan defined substantive constitutional rules as “those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Mackey, supra, at 692. In Penry v. Lynaugh, decided four months after Teague, the Court recognized that “the first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” 492 U. S., at 330. Penry explained that Justice Harlan’s first exception spoke “in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed.” Id., at 329. Whether a new rule bars States from proscribing certain conduct or from inflicting a certain punishment, “[i]n both cases, the Constitution itself deprives the State of the power to impose a certain pen-alty.” Id., at 330. Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating “the manner of determining the defendant’s culpability.” Schriro, 542 U. S., at 353; Teague, supra, at 313. Those rules “merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Schriro, supra, at 352. Even where proce-dural error has infected a trial, the resulting conviction or sentence may still be accurate; and, by extension, the defendant’s continued confinement may still be lawful. For this reason, a trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant’s conviction or sentence. The same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment. “[E]ven the use of impeccable factfinding procedures could not legitimate a verdict” where “the conduct being penalized is constitutionally immune from punishment.” United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971) . Nor could the use of flawless sentencing procedures legitimate a punishment where the Constitution immunizes the defendant from the sentence imposed. “No circumstances call more for the invocation of a rule of complete retroactivity.” Ibid. By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of giving retroactive effect to constitutional rights that go beyond procedural guarantees. See Mackey, supra, at 692–693 (opinion of Harlan, J.) (“[T]he writ has historically been available for attacking convictions on [substantive] grounds”). Before Brown v. Allen, 344 U. S. 443 (1953) , “federal courts would never consider the merits of a constitutional claim if the habeas petitioner had a fair opportunity to raise his arguments in the original proceeding.” Desist, 394 U. S., at 261 (Harlan, J., dissenting). Even in the pre-1953 era of restricted federal habeas, however, an exception was made “when the habeas petitioner attacked the constitutionality of the state statute under which he had been convicted. Since, in this situation, the State had no power to proscribe the conduct for which the petitioner was imprisoned, it could not constitutionally insist that he remain in jail.” Id., at 261, n. 2 (Harlan, J., dissenting) (citation omitted). In Ex parte Siebold, 100 U. S. 371 (1880) , the Court addressed why substantive rules must have retroactive effect regardless of when the defendant’s conviction became final. At the time of that decision, “[m]ere error in the judgment or proceedings, under and by virtue of which a party is imprisoned, constitute[d] no ground for the issue of the writ.” Id., at 375. Before Siebold, the law might have been thought to establish that so long as the conviction and sentence were imposed by a court of competent jurisdiction, no habeas relief could issue. In Siebold, however, the petitioners attacked the judgments on the ground that they had been convicted under unconstitutional statutes. The Court explained that if “this position is well taken, it affects the foundation of the whole proceedings.” Id., at 376. A conviction under an unconstitutional law “is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But . . . if the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes.” Id., at 376–377. As discussed, the Court has concluded that the same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose. Penry, supra, at 330; see also Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 151 (1970) (“Broadly speaking, the original sphere for collateral attack on a conviction was where the tribunal lacked jurisdiction either in the usual sense or because the statute under which the defendant had been prosecuted was unconstitutional or because the sentence was one the court could not lawfully impose” (footnotes omitted)). A conviction or sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void. See Siebold, 100 U. S., at 376. It follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced. Siebold and the other cases discussed in this opinion, of course, do not directly control the question the Court now answers for the first time. These precedents did not involve a state court’s postconviction review of a conviction or sentence and so did not address whether the Constitution requires new substantive rules to have retroactive effect in cases on state collateral review. These decisions, however, have important bearing on the analysis necessary in this case. In support of its holding that a conviction obtained under an unconstitutional law warrants habeas relief, the Siebold Court explained that “[a]n unconstitutional law is void, and is as no law.” Ibid. A penalty imposed pursuant to an unconstitutional law is no less void because the prisoner’s sentence became final before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids. To conclude otherwise would undercut the Constitution’s substantive guarantees. Writing for the Court in United States Coin & Currency, Justice Harlan made this point when he declared that “[n]o circumstances call more for the invocation of a rule of complete retroactivity” than when “the conduct being penalized is constitutionally immune from punishment.” 401 U. S., at 724. United States Coin & Currency involved a case on direct review; yet, for the reasons explained in this opinion, the same principle should govern the application of substantive rules on collateral review. As Justice Harlan explained, where a State lacked the power to proscribe the habeas petitioner’s conduct, “it could not constitutionally insist that he remain in jail.” Desist, supra, at 261, n. 2 (dissenting opinion). If a State may not constitutionally insist that a prisoner remain in jail on federal habeas review, it may not constitutionally insist on the same result in its own postconviction proceedings. Under the Supremacy Clause of the Constitution, state collateral review courts have no greater power than federal habeas courts to mandate that aprisoner continue to suffer punishment barred by the Constitution. If a state collateral proceeding is open to a claim controlled by federal law, the state court “has a duty to grant the relief that federal law requires.” Yates, 484 U. S., at 218. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge. As a final point, it must be noted that the retroactive application of substantive rules does not implicate a State’s weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of “continually forc[ing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.” 489 U. S., at 310. This concern has no application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction or sentence that the Constitution deprives the State of power to impose. See Mackey, 401 U. S., at 693 (opinion of Harlan, J.) (“There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose”). In adjudicating claims under its collateral review procedures a State may not deny a controlling right asserted under the Constitution, assuming the claim is properly presented in the case. Louisiana follows these basic Supremacy Clause principles in its postconviction proceedings for challenging the legality of a sentence. The State’s collateral review procedures are open to claims that a decision of this Court has rendered certain sentences illegal, as a substantive matter, under the Eighth Amendment. See, e.g., State v. Dyer, 2011–1758, pp. 1–2 (La. 11/23/11), 77 So. 3d 928, 928–929 (per curiam) (considering claim on collateral review that this Court’s decision in Graham v. Florida, 560 U. S. 48 , rendered petitioner’s life-without-parole sentence illegal). Montgomery alleges that Miller announced a substantive constitutional rule and that the Louisiana Supreme Court erred by failing to recognize its retroactive effect. This Court has jurisdiction to review that determination. III This leads to the question whether Miller’s prohibition on mandatory life without parole for juvenile offenders indeed did announce a new substantive rule that, under the Constitution, must be retroactive. As stated above, a procedural rule “regulate[s] only the manner of determining the defendant’s culpability.” Schriro, 542 U. S., at 353. A substantive rule, in contrast, forbids “criminal punishment of certain primary conduct” or prohibits “a certain category of punishment for a class of defendants because of their status or offense.” Penry, 492 U. S., at 330; see also Schriro, supra, at 353 (A substantive rule “alters the range of conduct or the class of persons that the law punishes”). Under this standard, and for the reasons explained below, Miller announced a substantive rule that is retroactive in cases on collateral review. The “foundation stone” for Miller’s analysis was this Court’s line of precedent holding certain punishments disproportionate when applied to juveniles. 567 U. S., at ___, n. 4 (slip op., at 8, n. 4). Those cases include Graham v. Florida, supra, which held that the Eighth Amendment bars life without parole for juvenile nonhomicide offenders, and Roper v. Simmons, 543 U. S. 551 , which held that the Eighth Amendment prohibits capital punishment for those under the age of 18 at the time of their crimes. Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment and goes far beyond the manner of determining a defendant’s sentence. See Graham, supra, at 59 (“The concept of proportionality is central to the Eighth Amendment”);see also Weems v. United States, 217 U. S. 349 (1910); Harmelin v. Michigan, 501 U. S. 957 –998 (1991) (Kennedy, J., concurring in part and concurring in judgment). Miller took as its starting premise the principle established in Roper and Graham that “children are constitutionally different from adults for purposes of sentencing.” 567 U. S., at ___ (slip op., at 8) (citing Roper, supra, at 569–570; and Graham, supra, at 68). These differences result from children’s “diminished culpability and greater prospects for reform,” and are apparent in three primary ways: “First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking. Second, children ‘are more vulnerable to negative influences and outside pressures,’ including from their family and peers; they have limited ‘control over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievable depravity.’ ” 567 U. S., at ___ (slip op., at 8) (quoting Roper, supra, at 569–570; alterations, citations, and some internal quotation marks omitted). As a corollary to a child’s lesser culpability, Miller recognized that “the distinctive attributes of youth diminish the penological justifications” for imposing life without parole on juvenile offenders. 567 U. S., at ___ (slip op., at 9). Because retribution “relates to an offender’s blameworthiness, the case for retribution is not as strong with a minor as with an adult.” Ibid. (quoting Graham, supra, at 71; internal quotation marks omitted). The deterrence rationale likewise does not suffice, since “the same characteristics that render juveniles less culpable than adults—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment.” 567 U. S., at ___–___ (slip op., at 9–10) (internal quotation marks omitted). The need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender “ ‘forever will be a danger to society.’ ” Id., at ___ (slip op., at 10) (quoting Graham, 560 U. S., at 72). Rehabilitation is not a satisfactory rationale, either. Rehabilitation cannot justify the sentence, as life without parole “forswears altogether the rehabilitative ideal.” 567 U. S., at ___ (slip op., at 10) (quoting Graham, supra, at 74). These considerations underlay the Court’s holding in Miller that mandatory life-without-parole sentences for children “pos[e] too great a risk of disproportionate punishment.” 567 U. S., at ___ (slip op., at 17). Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Ibid. The Court recognized that a sentencer mightencounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in light of “children’s diminished culpability and heightened capacity for change,” Miller made clear that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Ibid. Miller, then, did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of “the distinctive attributes of youth.” Id., at ___ (slip op., at 9). Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “ ‘unfortunate yet transient immaturity.’ ” Id., at ___ (slip op., at 17) (quoting Roper, 543 U. S., at 573). Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ” 567 U. S., at ___ (slip op., at 17) (quoting Roper, supra, at 573), it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Penry, 492 U. S., at 330. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it “ ‘necessarily carr[ies] a significant risk that a defendant’ ”—here, the vast majority of juvenile offenders—“ ‘faces a punishment that the law cannot impose upon him.’ ” Schriro, 542 U. S., at 352 (quoting Bousley v. United States, 523 U. S. 614, 620 (1998) ). Louisiana nonetheless argues that Miller is procedural because it did not place any punishment beyond the State’s power to impose; it instead required sentencing courts to take children’s age into account before condemning them to die in prison. In support of this argument, Louisiana points to Miller’s statement that the decision “does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” Miller, supra, at ___ (slip op., at 20). Miller, it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that reason, Miller is no less substantive than are Roper and Graham. Before Miller, every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller, it will be the rare juvenile offender who can receive that same sentence. The only difference between Roper and Graham, on the one hand, and Miller, on the other hand, is that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption. The fact that life without parole could be a proportionate sentence for the latter kind of juvenile offender does not mean that all other children imprisoned under a disproportionate sentence have not suffered the deprivation of a substantive right. To be sure, Miller’s holding has a procedural component. Miller requires a sentencer to consider a juvenile offender’s youth and attendant characteristics before determining that life without parole is a proportionate sentence. See 567 U. S., at ___ (slip op., at 20). Louisiana contends that because Miller requires this process, it must have set forth a procedural rule. This argument, however, conflates a procedural requirement necessary to implement a substantive guarantee with a rule that “regulate[s] only the manner of determining the defendant’s culpability.” Schriro, supra, at 353. There are instances in which a substantive change in the law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons whom the law may no longer punish. See Mackey, 401 U. S., at 692, n. 7 (opinion of Harlan, J.) (“Some rules may have both procedural and substantive ramifications, as I have used those terms here”). For example, when an element of a criminal offense is deemed unconstitutional, a prisoner convicted under that offense receives a new trial where the government must prove the prisoner’s conduct still fits within the modified definition of the crime. In a similar vein, when the Constitution prohibits a particular form of punishment for a class of persons, an affected prisoner receives a procedure through which he can show that he belongs to the protected class. See, e.g., Atkins v. Virginia, 536 U. S. 304, 317 (2002) (requiring a procedure to determine whether a particular individual with an intellectual disability “fall[s] within the range of [intellectually disabled] offenders about whom there is a national consensus” that execution is impermissible). Those procedural requirements do not, of course, transform substantive rules into procedural ones. The procedure Miller prescribes is no different. A hearing where “youth and its attendant characteristics” are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. 567 U. S., at ___ (slip op., at 1). The hearing does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity. Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility. That this finding is not required, however, speaks only to the degree of procedure Miller mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems. See Ford v. Wainwright, 477 U. S. 399 –417 (1986) (“[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences”). Fidelity to this important principle of federalism, however, should not be construed to demean the substantive character of the federal right at issue. That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment. For this reason, the death penalty cases Louisiana cites in support of its position are inapposite. See, e.g., Beard v. Banks, 542 U. S. 406, 408 (2004) (holding nonretroactive the rule that forbids instructing a jury to disregard mitigating factors not found by a unanimous vote); O’Dell v. Netherland, 521 U. S. 151, 153 (1997) (holding nonretroactive the rule providing that, if the prosecutor cites future dangerousness, the defendant may inform the jury of his ineligibility for parole); Sawyer v. Smith, 497 U. S. 227, 229 (1990) (holding nonretroactive the rule that forbids suggesting to a capital jury that it is not responsible for a death sentence). Those decisions altered the processes in which States must engage before sentencing a person to death. The processes may have had some effect on the likelihood that capital punishment would be imposed, but none of those decisions rendered a certain penalty unconstitutionally excessive for a category of offenders. The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution. Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change. Petitioner has discussed in his submissions to this Court his evolution from a troubled, misguided youth to a model member of the prison community. Petitioner states that he helped establish an inmate boxing team, of which he later became a trainer and coach. He alleges that he has contributed his time and labor to the prison’s silkscreen department and that he strives to offer advice and serve as a role model to other inmates. These claims have not been tested or even addressed by the State, so the Court does not confirm their accuracy. The petitioner’s sub-missions are relevant, however, as an example of onekind of evidence that prisoners might use to demonstrate rehabilitation. * * * Henry Montgomery has spent each day of the past 46 years knowing he was condemned to die in prison. Perhaps it can be established that, due to exceptional circumstances, this fate was a just and proportionate punishment for the crime he committed as a 17-year-old boy. In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored. The judgment of the Supreme Court of Louisiana is reversed, and the case is remanded for further proceedings not inconsistent 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 . SUPREME COURT OF THE UNITED STATES Syllabus MONTGOMERY v. LOUISIANA certiorari to the supreme court of louisiana No. 14–280. Argued October 13, 2015—Decided January 25, 2016 Petitioner Montgomery was 17 years old in 1963, when he killed a deputy sheriff in Louisiana. The jury returned a verdict of “guilty without capital punishment,” which carried an automatic sentence of life without parole. Nearly 50 years after Montgomery was taken into custody, this Court decided that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on “ ‘cruel and unusual punishments.’ ” Miller v. Alabama, 567 U. S. ___, ___. Montgomery sought state collateral relief, arguing that Miller rendered his mandatory life-without-parole sentence illegal. The trial court denied his motion, and his application for a supervisory writ was denied by the Louisiana Supreme Court, which had previously held that Miller does not have retroactive effect in cases on state collateral review. Held: 1. This Court has jurisdiction to decide whether the Louisiana Supreme Court correctly refused to give retroactive effect to Miller. . (a) Teague v. Lane, 489 U. S. 288 , a federal habeas case, set forth a framework for the retroactive application of a new constitutional rule to convictions that were final when the new rule was announced. While the Court held that new constitutional rules of criminal procedure are generally not retroactive, it recognized that courts must give retroactive effect to new watershed procedural rules and to substantive rules of constitutional law. Substantive constitutional rules include “rules forbidding criminal punishment of certain primary conduct” and “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense,” Penry v. Lynaugh, 492 U. S. 302 . Court-appointed amicus contends that because Teague was an interpretation of the federal habeas statute, not a constitutional command, its retroactivity holding has no application in state collateral review proceedings. However, neither Teague nor Danforth v. Minnesota, 552 U. S. 264 —which concerned only Teague’s general retroactivity bar for new constitutional rules of criminal procedure—had occasion to address whether States are required as a constitutional matter to give retroactive effect to new substantive rules. . (b) When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. This conclusion is established by precedents addressing the nature of substantive rules, their differences from procedural rules, and their history of retroactive application. As Teague, supra, at 292, 312, and Penry, supra, at 330, indicate, substantive rules set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. In contrast, where procedural error has infected a trial, a conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful, see Schriro v. Summerlin, 542 U. S. 348 –353; for this reason, a trial conducted under a procedure found unconstitutional in a later case does not automatically invalidate a defendant’s conviction or sentence. The same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment. See United States v. United States Coin & Currency, 401 U. S. 715 . By holding that new substantive rules are, indeed, retroactive, Teague continued a long tradition of recognizing that substantive rules must have retroactive effect regardless of when the defendant’s conviction became final; for a conviction under an unconstitutional law “is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment,” Ex parte Siebold, 100 U. S. 371 –377. The same logic governs a challenge to a punishment that the Constitution deprives States of authority to impose, Penry, supra, at 330. It follows that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced. This Court’s precedents may not directly control the question here, but they bear on the necessary analysis, for a State that may not constitutionally insist that a prisoner remain in jail on federal habeas review may not constitutionally insist on the same result in its own postconviction proceedings. . 2. Miller’s prohibition on mandatory life without parole for juvenile offenders announced a new substantive rule that, under the Constitution, is retroactive in cases on state collateral review. The “foundation stone” for Miller’s analysis was the line of precedent holding certain punishments disproportionate when applied to juveniles, 567 U. S., at ___, n. 4. Relying on Roper v. Simmons, 543 U. S. 551 , and Graham v. Florida, 560 U. S. 48 , Miller recognized that children differ from adults in their “diminished culpability and greater prospects for reform,” 567 U. S., at ___, and that these distinctions “diminish the penological justifications” for imposing life without parole on juvenile offenders, id., at ___. Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ” id., at ___, it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—i.e., juvenile offenders whose crimes reflect the transient immaturity of youth, Penry, 492 U. S., at 330. Miller therefore announced a substantive rule of constitutional law, which, like other substantive rules, is retroactive because it “ ‘necessarily carr[ies] a significant risk that a defendant’ ”—here, the vast majority of juvenile offenders—“ ‘faces a punishment that the law cannot impose upon him.’ ” Schriro, supra, at 352. A State may remedy a Miller violation by extending parole eligibility to juvenile offenders. This would neither impose an onerous burden on the States nor disturb the finality of state convictions. And it would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change. . 2013–1163 (La. 6/20/14), 141 So. 3d 264, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.

Miller v. Alabama, 567 U. S. ___ (CA8), held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile's special circumstances in light of the principles and purposes of juvenile sentencing. After this Court issued its Miller decision, the Louisiana trial court, in Montgomery v. Montgomery, 181 So. 2d 756, denied his motion to impose a life-without-parole sentence on the ground that the sentence was not retroactive on collateral review. Montgomery then filed an application for a supervisory writ in the Louisiana Supreme Court, which denied the application, relying on its earlier decision in State v. Tate, 2012-2763, 130 So. 3d 829, which held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishments. The court also held that Miller does not have retroactive effect in cases on state collateral review, and that therefore this Court has jurisdiction to decide whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison. Held: 1. The Court of Appeals has jurisdiction of this case. Bernstein has ably discharged his assigned responsibilities. P.. 2. Miller announced a substantive rule of constitutional law that, under the Supremacy Clause of the Constitution, is retroactive regardless of when a conviction became final. Teague v. Lane, 489 U.S. 288 (1989), set forth a framework for retroactiv-ity in federal collateral review cases. This holding is limited to Teague, supra, at 292, 312. Although Teague describes new substantive rules that are not subject to its general retroactivity bar, it is undisputed that Teague requires the retroactive application of new substantive and watershed procedural rules in federal habeas proceedings. In adjudicating claims under its collateral review procedures, a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction and sentence became final before the rule was announced. See, e.g., Penry v. Lynaugh, 397. Here, Montgomery contends that Miller announced a substantive constitutional rule and that the State Supreme Court erred by failing to recognize its retroactive effect. . (a) This Court must address part of the question left open in Danforth v. Minnesota (precedent here), since the Court now holds that the Constitution requires state collateral reviews courts to give retroactivity effect to a rule that is binding on state courts as a matter of binding state law. Teague established that a new constitutional rule of criminal procedure does not apply, as a general matter, to convictions that were final when the new rules were announced, but, in fact, places certain criminal laws and punishments altogether beyond the State's power to impose. It follows that a court cannot leave to a State collateral review proceeding a claim that its decision has rendered certain sentences illegal as a substantive matter under the Eighth and Fourteenth Amendments. A procedural rule regulating only the manner of determining the defendant's culpability sets forth categorical constitutional guarantees that place certain criminal law and punishments beyond a State's powers to impose, and when a State enforces a proscription or penalty barred by the Constitution it is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction by regulating the manner that the judge treats the defendant. Thus, a trial conducted under a procedure Miller prescribes is no less void because the prisoner's sentence becamefinal before the law was held unconstitutional. There is no grandfather clause that permits States to enforce punishments the Constitution forbids. To conclude otherwise would undercut the Constitution's substantive guarantees. Furthermore, the principle that substantive rules immunize children whose crimes reflect irreparable corruption from the constitutional guarantee of incorrigibility suggests that States are constitutionally immune from substantive sanctions. Fidelity to this important principle of federalism, however, should not be construed to demean the substantive character of the federal right at issue. That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under that Amendment. For this reason, the death penalty cases Louisiana cites in support of its position are inapposite. Similarly, the retroactivity application of substantive rules does not implicate a State, Teague warned against the intrusiveness ofcontinually forc[ing] the States to marshal resources in order to keep in prison prison defendants whose trials and appeals conformed to then-existing constitutional standards, but this concern has no application in the realm of procedural rules, for no resources marshaled by a State could preserve a conviction and sentence the Constitution deprives the State of power to inflict. Those decisions altered the processes in which

2015_14-1095

https://www.oyez.org/cases/2015/14-1095

. In this case, the Government failed to object to a jury instruction that erroneously added an element that it had to prove, and petitioner failed to press a statute-of-limitations defense until his appeal. We address two questions arising from the parties’ failures to raise timely challenges. We first consider how a court should assess a challenge to the sufficiency of the evidence in a criminal case when a jury instruction adds an element to the charged crime and the Government fails to object. We conclude that the sufficiency of the evidence should be assessed against the elements of the charged crime. We next consider whether the statute-of-limitations defense contained in 18 U. S. C. §3282(a) (the general federal criminal statute of limitations) may be successfully raised for the first time on appeal. We conclude that it may not be. I Petitioner Michael Musacchio served as president of a logistics company, Exel Transportation Services (ETS), until his resignation in 2004. In 2005, he formed a rival company, Total Transportation Services (TTS). Musacchio was soon joined there by Roy Brown, who previouslyheaded ETS’s information-technology department. At TTS, Brown, using a password, continued to access ETS’s computer system without ETS’s authorization. Brown also gave Musacchio access to ETS’s system. This improper access of ETS’s system kept on until early 2006. In November 2010, a grand jury indicted Musacchio under 18 U. S. C. §1030(a)(2)(C). Under that provision, a person commits a crime when he “intentionally accesses a computer without authorization or exceeds authorized access,” and in doing so “obtains . . . information from any protected computer.” (Emphasis added.) The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly. See ibid.; §1030(e)(6) (defining “exceeds authorized access”). Count 1 of the indictment charged Musacchio with conspiring to commit both types of improper access. Count 23 charged him with making unauthorized access to ETS’s e-mail server “[o]n or about” November 24, 2005. App. 70–71.[1] In 2012, the Government filed a superseding indictment amending those charges. Count 1 dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count 2 amended the allegations originally contained in count 23 by alleging that Musacchio accessed specific ETS e-mail accounts “[o]n or about” November 23–25, 2005. Id., at 83–84. The Government later filed a second superseding indictment that made no changes relevant here. Musacchio proceeded to a jury trial. At no time before or during trial did he argue that his prosecution violated the 5-year statute of limitations applicable to count 2. See 18 U. S. C. §3282(a) (providing general 5-year statute of limitations). For the Government’s part, it submitted proposed jury instructions on the conspiracy count before and during the trial. Each set of proposed instructions identified that count as involving “Unauthorized Access to Protected Computer[s],” and none required the jury additionally to find that Musacchio conspired to exceed authorized access to protected computers. Musacchio did not propose instructions on the conspiracy count. Diverging from the indictment and the proposed instructions, the District Court instructed the jury on count 1 that §1030(a)(2)(C) “makes it a crime for a person to intentionally access a computer without authorization and exceed authorized access.” App. 168 (emphasis added). The parties agree that this instruction was erroneous: By using the conjunction “and” when referring to both ways of violating §1030(a)(2)(C), the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions. The jury found Musacchio guilty on both counts 1 and 2. The District Court sentenced him to 60 months’ imprisonment. Musacchio appealed, making the two challenges that he again advances in this Court. First, he challenged the sufficiency of the evidence supporting his conspiracy conviction on count 1. He maintained, moreover, that the sufficiency of the evidence should be assessed against the erroneous jury instruction that included the additional element. Second, he argued, for the first time, that his prosecution on count 2—for unauthorized access—was barred by the 5-year statute of limitations because the superseding indictment was filed seven years after the crime and did not relate back to the timely originalindictment. The Fifth Circuit rejected both challenges and affirmed Musacchio’s conviction. 590 Fed. Appx. 359 (2014) ( per curiam). First, the Court of Appeals concluded that it should assess Musacchio’s sufficiency challenge against the charged elements of the conspiracy count, not against the erroneous jury instruction. See id., at 362–363. Under Fifth Circuit precedent, the court explained, erroneously heightened jury instructions generally become the binding “law of the case” on appeal. Id., at 362 (internal quotation marks omitted). Circuit precedent supplies an exception, however, when (1) the jury instruction is “ ‘patently erroneous,’ ” and (2) “ ‘the issue is not misstated in the indictment.’ ” Ibid. (quoting United States v. Guevara, 408 F. 3d 252, 258 (CA5 2005)). The Fifth Circuit concluded that those conditions for applying the exception were satisfied. See 590 Fed. Appx., at 362–363. The court explained that the instruction’s requirement of an additional element was “an obvious clerical error,” and that the indictment correctly charged Musacchio only with “Conspiracy To Make Unauthorized Access to [a] Protected Computer.” Id., at 362. Therefore, the Fifth Circuit did not assess Musacchio’s sufficiency challenge under the heightened jury instruction. Id., at 362–363. Because Musacchio did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment, the Fifth Circuit rejected his challenge. Id., at 363. Second, the Fifth Circuit rejected Musacchio’s statute-of-limitations defense, concluding that he had “waived” the defense by failing to raise it at trial. Id., at 363, 364. We granted certiorari to resolve two questions that have divided the lower courts. 576 U. S. ___ (2015). The first question is whether the sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instructions, without objection, require the Government to prove more elements than do the statute and indictment. Compare, e.g., United States v. Romero, 136 F. 3d 1268, 1272–1273 (CA10 1998) (explaining that sufficiency is measured against heightened jury instructions), with Guevara, supra, at 258 (CA5) (adopting an exception to that rule). The second question is whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal. Compare, e.g., United States v. Franco-Santiago, 681 F. 3d 1, 12, and n. 18 (CA1 2012) (limitations defense not raised and preserved before or at trial is reviewable on appeal for plain error), with United States v. Walsh, 700 F. 2d 846, 855–856 (CA2 1983) (limitations defense not properly raised below is not reviewable on appeal). II We first address how a court should assess a sufficiency challenge when a jury instruction adds an element to the charged crime and the Government fails to object. We hold that, when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction. That conclusion flows from the nature of a court’s task in evaluating a sufficiency-of-the-evidence challenge. Sufficiency review essentially addresses whether “the government’s case was so lacking that it should not have even been submitted to the jury.” Burks v. United States, 437 U. S. 1, 16 (1978) (emphasis deleted). On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307 –315 (1979). The reviewing court considers only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319 (emphasis in original). That limited review does not intrude on the jury’s role “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Ibid. A reviewing court’s limited determination on sufficiency review thus does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a “meaningful opportunity to defend” against the charge. Id., at 314. And if the jury instruction requires the jury to find those elements “beyond a reasonable doubt,” the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. Id., at 314–315. The Government’s failure to introduce evidence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a “legal” determination whether the evidence was strong enough to reach a jury at all. Id., at 319. The Government’s failure to object to the heightened jury instruction thus does not affect the court’s review for sufficiency of the evidence.[2] Musacchio does not contest that the indictment here properly charged him with the statutory elements for conspiracy to obtain unauthorized access. The jury instructions required the jury to find all of the elements of that charged offense beyond a reasonable doubt. Nor does he dispute that the evidence was sufficient to convict him of the crime charged in the indictment—of conspiring to make unauthorized access. Accordingly, the Fifth Circuit correctly rejected his sufficiency challenge. The Fifth Circuit erred, however, in basing that conclusion on the law-of-the-case doctrine. See 590 Fed. Appx., at 362–363. That doctrine does not apply here. The law-of-the-case doctrine generally provides that “ ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Pepper v. United States, 562 U. S. 476, 506 (2011) (quoting Arizona v. California, 460 U. S. 605, 618 (1983) ). The doctrine “expresses the practice of courts generally to refuse to reopen what has been decided,” but it does not “limit [courts’] power.” Messenger v. Anderson, 225 U. S. 436, 444 (1912) . Thus, the doctrine may describe an appellate court’s decision not to depart from a ruling that it made in a prior appeal in the same case. See C. Wright et al., 18B Federal Practice and Procedure §4478, p. 646, and n. 16 (2d ed. 2002) (collecting cases). But the doctrine is “something of a misnomer” when used to describe how an appellate court assesses a lower court’s rulings. United States v. Wells, 519 U. S. 482 , n. 4 (1997). An appellate court’s function is to revisit matters decided in the trial court. When an appellate court reviews a matter on which a party failed to object below, its review may well be constrained by other doctrines such as waiver, forfeiture, and estoppel, as well as by the type of challenge that it is evaluating. But it is not bound by district court rulings under the law-of-the-case doctrine. That doctrine does not bear on how to assess a sufficiency challenge when a jury convicts a defendant after being instructed—without an objection by the Government—on all charged elements of a crime plus an additional element. III We now consider whether a defendant may successfully raise the statute-of-limitations bar in 18 U. S. C. §3282(a) for the first time on appeal. Musacchio argues that he may do so, either because §3282(a) imposes a nonwaivable limit on federal courts’ subject-matter jurisdiction or because a previously unraised limitations claim may constitute plain error that can be noticed on appeal. We disagree with both points, and hold that a defendant cannot successfully raise this statute-of-limitations bar for the first time on appeal. A Statutes of limitations and other filing deadlines “ordinarily are not jurisdictional.” Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___ (2013) (slip op., at 8). We treat a time bar as jurisdictional only if Congress has “clearly stated” that it is. Id., at ___ (slip op., at 6–7); (brackets and internal quotation marks omitted); see, e.g., Henderson v. Shinseki, 562 U. S. 428, 436, 439 (2011) (requiring a “clear indication” that a statute is jurisdictional (internal quotation marks omitted)). To determine whether Congress has made the necessary clear statement, we examine the “text, context, and relevant historical treatment” of the provision at issue. Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 166 (2010) . Congress has not made such a clear statement here. Rather, the statutory text, context, and history establish that §3282(a) imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court. The statutory text suggests that §3282(a) does not impose a jurisdictional limit. Section 3282(a) 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.” Although §3282(a) uses mandatory language, it does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms. The text of §3282(a) does not, therefore, provide a “clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.” Henderson, supra, at 439. Context confirms that §3282(a) does not impose a jurisdictional limit. Federal courts’ general criminal subject-matter jurisdiction comes from 18 U. S. C. §3231, which states: “The district courts . . . shall have original jurisdiction . . . of all offenses against the laws of the United States.” Section 3231 speaks squarely to federal courts’ “jurisdiction,” in marked contrast to §3282(a), which does not mention “jurisdiction” or a variant of that term. And, nothing in §3231 “conditions its jurisdictional grant on” compliance with §3282(a)’s statute of limitations. Reed Elsevier, supra, at 165. This context supports the conclusion that §3282(a) is not jurisdictional. The history of the limitations bar in §3282(a) demonstrates that it is a defense that becomes part of a case only if the defendant presses it in the district court. This Court held in United States v. Cook, 17 Wall. 168 (1872), that a statute of limitations—identical in all relevant respects to §3282(a)—was “a matter of defence and must be pleaded or given in evidence by the accused.” Id., at 181; see §32, 1Stat. 119 (statute of limitations); see also Cook, supra, at 173, and n. * (citing and describing statute of limitations). When a defendant introduces the limitations defense into the case, the Government then has “the right to reply or give evidence” on the limitations claim. 17 Wall., at 179. Cook was decided more than 140 years ago, and we have adhered to its holding. Just three Terms ago, we reaffirmed that “[c]ommission of [a federal] crime within the statute-of-limitations period is not an element of the . . . offense,” and “it is up to the defendant to raise the limitations defense.” Smith v. United States, 568 U. S. ___, ___ (2013) (slip op., at 6) (citing Cook; emphasis deleted); see also Biddinger v. Commissioner of Police of City of New York, 245 U. S. 128, 135 (1917) (“The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases . . . ” (citing Cook)). There is, in sum, a long history of treating the operative language in §3282(a) as providing a nonjurisdictional defense that a defendant must press at trial to insert into the case. In keeping with §3282(a)’s text, context, and history, we conclude that §3282(a) provides a nonjurisdictional defense, not a jurisdictional limit. B Because §3282(a) does not impose a jurisdictional limit, the failure to raise it at or before trial means that it is reviewable on appeal—if at all—only for plain error. See Fed. Rule Crim. Proc. 52(b) (providing for consideration of “[a] plain error that affects substantial rights” even though the error “was not brought to the court’s attention”). We conclude, however, that a district court’s failure to enforce an unraised limitations defense under §3282(a) cannot be a plain error.[3] As explained above, a statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period. See Cook, supra, at 179. When a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense, then, there is no error for an appellate court to correct—and certainly no plain error. A defendant thus cannot successfully raise the statute-of-limitations defense in §3282(a) for the first time on appeal. The Fifth Circuit correctly refused to consider Musacchio’s limitations defense here. * * * For the foregoing reasons, we affirm the judgment of the Fifth Circuit. It is so ordered.Notes 1 Counts 2 through 22 charged other defendants with exceeding authorized access to specific e-mail accounts. App. 68–70. Those defendants pleaded guilty, and later indictments dropped those counts. 2 In resolving the first question presented, we leave open several matters. First, we express no view on the question whether sufficiency of the evidence at trial must be judged by reference to the elements charged in the indictment, even if the indictment charges one or more elements not required by statute. Second, we do not suggest that the Government adds an element to a crime for purposes of sufficiency review when the indictment charges different means of committing a crime in the conjunctive. Third, we also do not suggest that an erroneous jury instruction cannot result in reversible error just because the evidence was sufficient to support a conviction. 3 Because we conclude that the failure to enforce §3282(a)’s limitations defense cannot be plain error, we do not resolve whether the failure to raise that defense in the District Court amounts to waiver (which some courts have held to preclude all appellate review of the defense) or forfeiture (which some courts have held to allow at least plain-error review). See United States v. Franco-Santiago, 681 F. 3d 1, 12, n. 18 (CA1 2012) (collecting 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 . SUPREME COURT OF THE UNITED STATES Syllabus MUSACCHIO v. UNITED STATES certiorari to the united states court of appeals for the fifth circuit No. 14–1095. Argued November 30, 2015—Decided January 25, 2016 Petitioner Musacchio resigned as president of Exel Transportation Services (ETS) in 2004, but with help from the former head of ETS’s information-technology department, he accessed ETS’s computer system without ETS’s authorization through early 2006. In November 2010, Musacchio was indicted under 18 U. S. C. §1030(a)(2)(C), which makes it a crime if a person “intentionally accesses a computer without authorization or exceeds authorized access” and thereby “obtains . . . information from any protected computer.” (Emphasis added.) He was charged in count 1 with conspiring to commit both types of improper access and in count 23 with making unauthorized access “[o]n or about” November 24, 2005. In a 2012 superseding indictment, count 1 dropped the charge of conspiracy to exceed authorized access, and count 2 changed count 23’s date to “[o]n or about” November 23–25, 2005. Musacchio never argued in the trial court that his prosecution violated the 5-year statute of limitations applicable to count 2. See §3282(a). At trial, the Government did not object when the District Court instructed the jury that §1030(a)(2)(C) “makes it a crime . . . to intentionally access a computer without authorization and exceed authorized access” (emphasis added), even though the conjunction “and” added an additional element. The jury found Musacchio guilty on counts 1 and 2. On appeal, he challenged the sufficiency of the evidence supporting his conspiracy conviction and argued, for the first time, that his prosecution on count 2 was barred by §3282(a)’s statute of limitations. In affirming his conviction, the Fifth Circuit assessed Musacchio’s sufficiency challenge against the charged elements of the conspiracy count rather than against the heightened jury instruction, and it concluded that he had waived his statute-of-limitations defense by failing to raise it at trial. Held: 1. A sufficiency challenge should be assessed against the elements of the charged crime, not against the elements set forth in an erroneous jury instruction. Sufficiency review essentially addresses whether the Government’s case was strong enough to reach the jury. A reviewing court conducts a limited inquiry tailored to ensuring that a defendant receives the minimum required by due process: a “meaningful opportunity to defend” against the charge against him and a jury finding of guilt “beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307 –315. It does this by considering only the “legal” question “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319. A reviewing court’s determination thus does not rest on how the jury was instructed. The Government’s failure to introduce evidence of an additional element does not implicate these principles, and its failure to object to a heightened jury instruction does not affect sufficiency review. Because Musacchio does not dispute that he was properly charged with conspiracy to obtain unauthorized access or that the evidence was sufficient to convict him of the charged crime, the Fifth Circuit correctly rejected his sufficiency challenge. . 2. A defendant cannot successfully raise §3282(a)’s statute-of-limitations bar for the first time on appeal. . (a) A time bar is jurisdictional only if Congress has “clearly state[d]” that it is. Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___. Here, the “text, context, and relevant historical treatment” of §3282(a), Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154 , establish that it imposes a nonjurisdictional defense that becomes part of a case only if a defendant raises it in the district court. The provision does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms. It thus stands in marked contrast to §3231, which speaks squarely to federal courts’ general criminal subject-matter “jurisdiction” and does not “conditio[n] its jurisdictional grant on” compliance with §3282(a)’s statute of limitations. Id., at 165. The history of §3282(a)’s limitations bar further confirms that the provision does not impose a jurisdictional limit. See United States v. Cook, 17 Wall. 168, 181; Smith v. United States, 568 U. S. ___, ___. . (b) Because §3282(a) does not impose a jurisdictional limit, the failure to raise the defense at or before trial is reviewable on appeal—if at all—only for plain error. A district court’s failure to enforce an unraised limitations defense under §3282(a) cannot be a plain error, however, because if a defendant fails to press the defense, it does not become part of the case and, thus, there is no error for an appellate court to correct. . 590 Fed. Appx. 359, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

Petitioner Musacchio, president of a logistics company, formed a rival company, Total Transportation Services (TTS), and was soon joined by another executive, who, using a password, continued to access ETS' computer system without ETS authorization. This improper access of the system kept on until early 2006, when Count 1 of the indictment charged him under 18 U.S.C. §1030(a)(2)(C), which provides that a person commits a crime when heintentionally accesses a computer without authorization or exceeds authorized access and in doing so "obtains... information from any protected computer...." (Emphasis added.) Count 2 amended the allegations originally contained in count 23 by alleging that he accessed specific ETS e-mail accounts. Count 1 then dropped the charge of conspiracy to exceed authorized access, limiting that charge to conspiracy to make unauthorized access. Count 2 later filed a second superseding indictment that made no changes relevant to this case. In addition, the Government submitted proposed jury instructions on the conspiracy count before and during the trial. Each set of proposed instructions identified that count as involving "Unauthorized Access to Protected Computer[s], and none required the jury additionally to find that the defendant conspired to exceed authorized access to protected computers. The District Court instructed the jury on count 1 that the statute makes it a crime for a person to intentionally access a computer "without authorization and exceeding authorized access" and that this instruction required the instruction to prove an additional element that it had to prove. The jury found him guilty on both counts, and he appealed to the Court of Appeals, which affirmed his conviction. However, the court rejected his challenges on the first count because, because he did not dispute that the evidence was sufficient to support a conviction under the elements set out in the indictment, the Fifth Circuit did not assess his challenge under the heightened jury instruction. In the second count, he appealed again to the court, and again he was found guilty on the third count. He again unsuccessfully appealed on the fourth count, and in both counts he was sentenced to 60 months in prison. Held: 1. The sufficiency of the evidence in a criminal case should be measured against the elements described in the jury instructions where those instructions, without objection, require the Government to prove more elements than do the statute and indictment. . (a) When a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against all charged elements of that crime, not against the erroneously heightened command in the instructions. That conclusion flows from the nature of a court's task in evaluating a court-of-limitations challenge. Sufficiency review essentially addresses whether the government's case was so lacking that it should not have even been submitted to the jury. On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a meaningful opportunity to defend against the charge, and a finding of guilt against a charge. However, when a defendant fails to press a limitations defense, the defense does not become part of the case and the Government does not otherwise have the burden of proving that it filed a timely indictment. When a defendant does not press the defense, there is no error for an appellate court to correct, and certainly no plain error. Thus, a defendant thus cannot successfully raise the statute oflimitations defense in §3282 (a) for the first time on appeal. Pp. 576 U. S. ___. (b) The Fifth Circuit erred in basing its conclusion on the doctrine of the law of the-case doctrine, which generally provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case, but does not limit courts' power to reopen what has been decided, but is not bound by district court rulings under the doctrine. That doctrine is something of a misnomer when used to describe a lower court appellate court's decision not to depart from a ruling that it made in a prior appeal in a same case. United States v. Cook, 17 Wall. 168 (1872), which held that a statute of limitations was a matter of defence and must be pleaded or given in evidence by the accused. It is a defense that becomes part of a case only if the defendant presses it in the district court. Section 3282(a)'s operative language, which suggests that it does not impose a jurisdictional limit, provides a nonjurisdictional defense that a defendant must press at trial to insert into the case.. 2. The failure to raise the limitations defense in the District Court does not amount to waiver (which some courts have held to preclude all appellate review of the defense) or forfeiture. A defendant cannot, however, successfully raise such a defense in this case on appeal, since

2015_14-1406

https://www.oyez.org/cases/2015/14-1406

. The village of Pender, Nebraska sits a few miles west of an abandoned right-of-way once used by the Sioux City and Nebraska Railroad Company. We must decide whether Pender and surrounding Thurston County, Nebraska,are within the boundaries of the Omaha Indian Reservation or whether the passage of an 1882 Act empowering the United States Secretary of the Interior to sell the Tribe’s land west of the right-of-way “diminished” the reservation’s boundaries, thereby “free[ing]” the disputed land of “its reservation status.” Solem v. Bartlett, 465 U. S. 463, 467 (1984) . We hold that Congress did not diminish the reservation in 1882 and that the disputed land is within the reservation’s boundaries. I A Centuries ago, the Omaha Tribe settled in present-day eastern Nebraska. By the mid-19th century, the Tribe was destitute and, in exchange for much-needed revenue, agreed to sell a large swath of its land to the United States. In 1854, the Tribe entered into a treaty with the United States to create a 300,000-acre reservation. Treaty with the Omahas (1854 Treaty), Mar. 16, 1854, 10Stat. 1043. The Tribe agreed to “cede” and “forever relinquish all right and title to” its land west of the Mississippi River, excepting the reservation, in exchange for $840,000, to be paid over 40 years. Id., at 1043–1044. In 1865, after the displaced Wisconsin Winnebago Tribe moved west, the Omaha Tribe agreed to “cede, sell, and convey” an additional 98,000 acres on the north side of the reservation to the United States for the purpose of creating a reservation for the Winnebagoes. Treaty with the Omaha Indians (1865 Treaty), Mar. 6, 1865, 14Stat. 667–668. The Tribe sold the land for a fixed sum of $50,000. Id., at 667. In 1872, the Tribe again expressed its wish to sell portions of the reservation, but Congress took a different tack than it had in the 1854 and 1865 Treaties. Instead of purchasing a portion of the reservation for a fixed sum, Congress authorized the Secretary of the Interior to survey, appraise, and sell up to 50,000 acres on the western side of the reservation “to be separated from the remaining portion of said reservation” by a north-south line agreed to by the Tribe and Congress. Act of June 10, 1872 (1872 Act), ch. 436, §1, 17Stat. 391. Under the 1872 Act, a nonmember could purchase “tracts not exceeding one hundred and sixty acres each” or “the entire body offered.” Ibid. Proceeds from any sales would be “placed to the credit of said Indians on the books of the treasury of the United States.” Ibid. But the proceeds were meager. The 1872 Act resulted in only two sales totaling 300.72 acres. Then came the 1882 Act, central to the dispute between petitioners and respondents. In that Act, Congress again empowered the Secretary of the Interior “to cause to be surveyed, if necessary, and sold” more than 50,000 acres lying west of a right-of-way granted by the Tribe and approved by the Secretary of the Interior in 1880 for use by the Sioux City and Nebraska Railroad Company. Act of Aug. 7, 1882 (1882 Act), 22Stat. 341. The land for sale under the terms of the 1882 Act overlapped substantially with the land Congress tried, but failed, to sell in 1872. Once the land was appraised “in tracts of forty acres each,” the Secretary was “to issue [a] proclamation” that the “lands are open for settlement under such rules and regulations as he may prescribe.” §§1, 2, id., at 341. Within one year of that proclamation, a nonmember could purchase up to 160 acres of land (for no less than $2.50 per acre) in cash paid to the United States, so long as the settler “occup[ied]” it, made “valuable improvements thereon,” and was “a citizen of the United States, or . . . declared his intention to become such.” §2, id., at 341. The proceeds from any land sales, “after paying all expenses incident to and necessary for carrying out the provisions of th[e] act,” were to “be placed to the credit of said Indians in the Treasury of the United States.” §3, id., at 341. Interest earned on the proceeds was to be “annu-ally expended for the benefit of said Indians, under the direction of the Secretary of the Interior.” Ibid. The 1882 Act also included a provision, common in the late 19th century, that enabled members of the Tribe to select individual allotments, §§5–8, id., at 342–343, as a means of encouraging them to depart from the communal lifestyle of the reservation. See Solem, supra, at 467. The 1882 Act provided that the United States would convey the land to a member or his heirs in fee simple after holding it in trust on behalf of the member and his heirs for 25 years. §6, 22Stat. 342. Members could select allotments on any part of the reservation, either east or west of the right-of-way. §8, id., at 343. After the members selected their allotments—only 10 to 15 of which were located west of the right-of-way—the Secretary proclaimed that the remaining 50,157 acres west of the right-of-way were open for settlement by nonmembers in April 1884. One of those settlers was W. E. Peebles, who “purchased a tract of 160 acres, on which he platted the townsite for Pender.” Smith v. Parker, 996 F. Supp. 2d 815, 828 (Neb. 2014). B The village of Pender today numbers 1,300 residents. Most are not associated with the Omaha Tribe. Less than 2% of Omaha tribal members have lived west of the right-of-way since the early 20th century. Despite its longstanding absence, the Tribe sought to assert jurisdiction over Pender in 2006 by subjecting Pender retailers to its newly amended Beverage Control Ordinance. The ordinance requires those retailers to obtain a liquor license (costing $500, $1,000, or $1,500 depending upon the class of license) and imposes a 10% sales tax on liquor sales. Nonmembers who violate the ordinance are subject to a $10,000 fine. The village of Pender and Pender retailers, including bars, a bowling alley, and social clubs, brought a federal suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe’s power to impose the requirements of the Beverage Control Ordinance on nonmembers. Federal law permits the Tribe to regulate liquor sales on its reservation and in “Indian country” so long as the Tribe’s regulations are (as they were here) “certified by the Secretary of the Interior, and published in the Federal Register.” 18 U. S. C. §1161. The challengers alleged that they were neither within the boundaries of the Omaha Indian Reservation nor in Indian country and, consequently, were not bound by the ordinance. The State of Nebraska intervened on behalf of the plaintiffs, and the United States intervened on behalf of the Omaha Tribal Council members. The State’s intervention was prompted, in part, by the Omaha Tribe’s demand that Nebraska share with the Tribe revenue that the State received from fuel taxes imposed west of the right-of-way. In addition to the relief sought by Pender and the Pender retailers, Nebraska sought a permanent injunction prohibiting the Tribe from asserting tribal jurisdiction over the 50,157 acres west of the abandoned right-of-way. After examining the text of the 1882 Act, as well as the contemporaneous and subsequent understanding of the 1882 Act’s effect on the reservation boundaries, the District Court concluded that Congress did not diminish the Omaha Reservation in 1882. 996 F. Supp. 2d, at 844. Accordingly, the District Court denied the plaintiffs’ request for injunctive and declaratory relief barring the Tribe’s enforcement of the Beverage Control Ordinance. The Eighth Circuit affirmed. Smith v. Parker, 774 F. 3d 1166, 1168–1169 (2014). We granted certiorari to resolve whether the 1882 Act diminished the Omaha Reservation. 576 U. S. ___ (2015). II We must determine whether Congress “diminished” the Omaha Indian Reservation in 1882. If it did so, the State now has jurisdiction over the disputed land. Solem, 465 U. S., at 467. If Congress, on the other hand, did not diminish the reservation and instead only enabled nonmembers to purchase land within the reservation, then federal, state, and tribal authorities share jurisdiction over these “opened” but undiminished reservation lands. Ibid. The framework we employ to determine whether an Indian reservation has been diminished is well settled. Id., at 470–472. “[O]nly Congress can divest a reservation of its land and diminish its boundaries,” and its intent to do so must be clear. Id., at 470. To assess whether an Act of Congress diminished a reservation, we start with the statutory text, for “[t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands.” Hagen v. Utah, 510 U. S. 399, 411 (1994) . Under our precedents, we also “examine all the circumstances surrounding the opening of a reservation.” Id., at 412. Because of “the turn-of-the-century assumption that Indian reservations were a thing of the past,” many surplus land Acts did not clearly convey “whether opened lands retained reservation status or were divested of all Indian interests.” Solem, supra, at 468. For that reason, our precedents also look to any “unequivocal evidence” of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the United States and the State of Nebraska. South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 351 (1998) . A As with any other question of statutory interpretation, we begin with the text of the 1882 Act, the most “probative evidence” of diminishment. Solem, supra, at 470; see, e.g., United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989) (“The task of resolving the dispute over the meaning of [a statutory text] begins where all such inqui-ries must begin: with the language of the statute itself ”). Common textual indications of Congress’ intent to diminish reservation boundaries include “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate the Indian tribe for its opened land.” Solem, supra, at 470. Such language “providing for the total surrender of tribal claims in exchange for a fixed payment” evinces Congress’ intent to diminish a reservation, Yankton Sioux, supra, at 345, and creates “an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished,” Solem, supra, at 470–471. Similarly, a statutory provision restoring portions of a reservation to “the public domain” signifies diminishment. Hagen, 510 U. S., at 414. In the 19th century, to restore land to the public domain was to extinguish the land’s prior use—its use, for example, as an Indian reservation—and to return it to the United States either to be sold or set aside for other public purposes. Id., at 412–413. The 1882 Act bore none of these hallmarks of diminishment. The 1882 Act empowered the Secretary to survey and appraise the disputed land, which then could be purchased in 160-acre tracts by nonmembers. 22Stat. 341. The 1882 Act states that the disputed lands would be “open for settlement under such rules and regulations as [the Secretary of the Interior] may prescribe.” Ibid. And the parcels would be sold piecemeal in 160-acre tracts. Ibid. So rather than the Tribe’s receiving a fixed sum for all of the disputed lands, the Tribe’s profits were entirely dependent upon how many nonmembers purchased the appraised tracts of land. From this text, it is clear that the 1882 Act falls into another category of surplus land Acts: those that “merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians’ benefit.” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425 ,448 (1975). Such schemes allow “non-Indian settlers to own land on the reservation.” Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 356 (1962) . But in doing so, they do not diminish the reservation’s boundaries. Our conclusion that Congress did not intend to diminish the reservation in 1882 is confirmed by the text of earlier treaties between the United States and the Tribe. See Mattz v. Arnett, 412 U. S. 481, 504 (1973) (comparing statutory text to earlier bills). In drafting the 1882 Act, Congress legislated against the backdrop of the 1854 and 1865 Treaties—both of which terminated the Tribe’s jurisdiction over their land “in unequivocal terms.” Ibid. Those treaties “ced[ed]” the lands and “reliquish[ed]” any claims to them in exchange for a fixed sum. 10Stat. 1043–1044; see also 14Stat. 667 (“The Omaha tribe of Indians do hereby cede, sell, and convey to the United States a tract of land from the north side of their present reservation . . . ” (emphasis added)). The 1882 Act speaks in much different terms, both in describing the way the individual parcels were to be sold to nonmembers and the way in which the Tribe would profit from those sales. That 1882 Act also closely tracks the 1872 Act, which petitioners do not contend diminished the reservation. The change in language in the 1882 Act undermines petitioners’ claim that Congress intended to do the same with the reservation’s boundaries in 1882 as it did in 1854 and 1865. Petitioners have failed at the first and most important step. They cannot establish that the text of the 1882 Act evinced an intent to diminish the reservation. B We now turn to the history surrounding the passage of the 1882 Act. The mixed historical evidence relied upon by the parties cannot overcome the lack of clear textual signal that Congress intended to diminish the reservation. That historical evidence in no way “unequivocally reveal[s] a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation.” Solem, 465 U. S., at 471 (emphasis added); see also Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005) (describing the “often murky, ambiguous, and contradictory” nature of extratextual evidence of congressional intent). Petitioners rely largely on isolated statements that some legislators made about the 1882 Act. Senator Henry Dawes of Massachusetts, for example, noted that he had been “assured that [the 1882 Act] would leave an ample reservation” for the Tribe. 13 Cong. Rec. 3032 (1882) (emphasis added). And Senator John Ingalls of Kansas observed “that this bill practically breaks up that portion at least of the reservation which is to be sold, and provides that it shall be disposed of to private purchasers.” Id., at 3028. Whatever value these contemporaneous floor statements might have, other such statements support the opposite conclusion—that Congress never intended to diminish the reservation. Senator Charles Jones of Flor-ida, for example, spoke of “white men purchas[ing] titles to land within this reservation and settl[ing] down with the Indians on it.” Id., at 3078 (emphasis added). Such dueling remarks by individual legislators are far from the “clear and plain” evidence of diminishment required under this Court’s precedent. Yankton Sioux, 522 U. S., at 343 (internal quotation marks omitted); see also Solem, 465 U. S., at 478 (noting that it was unclear whether statements referring to a “ ‘reduced reservation’ ” alluded to the “reduction in Indian-owned lands that would occur once some of the opened lands were sold to settlers or to the reduction that a complete cession of tribal interests in the opened area would precipitate”). More illuminating than cherry-picked statements by individual legislators would be historical evidence of “the manner in which the transaction was negotiated” with the Omaha Tribe. Id., at 471.[1] In Yankton Sioux, for example, recorded negotiations between the Commissioner of Indian Affairs and leaders of the Yankton Sioux Tribe unambiguously “signaled [the Tribe’s] understanding that the cession of the surplus lands dissolved tribal governance of the 1858 reservation.” 522 U. S., at 353. No such unambiguous evidence exists in the record of these negotiations. In particular, petitioners’ reliance on the remarks of Representative Edward Valentine of Nebraska, who stated, “You cannot find one of those Indians that does not want the western portion sold,” and that the Tribe wished to sell the land to those who would “ ‘reside upon it and cultivate it’ ” so that the Tribe members could “benefit of these improvements,” 13 Cong. Rec. 6541, falls short. Nothing about this statement or other similar statements unequivocally supports a finding that the existing boundaries of the reservation would be diminished. C Finally, we consider both the subsequent demographic history of opened lands, which serves as “one additional clue as to what Congress expected would happen once land on a particular reservation was opened to non-Indian settlers,” Solem, 465 U. S., at 472, as well as the United States’ “treatment of the affected areas, particularly in the years immediately following the opening,” which has “some evidentiary value,” id., at 471. Our cases suggest that such evidence might “reinforc[e]” a finding of diminishment or nondiminishment based on the text. Mattz, 412 U. S., at 505; see also, e.g., Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 –605 (1977) (invoking subsequent history to reject a petitioner’s “strained” textual reading of a congressional Act). But this Court has never relied solely on this third consideration to find diminishment. As petitioners have discussed at length, the Tribe was almost entirely absent from the disputed territory for more than 120 years. Brief for Petitioners 24–30. The Omaha Tribe does not enforce any of its regulations—including those governing businesses, fire protection, animal control, fireworks, and wildlife and parks—in Pender or in other locales west of the right-of-way. 996 F. Supp. 2d, at 832. Nor does it maintain an office, provide social services, or host tribal celebrations or ceremonies west of the right-of-way. Ibid. This subsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation in 1882. And it is not our role to “rewrite” the 1882 Act in light of this subsequent demographic history. DeCoteau, 420 U. S., at 447. After all, evidence of the changing demographics of disputed land is “the least compelling” evidence in our diminishment analysis, for “[e]very surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the ‘Indian character’ of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reservation.” Yankton Sioux, 522 U. S., at 356. Evidence of the subsequent treatment of the disputed land by Government officials likewise has “limited interpretive value.” Id., at 355. Petitioners highlight that, for more than a century and with few exceptions, reports from the Office of Indian Affairs and in opinion letters from Government officials treated the disputed land as Nebraska’s. Brief for Petitioners 24–38; see also 996 F. Supp. 2d, at 828, 830. It was not until this litigation commenced that the Department of the Interior definitively changed its position, concluding that the reservation boundaries were in fact not diminished in 1882. See id., at 830–831. For their part, respondents discuss late-19th-century statutes referring to the disputed land as part of the reservation, as well as inconsistencies in maps and statements by Government officials. Brief for Respondent Omaha Tribal Council et al. 45–52; Brief for United States 38–52; see also 996 F. Supp. 2d, at 827, 832–833. This “mixed record” of subsequent treatment of the disputed land cannot overcome the statutory text, which is devoid of any language indicative of Congress’ intent to diminish. Yankton Sioux, supra, at 356. Petitioners’ concerns about upsetting the “justifiable expectations” of the almost exclusively non-Indian settlers who live on the land are compelling, Rosebud Sioux, supra, at 605, but these expectations alone, resulting from the Tribe’s failure to assert jurisdiction, cannot diminish reservation boundaries. Only Congress has the power to diminish a reservation. DeCoteau, 420 U. S., at 449. And though petitioners wish that Congress would have “spoken differently” in 1882, “we cannot remake history.” Ibid. * * * In light of the statutory text, we hold that the 1882 Act did not diminish the Omaha Indian Reservation. Because petitioners have raised only the single question of diminishment,[2] we express no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender in light of the Tribe’s century-long absence from the disputed lands. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 –221 (2005). The judgment of the Court of Appeals for the Eighth Circuit is affirmed. It is so ordered.Notes 1 Until this Court’s 1903 decision in Lone Wolf v. Hitchcock, 187 U. S. 553 –568, the question whether Congress could unilaterally abrogate treaties with tribes and divest them of their reservation lands was unsettled. Thus, what the tribe agreed to has been significant in the Court’s diminishment analysis. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U. S. 329 –353 (1998). Historical evidence of how pre-Lone Wolf sales of lands were negotiated has been deemed compelling, whereas historical evidence of negotiations post-Lone Wolf might be less so. See, e.g., Hagen v. Utah, 510 U. S. 399 –417 (1994). 2 See, e.g., Plaintiff’s Brief in Support of Motion for Summary Judgment in No. 4:07–cv–03101 (D Neb.), pp. 31, 38 (defendants cannot “impose an alcohol tax and licensing scheme outside the boundaries of the Omaha Reservation”); Plaintiff Intervenor’s Brief in Support of Plaintiff’s Motion for Summary Judgment in No. 4:07–cv–03101 (D Neb.), pp. 1–2; see also Smith v. Parker, 996 F. Supp. 2d 815, 834 (Neb. 2014) (“In this case, I must decide whether Congress’s Act of August 7, 1882 . . . diminished the boundaries of the Omaha Indian Reservation, or whether the Act simply permitted non-Indians to settle within existing Omaha Reservation boundaries”); Smith v. Parker, 774 F. 3d 1166, 1167 (CA8 2014) (“Appellants challenge the district court’s determination that the Omaha Indian Reservation was not diminished by an 1882 act of 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 . SUPREME COURT OF THE UNITED STATES Syllabus NEBRASKA et al. v. PARKER et al. certiorari to the united states court of appeals for the eighth circuit No. 14–1406. Argued January 20, 2016—Decided March 22, 2016 In 1854, the Omaha Tribe entered into a treaty with the United States agreeing to establish a 300,000-acre reservation and to “cede” and “forever relinquish all right and title to” its remaining land in present-day Nebraska for a fixed sum of money. In 1865, the Omaha Tribe again entered into a treaty with the United States agreeing to “cede, sell, and convey” land for a fixed sum. When, in 1872, the Tribe sought to sell more of its land to the United States, Congress took a different tack. In lieu of a fixed-sum purchase, Congress authorized the Secretary of the Interior to survey, appraise, and sell tracts of reservation land to western settlers and to deposit any proceeds from the land sales in the U. S. Treasury for the Tribe’s benefit. Congress took the same approach in 1882 when it passed the Act in question. That Act authorized the Secretary of the Interior to survey, appraise, and sell roughly 50,000 acres of reservation land lying west of a railroad right-of-way. W. E. Peebles purchased a tract under the terms of the 1882 Act and established the village of Pender. In 2006, the Tribe amended its Beverage Control Ordinance and sought to subject Pender retailers to the amended ordinance. See 18 U. S. C. §1161 (permitting tribes to regulate liquor sales on reservation land and in “Indian country”). Pender and its retailers brought a suit against the Tribe in Federal District Court to challenge the ordinance, and the State intervened on their behalf. They alleged that they were not within the reservation boundaries or in Indian country and therefore could not be subject to the ordinance. They sought declaratory relief and a permanent injunction prohibiting the Tribe from asserting its jurisdiction over the disputed land. Concluding that the 1882 Act did not diminish the Omaha Reservation, the District Court denied relief, and the Eighth Circuit affirmed. Held: The 1882 Act did not diminish the Omaha Indian Reservation. . (a) Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. Solem v. Bartlett, 465 U. S. 463 . This Court’s framework for determining whether an Indian reservation has been diminished is well settled and starts with the statutory text. Hagen v. Utah, 510 U. S. 399 . Here, the 1882 Act bears none of the common textual indications that express such clear intent, e.g., “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensate the Indian tribe for its opened land,” Solem, supra, at 470. The Act’s language opening the land “for settlement under such rules and regulations as [the Secretary] may prescribe,” 22Stat. 341, falls into a category of surplus land acts that “merely opened reservation land to settlement,” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425 . A comparison of the text of the 1854 and 1865 treaties, which unequivocally terminated the Tribe’s jurisdiction over its land, with the 1882 Act confirms this conclusion. . (b) In diminishment cases, this Court has also examined “all the circumstances surrounding the opening of a reservation,” Hagen, supra, at 412, including the contemporaneous understanding of the Act’s effect on the reservation. Here, such historical evidence cannot overcome the text of the 1882 Act, which lacks any indication that Congress intended to diminish the reservation. Dueling remarks by legislators about the 1882 Act are far from the unequivocal evidence required in diminishment cases. . (c) Finally, and to a lesser extent, the Court may look to subsequent demographic history and subsequent treatment of the land by government officials. See Solem, supra, at 471–472. This Court has never relied solely on this third consideration to find diminishment, and the mixed record of subsequent treatment of the disputed land in this case cannot overcome the statutory text. Petitioners point to the Tribe’s absence from the disputed territory for more than 120 years, but this subsequent demographic history is the “least compelling” evidence in the diminishment analysis. South Dakota v. Yankton Sioux Tribe, 522 U. S. 329 . Likewise, evidence of the subsequent treatment of the disputed land by government officials has similarly limited value. And, while compelling, the justifiable expectations of the non-Indians living on the land cannot alone diminish reservation boundaries. . (d) Because the parties have raised only the single question of diminishment, the Court expresses no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 –221. P. 12. 774 F. 3d 1166, affirmed. Thomas, J., delivered the opinion for a unanimous Court.

Pender, Nebraska, is located a few miles west of an abandoned right-of-way once used by the Sioux City and Nebraska Railroad Company. In 1854, the Omaha Tribe entered into a treaty with the United States to create a 300,000-acre reservation, and agreed to relinquish all right and title to its land west of the Mississippi River, excepting the reservation, in exchange for $840,000 to be paid over 40 years. However, in 1872, Congress, in an 1882 Act, authorized the Secretary of the Interior to survey, appraise, and sell up to 50,000 acres on its reservation and in Indian country so long as the Tribe's regulations are (as they were here) certified by the Secretary and published in the Federal Register, 18 U. S. C. §1161. The Secretary issued a proclamation that the lands were open for settlement under such rules and regulations as he may prescribe, and the proceeds from any sales would be placed to the credit of said Indians on the books of the treasury of the Federal Government. Petitioners, including the village of Pender and retailers, including bars, a bowling alley, and social clubs, brought suit against members of the Omaha Tribal Council in their official capacities to challenge the Tribe power to impose the requirements of the Beverage Control Ordinance on nonmembers. The District Court held that Congress did not diminish the reservation in 1882, and denied injunctive and declaratory relief barring the Tribe from enforcing the Ordinance. The Court of Appeals affirmed. Held: The 1882 Act did not diminished the Omaha Reservation. . (a) The text of the 1882 statute confirms that the text of earlier federal statutory bills confirmed that Congress intended to diminish reservation boundaries. Although the Tribe was almost entirely absent from the disputed territory for more than 120 years, it did receive a fixed sum for all of the disputed lands, and its profits were entirely dependent upon how many nonmembers purchased the appraised tracts of land. From the text, it is clear that the Act falls into another category of surplus land Acts: those that merely opened reservation land to settlement and provided that the uncertain future proceeds of settler purchases should be applied to the Indians' benefit. In doing so, they do not diminish the reservation boundaries that Congress confirmed in earlier federal bills. See Mattzzett v. Mattzett, 504 U.S. 504 (1973), and the 1872 Act, which confirmed that earlier statutory bills terminated their authority over the Tribe and terminated the Tribe over their claims. Those bills did not clearly convey whether opened lands retained reservation status or were divested of all Indian interests. For that reason, our precedents also look to any evidence of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the Government and the State of Nebraska. Such evidence in no way reveals a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation. And it is not this Court, in light of the subsequent treatment of disputed land by Government officials, to find diminishment. This mixed historical evidence cannot overcome the lack of clear textual signal that Congress meant to diminish reservation. Nothing in the legislative history of the Act supports a finding that diminishment was the intent of Congress, and nothing in the historical evidence supports any finding that diminished the reservation was the result of subsequent nondisclosure. Nor does any evidence suggest that the Tribe could unilaterally abrogate the treaties with the States, or that the subsequent negotiations with the tribes were so significant as to be significant evidence of diminishment that Congress could have unilaterally decided to abrogated them. Thus, this Court has never relied solely on the second consideration to find diminishment, but has relied on the third consideration, which is that of any "unequivocal evidence" of contemporaneous understanding that, as petitioners have pointed out, the affected area would shrink. It is not our role to apply this analysis to the subsequent demographic history. P.. (b) Petitioners have failed at the first and most important step of the process of establishing diminishment: The fact that petitioners raised only the single diminishment question, and expressing no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of the Pender estate in the light of Tribe's century-long absence from disputed lands. Until this Court ordered the Tribe to divest itself of its disputed lands in 1903, it has been unsettled by the Tribe, post-Tribe divestiture negotiations, and has been analytically unavailled by evidence of what might be meaningful to the Tribe once the Tribe has been unilaterally deemed to have been the property of the Tribe. Here, the evidence has been overwhelmingly compelling that Congress, unilaterally and unilaterally, did not intend to diminish the Indian Reservation in 18

2015_15-5238

https://www.oyez.org/cases/2015/15-5238

. Lester Ray Nichols, a registered sex offender living in the Kansas City area, moved to the Philippines without notifying Kansas authorities of his change in residence. For that omission Nichols was convicted of failing to update his sex-offender registration, in violation of 18 U. S. C. §2250(a). We must decide whether federal law required Nichols to update his registration in Kansas to reflect his departure from the State. I A Following the high-profile and horrific rape and murder of 7-year-old Megan Kanka by her neighbor, States in the early 1990’s began enacting registry and community-notification laws to monitor the whereabouts of individuals previously convicted of sex crimes. See Smith v. Doe, 538 U. S. 84, 89 (2003) ; Filler, Making the Case for Megan’s Law, 76 Ind. L. J. 315, 315–317 (2001). Congress followed suit in 1994 with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 108Stat. 2038, 42 U. S. C. §14071 et seq. (1994 ed.). Named after an 11-year-old who was kidnapped at gunpoint in 1989 (and who remains missing today), the Wetterling Act conditioned federal funds on States’ enacting sex-offender registry laws meeting certain minimum standards. Smith, 538 U. S., at 89–90. “By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of” a sex-offender registry. Id., at 90. In 2006, Congress replaced the Wetterling Act with the Sex Offender Registration and Notification Act (SORNA), 120Stat. 590, 42 U. S. C. §16901 et seq. Two changes are pertinent here. First, Congress made it a federal crime for a sex offender who meets certain requirements to “knowingly fai[l] to register or update a registration as required by [SORNA].” 18 U. S. C. §2250(a)(3); see Carr v. United States, 560 U. S. 438 –442 (2010). Second, Congress amended the provisions governing the registration requirements when an offender moves to a different State. The original Wetterling Act had directed States to require a sex offender to “register the new address with a designated law enforcement agency in another State to which the person moves not later than 10 days after such person establishes residence in the new State, if the new State has a registration requirement.” 42 U. S. C. §14071(b)(5) (1994 ed.) (emphasis added). Congress later amended this provision to direct States to require a sex offender to “report the change of address to the responsible agency in the State the person is leaving, and [to] comply with any registration requirement in the new State of residence.” 42 U. S. C. §14071(b)(5) (2000 ed.) (emphasis added). SORNA repealed this provision of the Wetterling Act. 120Stat. 600. In its place, federal law now provides: “A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” 42 U. S. C. §16913(c) (emphasis added). Subsection (a), in turn, provides: “A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” §16913(a). A sex offender is required to notify only one “jurisdiction involved”; that jurisdiction must then notify a list of interested parties, including the other jurisdictions. §§16921(b)(1)–(7). The question presented in this case is whether the State a sex offender leaves—that is, the State where he formerly resided—qualifies as an “involved” jurisdiction under §16913. B In 2003, Nichols was convicted of traveling with intent to engage in illicit sexual conduct with a minor, in violation of 18 U. S. C. §2423(b). Although his offense predated SORNA’s enactment, Nichols was nevertheless required upon his eventual release in December 2011 to register as a sex offender in Kansas, where he chose to settle. 28 CFR 72.3 (2015). Nichols complied with SORNA’s registration requirements—until November 9, 2012, when he abruptly disconnected all of his telephone lines, deposited his apartment keys in his landlord’s drop-box, and boarded a flight to Manila. When Nichols was a no-show at mandatory sex-offender treatment, a warrant was issued revoking his supervised release. With the assistance of American security forces, local police in Manila arrested Nichols in December 2012, and federal marshals then escorted him back to the United States, where he was charged with one count of “knowingly fail[ing] to register or update a registration as required by [SORNA],” 18 U. S. C. §2250(a)(3). After unsuccessfully moving to dismiss the indictment on the ground that SORNA did not require him to update his registration in Kansas, Nichols conditionally pleaded guilty, reserving his right to appeal the denial of his motion. The Tenth Circuit affirmed. 775 F. 3d 1225 (2014). Following its own precedent in United States v. Murphy, 664 F. 3d 798 (2011), the panel held that when a sex offender “ ‘leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved’ ” under §16913. 775 F. 3d, at 1229. Over four dissenting votes, the court denied Nichols’s petition for rehearing en banc. 784 F. 3d 666 (2015). In adhering to Murphy, the Tenth Circuit reentrenched a split created by the Eighth Circuit’s decision in United States v. Lunsford, 725 F. 3d 859 (2013). Remarkably, Lunsford also involved a sex offender who moved from the Kansas City area—on the Missouri side—to the Philippines. Contra the Tenth Circuit’s decision below, Lunsford held that that defendant had no obligation to update his registration in Missouri because a sex offender is required “to ‘keep the registration current’ in the jurisdiction where he ‘resides,’ not a jurisdiction where he ‘resided.’ ” Id., at 861 (citation omitted). We granted certiorari to resolve the split. 577 U. S. ___ (2015). II As noted, Nichols was required to “appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of” his change of residence. 42 U. S. C. §16913(c). Subsection (a) mentions three possible jurisdictions: “where the offender resides, where the offender is an employee, and where the offender is a student.” §16913(a). The Philippines is not a “jurisdiction” under SORNA; no foreign country is. See §16911(10). Putting these provisions together, SORNA therefore requires a sex offender who changes his residence to appear, within three business days of the change, in person in at least one jurisdiction (but not a foreign country) where he resides, works, or studies, and to inform that jurisdiction of the address change. Critically, §16913(a) uses only the present tense: “resides,” “is an employee,” “is a student.” A person who moves from Leavenworth to Manila no longer “resides” (present tense) in Kansas; although he once resided in Kansas, after his move he “resides” in the Philippines. It follows that once Nichols moved to Manila, he was no longer required to appear in person in Kansas to update his registration, for Kansas was no longer a “jurisdiction involved pursuant to subsection (a)” of §16913. The requirement in §16913(c) to appear in person and register “not later than 3 business days after each change of . . . residence” points to the same conclusion. Nichols could not have appeared in person in Kansas “after” leaving the State. To be sure, one may argue that the day before his departure was “not later than 3 business days after” his departure, but no one in ordinary speech uses language in such a strained and hypertechnical way. If the drafters of SORNA had thought about the problem of sex offenders who leave the country and had sought to require them to (de)register in the departure jurisdiction, they could easily have said so; indeed, that is exactly what the amended Wetterling Act had required. 42 U. S. C. §14071(b)(5) (2000 ed.) (“report the change of address to the responsible agency in the State the person is leaving”). It is also what Kansas state law requires: Nichols had a duty to notify, among other entities, “the registering law enforcement agency or agencies where last registered.” Kan. Stat. Ann. §22–4905(g) (2014 Cum. Supp.) (emphasis added). Congress could have chosen to retain the language in the amended Wetterling Act, or to adopt locution similar to that of the Kansas statute (and echoed in the statutes of many other States, cf. Brief for Petitioner 6, n. 1). It did neither. SORNA’s plain text—in particular, §16913(a)’s consistent use of the present tense—therefore did not require Nichols to update his registration in Kansas once he no longer resided there. III The Government resists this straightforward reading of the statutory text, arguing instead that once an offender registers in a jurisdiction, “that jurisdiction necessarily remains ‘involved pursuant to subsection (a),’ because the offender continues to appear on its registry as a current resident.” Brief for United States 24. But §16913(a) lists only three possibilities for an “involved” jurisdiction: “where the offender resides, where the offender is an employee, and where the offender is a student.” Notably absent is “where the offender appears on a registry.” We decline the Government’s invitation to add an extra clause to the text of §16913(a). As we long ago remarked in another context, “[w]hat the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.” Iselin v. United States, 270 U. S. 245, 251 (1926) . Just so here. Relatedly, the Government points out that among the pieces of information a sex offender must provide as part of his registration is “[t]he address of each residence at which the sex offender resides or will reside.” §16914(a)(3) (emphasis added). The use of the future tense, says the Government, shows that SORNA contemplates the possibility of an offender’s updating his registration before actually moving. But §16914(a) merely lists the pieces of information that a sex offender must provide if and when he updates his registration; it says nothing about whether the offender has an obligation to update his registration in the first place. Finally, the Government argues that Nichols actually experienced not one but two “changes” of residence—the first when he “abandoned” his apartment in Leavenworth by turning in his keys, and the second when he checked into his hotel in Manila. On the Government’s view, a sex offender’s “residence information will change when he leaves the place where he has been residing, and it will change again when he arrives at his new residence. He must report both of those changes in a timely fashion.” Brief for United States 21. We think this argument too clever by half; when someone moves from, say, Kansas City, Kansas, to Kansas City, Missouri, we ordinarily would not say he moved twice: once from Kansas City, Kansas, to a state of homelessness, and then again from homelessness to Kansas City, Missouri. Nor, were he to drive an RV between the cities, would we say that he changed his residence four times (from the house on the Kansas side of the Missouri River to a state of homelessness when he locks the door behind him; then to the RV when he climbs into the vehicle; then back to homelessness when he alights in the new house’s driveway; and then, finally, to the new house in Missouri). And what if he were to move from Kansas to California and spend several nights in hotels along the way? Such ponderings cannot be the basis for imposing criminal punishment. “We interpret criminal statutes, like other statutes, in a manner consistent with ordinary English usage.” Abramski v. United States, 573 U. S. ___, ___ (2014) (Scalia, J., dissenting) (slip op., at 4); Flores-Figueroa v. United States, 556 U. S. 646, 652 (2009) . In ordinary English, Nichols changed his residence just once: from Kansas to the Philippines. We are mindful that SORNA’s purpose was to “make more uniform what had remained ‘a patchwork of federal and 50 individual state registration systems,’ with ‘loopholes and deficiencies’ that had resulted in an estimated 100,000 sex offenders becoming ‘missing’ or ‘lost.’ ” United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 11–12) (citation omitted). Yet “even the most formidable argument concerning the statute’s purposes couldnot overcome the clarity we find in the statute’s text.” Kloeckner v. Solis, 568 U. S. ___, ___, n. 4 (2012) (slip op., at 14, n. 4). Our interpretation of the SORNA provisions at issue in this case in no way means that sex offenders will be able to escape punishment for leaving the United States without notifying the jurisdictions in which they lived while in this country. Congress has recently criminalized the “knowin[g] fail[ure] to provide information required by [SORNA] relating to intended travel in foreign commerce.” International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. 114–119, §6(b)(2), 130Stat. 23, to be codified at 18 U. S. C. §2250(b). Such information includes “anticipated dates and places of departure, arrival, or return[;] carrier and flight numbers for air travel[;] destination country and address or other contact information therein,” et cetera. §6(a)(1)(B), 130Stat. 22, to be codified at 42 U. S. C. §16914(a)(7). Both parties agree that the new law captures Nichols’s conduct. Supp. Brief for United States 3; Reply Brief 10; Tr. of Oral Arg. 18, 35. And, of course, Nichols’s failure to update his registration in Kansas violated state law. Kan. Stat. Ann. §22–4905(g). We are thus reassured that our holding today is not likely to create “loopholes and deficiencies” in SORNA’s nationwide sex-offender registration scheme. * * * The judgment of the Court of Appeals for the Tenth 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 . SUPREME COURT OF THE UNITED STATES Syllabus NICHOLS v. UNITED STATES certiorari to the united states court of appeals for the tenth circuit No. 15–5238. Argued March 1, 2016—Decided April 4, 2016 The Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a)(3), and requires that offenders who move to a different State “shall, not later than 3 business days after each change of name, residence, employment, or student status,” inform in person “at least 1 jurisdiction involved pursuant to [42 U. S. C. §16913(a)] . . . of all changes” to required information, §16913(c). A §16913(a) jurisdiction is “each jurisdiction where the offender resides, . . . is an employee, and . . . is a student.” Petitioner Nichols, a registered sex offender who moved from Kansas to the Philippines without updating his registration, was arrested, escorted to the United States, and charged with violating SORNA. After conditionally pleading guilty, Nichols argued on appeal that SORNA did not require him to update his registration in Kansas. The Tenth Circuit affirmed his conviction, holding that though Nichols left Kansas, the State remained a “jurisdiction involved” for SORNA purposes. Held: SORNA did not require Nichols to update his registration in Kansas once he departed the State. . (a) SORNA’s plain text dictates this holding. Critical here is §16913(a)’s use of the present tense. Nichols once resided in Kansas, but after moving, he “resides” in the Philippines. It follows that once Nichols moved, he was no longer required to appear in Kansas because it was no longer a “jurisdiction involved.” Nor was he required to appear in the Philippines, which is not a SORNA “jurisdiction.” §16911(10). Section 16913(c)’s requirements point to the same conclusion: Nichols could not have appeared in person in Kansas “after” leaving the State. SORNA’s drafters could have required sex offenders to deregister in their departure jurisdiction before leaving the country had that been their intent. . (b) The Government resists this straightforward reading. It argues that a jurisdiction where an offender registers remains “involved” even after the offender leaves, but that would require adding the extra clause “where the offender appears on a registry” to §16913(a). Also unconvincing is the claim that §16914(a)(3)’s requiring the offender to provide each address where he “will reside” shows that SORNA contemplates the possibility of an offender’s updating his registration before he actually moves. That provision merely lists the pieces of information to be updated; it says nothing about an obligation to update in the first place. Finally, the Government’s argument that Nichols actually experienced two “changes” of residence—first, when he turned in his apartment keys in Kansas, and second, when he checked into his Manila hotel—is inconsistent with ordinary English usage. . (c) Although “the most formidable argument concerning the statute’s purposes [cannot] overcome the clarity [found] in the statute’s text,” Kloeckner v. Solis, 568 U. S. ___, ___, n. 4, the Court is mindful of those purposes and notes that its interpretation is not likely to create deficiencies in SORNA’s scheme. Recent legislation by Congress, as well as existing state-law registration requirements, offers reassurance that sex offenders will not be able to escape punishment for leaving the United States without notifying their departure jurisdictions. . 775 F. 3d 1225, reversed. Alito, J., delivered the opinion for a unanimous Court.

The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (SORNA), enacted in 1994, makes it a federal crime for a sex offender who meets certain requirements toknowingly fai[l] to register or update a registration as required by SORNA. Second, Congress amended the provisions governing the registration requirements when an offender moves to a different State. Title 42 U.S. C. §16913(c), which directs States to register, keep the registration current, in each jurisdiction where the offender resides, is an employee, and is a student, repealed this provision of §16911(10) and replaced it with §16921(b)(5), which requires, inter alia, that the offender leave the State where he formerly resided. The States in the early 1990’s began enacting registry and community-notification laws to monitor the whereabouts of individuals previously convicted of sex crimes. In addition to the previous two provisions, §169 13(a) also requires a Sex offender who changes his residence to appear, within three business days of the change, in person in at least one jurisdiction (but not a foreign country) where he resides, works, or studies, and to inform that jurisdiction of the address change. Critically, the latter provision uses only the present tense: (1) a person who moves from Kansas City, Kansas, to Manila, Philippines, no longer resides in Kansas; (2) once he moved to Manila he was no longer required in Kansas to appear in person to update his registration, for Kansas is no longer a "jurisdiction involved pursuant to subsection (a) of [SORna).... [T]he sex offender here, not later than 3 business days after each change of residence, shall register, and register "not later than" after leaving the State, and (3) he must report not less than 3 days after his departure. In this case, the Court of Appeals affirmed. Held: 1. The language and legislative history of the provisions at issue in this case do not indicate that sex offenders will be able to escape punishment for leaving the United States without notifying the jurisdictions in which they lived while in this country. . 2. The statutory text is consistent with ordinary English usage, and does not require sex offenders to update their registration in Kansas once they no longer reside there. Iselin v. United States, 270 U. S. 245, 251 (1926) (emphasis added).. 3. The new law in question captures the conduct of respondent Nichols, and did not require him to do so once he no longer resided in Kansas. P.. 775 F. 3d 1225 (CA Tenth Circuit), reversed. ;;. 884 F.3d 666, reversed. WHITE, J., granted certiorari. REHNQUIST, C.J., filed a dissenting opinion, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p..

2015_13-1067

https://www.oyez.org/cases/2015/13-1067

. The Foreign Sovereign Immunities Act shields foreign states and their agencies from suit in United States courts unless the suit falls within one of the Act’s specifically enumerated exceptions. This case concerns the scope of the commercial activity exception, which withdraws sovereign immunity in any case “in which the action is based upon a commercial activity carried on in the United States by [a] foreign state.” 28 U. S. C. §1605(a)(2). Respondent Carol Sachs is a resident of Californiawho purchased in the United States a Eurail pass forrail travel in Europe. She suffered traumatic personal in-juries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. I A Petitioner OBB Personenverkehr AG (OBB) operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria’s frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria. OBB Holding Group in turn is wholly owned by the Austrian Federal Ministry of Transport, Innovation, and Technology. Sachs v. Republic of Austria, 737 F. 3d 584, 587 (CA9 2013). OBB—along with 29 other railways throughout Europe—is a member of the Eurail Group, an association responsible for the marketing and management of the Eurail pass program. Brief for International Rail Transport Committee as Amicus Curiae 12; 737 F. 3d, at 587. Eurail passes allow their holders unlimited passage for a set period of time on participating Eurail Group railways. They are available only to non-Europeans, who may purchase them both directly from the Eurail Group and indirectly through a worldwide network of travel agents. Brief for International Rail Transport Committee as Amicus Curiae 12–13, and n. 3; Brief for Respondent4–5. Carol Sachs is a resident of Berkeley, California. In March 2007, she purchased a Eurail pass over the Internet from The Rail Pass Experts, a Massachusetts-based travel agent. The following month, Sachs arrived at the Innsbruck train station, planning to use her Eurail pass to ride an OBB train to Prague. As she attempted to board the train, Sachs fell from the platform onto the tracks. OBB’s moving train crushed her legs, both of which had to be amputated above the knee. 737 F. 3d, at 587–588. Sachs sued OBB in the United States District Court for the Northern District of California, asserting five causes of action: (1) negligence; (2) strict liability for design defects in the train and platform; (3) strict liability for failure to warn of those design defects; (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses; and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses. App. 14–18. OBB claimed sovereign immunity and moved to dismiss the suit for lack of subject matter jurisdiction. 737 F. 3d, at 588. B The Foreign Sovereign Immunities Act “provides the sole basis for obtaining jurisdiction over a foreign statein the courts of this country.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 443 (1989) . The Act defines “foreign state” to include a state “agency or instrumentality,” 28 U. S. C. §1603(a), and both parties agree that OBB qualifies as a “foreign state” for purposes of the Act. OBB is therefore “presumptively immune from the jurisdiction of United States courts” unless one of the Act’s express exceptions to sovereign immunity applies. Saudi Arabia v. Nelson, 507 U. S. 349, 355 (1993) . Sachs argues that her suit falls within the Act’s commercial activity exception, which provides in part that a foreign state does not enjoy immunity when “the action is based upon a commercial activity carried on in the United States by the foreign state.” §1605(a)(2).[1] The District Court concluded that Sachs’s suit did not fall within §1605(a)(2) and therefore granted OBB’s motion to dismiss. 2011 WL 816854, *1, *4 (ND Cal., Jan. 28, 2011). A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. 695 F. 3d 1021 (2012). The full court ordered rehearing en banc and, with three judges dissenting, reversed the panel decision. 737 F. 3d 584. The en banc majority first observed that, “based on the agreement of the parties,” “the only relevant commercial activity within the United States was [Sachs’s] March 2007 purchase of a Eurail pass from the Rail Pass Experts,” a Massachusetts company. Id., at 591, n. 4 (internal quotation marks omitted). The court concluded that The Rail Pass Experts had acted as OBB’s agent and, using common law principles of agency, attributed that Eurail pass sale to OBB. Id., at 591–598. The court next asked whether Sachs’s claims were “based upon” the sale of the Eurail pass within the meaning of §1605(a)(2). The “based upon” determination, the court explained, requires that the commercial activity within the United States be “connected with the conduct that gives rise to the plaintiff’s cause of action.” Id., at 590. But, the court continued, “it is not necessary that the entire claim be based upon the commercial activity of OBB.” Id., at 599. Rather, in the court’s view, Sachs would satisfy the “based upon” requirement for a particular claim “if an element of [that] claim consists in conduct that occurred in commercial activity carried on in the United States.” Ibid. (internal quotation marks omitted). Applying California law, see id., at 600, n. 14, the court analyzed Sachs’s causes of action individually and concluded that the sale of the Eurail pass established a necessary element of each of her claims. Turning first to the negligence claim, the court found that Sachs was required to show that OBB owed her a duty of care as a passenger as one element of that claim. The court concluded that such a duty arose from the sale of the Eurail pass. Id., at 600–602. Turning next to the other claims, the court determined that the existence of a “transaction between a seller and a consumer” was a necessary element of Sachs’s strict liability and breach of implied warranty claims. Id., at 602. The sale of the Eurail pass, the court noted, provided proof of such a transaction. Ibid. Having found that “the sale of the Eurail pass in the United States forms an essential element of each of Sachs’s claims,” the court concluded that each claim was “based upon a commercial activity carried on in the United States” by OBB. Ibid. We granted certiorari. 574 U. S. ___ (2015). II OBB contends that the sale of the Eurail pass is not attributable to the railway, reasoning that the Foreign Sovereign Immunities Act does not allow attribution through principles found in the common law of agency. OBB also argues that even if such attribution were allowed under the Act, Sachs’s suit is not “based upon” the sale of the Eurail pass for purposes of §1605(a)(2). We agree with OBB on the second point and therefore do not reach the first. A The Act itself does not elaborate on the phrase “based upon.” Our decision in Saudi Arabia v. Nelson, 507 U. S. 349 , however, provides sufficient guidance to resolve this case. In Nelson, a husband and wife brought suit against Saudi Arabia and its state-owned hospital, seeking damages for intentional and negligent torts stemming from the husband’s allegedly wrongful arrest, imprisonment, and torture by Saudi police while he was employed at a hospital in Saudi Arabia. Id., at 351, 353–354. The Saudi defendants claimed sovereign immunity under the Act, arguing, inter alia, that §1605(a)(2) was inapplicable because the suit was “based upon” sovereign acts—the exercise of Saudi police authority—and not upon commercial activity. See Brief for Petitioners in Saudi Arabia v. Nelson, O. T. 1992, No. 91–552, pp. 12–14. The Nelsons countered that their suit was “based upon” the defendants’ commercial activities in “recruit[ing] Scott Nelson for work at the hospital, sign[ing] an employment contract with him, and subsequently employ[ing] him.” 507 U. S., at 358. We rejected the Nelsons’ arguments. The Act’s “based upon” inquiry, we reasoned, first requires a court to “identify[ ] the particular conduct on which the [plaintiff’s] action is ‘based.’ ” Id., at 356. Considering dictionary definitions and lower court decisions, we explained that a court should identify that “particular conduct” by looking to the “basis” or “foundation” for a claim, id., at 357 (citing dictionary definitions), “those elements . . . that, if proven, would entitle a plaintiff to relief,” ibid., and “the ‘gravamen of the complaint,’ ” ibid. (quoting Callejo v. Bancomer, S. A., 764 F. 2d 1101, 1109 (CA5 1985)). Under that analysis, we found that the commercial activities, while they “led to the conduct that eventually injured the Nelsons,” were not the particular conduct upon which their suit was based. The suit was instead based upon the Saudi sovereign acts that actually injured them. 507 U. S., at 358. The Nelsons’ suit therefore did not fit within §1605(a)(2). Id., at 361–362. B The Ninth Circuit held that Sachs’s claims were “based upon” the sale of the Eurail pass because the sale of the pass provided “an element” of each of her claims. 737 F. 3d, at 599. Under Nelson, however, the mere fact that the sale of the Eurail pass would establish a single element of a claim is insufficient to demonstrate that the claim is “based upon” that sale for purposes of §1605(a)(2). The Ninth Circuit apparently derived its one-element test from an overreading of one part of one sentence in Nelson, in which we observed that “the phrase [‘based upon’] is read most naturally to mean those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case.” 507 U. S., at 357. We do not see how that mention of elements—plural—could be considered an endorsement of a one-element test, nor how the particular element the Ninth Circuit singled out for each of Sachs’s claims could be construed to entitle her to relief. Be that as it may, our analysis in Nelson is flatly incompatible with a one-element approach. A one-element test necessarily requires a court to identify all the elementsof each claim in a complaint before that court may re-ject those claims for falling outside §1605(a)(2). But we did not undertake such an exhaustive claim-by-claim, element-by-element analysis of the Nelsons’ 16 causes of action, nor did we engage in the choice-of-law analysis that would have been a necessary prelude to such an undertaking. Compare id., at 356–358, with 737 F. 3d, at 600, n. 14 (noting disagreement over whether state or federal common law principles govern suits under the Foreign Sovereign Immunities Act). Nelson instead teaches that an action is “based upon” the “particular conduct” that constitutes the “gravamen” of the suit. Rather than individually analyzing each of the Nelsons’ causes of action, we zeroed in on the core of their suit: the Saudi sovereign acts that actually injured them. As the Court explained: “Even taking each of the Nelsons’ allegations about Scott Nelson’s recruitment and employment as true, those facts alone entitle the Nelsons to nothing under their theory of the case. The Nelsons have . . . alleged . . . personal injuries caused by [the defendants’] intentional wrongs and by [the defendants’] negligent failure to warn Scott Nelson that they might commit those wrongs. Those torts, and not the arguably commercial activities that preceded their commission, form the basis for the Nelsons’ suit.” 507 U. S., at 358. Under this analysis, the conduct constituting the gravamen of Sachs’s suit plainly occurred abroad. All of her claims turn on the same tragic episode in Austria, alleg-edly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria. Sachs maintains that some of those claims are not limited to negligent conduct or unsafe conditions in Austria, but rather involve at least some wrongful action in the United States. Her strict liability claim for failure to warn, for example, alleges that OBB should have alerted her to the dangerous conditions at the Innsbruck train station when OBB sold the Eurail pass to her in the United States. Under any theory of the case that Sachs pre-sents, however, there is nothing wrongful about the sale of the Eurail pass standing alone. Without the existence of the unsafe boarding conditions in Innsbruck, there would have been nothing to warn Sachs about when she bought the Eurail pass. However Sachs frames her suit, the incident in Innsbruck remains at its foundation. As we explained in Nelson, any other approach would allow plaintiffs to evade the Act’s restrictions through artful pleading. For example, any plaintiff “could recast virtually any claim of intentional tort . . . as a claim of failure to warn, simply by charging the defendant with an obligation to announce its own tortious propensity before indulging it.” Id., at 363. To allow such “recast[ing]” of a complaint, we reasoned, would “give jurisdictional significance to [a] feint of language,” thereby “effectively thwart[ing] the Act’s manifest purpose.” Ibid. A century ago, in a letter to then-Professor Frankfurter, Justice Holmes wrote that the “essentials” of a personal injury narrative will be found at the “point of contact”—“the place where the boy got his fingers pinched.” Letter (Dec. 19, 1915), in Holmes and Frankfurter: Their Correspondence, 1912–1934, p. 40 (R. Mennel & C. Compston eds. 1996). At least in this case, that insight holds true. Regardless of whether Sachs seeks relief under claims for negligence, strict liability for failure to warn, or breach of implied warranty, the “essentials” of her suit for purposes of §1605(a)(2) are found in Austria.[2] III Sachs raises a new argument in this Court in an attempt to fit her claims within §1605(a)(2). In addition to arguing that her claims are “based upon” the sale of the Eurail pass, she now contends that her suit is “based upon” “OBB’s overall commercial railway enterprise.” Brief for Respondent 24; see also Tr. of Oral Arg. 38. “[C]ommercial activity carried on in the United States by the foreign state,” as used in §1605(a)(2), is defined to mean “commercial activity carried on by such state and having substantial contact with the United States.” §1603(e). Sachs’s new theory is that OBB’s entire railway enterprise constitutes the “commercial activity” that has the requisite “substantial contact with the United States,” because OBB reaches out to American customers by marketing and selling Eurail passes in the United States. That argument was never presented to any lower court and is therefore forfeited. Sachs argued in the courts below only that her claims were “based upon” the sale of the Eurail pass, and the lower courts resolved the case on that understanding. See, e.g., 737 F. 3d, at 591, n. 4 (“The district court concluded, based on the agreement of the parties, that ‘the only relevant commercial activity within the United States was plaintiff’s March 2007 purchase of a Eurail Pass from the Rail Pass Experts.’ We consider only the relevant conduct as defined by the district court.”).[3] Indeed, when we granted certiorari, the relevant question presented for our review was whether Sachs’s claims were “based upon” the “sale of the ticket in the United States.” Pet. for Cert. i; accord, Brief for Respondent i. We have answered that question in the negative. Absent unusual circumstances—none of which is present here—we will not entertain arguments not made below. Taylor v. Freeland & Kronz, 503 U. S. 638 –646 (1992). We therefore conclude that Sachs has failed to demonstrate that her suit falls within the commercial activity exception in §1605(a)(2). OBB has sovereign immunity under the Act, and accordingly the courts of the United States lack jurisdiction over the suit. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed. It is so ordered.Notes 1 Section 1605(a)(2) contains three separate clauses. In full, the section provides: 2 We cautioned in Nelson that the reach of our decision was limited, see Saudi Arabia v. Nelson, 507 U. S. 349 , n. 4 (1993), and similar caution is warranted here. Domestic conduct with respect to different types of commercial activity may play a more significant role in other suits under the first clause of §1605(a)(2). In addition, we consider here only a case in which the gravamen of each claim is found in the same place. 3 See also Points and Authorities in Opposition to OBB Personenverkehr AG’s Motion to Dismiss in No. 08–01840 (ND Cal.), p. 8 (“The claims herein are based on the purchase of the Eurail pass.”); Appellant’s Opening Brief in No. 11–15458 (CA9), p. 10 (“[T]he claims are ‘based upon’ the purchase of the ticket which occurred in the United States.”); Appellant’s Reply Brief in No. 11–15458 (CA9), p. 8 (“[H]er claim was based on the purchase/sale of the ticket.”). The District Court decided the case on that understanding of Sachs’s argument. See 2011 WL 816854, *2 (ND Cal., Jan. 28, 2011); see also 2010 WL 4916394, *1 (ND Cal., Nov. 22, 2010). As did the Ninth Circuit panel, see 695 F. 3d 1021, 1024 (2012), and, as noted, the Ninth Circuit en banc. When OBB petitioned this Court for writ of certiorari, Sachs’s brief in opposition repeated her earlier arguments. See Brief in Opposition 2; see also this Court’s Rule 15.2.

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 . SUPREME COURT OF THE UNITED STATES Syllabus OBB PERSONENVERKEHR AG v. SACHS certiorari to the united states court of appeals for the ninth circuit No. 13–1067. Argued October 5, 2015—Decided December 1, 2015 Respondent Carol Sachs, a California resident, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. While using that pass to board a train in Austria operated by petitioner OBB Personenverkehr AG (OBB), the Austrian state-owned railway, Sachs fell to the tracks and suffered traumatic personal injuries. She sued OBB in Federal District Court. OBB moved to dismiss, claiming that her suit was barred by the Foreign Sovereign Immunities Act, which shields foreign states and their agencies and instrumentalities from suit in United States courts, unless a specified exception applies. Sachs countered that her suit fell within the Act’s commercial activity exception, which abrogates sovereign immunity for suits “based upon a commercial activity carried on in the United States by [a] foreign state,” 28 U. S. C. §1605(a)(2), reasoning that her suit was “based upon” the Massachusetts-based travel agent’s sale of the Eurail pass in the United States, and that the travel agent’s sale of that pass could be attributed to OBB through common law principles of agency. The District Court held that Sachs’s suit did not fall within §1605(a)(2) and dismissed the suit, but the en banc Ninth Circuit reversed. The court first concluded that the Eurail pass sale by the travel agent could be attributed to OBB through common law principles of agency, and then determined that Sachs’s suit was “based upon” that Eurail pass sale because the sale established a single element necessary to recover under each cause of action brought by Sachs. Held: Sachs’s suit falls outside the commercial activity exception and is therefore barred by sovereign immunity. . (a) Sachs’s suit is not “based upon” the sale of the Eurail pass for purposes of §1605(a)(2). Therefore, the Court has no need to address whether the Act allows the travel agent’s sale of the Eurail pass to be attributed to OBB through common law principles of agency. . (1) Although the Act does not elaborate on the phrase “based upon,” Saudi Arabia v. Nelson, 507 U. S. 349 , provides sufficient guidance to resolve this case. There, the Court held that the “based upon” inquiry requires a court to determine the “particular conduct on which the action is ‘based,’ ” id., at 356, and identified that conduct by looking to “the ‘gravamen of the complaint,’ ” id., at 357. . (2) The Ninth Circuit used a flawed approach when it found that the “based upon” inquiry would be satisfied if the sale of the Eurail pass provided “an element” of each of Sachs’s claims. This Court’s approach in Nelson is flatly incompatible with such a one-element approach, which necessarily requires a court to identify all the elements of each claim before finding that the claim falls outside §1605(a)(2). The Nelson Court did not undertake such an exhaustive claim-by-claim, element-by-element analysis or engage in the choice-of-law analysis necessary to such an undertaking. See id., at 356–358. P. 7. (3) As opposed to adopting a one-element test, the Nelson Court zeroed in on the core of the plaintiffs’ suit—the conduct that actually injured the plaintiffs—to identify the conduct that the suit was “based upon.” See id., at 358. All of Sachs’s claims turn on the same tragic episode in Austria, allegedly caused by wrongful conduct and dangerous conditions in Austria, which led to injuries suffered in Austria. However Sachs frames her suit, the incident in Innsbruck, Austria, remains at its foundation. Any other approach would allow plaintiffs to evade the Act’s restrictions through artful pleading. See id., at 363. . (b) Sachs now contends that her claims are “based upon” OBB’s entire railway enterprise. Because that argument was never presented to any lower court, it is forfeited. See Taylor v. Freeland & Kronz, 503 U. S. 638 –646. . 737 F. 3d 584, reversed. Roberts, C. J., delivered the opinion for a unanimous Court.

Respondent, a resident of Californiawho purchased in the United States a Eurail pass for travel in Europe, suffered traumatic personal injuries when she fell from the platform at the Innsbruck, Austria, train station while attempting to board a train operated by petitioner Austrian state-owned railway. She sued the railway in Federal District Court, claiming that her suit was barred by the Foreign Sovereign Immunities Act (Act), which withdraws sovereign immunity in any case "in which the action is based upon a commercial activity carried on in theUnited States by [a] foreign state...." The District Court granted respondent a motion to dismiss the suit for lack of subject matter jurisdiction. The Court of Appeals affirmed. Held: The suit falls outside the commercial activity exception, and is barred by sovereign immunity. . (a) Petitioner operates a railway that carries nearly 235 million passengers each year on routes within Austria and to and from points beyond Austria's frontiers. OBB is wholly owned by OBB Holding Group, a joint-stock company created by the Republic of Austria and the Austrian Federal Ministry of Transport, Innovation, and Technology. Respondent purchased the pass over the Internet from a travel agent. The sale of the pass provided an essential element of each of her claims. She then brought suit against petitioner, claiming negligence, breach of implied warranty for failure to warn, and breach of fitness for providing a train and platform unfit for their intended uses. On analyzing her causes of action individually, the court found that respondent was required to show that OBB owed her a duty of care as a passenger as one element of that claim. It determined that the existence of atransaction between a seller and a consumer was a necessary element of her claim, and that such a duty arose from the sale of the pass. Accordingly, the suit was based upon §1605(a)(2). The court concluded that each claim was made by respondent, including her claims for negligence, negligence, and fitness for furnishing OBB with the pass, and therefore was made essential by respondent. (b) Regardless of whether respondent seeks relief under claims for (1) negligence, strict liability for failure to warn , or breach implied warranty, the sales of showed that the Pass established an element of the claims, and hence her suit fell outside the Commercial Activity exception. P.. (c) Nor does her suit fall within the commercial activities exception because it is based on OBB, the Austrian government agency responsible for the marketing and management of the Pass program. Although the Pass is sold to respondent through a wholly owned subsidiary of petitioner, OBB has sovereign immunity under the Act, and accordingly the courts lack the power to review the suit. Saudi Arabia v. Nelson, 507 U. S. 349 (CA9), distinguished. See, e.g., 737 F. 3d 584, reversed. (d) Respondent has failed to demonstrate that the suit falls within the Commercial activity exception. She has not shown that her claim falls within that exception, because her suit is not based upon OBB. Her suit is instead based upon the railway, which, in turn, has substantial contact with the Federal Government. Neither the fact that the pass provides an element to each of respondent's claims nor the mere fact that it would establish a single element of a claim is insufficient to demonstrate that the claim is made based upon that sale for purposes of §1603(e) of her suit, which is defined to mean "commercial activity... carried on by such state and having substantial contact with the United States.” (Emphasis added.) Nor did the Court engage in the choice-of-law analysis that would have been a necessary prelude to an exhaustive claim-by-claim analysis of respondent, since the lower courts resolved the case on the understanding of respondent that her claims were based on the Pass sale. Rather than individually analyzing each of respondents, as was done here, this Court zeroed in on the core of their suit: the Saudi sovereign acts that actually injured them. Even taking respondent as true, the facts alone entitle her to nothing under her theory of the case. Those torts, and not the arguably commercial activities that preceded their commission, form the basis for the suit, and Austria is the only country in which the suit is limited to claims constituting wrongful negligence or negligence. Under the analysis here, respondent should have been alerted to the conditions at the OBB train station when she bought the pass from the rail pass experts. However, she frames her suit in the event that she is unable to warn about the impending boarding conditions in Austria, where there is nothing to warn her about. Without standing in unsafe conditions at a dangerous train station in Austria alone, there would not have been nothing to tell her about what she bought, but instead the incident in Inns

2015_14-361

https://www.oyez.org/cases/2015/14-361

. Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop. When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners. Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law. I Hernan Alexis Moreno Mejia (known as Moreno) and Edwin Javier Mejia (known as Mejia) are brothers who co-owned and operated the Majestic Auto Repair Shop (Majestic). In 2008, Majestic was struggling to attract customers, so Moreno and Mejia made a deal with a Baltimore police officer, Jhonn Corona. In exchange for kickbacks, Officer Corona would refer motorists whose cars were damaged in accidents to Majestic for towing and repairs. Officer Corona then spread the word to other members of the force, and eventually as many as 60 other officers sent damaged cars to Majestic in exchange for payments of $150 to $300 per referral. Petitioner began to participate in this scheme in 2009. On several occasions from 2009 to 2011, he convinced accident victims to have their cars towed to Majestic. Often, before sending a car to Majestic, petitioner called Moreno from the scene of an accident to ensure that the make and model of the car, the extent of the damage, and the car’s insurance coverage would allow the shopowners to turn a profit on the repairs. After directing a vehicle to Majestic, petitioner would call Moreno and request his payment. Because police are often among the first to arrive at the scene of an accident, the Baltimore officers were well positioned to route damaged vehicles to Majestic. As a result, the kickback scheme was highly successful: It substantially increased Majestic’s volume of business and profits, and by early 2011 it provided Majestic with at least 90% of its customers. Moreno, Mejia, petitioner, and nine other Baltimore officers were indicted in 2011. The shopowners and most of the other officers eventually pleaded guilty pursuant to plea deals, but petitioner did not. In a superseding indictment, petitioner was charged with three counts of violating the Hobbs Act, 18 U. S. C. §1951, by extorting money from Moreno with his consent and under color of official right. As all parties agree, the type of extortion for which petitioner was convicted—obtaining property from another with his consent and under color of official right—is the “rough equivalent of what we would now describe as ‘taking a bribe.’ ” Evans v. United States, 504 U. S. 255, 260 (1992) . To prove this offense, the Government “need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Id., at 268. Petitioner and another Baltimore officer, Kelvin Quade Manrich, were also charged with violating the general federal conspiracy statute, 18 U. S. C. §371. The indictment alleged that petitioner and Manrich conspired with Moreno, Mejia, and other Baltimore officers to bring about the same sort of substantive violations with which petitioner was charged. Before trial, petitioner began to raise a variant of the legal argument that has brought his case to this Court. He sought a jury instruction stating that “[i]n order to convict a defendant of conspiracy to commit extortion under color of official right, the government must prove beyond a reasonable doubt that the conspiracy was to obtain money or property from some person who was not a member of the conspiracy.” App. 53. In support of this instruction, petitioner relied on the Sixth Circuit’s decision in United States v. Brock, 501 F. 3d 762 (2007), which concerned two bail bondsmen who made payments to a court clerk in exchange for the alteration of court records. The Sixth Circuit held that “[t]o be covered by the [Hobbs Act], the alleged conspirators . . . must have formed an agreement to obtain ‘property from another,’ which is to say, formed an agreement to obtain property from someone outside the conspiracy.” Id., at 767. The District Court did not rule on this request prior to trial. Petitioner’s codefendant, Manrich, pleaded guilty during the trial, and at the close of the prosecution’s case and again at the close of all evidence, petitioner moved for a judgment of acquittal on the conspiracy count based on Brock. The District Court denied these motions, concluding that the Fourth Circuit had already rejected Brock’s holding in United States v. Spitler, 800 F. 2d 1267 (1986). The District Court also refused to give petitioner’s proposed instruction. Instead, the court adopted the sort of standard instructions that are typically used in conspiracy cases. See generally L. Sand et al., Modern Federal Jury Instructions: Criminal §19.01 (2015). In order to convict petitioner of the conspiracy charge, the jury was told, the prosecution was required to prove (1) that two or more persons entered into an unlawful agreement; (2) that petitioner knowingly and willfully became a member of the conspiracy; (3) that at least one member of the conspiracy knowingly committed at least one overt act; and (4) that the overt act was committed to further an objective of the conspiracy. The court “caution[ed]” “that mere knowledge or acquiescence, without participation in the unlawful plan, is not sufficient” to demonstrate membership in the conspiracy. App. 195. Rather, the court explained, the conspirators must have had “a mutual understanding . . . to cooperate with each other to accomplish an unlawful act,” and petitioner must have joined the conspiracy “with the intention of aiding in the accomplishment of those unlawful ends.” Id., at 192, 195. The jury found petitioner guilty on both the conspiracy count and the three substantive extortion counts, and the District Court sentenced him to concurrent terms of 18 months in prison on all four counts. On appeal to the Fourth Circuit, petitioner’s primary argument was the same one he had pressed before the District Court: that his conspiracy conviction was fatally flawed because the conspirators had not agreed to obtain money from a person who was not a member of the conspiracy. The Fourth Circuit rejected petitioner’s argument and affirmed his convictions. 750 F. 3d 399 (2014). We then granted certiorari, 574 U. S. ___ (2015), and we now affirm. II Under longstanding principles of conspiracy law, a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he entered into a conspiracy that had as its objective the obtaining of property from another conspirator with his consent and under color of official right. A In analyzing petitioner’s arguments, we begin with the text of the statute under which he was convicted, namely, the general federal conspiracy statute, which makes it a crime to “conspire . . . to commit any offense against the United States.” 18 U. S. C. §371 (emphasis added). Section 371’s use of the term “conspire” incorporates long-recognized principles of conspiracy law. And under established case law, the fundamental characteristic of aconspiracy is a joint commitment to an “endeavor which,if completed, would satisfy all of the elements of [the underlying substantive] criminal offense.” Salinas v. United States, 522 U. S. 52, 65 (1997) ; see 2 J. Bishop, Commentaries on the Criminal Law §175, p. 100 (rev. 7th ed. 1882) (“Conspiracy, in the modern law, is generally defined as a confederacy of two or more persons to accomplish some unlawful purpose”); J. Hawley & M. McGregor, The Criminal Law 99–100 (3d ed. 1899) (similar); W. LaFave, Criminal Law 672 (5th ed. 2010) (similar). Although conspirators must “pursue the same criminal objective,” “a conspirator [need] not agree to commit or facilitate each and every part of the substantive offense.” Salinas, supra, at 63. A defendant must merely reach an agreement with the “specific intent that the underlying crime be committed” by some member of the conspiracy. 2 K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions: Criminal §31:03, p. 225 (6th ed. 2008) (emphasis added); see also id., §31:02, at 220 (explaining that a defendant must “intend to agree and must intend that the substantive offense be committed” (emphasis added)). “The government does not have to prove that the defendant intended to commit the underlying offense himself/herself.” Id., §31:03, at 226. Instead, “[i]f conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.” Salinas, supra, at 64; see Sand, supra, §19.01, at 19–54 (“[W]hen people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy”). A few simple examples illustrate this important point. Entering a dwelling is historically an element of burglary, see, e.g., LaFave, supra, at 1069, but a person may conspire to commit burglary without agreeing to set foot inside the targeted home. It is enough if the conspirator agrees to help the person who will actually enter the dwelling, perhaps by serving as a lookout or driving the getaway car. Likewise, “[a] specific intent to distribute drugs oneself is not required to secure a conviction for participating in a drug-trafficking conspiracy.” United States v. Piper, 35 F. 3d 611, 614 (CA1 1994). Agreeing to store drugs at one’s house in support of the conspiracy may be sufficient. Ibid. Not only is it unnecessary for each member of a conspiracy to agree to commit each element of the substantive offense, but also a conspirator may be convicted “even though he was incapable of committing the substantive offense” himself. Salinas, supra, at 64; see United States v. Rabinowich, 238 U. S. 78, 86 (1915) (“A person may be guilty of conspiring although incapable of committing the objective offense”); Sand, supra, §19.01, at 19–3 (“[ Y ]ou may find the defendant guilty of conspiracy despite the fact that he himself was incapable of committing the substantive crime”). The Court applied these principles in two cases involving the Mann Act. See Act of June 25, 1910, ch. 395, 36Stat. 825. Section 2 of the Mann Act made it a crime to transport a woman or cause her to be transported across state lines for an immoral purpose.[1] In United States v. Holte, 236 U. S. 140 (1915) , a federal grand jury charged a woman, Clara Holte, with conspiring with a man named Chester Laudenschleger to violate this provision. The District Court dismissed the charge against Holte, holding that because a woman such as Holte could not be con-victed for the substantive offense of transporting herselfor causing herself to be transported across state lines, she also could not be convicted of conspiring to commit that offense. In a succinct opinion by Justice Holmes, the Court rejected this argument, stating that “plainly a person may conspire for the commission of a crime by a third person,” even if “she could not commit the substantive crime” herself. Id., at 144–145.[2] The dissent argued that this holding effectively turned every woman who acquiesced in a covered interstate trip into a conspirator, see id., at 148 (opinion of Lamar, J.), but the Court disagreed. The Court acknowledged that “there may be a degree of coöperation” insufficient to make a woman a conspirator, but it refused to rule out the possibility that a woman could conspire to cause herself to be transported. Id., at 144. To illustrate this point, the Court provided the example of a woman who played an active role in planning and carrying out the trip.[3] The Court expanded on these points in Gebardi v.United States, 287 U. S. 112 (1932) , another Mann Act conspiracy case. A man and a woman were convicted for conspiring to transport the woman from one state to another for an immoral purpose. Id., at 115–116. In deciding the case, the Gebardi Court explicitly reaffirmed the longstanding principle that “[i]ncapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.” Id., at 120. Moreover, the Court fully accepted Holte’s holding that a woman could be convicted of conspiring to cause herself to be transported across state lines. See 287 U. S., at 116–117. But the Court held that the evidence before it was insufficient to support the conspiracy convictions because it “show[ed] no more than that [the woman] went willingly upon the journeys for the purposes alleged.” Id., at 117. Noting that there was no evidence that the woman was “the active or moving spirit in conceiving or carrying out the transportation,” the Court held that the evidence of her “mere consent” or “acquiescence” was not enough. Id., at 117, 123.[4] Holte and Gebardi make perfectly clear that a person may be convicted of conspiring to commit a substantive offense that he or she cannot personally commit. They also show that when that person’s consent or acquiescence is inherent in the underlying substantive offense, something more than bare consent or acquiescence may be needed to prove that the person was a conspirator. B These basic principles of conspiracy law resolve this case. In order to establish the existence of a conspiracy to violate the Hobbs Act, the Government has no obligation to demonstrate that each conspirator agreed personally to commit—or was even capable of committing—the substantive offense of Hobbs Act extortion. It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.[5] That is exactly what happened here: Petitioner, Moreno, and Mejia “share[d] a common purpose,” namely, that petitioner and other police officers would commit every element of the substantive extortion offense. Salinas, 522 U. S., at 63–64. Petitioner and other officers would obtain property “under color of official right,” something that Moreno and Mejia were incapable of doing because they were not public officials. And petitioner and other officers would obtain that money from “another,” i.e., from Mo-reno, Mejia, or Majestic. Although Moreno and Mejia were incapable of committing the underlying substantive offense as principals,[6] they could, under the reasoning of Holte and Gebardi, conspire to commit Hobbs Act extortion by agreeing to help petitioner and other officers commit the substantive offense. See Holte, 236 U. S., at 145 (“[A] conspiracy with an officer or employé of the government or any other for an offence that only he could commit has been held for many years to fall within the conspiracy section . . . of the penal code”); see also Salinas, supra, at 63–64; Gebardi, supra, at 120–121; Rabinowich, 238 U. S., at 86. For these reasons, it is clear that petitioner could be convicted of conspiring to obtain property from the shopowners with their consent and under color of official right. C In an effort to escape this conclusion, petitioner argues that the usual rules do not apply to the type of Hobbs Act conspiracy charged in this case. His basic argument, as ultimately clarified,[7] is as follows. All members of a conspiracy must share the same criminal objective. The objective of the conspiracy charged in this case was to obtain money “from another, with his consent . . . under color of official right.” But Moreno and Mejia did not have the objective of obtaining money “from another” because the money in question was their own. Accordingly, they were incapable of being members of the conspiracy charged in this case. And since there is insufficient evidence in the record to show that petitioner conspired with anyone other than Moreno and Mejia, he must be acquitted. See Reply Brief 3–11, 17–20. This argument fails for a very simple reason: Contrary to petitioner’s claim, he and the shopowners did have a common criminal objective. The objective was not that each conspirator, including Moreno and Mejia, would obtain money from “another” but rather that petitioner and other Baltimore officers would do so. See App. 36–37, Superseding Indictment ¶11 (“It was a purpose of the conspiracy for Moreno and Mejia to enrich over 50 BPD [Baltimore Police Department] Officers . . . in exchange for the BPD Officers’ exercise of their official positions and influence to cause vehicles to be towed or otherwise delivered to Majestic”). Petitioner does not dispute that he was properly convicted for three substantive Hobbs Act violations based on proof that he obtained money “from another.” The criminal objective on which petitioner, Moreno, and Mejia agreed was that petitioner and other Baltimore officers would commit substantive violations of this nature. Thus, under well-established rules of conspiracy law, petitioner was properly charged with and convicted of conspiring with the shopowners. Nothing in the text of the Hobbs Act even remotely undermines this conclusion, and petitioner’s invocation of the rule of lenity[8] and principles of federalism[9] is unavailing. 1 Petitioner argues that our interpretation makes the Hobbs Act sweep too broadly, creating a national antibribery law and displacing a carefully crafted network of state and federal statutes. He contends that a charge of conspiring to obtain money from a conspirator with his consent and under color of official right is tantamount to a charge of soliciting or accepting a bribe and that allowing such a charge undermines 18 U. S. C. §666 (a federal bribery statute applicable to state and local officials) and state bribery laws. He also argues that extortion conspiracies of this sort were not known prior to the enactment of the Hobbs Act and that there is no evidence that Congress meant for that Act to plow this new ground. The subtext of these arguments is that it seems unnatural to prosecute bribery on the basis of a statute prohibiting “extortion,” but this Court held in Evans that Hobbs Act extortion “under color of official right” includes the “rough equivalent of what we would now describe as ‘taking a bribe.’ ” 504 U. S., at 260. Petitioner does not ask us to overturn Evans, see, e.g., Brief for Petitioner 1; Tr. of Oral Arg. 4–5, 12–13, and we have no occasion to do so. Having already held that §1951 prohibits the “rough equivalent” of bribery, we have no principled basis for precluding the prosecution of conspiracies to commit that same offense.[10] Petitioner also exaggerates the reach of our decision. It does not, as he claims, dissolve the distinction between extortion and conspiracy to commit extortion. Because every act of extortion under the Hobbs Act requires property to be obtained with “consent,” petitioner argues, proof of that consent will always or nearly always establish the existence of a conspiratorial agreement and thus allow the Government to turn virtually every such extortion case into a conspiracy case. But there are plenty of instances in which the “consent” required under the Hobbs Act will not be enough to constitute the sort of agreement needed under the law of conspiracy. As used in the Hobbs Act, the phrase “with his consent” is designed to distinguish extortion (“obtaining of property from another, with his consent,” 18 U. S. C. §1951(b)(2) (emphasis added)) from robbery (“obtaining of personal property from the person or in the presence of another, against his will,” §1951(b)(1) (emphasis added)). Thus, “consent” simply signifies the taking of property under circumstances falling short of robbery, and such “consent” is quite different from the mens rea necessary for aconspiracy. This conclusion is clear from the language of §1951 prohibiting the obtaining of property “from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” §1951(b)(2) (emphasisadded). This language applies when, for example, a store owner makes periodic protection payments to gang members out of fear that they will otherwise trash the store. While these payments are obtained with the store owner’s grudging consent, the store owner, simply by making the demanded payments, does not enter into a conspiratorial agreement with the gang members conducting the shakedown. See Salinas, 522 U. S., at 63–65 (conspirators must pursue “the same criminal objective”); United States v. Bailey, 444 U. S. 394, 405 (1980) (conspiracy requires “a heightened mental state”); Anderson v. United States, 417 U. S. 211, 223 (1974) (“the prosecution must show that the offender acted with a specific intent”). Just as mere acquiescence in a Mann Act violation is insufficient to create a conspiracy, see Gebardi, 287 U. S., at 121–123; Holte, 236 U. S., at 145, the minimal “consent” required to trigger §1951 is insufficient to form a conspiratorial agreement. Our interpretation thus does not turn virtually every act of extortion into a conspiracy. Nor does our reading transform every bribe of a public official into a conspiracy to commit extortion. The “consent” required to pay a bribe does not necessarily create a conspiratorial agreement. In cases where the bribe payor is merely complying with an official demand, the payor lacks the mens rea necessary for a conspiracy. See Sa-linas, supra, at 63–65; Bailey, supra, at 405; Anderson, supra, at 223; Gebardi, supra, at 121–123. For example, imagine that a health inspector demands a bribe from a restaurant owner, threatening to close down the restaurant if the owner does not pay. If the owner reluctantly pays the bribe in order to keep the business open, the owner has “consented” to the inspector’s demand, butthis mere acquiescence in the demand does not form a conspiracy.[11] 2 While petitioner exaggerates the impact of our decision, his argument would create serious practical problems. The validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with criminal culpability. In this case, for example, ownership of the money obtained by petitioner is far from clear. It appears that the funds came from Majestic’s account, App. 97–98, 149, and there is evidence that during the period of petitioner’s membership in the conspiracy, Majestic was converted from a limited liability company to a regular business corporation, id., at 145; App. in No. 12–4462 (CA4), pp. 655–656, 736. After that transformation, the money obtained by petitioner may have come from corporate funds. A corporation is an entity distinct from its shareholders, and therefore, even under petitioner’s interpretation of the applicable law, Moreno and Mejia would have agreed that petitioner would obtain money “from another,” not from them. Suppose that Moreno or Mejia had made the payments by taking money from a personal bank account. Would that dictate a different outcome? Or suppose that Majestic was a partnership and the payments came from a com-pany account. Would that mean that Moreno agreed that officers would obtain money “from another” insofar as they would obtain Mejia’s share of the partnership funds and that Mejia similarly agreed that officers would obtain money “from another” insofar as they would obtain the share belonging to Moreno? Or consider this example. Suppose that the owner and manager of a nightclub reach an agreement with a public official under which the owner will bribe the official to approve the club’s liquor license application. Under petitioner’s approach, the public official and the club manager may be guilty of conspiring to commit extortion, because they agreed that the official would obtain property “from another”—that is, the owner. But as “the ‘another’ from whom the property is obtained,” Reply Brief 10, the owner could not be prosecuted. There is no apparent reason, however, why the manager but not the owner should be culpable in this situation. III A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Because petitioner joined such an agreement, his conspiracy conviction must stand. The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed. It is so ordered.Notes 1 In full, §2 provided as follows: 2 The Court assumed that Holte could not be convicted as a principal for the substantive offense of causing herself to be transported across state lines. But the Court noted that it might be possible for a woman to violate §2 of the Mann Act in a different way: by “aiding in procuring any form of transportation for” a covered interstate trip. Holte, 236 U. S., at 144; see 36Stat. 825 (“aid or assist in obtaining transportation”). If a woman could commit that substantive §2 violation, the Court explained, there is no reason why she could not also be convicted of conspiring to commit that offense. See 236 U. S., at 145. The Court, however, refused to hold that this was the only ground on which a woman like Holte could be convicted for conspiring to violate §2. Id., at 144–145. It thus addressed the broader question of whether it was possible for a woman in Holte’s position to commit the offense of conspiring “that Laudenschleger should procure transportation and should cause [Holte] to be transported.” Id., at 144. 3 The Court wrote: 4 The path of reasoning by which the Gebardi Court reached these conclusions was essentially as follows: 5 Section 371 also requires that one of the conspirators commit an overt act in furtherance of the offense. Petitioner does not dispute that this element was satisfied. 6 The Government argues that the lower courts have long held that a private person may be guilty of this type of Hobbs Act extortion as an aider and abettor. See Brief for United States 36–37. We have no occasion to reach that question here. 7 Petitioner’s position has evolved over the course of this litigation. As noted, petitioner requested a jury instruction stating that “[i]n order to convict a defendant of conspiracy to commit extortion under color of official right, the government must prove beyond a reasonable doubt that the conspiracy was to obtain money or property from some person who was not a member of the conspiracy.” App. 53. Under this instruction, as long as the shopowners were named as conspirators, petitioner could not have been convicted even if there was ample evidence to prove that he conspired with other Baltimore officers to obtain money from the shopowners. (And, indeed, when he first raised his Brock argument, see United States v. Brock, 501 F. 3d 762 (CA6 2007), another officer, Manrich, was still in the case and was charged with the same conspiracy.) 8 That rule applies only when a criminal statute contains a “grievous ambiguity or uncertainty,” and “only if, after seizing everything from which aid can be derived,” the Court “can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U. S. 125 –139 (1998) (internal quotation marks omitted). 9 We are not unmindful of the federalism concerns implicated by this case, but those same concerns were raised—and rejected—in Evans v. United States, 504 U. S. 255 (1992) , see id., at 290 (Thomas, J., dissenting) (“The Court’s construction of the Hobbs Act is repugnant . . . to basic tenets of federalism”), which we accept as controlling here, see Part II–C–1, infra. 10 Justice Thomas argues that Evans was wrongly decided, and his position makes sense to the extent that he simply refuses to accept that case. But it founders insofar as it suggests that even if Evans is accepted in relation to substantive Hobbs Act charges, it should not be extended to conspiracy cases. See post, at 1 (dissenting opinion) (“I would not extend Evans’ errors further”); post, at 3 (“[The Court’s] holding . . . needlessly extends Evans’ error to the conspiracy context”); post, at 4 (“The Court today takes another step away from the common-law understanding of extortion that the Hobbs Act adopted”). It would be very strange if a provision of the criminal code meant one thing with respect to charges of a substantive violation but something very different in cases involving a conspiracy to commit the same offense. 11 Petitioner also claims that naming Moreno and Mejia as conspirators opened the door for prosecutors to employ the potent party-joinder and evidentiary rules that conspiracy charges make available. See Brief for Petitioner 10–11, 18, 26–27, 37. But the naming of the shopowners had no effect on joinder. The only other defendant named in the superseding indictment, Manrich, could have been joined even if the shopowners had not been named. Nor did naming Moreno and Mejia have any effect on the admissibility of evidence of overt acts committed by the Baltimore officers named as petitioner’sco-conspirators.

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 . SUPREME COURT OF THE UNITED STATES Syllabus OCASIO v. UNITED STATES certiorari to the united states court of appeals for the fourth circuit No. 14–361. Argued October 6, 2015—Decided May 2, 2016 Petitioner Samuel Ocasio, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles from accident scenes to an auto repair shop in exchange for payments from the shopowners. Petitioner was charged with obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. At trial, the District Court rejected petitioner’s argument that—because the Hobbs Act prohibits the obtaining of property “from another”—a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. Petitioner was convicted on all counts, and the Fourth Circuit affirmed. Petitioner now challenges his conspiracy conviction, contending that he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. Held: A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. . (a) The general federal conspiracy statute, under which petitioner was convicted, makes it a crime to “conspire . . . to commit any offense against the United States.” 18 U. S. C. §371. Section 371’s use of the term “conspire” incorporates age-old principles of conspiracy law. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an “endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense.” Salinas v. United States, 522 U. S. 52 . A conspirator need not agree to commit the substantive offense—or even be capable of committing it—in order to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. See id., at 63–65; United States v. Holte, 236 U. S. 140 ; Gebardi v. United States, 287 U. S. 112 . . (b) These basic principles of conspiracy law resolve this case. To establish the alleged Hobbs Act conspiracy, the Government only needed to prove an agreement that some conspirator commit each element of the substantive offense. Petitioner and the shopowners reached just such an agreement: They shared a common purpose that petitioner and other police officers would obtain property “from another”—that is, from the shopowners—under color of official right. . (c) Contrary to petitioner’s claims, this decision does not dissolve the distinction between extortion and conspiracy to commit extortion. Nor does it transform every bribe of a public official into a conspiracy to commit extortion. And while petitioner exaggerates the impact of this decision, his argument would create serious practical problems. Under his approach, the validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with culpability. . 750 F. 3d 399, affirmed. Alito, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion. Sotomayor, J., filed a dissenting opinion, in which Roberts, C. J., joined.

Petitioner Ocasio, a former Baltimore police officer, participated in a kickback scheme with the owners of a local auto repair shop in order to persuade them to have their cars towed to the shop, and in exchange for this service the officers received payments from the shopowners. Petitioner and another Baltimore officer were also charged with violating the general federal conspiracy statute, 18 U.S. C. §371, by extorting money from Moreno with his consent and under color of official right. The type of extortion for which petitioner was convicted was the equivalent of what would now be described as taking a bribe. To prove the offense, the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts. The District Court denied petitioner his motion for a judgment of acquittal on the conspiracy count based on Brock v. United States,. Instead, the court adopted the sort of standard instructions that are typically used in conspiracy cases. In order to convict petitioner, the prosecution was required to prove (1) that two or more persons entered into an unlawful agreement; (2) that petitioner knowingly and willfully became a member of the conspiracy; (3) that at least one of the conspirators knowingly committed at least an overt act; and (4) that the overt act was committed to further an objective of the conspiracy. After the jury found petitioner guilty, the District Court imposed concurrent terms of 18 months in prison on all four counts. The Court of Appeals affirmed. Held: 1. Under longstanding principles of conspiracy law, a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Because petitioner joined such an agreement, his conspiracy conviction must stand. . (a) Under established case law, the fundamental characteristic of aconspiracy is a joint commitment to an endeavor which,if completed, would satisfy all of the elements of the underlying substantive criminal offense. See, e.g., Salinas v. Holte, 522 U. S. 52, 65; see 2 J. Bishop, Commentaries on the Criminal Law §175, p. 100 (rev. 7th ed. 1882). See id., at 268. P.. (b) A different conclusion is not required by the fact that each conspirator, including Moreno and Mejia, would have agreed personally to commit the substantive offense of Hobbs Act extortion. It is sufficient to prove that the conspiracy conspirators agreed that the underlying crime be committed by a member who was capable of committing it. Here, petitioner and other Baltimore officers had a common criminal objective, which was to obtain money from another, with their consent, without causing themselves to be transported across state lines.. 2. Since there is insufficient evidence in the record to show that petitioner conspired with anyone other than the two alleged conspirators, he was properly convicted and convicted with the intent of conspiring with them to violate §2, which makes it a crime to obtain property from another with the consent of a person who is not entitled. Evans v. United States. 255, 762 F.2d 762, affirmed. 750 F. 3d 399 (C.A.J., certiorari affirmed) affirmed. See generally L. Sand et al., Modern Federal Jury Instructions: Criminal §19.01 (2015). WHITE, J., filed an opinion concurring in the judgment, post, at 1 (dissenting opinion) and at 4 (applause), in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST J., took no part in the consideration or decision of the case.

2015_15-233

https://www.oyez.org/cases/2015/15-233

. The Federal Bankruptcy Code pre-empts state bankruptcy laws that enable insolvent municipalities to restructure their debts over the objections of creditors and instead requires municipalities to restructure such debts under Chapter 9 of the Code. 11 U. S. C. §903(1). We must decide whether Puerto Rico is a “State” for purposes of this pre-emption provision. We hold that it is. The Bankruptcy Code has long included Puerto Rico as a “State,” but in 1984 Congress amended the definition of “State” to exclude Puerto Rico “for the purpose of defining who may be a debtor under chapter 9.” Bankruptcy Amendments and Federal Judgeship Act, §421(j)(6), 98Stat. 368, now codified at 11 U. S. C. §101(52). Puerto Rico interprets this amended definition to mean that Chapter 9 no longer applies to it, so it is no longer a “State” for purposes of Chapter 9’s pre-emption provision. We hold that Congress’ exclusion of Puerto Rico from the definition of a “State” in the amended definition does not sweep so broadly. By excluding Puerto Rico “for the purpose of defining who may be a debtor under chapter 9,” §101(52) (emphasis added), the Code prevents Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. Without that authorization, Puerto Rico’s municipalities cannot qualify as Chapter 9 debtors. §109(c)(2). But Puerto Rico remains a “State” for other purposes related to Chapter 9, including that chapter’s pre-emption provision. That provision bars Puerto Rico from enacting its own municipal bankruptcy scheme to restructure the debt of its insolvent public utilities companies. I A Puerto Rico and its instrumentalities are in the midst of a fiscal crisis. More than $20 billion of Puerto Rico’s climbing debt is shared by three government-owned public utilities companies: the Puerto Rico Electric Power Authority, the Puerto Rico Aqueduct and Sewer Authority, and the Puerto Rico Highways and Transportation Authority. For the fiscal year ending in 2013, the three public utilities operated with a combined deficit of $800 million. The Government Development Bank for Puerto Rico (Bank)—the Commonwealth’s government-owned bank and fiscal agent—has previously provided financing to enable the utilities to continue operating without defaulting on their debt obligations. But the Bank now faces a fiscal crisis of its own. As of fiscal year 2013, it had loaned nearly half of its assets to Puerto Rico and its public utilities. Puerto Rico’s access to capital markets has also been severely compromised since ratings agencies downgraded Puerto Rican bonds, including the utilities’, to noninvestment grade in 2014. Puerto Rico responded to the fiscal crisis by enacting the Puerto Rico Corporation Debt Enforcement and Recovery Act (Recovery Act) in 2014, which enables the Commonwealth’s public utilities to implement a recovery or restructuring plan for their debt. 2014 Laws P. R. p. 371. See generally McGowen, Puerto Rico Adopts A Debt Recovery Act For Its Public Corporations, 10 Pratt’s J. Bkrtcy. Law 453 (2014). Chapter 2 of the Recovery Act createsa “consensual” debt modification procedure that permits the public utilities to propose changes to the terms of the outstanding debt instruments, for example, changing the interest rate or the maturity date of the debt. 2014 Laws P. R., at 428–429. In conjunction with the debt modification, the public utility must also propose a Bank-approved recovery plan to bring it back to financial self-sufficiency. Ibid. The debt modification binds all creditors so long as those holding at least 50% of affected debt participate in (or consent to) a vote regarding the modifications, and the participating creditors holding at least 75% of affected debt approve the modifications. Id., at 430. Chapter 3 of the Recovery Act, on the other hand, mirrors Chapters 9 and 11 of the Federal Bankruptcy Code by creating a court-supervised restructuring process intended to offer the best solution for the broadest group of creditors. See id., at 448–449. Creditors holding two-thirds of an affected class of debt must participate in the vote to approve the restructuring plan, and half of those participants must agree to the plan. Id., at 449. B A group of investment funds, including the Franklin California Tax-Free Trust, and BlueMountain Capital Management, LLC, brought separate suits against Puerto Rico and various government officials, including agents of the Bank, to enjoin the enforcement of the Recovery Act. Collectively, the plaintiffs hold nearly $2 billion in bonds issued by the Electric Power Authority, one of the distressed utilities. The complaints alleged, among other claims, that the Federal Bankruptcy Code prohibited Puerto Rico from implementing its own municipal bankruptcy scheme. The District Court consolidated the suits and ruled in the plaintiffs’ favor on their pre-emption claim. 85 F. Supp. 3d 577 (PR 2015). The court concluded that the pre-emption provision in Chapter 9 of the Federal Bankruptcy Code, 11 U. S. C. §903(1), precluded Puerto Rico from implementing the Recovery Act and enjoined its enforcement. 85 F. Supp. 3d, at 601, 614. The First Circuit affirmed. 805 F. 3d 322 (2015). The court examined the 1984 amendment to the definition of “State” in the Federal Bankruptcy Code, which includes Puerto Rico as a “State” for purposes of the Code “ ‘except for the purpose of defining who may be a debtor under chapter 9.’ ” Id., at 330–331 (quoting §101(52); emphasis added). The court concluded that the amendment did not remove Puerto Rico from the scope of the pre-emption provision and held that the pre-emption provision barred the Recovery Act. Id., at 336–337. The court opined that it was up to Congress, not Puerto Rico, to decide when the government-owned companies could seek bankruptcy relief. Id., at 345. We granted the Commonwealth’s petitions for writs of certiorari. 577 U. S. ___ (2015).[1] II These cases require us to parse three provisions of the Bankruptcy Code: the “who may be a debtor” provision requiring States to authorize municipalities to seek Chapter 9 relief, §109(c), the pre-emption provision barring States from enacting their own municipal bankruptcy schemes, §903(1), and the definition of “State,” §101(52). We first explain the text and history of these provisions. We then conclude that Puerto Rico is still a “State” for purposes of the pre-emption provision and hold that this provision pre-empts the Recovery Act. A The Constitution empowers Congress to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” Art. I, §8, cl. 4. Congress first exercised that power by enacting a series of temporary bankruptcy Acts beginning in 1800, which gave way to a permanent federal bankruptcy scheme in 1898. See An Act To Establish a Uniform System of Bankruptcy Throughout the United States, 30Stat. 544; Hanover Nat. Bank v. Moyses, 186 U. S. 181, 184 (1902) . But Congress did not enter the field of municipal bankruptcy until 1933 when it enacted the precursor to Chapter 9, a chapter of the Code enabling an insolvent “municipality,” meaning a “political subdivision or public agency or instrumentality of a State,” 11 U. S. C. §101(40), to restructure municipal debts. See McConnell & Picker, When Cities Go Broke: A Conceptual Introduction to Municipal Bankruptcy, 60 U. Chi. L. Rev. 425, 427, 450–451 (1993). Congress has tailored the federal municipal bankruptcy laws to preserve the States’ reserved powers over their municipalities. This Court struck down Congress’ first attempt to enable the States’ political subdivisions to file for federal bankruptcy relief after concluding that it infringed the States’ powers “to manage their own affairs.” Ashton v. Cameron County Water Improvement Dist. No. One, 298 U. S. 513, 531 (1936) . Congress tried anew in 1937, and the Court upheld the amended statute as an appropriate balance of federal and state power. See United States v. Bekins, 304 U. S. 27 –53 (1938). Critical to the Court’s constitutional analysis was that the State had first authorized its instrumentality to seek relief under the federal bankruptcy laws. See id., at 47–49, 53–54. Still today, the provision of the Bankruptcy Code defining who may be a debtor under Chapter 9, which we refer to here as the “gateway” provision, requires the States to authorize their municipalities to seek relief under Chapter 9 before the municipalities may file a Chapter 9 petition: “§109. Who may be a debtor . . . . . “(c) An entity may be a debtor under chapter 9 of this title if and only if such entity — “(1) is a municipality; “(2) is specifically authorized, in its capacity as a municipality or by name, to be a debtor under such chapter by State law, or by a governmental officer or organization empowered by State law to authorize such entity to be a debtor under such chapter . . . .” The States’ powers are not unlimited, however. The federal bankruptcy laws changed again in 1946 to bar the States from enacting their own municipal bankruptcy schemes. The amendment overturned this Court’s holding in Faitoute Iron & Steel Co. v. Asbury Park, 316 U. S. 502 –509 (1942) (rejecting contention that Congress occupied the field of municipal bankruptcy law). In Faitoute, the Court held that federal bankruptcy laws did not pre-empt New Jersey’s municipal bankruptcy scheme, which required municipalities to seek relief under state law before resorting to the federal municipal bankruptcy scheme. Ibid. To override Faitoute, Congress enacted a provision expressly pre-empting state municipal bankruptcy laws. Act of July 1, 1946, 60Stat. 415. The express pre-emption provision, central to these cases, is now codified with some stylistic changes in §903(1): “§903. Reservation of State power to control municipalities “This chapter does not limit or impair the power of a State to control, by legislation or otherwise, a municipality of or in such State in the exercise of the political or governmental powers of such municipality, including expenditures for such exercise, but— “(1) a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition; and “(2) a judgment entered under such a law maynot bind a creditor that does not consent to suchcomposition.” The third provision of the Bankruptcy Code at issue is the definition of “State,” which has included Puerto Rico since it became a Territory of the United States in 1898. The first Federal Bankruptcy Act, also enacted in 1898, defined “States” to include “the Territories, the Indian Territory, Alaska, and the District of Columbia.” 30Stat. 545. When Congress recodified the bankruptcy laws to form the Federal Bankruptcy Code in 1978, the definition of “State” dropped out of the definitional section. See generally Bankruptcy Reform Act, 92Stat. 2549–2554. Congress then amended the Code to reincorporate the definition of “State” in 1984. §421, 98Stat. 368–369, now codified at §101(52). The amended definition includes Puerto Rico as a State for purposes of the Code with one exception: “§101. Definitions . . . . . “(52) The term ‘State’ includes the District ofColumbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” B It is our task to determine the effect of the amended definition of “State” on the Code’s other provisions governing Chapter 9 proceedings. We must decide whether, in light of the amended definition, Puerto Rico is no longer a “State” only for purposes of the gateway provision, which requires States to authorize their municipalities to seek Chapter 9 relief, or whether Puerto Rico is also no longer a “State” for purposes of the pre-emption provision. The parties do not dispute that, before 1984, Puerto Rico was a “State” for purposes of Chapter 9’s pre-emption provision. Accordingly, before 1984, federal law would have pre-empted the Recovery Act because it is a “State law prescribing a method of composition of indebtedness” for Puerto Rico’s instrumentalities that would bind nonconsenting creditors, §903(1). The parties part ways, however, in deciphering how the 1984 amendment to the definition of “State” affected the pre-emption provision. Petitioners interpret the amended definition of “State” to exclude Puerto Rico altogether from Chapter 9. If petitioners are correct, then the pre-emption provision does not apply to them. Puerto Rico, in other words, may enact its own municipal bankruptcy scheme without running afoul of the Code. Respondents, on the other hand, read the amended definition narrowly. They contend that the definition precludes Puerto Rico from “specifically authoriz[ing]” its municipalities to seek relief, as required by the gateway provision, §109(c)(2), but that Puerto Rico is no less a “State” for purposes of the pre-emption provision than the other “State[s],” as that term is defined in the Code. If respondents are correct, then the pre-emption provision applies to Puerto Rico and bars it from enacting the Recovery Act. Respondents have the better reading. We hold that Puerto Rico is still a “State” for purposes of the pre-emption provision. The 1984 amendment precludes Puerto Rico from authorizing its municipalities to seek relief under Chapter 9, but it does not remove Puerto Rico from the reach of Chapter 9’s pre-emption provision. 1 The plain text of the Bankruptcy Code begins and ends our analysis. Resolving whether Puerto Rico is a “State” for purposes of the pre-emption provision begins “with the language of the statute itself,” and that “is also where the inquiry should end,” for “the statute’s language is plain.” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989) . And because the statute “contains an express pre-emption clause,” we do not invoke any presumption against pre-emption but instead “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. 582, 594 (2011) (internal quotation marks omitted); see also Gobeille v. Liberty Mut. Ins. Co., 577 U. S. ___, ___ (2016) (slip op., at 12). The amended definition of “State” excludes Puerto Rico for the single “purpose of defining who may be a debtor under chapter 9 of this title.” §101(52) (emphasis added). That exception unmistakably refers to the gateway provision in §109, titled “who may be a debtor.” Section 109(c) begins, “An entity may be a debtor under chapter 9 of this title if and only if . . . .” §109(c). We interpret Congress’ use of the “who may be a debtor” language in the amended definition of “State” to mean that Congress intended to exclude Puerto Rico from this gateway provision delineating who may be a debtor under Chapter 9. See, e.g., Sullivan v. Stroop, 496 U. S. 478, 484 (1990) (reading same term used in different parts of the same Act to have the same meaning); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam) (“[S]imilarity of language . . . is . . . a strong indication that the two statutes should be interpreted pari passu”). Puerto Rico, therefore, is not a “State” for purposes of the gateway provision, so it cannot perform the single function of the “State[s]” under that provision: to “specifically authoriz[e]” municipalities to seek Chapter 9 relief. §109(c). As a result, Puerto Rico’s municipalities cannot satisfy the requirements of Chapter 9’s gateway provision until Congress intervenes. The amended definition’s use of the term “defining” also confirms our conclusion that the amended definition excludes Puerto Rico as a “State” for purposes of the gateway provision. The definition specifies that Puerto Rico is not a “ ‘State . . . for the purpose of defining who may be a debtor under Chapter 9.” §101(52) (emphasis added). To “define” is “to decide upon,” 4 Oxford English Dictionary 383 (2d ed. 1989), or “to settle” or “to establish or prescribe authoritatively,” Black’s Law Dictionary 380 (5th ed. 1979). As discussed, a State’s role under the gateway provision is to do just that: The State must define (or “decide upon”) which entities may seek Chapter 9 relief. Barring Puerto Rico from “defining who may be a debtor under chapter 9” is tantamount to barring Puerto Rico from “specifically authorizing” which municipalities may file Chapter 9 petitions under the gateway provision.The amended definition of “State” unequivocally ex-cludes Puerto Rico as a “State” for purposes of the gateway provision. The text of the definition extends no further. The exception excludes Puerto Rico only for purposes of the gateway provision. Puerto Rico is no less a “State” for purposes of the pre-emption provision than it was before Congress amended the definition. The Code’s pre-emption provision has prohibited States and Territories defined as “States” from enacting their own municipal bankruptcy schemes for 70 years. See 60Stat. 415 (overturning Faitoute, 316 U. S., at 507–509). Had Congress intended to “alter th[is] fundamental detai[l]” of municipal bankruptcy, we would expect the text of the amended definition to say so. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) . Congress “does not, one might say, hide elephants in mouseholes.” Ibid. 2 The dissent, adopting many of petitioners’ arguments, reads the amended definition to say what it does not—that “for the purpose of . . . chapter 9,” Puerto Rico is not a State. The arguments in support of that capacious reading are unavailing. First, the dissent agrees with petitioners’ view that the exclusion of Puerto Rico as a “State” for purposes of the gateway provision effectively removed Puerto Rico from all of Chapter 9. See post, at 7–8 (opinion of Sotomayor, J.). To be sure, §109(c) and the surrounding subsections serve an important gatekeeping role. Those provisions “specify who qualifies—and who does not qualify—as a debtor under the various chapters of the Code.” Toibb v. Radloff, 501 U. S. 157, 161 (1991) . For instance, a railroad must file under Chapter 11, not Chapter 7, §§109(b)(1), (d), whereas only “family farmer[s] or family fisherm[e]n” may file under Chapter 12. The provision delineating who may be a debtor under Chapter 9 is no exception. Only municipalities may file under Chapter 9, and only if the State has “specifically authorized” the municipality to do so. §§109(c)(1)–(2); see also McConnell & Picker, 60 Chi. L. Rev., at 455–461 (discussing the gatekeeping requirements for Chapter 9). That Puerto Rico is not a “State” for purposes of the gateway provision, however, says nothing about whether Puerto Rico is a “State” for the other provisions of Chapter 9 involving the States. The States do not “pass through” the gateway provision. Post, at 8. The gateway provision is instead directed at the debtors themselves—the municipalities, in the case of Chapter 9 bankruptcy. A municipality that cannot secure state authorization to file a Chapter 9 petition is excluded from Chapter 9 entirely. But the same cannot be said about the State in which that municipality is located. A State’s only role under the gateway provision is to provide that “authoriz[ation]” to file. §109(c)(2). The pre-emption provision then imposes an additional requirement: The States may not enact their own municipal bankruptcy schemes. A State that chooses not to authorize its municipalities to seek Chapter 9 relief under the gateway provision is no less bound by that pre-emption provision. Here too, Puerto Rico is no less bound by the pre-emption provision even though Congress has removed its authority to provide authorization for its municipalities to file Chapter 9 petitions. Again, if it were Congress’ intent to also exclude Puerto Rico as a “State” for purposes of that pre-emption provision, it would have said so. Second, both petitioners and the dissent place great weight on the introductory clause of §903. Post, at 6–7. The pre-emption provision cannot apply to Puerto Rico, so goes the argument, because it is a proviso to §903’s introductory clause, which they posit is inapplicable to Puerto Rico. The introductory clause affirms that Chapter 9 “does not limit or impair the power of a State to control” its “municipalit[ies].” §903. The dissent surmises that this clause “is irrelevant” and “meaningless” in Puerto Rico. Post, at 7. Because Puerto Rico’s municipalities are ineligible for Chapter 9 relief, Chapter 9 cannot “affec[t] Puerto Rico’s control over its municipalities,” according to the dissent. Ibid. In other words, “there is no power” for the introductory clause to “reserve” for Puerto Rico’s use. Ibid. Petitioners likewise contend that “it would be nonsensical for Congress to provide Puerto Rico with a shield against intrusion by a Chapter that, by definition, can have no effect on Puerto Rico.” Brief for Petitioner Commonwealth of Puerto Rico et al. in No. 15–233, p. 25. So “it follows” that the pre-emption provision, the proviso to that clause, cannot apply either. Ibid. This reading rests on the faulty assumption that Puerto Rico is, “by definition,” excluded from Chapter 9. Ibid. For all of the reasons already explained, see Part II–B–1, supra, it is not. The amended definition of “State” precludes Puerto Rico from authorizing its municipalities to seek Chapter 9 relief. But Puerto Rico is no less a “State” for purposes of §903’s introductory clause and its proviso. Both continue to apply in Puerto Rico. They are neither “irrelevant” nor “meaningless.” Post, at 7. If, for example, Congress created a path for the Puerto Rican municipalities to restructure their debts under Chapter 9, then §903 would assure Puerto Rico, no less a “State” for purposesof this section, of its continued power to “control, bylegislation or otherwise, [its] municipalit[ies] . . . in the exercise of the political or governmental powers of such municipalit[ies].” Third, the Government Development Bank contends that the Recovery Act does not run afoul of the pre-emption provision because the Recovery Act does not bind nonconsenting “creditors,” as the Bankruptcy Code now defines that term. In 1978, Congress redefined “creditor” to mean an “entity that has a claim against the debtor . . . .” 92Stat. 2550, now codified at §101(10) (emphasis added). A “debtor,” in turn, is a “person or municipality concerning which a case under this title has been commenced.” Id., at 2551, now codified at §101(13) (emphasis added). In light of these definitions, the Bank contends that the Puerto Rican municipalities are not “debtor[s]” as the Code defines the term because they cannot “commenc[e]” an action under Chapter 9 without authorization from Puerto Rico. Brief for Petitioner Acosta-Febo et al. 31–33. And because respondents cannot be “creditors” of a nonexistent “debtor,” the Recovery Act is not a “State law” that binds “any creditor.” §903(1). Id., at 31–33. Tellingly, the dissent does not adopt this reading. The Bank’s interpretation would nullify the pre-emption provision. Applying the Bank’s logic, a municipality that fails to meet any one of the requirements of Chapter 9’s gatekeeping provision is not a “debtor” and would have no “creditors.” So a State could refuse to “specifically authoriz[e]” its municipalities to seek relief under Chapter 9, §109(c)(2), required to commence a case under that chapter. That State would be free to enact its own municipal bankruptcy scheme because its municipalities would have no “creditors” under federal law. The technical amendments to the definitions of “creditor” and “debtor” are too “subtle a move” to support such a “[f]undamental chang[e] in the scope” of Chapter 9’s pre-emption provision. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. ___, ___ (2015) (slip op., at 9). * * * The dissent concludes that “the government and people of Puerto Rico should not have to wait for possible congressional action to avert the consequences” of the Commonwealth’s fiscal crisis. Post, at 9. But our constitutional structure does not permit this Court to “rewrite thestatute that Congress has enacted.” Dodd v. United States, 545 U. S. 353, 359 (2005) ; see also Electric Storage Battery Co. v. Shimadzu, 307 U. S. 5, 14 (1939) . That statute precludes Puerto Rico from authorizing its municipalities to seek relief under Chapter 9. But it does not remove Puerto Rico from the scope of Chapter 9’s pre-emption provision. Federal law, therefore, pre-empts the Recovery Act. The judgment of the Court of Appeals for the First Circuit is affirmed. It is so ordered. Justice Alito took no part in the consideration or decision of these cases.Notes 1 After the parties briefed and argued these cases, Members of Congress introduced a bill in the House of Representatives to establish an oversight board to assist Puerto Rico and its instrumentalities. See H. 5278, 114th Cong., 2d Sess. (2016). The bill does not amend the Fed-eral Bankruptcy Code; it instead proposes adding a chapter to Title 48, governing the Territories. Id., §6.

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 . SUPREME COURT OF THE UNITED STATES Syllabus COMMONWEALTH OF PUERTO RICO et al. v. FRANKLIN CALIFORNIA TAX-FREE TRUST et al. certiorari to the united states court of appeals for the first circuit No. 15–233. Argued March 22, 2016—Decided June 13, 2016[1] In response to an ongoing fiscal crisis, petitioner Puerto Rico enacted the Puerto Rico Public Corporation Debt Enforcement and Recovery Act. Portions of the Recovery Act mirror Chapters 9 and 11 of the Federal Bankruptcy Code and enable Puerto Rico’s public utility corporations to restructure their climbing debt. Respondents, a group of investment funds and utility bondholders, sought to enjoin the Act. They contended, among other things, that a Bankruptcy Code provision explicitly pre-empts the Recovery Act, see 11 U. S. C. §903(1). The District Court enjoined the Act’s enforcement, and the First Circuit affirmed, concluding that the Bankruptcy Code’s definition of “State” to include Puerto Rico, except for purposes of defining who may be a debtor under Chapter 9, §101(52), did not remove Puerto Rico from the scope of the pre-emption provision. Held: Section 903(1) of the Bankruptcy Code pre-empts Puerto Rico’s Recovery Act. . (a) Three federal municipal bankruptcy provisions are relevant here. First, the “gateway” provision, §109(c), requires a Chapter 9 debtor to be an insolvent municipality that is “specifically authorized” by a State “to be a debtor.” Second, the pre-emption provision, §903(1), expressly bars States from enacting municipal bankruptcy laws. Third, the definition of “State,” §101(52), as amended in 1984, “includes . . . Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9.” . (b) If petitioners are correct that the amended definition of “State” excludes Puerto Rico altogether from Chapter 9, then the pre-emption provision does not apply. But if respondents’ narrower reading is correct and the definition only precludes Puerto Rico from authorizing its municipalities to seek Chapter 9 relief, then Puerto Rico is barred from implementing its Recovery Act. . (1) The Bankruptcy Code’s plain text supports respondents’ reading. The unambiguous language of the pre-emption provision “contains an express pre-emption clause,” the plain wording of which “necessarily contains the best evidence of Congress’ pre-emptive intent.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. 582 . The definition provision excludes Puerto Rico for the single purpose of defining who may be a Chapter 9 debtor, an unmistakable reference to the §109 gateway provision. This conclusion is reinforced by the definition’s use of the phrase “defining who may be a debtor under chapter 9,” §101(52), which is tantamount to barring Puerto Rico from “specifically authorizing” which municipalities may file Chapter 9 petitions under the gateway provision, §903(1). The text of the exclusion thus extends no further. Had Congress intended to exclude Puerto Rico from Chapter 9 altogether, including Chapter 9’s pre-emption provision, Congress would have said so. . (2) The amended definition of “State” does not exclude Puerto Rico from all of Chapter 9’s provisions. First, Puerto Rico’s exclusion as a “State” for purposes of the gateway provision does not also remove Puerto Rico from Chapter 9’s separate pre-emption provision. A State that chooses under the gateway provision not to authorize a municipality to file is still bound by the pre-emption provision. Likewise, Puerto Rico is bound by the pre-emption provision, even though Congress has removed its authority under the gateway provision to authorize its municipalities to seek Chapter 9 relief. Second, because Puerto Rico was not “by definition” excluded from Chapter 9, both §903’s introductory clause and its proviso, the pre-emption provision, continue to apply in Puerto Rico. Finally, the argument that the Recovery Act is not a “State law” that can be pre-empted is based on technical amendments to the terms “creditor” and “debtor” that are too “subtle” to support such a “[f]undamental chang[e] in the scope” of Chapter 9’s pre-emption provision. Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. ___, ___. . 805 F. 3d 322, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined. Alito, J., took no part in the consideration or decision of these cases. Notes 1 Together with No. 15–255, Acosta-Febo et al. v. Franklin California Tax-Free Trust et al., also on certiorari to the same court.

The Federal Bankruptcy Code pre-empts state bankruptcy laws that enable insolvent municipalities to restructure their debts over the objections of creditors and instead requires municipalities to do so under Chapter 9 of the Code. In 1984, Congress amended the definition of a State to exclude Puerto Rico for purposes of the pre-emption provision of Chapter 9, which requires States to authorize municipalities to seek Chapter 9 relief. Puerto Rico interprets this amended definition to mean that Chapter 9 no longer applies to it, so it is no longer a state for the purposes of that provision. The Code precludes Puerto Rico from enacting its own municipal bankruptcy scheme, including that provision, and bars its enactment of its own scheme. . (a) Puerto Rico is still a state within the meaning of §109(c) (emphasis added). Congress has tailored the federal municipal bankruptcy laws to preserve the States' reserved powers over their municipalities, and Puerto Rico has long been included as a State for the purpose of preemption. By excluding Puerto Rico to the definition in Chapter 9 so as to exclude it for the single purpose of defining who may be a debtor under chapter 9, §101(52), the Code prevents Puerto Rico, and its municipalities cannot qualify as Chapter 9 debtors. P.. (b) The amended definition of Puerto Rico does not exclude it altogether from Chapter 9. If petitioners are correct, then the preemption provision does not apply to Puerto Rico. Although Puerto Rico may enact its own plan without running afoul of theCode, it is not a State within the scope of the §109 clause. That provision excludes Puerto Rico only for the gateway provision, which is required by Chapter 9 bankruptcy, and not for preemption purposes. Moreover, the amended definition is inapplicable here, because it is a proviso to §109 (52)'s introductory clause, which affirms that the Recovery Act does not limit or impair the power of the State to control Puerto Rico's instrumentalities that would bind nonconsenting creditors. Thus, Puerto Rico cannot perform the single function of the Puerto Rico municipalities under that provision: to "specifically authoriz[e] [their] municipalities to file Chapter 9 petitions." Pp. 468 U.S. 521-545. 805 F. 3d 322, affirmed. JUSTICE ALito took no part in the consideration or decision of these cases. Reported below: 577 U. S. ___.

2015_15-108

https://www.oyez.org/cases/2015/15-108

. The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the “same offence.” But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses—and thus may subject a person to successive prosecutions—if it violates the laws of separate sovereigns. To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question. The inquiry does not turn, as the term “sovereignty” sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same “ultimate source.” United States v. Wheeler, 435 U. S. 313, 320 (1978) . In this case, we must decide if, under that test, Puerto Rico and the United States may successively prosecute a single defendant for the same criminal conduct. We hold they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil. I A Puerto Rico became a territory of the United States in 1898, as a result of the Spanish-American War. The treaty concluding that conflict ceded the island, then a Spanish colony, to the United States, and tasked Congress with determining “[t]he civil rights and political status” of its inhabitants. Treaty of Paris, Art. 9, Dec. 10, 1898, 30Stat. 1759. In the ensuing hundred-plus years, the United States and Puerto Rico have forged a unique political relationship, built on the island’s evolution into a constitutional democracy exercising local self-rule. Acting pursuant to the U. S. Constitution’s Territory Clause, Congress initially established a “civil government” for Puerto Rico possessing significant authority over internal affairs. Organic Act of 1900, ch. 191, 31Stat. 77; see U. S. Const., Art. IV, §3, cl. 2 (granting Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). The U. S. President, with the advice and consent of the Senate, appointed the governor, supreme court, and upper house of the legislature; the Puerto Rican people elected the lower house themselves. See §§17–35, 31Stat. 81–85. Federal statutes generally applied (as they still do) in Puerto Rico, but the newly constituted legislature could enact local laws in much the same way as the then-45 States. See §§14–15, 32, id., at 80, 83–84; Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S. 253, 261 (1937) . Over time, Congress granted Puerto Rico additional autonomy. A federal statute passed in 1917, in addition to giving the island’s inhabitants U. S. citizenship, replaced the upper house of the legislature with a popularly elected senate. See Organic Act of Puerto Rico, ch. 145, §§5, 26, 39Stat. 953, 958. And in 1947, an amendment to that law empowered the Puerto Rican people to elect their own governor, a right never before accorded in a U. S. territory. See Act of Aug. 5, 1947, ch. 490, §1, 61Stat. 770. Three years later, Congress enabled Puerto Rico to embark on the project of constitutional self-governance. Public Law 600, “recognizing the principle of government by consent,” authorized the island’s people to “organize a government pursuant to a constitution of their own adoption.” Act of July 3, 1950, §1, 64Stat. 319. Describing itself as “in the nature of a compact,” the statute submitted its own terms to an up-or-down referendum of Puerto Rico’s voters. Ibid. According to those terms, the eventual constitution had to “provide a republican form of government” and “include a bill of rights”; all else would be hashed out in a constitutional convention. §2, 64Stat. 319. The people of Puerto Rico would be the first to decide, in still another referendum, whether to adopt that convention’s proposed charter. See §3, 64Stat. 319. But Congress would cast the dispositive vote: The constitution, Public Law 600 declared, would become effective only “[u]pon approval by the Congress.” Ibid. Thus began two years of constitution-making for the island. The Puerto Rican people first voted to accept Public Law 600, thereby triggering a constitutional convention. And once that body completed its work, the island’s voters ratified the draft constitution. Congress then took its turn on the document: Before giving its approval, Congress removed a provision recognizing various social welfare rights (including entitlements to food, housing, medical care, and employment); added a sentence prohibiting certain constitutional amendments, including any that would restore the welfare-rights section; and inserted language guaranteeing children’s freedom to attend private schools. See Act of July 3, 1952, 66 Stat. 327; Draft Constitution of the Commonwealth of Puerto Rico (1952), in Documents on the Constitutional Relationship of Puerto Rico and the United States 199 (M. Ramirez Lavandero ed., 3d ed. 1988). Finally, the constitution became law, in the manner Congress had specified, when the convention formally accepted those conditions and the governor “issue[d] a proclamation to that effect.” Ch. 567, 66Stat. 328. The Puerto Rico Constitution created a new political entity, the Commonwealth of Puerto Rico—or, in Spanish, Estado Libre Asociado de Puerto Rico. See P. R. Const., Art. I, §1. Like the U. S. Constitution, it divides political power into three branches—the “legislative, judicial and executive.” Art. I, §2. And again resonant of American founding principles, the Puerto Rico Constitution describes that tripartite government as “republican in form” and “subordinate to the sovereignty of the people of Puerto Rico.” Ibid. The Commonwealth’s power, the Constitution proclaims, “emanates from the people and shall be exercised in accordance with their will, within the terms of the compact agreed upon between the people of Puerto Rico and the United States.” Art. I, §1. B We now leave the lofty sphere of constitutionalism for the grittier precincts of criminal law. Respondents Luis Sánchez Valle and Jaime Gómez Vázquez (on separate occasions) each sold a gun to an undercover police officer. Commonwealth prosecutors indicted them for, among other things, selling a firearm without a permit in violation of the Puerto Rico Arms Act of 2000. See 25 Laws P. R. Ann. §458 (2008). While those charges were pending, federal grand juries indicted Sánchez Valle and Gómez Vázquez, based on the same transactions, for violations of analogous U. S. gun trafficking statutes. See 18 U. S. C. §§922(a)(1)(A), 923(a), 924(a)(1)(D), 924(a)(2). Both defendants pleaded guilty to those federal charges. Following their pleas, Sánchez Valle and Gómez Vázquez moved to dismiss the pending Commonwealth charges on double jeopardy grounds. The prosecutors in both cases opposed those motions, arguing that Puerto Rico and the United States are different sovereigns for double jeopardy purposes, and so could bring successive prosecutions against each of the two defendants. The trial courts rejected that view and dismissed the charges. See App. to Pet. for Cert. 307a–352a. But the Puerto Rico Court of Appeals, after consolidating the two cases, reversed those decisions. See id., at 243a–306a. The Supreme Court of Puerto Rico granted review and held that Puerto Rico’s gun sale prosecutions violated the Double Jeopardy Clause. See id., at 1a–70a. The majority reasoned that, under this Court’s dual-sovereignty doctrine, “what is crucial” is “[t]he ultimate source” of Puerto Rico’s power to prosecute. Id., at 19a; see id., at 20a (“The use of the word ‘sovereignty’ in other contexts and for other purposes is irrelevant”). Because that power originally “derived from the United States Congress”—i.e., the same source on which federal prosecutors rely—the Commonwealth could not retry Sánchez Valle and Gómez Vázquez for unlawfully selling firearms. Id., at 66a. Three justices disagreed, believing that the Commonwealth and the United States are separate sovereigns. See id., at 71a–242a. We granted certiorari, 576 U. S. ___ (2015), to determine whether the Double Jeopardy Clause bars the Federal Government and Puerto Rico from successively prosecuting a defendant on like charges for the same conduct. We hold that it does, and so affirm. II A This case involves the dual-sovereignty carve-out from the Double Jeopardy Clause. The ordinary rule under that Clause is that a person cannot be prosecuted twice for the same offense. See U. S. Const., Amdt. 5 (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”).[1] But two prosecutions, this Court has long held, are not for the same offense if brought by different sovereigns—even when those actions target the identical criminal conduct through equivalent criminal laws. See, e.g., United States v. Lanza, 260 U. S. 377, 382 (1922) . As we have put the point: “[W]hen the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences.” Heath v. Alabama, 474 U. S. 82, 88 (1985) (internal quotation marks omitted). The Double Jeopardy Clause thus drops out of the picture when the “entities that seek successively to prosecute a defendant for the same course of conduct [are] separate sovereigns.” Ibid. Truth be told, however, “sovereignty” in this context does not bear its ordinary meaning. For whatever reason, the test we have devised to decide whether two governments are distinct for double jeopardy purposes overtly disregards common indicia of sovereignty. Under that standard, we do not examine the “extent of control” that “one prosecuting authority [wields] over the other.” Wheeler, 435 U. S., at 320. The degree to which an entity exercises self-governance—whether autonomously managing its own affairs or continually submitting to outside direction—plays no role in the analysis. See Shell Co., 302 U. S., at 261–262, 264–266. Nor do we care about a government’s more particular ability to enact and enforce its own criminal laws. See Waller v. Florida, 397 U. S. 387 –395 (1970). In short, the inquiry (despite its label) does not probe whether a government possesses the usual attributes, or acts in the common manner, of a sovereign entity.[2] Rather, as Puerto Rico itself acknowledges, our test hinges on a single criterion: the “ultimate source” of the power undergirding the respective prosecutions. Wheeler, 435 U. S., at 320; see Brief for Petitioner 26. Whether two prosecuting entities are dual sovereigns in the double jeopardy context, we have stated, depends on “whether [they] draw their authority to punish the offender from distinct sources of power.” Heath, 474 U. S., at 88. The inquiry is thus historical, not functional—looking at the deepest wellsprings, not the current exercise, of prosecutorial authority. If two entities derive their power to punish from wholly independent sources (imagine here a pair of parallel lines), then they may bring successive prosecutions. Conversely, if those entities draw their power from the same ultimate source (imagine now two lines emerging from a common point, even if later diverging), then they may not.[3] Under that approach, the States are separate sovereigns from the Federal Government (and from one another). See Abbate v. United States, 359 U. S. 187, 195 (1959) ; Bartkus v. Illinois, 359 U. S. 121 –137 (1959); Heath, 474 U. S., at 88. The States’ “powers to undertake criminal prosecutions,” we have explained, do not “derive[ ] . . . from the Federal Government.” Id., at 89. Instead, the States rely on “authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.” Ibid.; see U. S. Const., Amdt. 10 (“The powers not delegated to the United States by the Constitution . . . are reserved to the States”); Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991) (noting that the States “entered the [Union] with their sovereignty intact”). Said otherwise: Prior to forming the Union, the States possessed “separate and independent sources of power and authority,” which they continue to draw upon in enacting and enforcing criminal laws. Heath, 474 U. S., at 89. State prosecutions therefore have their most ancient roots in an “inherent sovereignty” unconnected to, and indeed pre-existing, the U. S. Congress. Ibid.[4] For similar reasons, Indian tribes also count as separate sovereigns under the Double Jeopardy Clause. Originally, this Court has noted, “the tribes were self-governing sovereign political communities,” possessing (among other capacities) the “inherent power to prescribe laws for their members and to punish infractions of those laws.” Wheeler, 435 U. S., at 322–323. After the formation of the United States, the tribes became “domestic dependent nations,” subject to plenary control by Congress—so hardly “sovereign” in one common sense. United States v.Lara, 541 U. S. 193, 204 (2004) (quoting Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831)); see Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978) (“Congress has plenary authority to limit, modify or eliminate the [tribes’] powers of local self-government”). But unless and until Congress withdraws a tribal power—including the power to prosecute—the Indian community retains that authority in its earliest form. See Wheeler, 435 U. S., at 323. The “ultimate source” of a tribe’s “power to punish tribal offenders” thus lies in its “primeval” or, at any rate, “pre-existing” sovereignty: A tribal prosecution, like a State’s, is “attributable in no way to any delegation . . . of federal authority.” Id., at 320, 322, 328; Santa Clara Pueblo, 436 U. S., at 56. And that alone is what matters for the double jeopardy inquiry. Conversely, this Court has held that a municipality cannot qualify as a sovereign distinct from a State—no matter how much autonomy over criminal punishment the city maintains. See Waller, 397 U. S., at 395. Florida law, we recognized in our pivotal case on the subject, treated a municipality as a “separate sovereign entit[y]” for all relevant real-world purposes: The city possessed broad home-rule authority, including the power to enact criminal ordinances and prosecute offenses. Id., at 391. But that functional control was not enough to escape the double jeopardy bar; indeed, it was wholly beside the point. The crucial legal inquiry was backward-looking: Did the city and State ultimately “derive their powers to prosecute from independent sources of authority”? Heath, 474 U. S., at 90 (describing Waller’s reasoning). Because the municipality, in the first instance, had received its power from the State, those two entities could not bring successive prosecutions for a like offense. And most pertinent here, this Court concluded in the early decades of the last century that U. S. territories—including an earlier incarnation of Puerto Rico itself—are not sovereigns distinct from the United States. In Grafton v. United States, 206 U. S. 333, 355 (1907) , we held that the Philippine Islands (then a U. S. territory, also acquired in the Spanish-American War) could not prosecute a defendant for murder after a federal tribunal had acquitted him of the same crime. We reasoned that whereas “a State does not derive its powers from the United States,” a territory does: The Philippine courts “exert[ed] all their powers by authority of” the Federal Government. Id., at 354. And then, in Shell Co., we stated that “[t]he situation [in Puerto Rico] was, in all essentials, the same.” 302 U. S., at 265. Commenting on a Puerto Rican statute that overlapped with a federal law, we explained that this “legislative duplication [gave] rise to no danger of a second prosecution” because “the territorial and federal laws [were] creations emanating from the same sovereignty.” Id., at 264; see also Heath, 474 U. S., at 90 (notingthat federal and territorial prosecutors “d[o] not derive their powers to prosecute from independent sources of authority”).[5] B With that background established, we turn to the question presented: Do the prosecutorial powers belonging to Puerto Rico and the Federal Government derive from wholly independent sources? See Brief for Petitioner 26–28 (agreeing with that framing of the issue). If so, the criminal charges at issue here can go forward; but if not, not. In addressing that inquiry, we do not view our decisions in Grafton and Shell Co. as, in and of themselves, controlling. Following 1952, Puerto Rico became a new kind of political entity, still closely associated with the United States but governed in accordance with, and exercising self-rule through, a popularly ratified constitution. The magnitude of that change requires us to consider the dual-sovereignty question anew. And yet the result we reach, given the legal test we apply, ends up the same. Puerto Rico today has a distinctive, indeed exceptional, status as a self-governing Commonwealth. But our approach is historical. And if we go back as far as our doctrine demands—to the “ultimate source” of Puerto Rico’s prosecutorial power, Wheeler, 435 U. S., at 320—we once again discover the U. S. Congress. Recall here the events of the mid-20th century—when Puerto Rico, just as petitioner contends, underwent a profound change in its political system. See Brief for Petitioner 1–2 (“[T]he people of Puerto Rico[ ] engaged in an exercise of popular sovereignty . . . by adopting their own Constitution establishing their own government to enact their own laws”); supra, at 3–4. At that time, Congress enacted Public Law 600 to authorize Puerto Rico’s adoption of a constitution, designed to replace the federal statute that then structured the island’s governance. The people of Puerto Rico capitalized on that opportunity, calling a constitutional convention and overwhelmingly approving the charter it drafted. Once Congress approved that proposal—subject to several important conditions accepted by the convention—the Commonwealth, a new political entity, came into being. Those constitutional developments were of great significance—and, indeed, made Puerto Rico “sovereign” in one commonly understood sense of that term. As this Court has recognized, Congress in 1952 “relinquished its control over [the Commonwealth’s] local affairs[,] grant[ing]Puerto Rico a measure of autonomy comparable to that possessed by the States.” Examining Bd. of Engineers, Architects and Surveyors v. Flores de Otero, 426 U. S. 572, 597 (1976) ; see id., at 594 (“[T]he purpose of Congress in the 1950 and 1952 legislation was to accord to Puerto Rico the degree of autonomy and independence normally associ-ated with States of the Union”); Rodriguez v. Popular Demo-cratic Party, 457 U. S. 1, 8 (1982) (“Puerto Rico, like a state, is an autonomous political entity, sovereign over matters not ruled by the [Federal] Constitution” (internal quotation marks omitted)). That newfound authority, including over local criminal laws, brought mutual benefit to the Puerto Rican people and the entire United States. See Brief for United States as Amicus Curiae 3. And if our double jeopardy decisions hinged on measuring an entity’s self-governance, the emergence of the Commonwealth would have resulted as well in the capacity to bring the kind of successive prosecutions attempted here. But as already explained, the dual-sovereignty test we have adopted focuses on a different question: not on the fact of self-rule, but on where it came from. See supra, at 7–8. We do not care, for example, that the States pres-ently exercise autonomous control over criminal law andother local affairs; instead, we treat them as separate sovereigns because they possessed such control as an original matter, rather than deriving it from the Federal Government. See supra, at 8–9. And in identifying a prosecuting entity’s wellspring of authority, we have insisted on going all the way back—beyond the immediate, or even an intermediate, locus of power to what we have termed the “ultimate source.” Wheeler, 435 U. S., at 320. That is why we have emphasized the “inherent,” “primeval,” and “pre-existing” capacities of the tribes and States—the power they enjoyed prior to the Union’s formation. Id., at 322–323, 328; Heath, 474 U. S., at 90; Santa Clara Pueblo, 436 U. S., at 56; see supra, at 8–10. And it is why cities fail our test even when they enact and enforce their own criminal laws under their own, popu-larly ratified charters: Because a State must initially authorize any such charter, the State is the furthest-back source of prosecutorial power. See Waller, 397 U. S., at 391–394; supra, at 10. On this settled approach, Puerto Rico cannot benefit from our dual-sovereignty doctrine. For starters, no one argues that when the United States gained possession of Puerto Rico, its people possessed independent prosecuto-rial power, in the way that the States or tribes did upon becoming part of this country. Puerto Rico was until then a colony “under Spanish sovereignty.” Treaty of Paris, Art. 2, 30Stat. 1755. And local prosecutors in the ensuing decades, as petitioner itself acknowledges, exercised only such power as was “delegated by Congress” through fed-eral statutes. Brief for Petitioner 28; see Shell Co., 302 U. S., at 264–265; supra, at 10–11. Their authority derived from, rather than pre-existed association with, the Federal Government. And contrary to petitioner’s claim, Puerto Rico’s transformative constitutional moment does not lead to a different conclusion. True enough, that the Commonwealth’s power to enact and enforce criminal law now proceeds, just as petitioner says, from the Puerto Rico Constitution as “ordain[ed] and establish[ed]” by “the people.” P. R. Const., Preamble; see Brief for Petitioner 28–30. But that makes the Puerto Rican populace only the most immediate source of such authority—and that is not what our dual-sovereignty decisions make relevant. Back of the Puerto Rican people and their Constitution, the “ultimate” source of prosecutorial power remains the U. S. Congress, just as back of a city’s charter lies a state government. Wheeler, 435 U. S., at 320. Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance; the people of a territory could not legally have initiated that process on their own. See, e.g., Simms v. Simms, 175 U. S. 162, 168 (1899) . And Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval; popular ratification, however meaningful, could not have turned the convention’s handiwork into law.[6] Put simply, Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Fed-eral Government’s. The island’s Constitution, significant though it is, does not break the chain. Petitioner urges, in support of its different view, that Congress itself recognized the new Constitution as “a democratic manifestation of the [people’s] will,” Brief for Petitioner 2—but far from disputing that point, we readily acknowledge it to be so. As petitioner notes, Public Law 600 affirmed the “principle of government by consent” and offered the Puerto Rican public a “compact,” under which they could “organize a government pursuant to a constitution of their own adoption.” §1, 64Stat. 319; see Brief for Petitioner 2, 29; supra, at 3. And the Constitution that Congress approved, as petitioner again underscores, declares that “[w]e, the people” of Puerto Rico, “create” the Commonwealth—a new political entity, “republican in form,” in which the people’s will is “sovereign[ ]” over the government. P. R. Const., Preamble and Art. I, §§1–2; see Brief for Petitioner 2, 29–30; supra, at 4. With thatconsented-to language, Congress “allow[ed] the people ofPuerto Rico,” in petitioner’s words, to begin a new chapter of democratic self-governance. Reply Brief 20. All that separates our view from petitioner’s is what that congressional recognition means for Puerto Rico’s ability to bring successive prosecutions. We agree that Congress has broad latitude to develop innovative approaches to territorial governance, see U. S. Const., Art. IV, §3, cl. 2; that Congress may thus enable a territory’s people to make large-scale choices about their own political institutions; and that Congress did exactly that in enacting Public Law 600 and approving the Puerto Rico Constitution—prime examples of what Felix Frankfurter once termed “inventive statesmanship” respecting the island. Memorandum for the Secretary of War, in Hearings on S. 4604 before the Senate Committee on Pacific Islands and Porto Rico, 63d Cong., 2d Sess., 22 (1914); see Reply Brief 18–20. But one power Congress does not have, just in the nature of things: It has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself any less so—no matter how much authority it opts to hand over. And our dual-sovereignty test makes this historical fact dispositive: If an entity’s authority to enact and enforce criminal law ultimately comes from Congress, then it cannot follow a federal prosecution with its own. That is true of Puerto Rico, because Congress authorized and approved its Constitution, from which prosecutorial power now flows. So the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a single person for the same conduct under equivalent criminal laws. III Puerto Rico boasts “a relationship to the United States that has no parallel in our history.” Examining Bd., 426 U. S., at 596. And since the events of the early 1950’s, an integral aspect of that association has been the Commonwealth’s wide-ranging self-rule, exercised under its own Constitution. As a result of that charter, Puerto Rico today can avail itself of a wide variety of futures. But for purposes of the Double Jeopardy Clause, the future is not what matters—and there is no getting away from the past. Because the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government—because when we trace that authority all the way back, we arrive at the doorstep of the U. S. Capitol—the Commonwealth and the United States are not separate sovereigns. That means the two governments cannot “twice put” respondents Sánchez Valle and Gómez Vázquez “in jeopardy” for the “same offence.” U. S. Const., Amdt. 5. We accordingly affirm the judgment of the Supreme Court of Puerto Rico. It is so ordered.Notes 1 Because the parties in this case agree that the Double Jeopardy Clause applies to Puerto Rico, we have no occasion to consider that question here. See Brief for Petitioner 19–21; Brief for Respondents20, n. 4; see also Brief for United States as Amicus Curiae 10, n. 1 (concurring). 2 The dissent, ignoring our longstanding precedent to the contrary, see supra, at 6–7; infra, at 7–11, advances an approach of just this stripe: Its seven considerations all go to the question whether the Commonwealth, by virtue of Public Law 600, gained “the sovereign authority to enact and enforce” its own criminal laws. Post, at 5 (opinion of Breyer, J.). Our disagreement with the dissent arises entirely from its use of this test. If the question is whether, after the events of 1950–1952, Puerto Rico had authority to enact and enforce its own criminal laws (or, slightly differently phrased, whether Congress then decided that it should have such autonomy), the answer (all can and do agree) is yes. See infra, at 13–17. But as we now show, that is not the inquiry our double jeopardy law has made relevant: To the contrary, we have rejected that approach again and again—and so reached results inconsistent with its use. See, e.g., Heath v. Alabama, 474 U. S. 82 –91 (1985); Waller v. Florida, 397 U. S. 387 –395 (1970); see infra, at 7–11. 3 The Court has never explained its reasons for adopting this historical approach to the dual-sovereignty doctrine. It may appear counterintuitive, even legalistic, as compared to an inquiry focused on a governmental entity’s functional autonomy. But that alternative would raise serious problems of application. It would require deciding exactly how much autonomy is sufficient for separate sovereignty and whether a given entity’s exercise of self-rule exceeds that level. The results, we suspect, would often be uncertain, introducing error and inconsistency into our double jeopardy law. By contrast, as we go on to show, the Court has easily applied the “ultimate source” test to classify broad classes of governments as either sovereign or not for purposes of barring retrials. See infra, at 8–11. 4 Literalists might object that only the original 13 States can claim such an independent source of authority; for the other 37, Congress played some role in establishing them as territories, authorizing or approving their constitutions, or (at the least) admitting them to the Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admitted by the Congress into this Union”). And indeed, that is the tack the dissent takes. See post, at 3–4 (claiming that for this reason the Federal Government is “the ‘source’ of [later-admitted] States’ legislative powers”). But this Court long ago made clear that a new State, upon entry, necessarily becomes vested with all the legal characteristics and capabilities of the first 13. See Coyle v. Smith, 221 U. S. 559, 566 (1911) (noting that the very meaning of “ ‘a State’ is found in the powers possessed by the original States which adopted the Constitution”). That principle of “equal footing,” we have held, is essential to ensure that the nation remains “a union of States[ alike] in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States.” Id., at 567; see Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203 (2009) (referring to the “fundamental principle of equal sovereignty” among the States). Thus, each later-admitted State exercises its authority to enact and enforce criminal laws by virtue not of congressional grace, but of the independent powers that its earliest counterparts both brought to the Union and chose to maintain. See Coyle, 221 U. S., at 573 (“[W]hen a new State is admitted into the Union, it is so admitted with all the powers of sovereignty and jurisdiction which pertain to the original States”). The dissent’s contrary view—that, say, Texas’s or California’s powers (including the power to make and enforce criminal law) derive from the Federal Government—contradicts the most fundamental conceptual premises of our constitutional order, indeed the very bedrock of our Union. 5 The dissent’s theory, see supra, at 7, n. 2, cannot explain any of these (many) decisions, whether involving States, Indian tribes, cities, or territories. We have already addressed the dissent’s misunderstanding with respect to the States, including the later-admitted ones. See supra, at 8, and n. 4. This Court’s reasoning could not have been plainer: The States (all of them) are separate sovereigns for double jeopardy purposes not (as the dissent claims) because they exercise authority over criminal law, but instead because that power derives from a source independent of the Federal Government. See Heath, 474 U. S., at 89. So too for the tribes, see supra, at 9–10; and, indeed, here the dissent’s contrary reasoning is deeply disturbing. According to the dissent, Congress is in fact “the ‘source’ of the Indian tribes’ criminal-enforcement power” because it has elected not to disturb the exercise of that authority. Post, at 5. But beginning with Chief Justice Marshall and continuing for nearly two centuries, this Court has held firm and fast to the view that Congress’s power over Indian affairs does nothing to gainsay the profound importance of the tribes’ pre-existing sovereignty. See Worcester v. Georgia, 6 Pet. 515, 559–561 (1832); Talton v. Mayes, 163 U. S. 376, 384 (1896) ; Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___–___ (2014) (slip op., at 4–5). And once again, we have stated in no uncertain terms that the tribes are separate sovereigns precisely because of that inherent authority. See Wheeler, 435 U. S., at 328. Next, the dissent cannot (and does not even try to) explain our rule that a municipality is not a separate sovereign from a State. See supra, at 10. As this Court has explicitly recognized, many cities have (in the words of the dissent’s test) wide-ranging “authority to make and enforce [their] own criminal laws,” post, at 5; still, they cannot undertake successive prosecutions—because they received that power from state governments, see Waller, 397 U. S., at 395. And likewise (finally), the dissent fails to face up to our decisions that the territories are not distinct sovereigns from the United States because the powers they exercise are delegations from Congress. See Grafton v. United States, 206 U. S. 333, 355 (1907) ; supra, at 10–11. That, of course, is what makes them different from the current Philippines, see post, at 2–3, whose relevance here is hard to fathom. As an independent nation, the Philippines wields prosecutorial power that is not traceable to any congressional conferral of authority. And that, to repeat, is what matters: If an entity’s capacity to make and enforce criminal law ultimately comes from another government, then the two are not separate sovereigns for double jeopardy purposes. 6 Petitioner’s own statements are telling as to the role Congress necessarily played in this constitutional process. See, e.g., Reply Brief 1–2 (“Pursuant to Congress’ invitation, and with Congress’ consent, the people of Puerto Rico engaged in an exercise of popular sovereignty”); id., at 7 (“The Commonwealth’s legal cornerstone is Public Law 600”); Tr. of Oral Arg. 19 (describing the adoption of the Puerto Rico Constitution as “pursuant to the invitation of Congress and with the blessing of 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 . SUPREME COURT OF THE UNITED STATES Syllabus COMMONWEALTH OF PUERTO RICO v. SANCHEZ VALLE et al. certiorari to the supreme court of puerto rico No. 15–108. Argued January 13, 2016—Decided June 9, 2016 Respondents Luis Sánchez Valle and Jaime Gómez Vázquez each sold a gun to an undercover police officer. Puerto Rican prosecutors indicted them for illegally selling firearms in violation of the Puerto Rico Arms Act of 2000. While those charges were pending, federal grand juries also indicted them, based on the same transactions, for violations of analogous U. S. gun trafficking statutes. Both defendants pleaded guilty to the federal charges and moved to dismiss the pending Commonwealth charges on double jeopardy grounds. The trial court in each case dismissed the charges, rejecting prosecutors’ arguments that Puerto Rico and the United States are separate sovereigns for double jeopardy purposes and so could bring successive prosecutions against each defendant. The Puerto Rico Court of Appeals consolidated the cases and reversed. The Supreme Court of Puerto Rico granted review and held, in line with the trial court, that Puerto Rico’s gun sale prosecutions violated the Double Jeopardy Clause. Held: The Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws. . (a) Ordinarily, a person cannot be prosecuted twice for the same offense. But under the dual-sovereignty doctrine, the Double Jeopardy Clause does not bar successive prosecutions if they are brought by separate sovereigns. See, e.g., United States v. Lanza, 260 U. S. 377 . Yet “sovereignty” in this context does not bear its ordinary meaning. This Court does not examine the extent of control that one prosecuting entity wields over the other, the degree to which an entity exercises self-governance, or a government’s more particular ability to enact and enforce its own criminal laws. Rather, the test hinges on a single criterion: the “ultimate source” of the power undergird-ing the respective prosecutions. United States v. Wheeler, 435 U. S. 313 . If two entities derive their power to punish from independent sources, then they may bring successive prosecutions. Conversely, if those entities draw their power from the same ultimate source, then they may not. Under that approach, the States are separate sovereigns from the Federal Government and from one another. Because States rely on “authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment,” state prosecutions have their roots in an “inherent sovereignty” unconnected to the U. S. Congress. Heath v. Alabama, 474 U. S. 82 . For similar reasons, Indian tribes also count as separate sovereigns. A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is “attributable in no way to any delegation . . . of federal authority.” Wheeler, 435 U. S., at 328. Conversely, a municipality cannot count as a sovereign distinct from a State, because it receives its power, in the first instance, from the State. See, e.g., Waller v. Florida, 397 U. S. 387 . And most pertinent here, this Court concluded in the early 20th century that U. S. territories—including an earlier incarnation of Puerto Rico itself—are not sovereigns distinct from the United States. Grafton v. United States, 206 U. S. 333 . The Court reasoned that “the territorial and federal laws [were] creations emanating from the same sovereignty,” Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S. 253 , and so federal and territorial prosecutors do not derive their powers from independent sources of authority. . (b) The Grafton and Shell Co. decisions, in and of themselves, do not control here. In the mid-20th century, Puerto Rico became a new kind of political entity, still closely associated with the United States but governed in accordance with, and exercising self-rule through, a popularly-ratified constitution. The magnitude of that change requires consideration of the dual-sovereignty question anew. Yet the result reached, given the historical test applied, ends up the same. Going back as far as the doctrine demands—to the “ultimate source” of Puerto Rico’s prosecutorial power—reveals, once again, the U. S. Congress. Wheeler, 435 U. S., at 320. . (1) In 1950, Congress enacted Public Law 600, which authorized the people of Puerto Rico to organize a government pursuant to a constitution of their own adoption. The Puerto Rican people capitalized on that opportunity, calling a constitutional convention and overwhelmingly approving the charter it drafted. Once Congress approved that proposal—subject to several important conditions accepted by the convention—the Commonwealth of Puerto Rico, a new political entity, came into being. Those constitutional developments were of great significance—and, indeed, made Puerto Rico “sovereign” in one commonly understood sense of that term. At that point, Congress granted Puerto Rico a degree of autonomy comparable to that possessed by the States. If the dual-sovereignty doctrine hinged on measuring an entity’s self-governance, the emergence of the Commonwealth would have resulted as well in the capacity to bring the kind of successive prosecutions attempted here. . (2) But the dual-sovereignty test focuses not on the fact of self-rule, but on where it first came from. And in identifying a prosecuting entity’s wellspring of authority, the Court has insisted on going all the way back—beyond the immediate, or even an intermediate, locus of power to what is termed the “ultimate source.” On this settled approach, Puerto Rico cannot benefit from the dual-sovereignty doctrine. True enough, that the Commonwealth’s power to enact and enforce criminal law now proceeds, just as petitioner says, from the Puerto Rico Constitution as “ordain[ed] and establish[ed]” by “the people.” P. R. Const., Preamble. But back of the Puerto Rican people and their Constitution, the “ultimate” source of prosecutorial power remains the U. S. Congress. Congress, in Public Law 600, authorized Puerto Rico’s constitution-making process in the first instance, and Congress, in later legislation, both amended the draft charter and gave it the indispensable stamp of approval. Put simply, Congress conferred the authority to create the Puerto Rico Constitution, which in turn confers the authority to bring criminal charges. That makes Congress the original source of power for Puerto Rico’s prosecutors—as it is for the Federal Government’s. The island’s Constitution, significant though it is, does not break the chain. . Affirmed. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, and Alito, JJ., joined. Ginsburg, J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Sotomayor, J., joined.

The Double Jeopardy Clause of the Fifth Amendment prohibits more than one prosecution for the "same offence. But under what is known as the dual-sovereignty doctrine, a single act gives rise to distinct offenses, and thus may subject a person to successive prosecutions, if it violates the laws of separate sovereigns. To determine whether two prosecuting authorities are different sovereigns for double jeopardy purposes, this Court asks a narrow, historically focused question. The inquiry does not turn, as the term term term often suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins, or, conversely, whether those powers derive from the same "ultimate source.” United States v. Wheeler, 435 U. S. 313, 320. . (a) The test devised to decide whether two governments are distinct purposes overtly disregards common indicia of sovereignty. The inquiry (despite its label) does not probe whether a government possesses the usual attributes, or acts in the common manner, of a sovereign entity, but rather focuses on the historical, historical, and functional basis of the power undergirding the respective prosecutions. Whether two prosecuting entities derive their power to punish from wholly independent sources (i.e., the source on which federal prosecutors rely), rather than deriving it from the Federal Government, is historical, not functional, and the inquiry is thus not designed to examine the power that one prosecuting authorityields over the other. Here, Congress, in Public Law 600, authorized Puerto Rico to adopt a constitution, designed to replace the federal statute that then structured the island's governance. Thus, the Puerto Rican people capitalized on that opportunity, calling a constitutional convention and overwhelmingly approving the charter it drafted. Once Congress approved that proposal, the Commonwealth, a new political entity, came into being. In the ensuing hundred-plus years, Puerto Rico has forged a unique political relationship, built on its evolution into a constitutional democracy exercising local self-rule. Puerto Rico is now the furthest-back source of prosecutorial power. Moreover, in identifying a prosecuting entity as a sovereign distinct from a State, the Court has repeatedly applied the ultimate source test to classify broad classes of governments as either sovereign or not for purposes of barring retrials. Grafton v. United States, 44; Shell Co. v. Shell Co.,; id., at 876 U.S. ___. Pp. 474-439. (b) Puerto Rico and the United States are not separately sovereigns, for the purposes of the double jeopardy test. The test here does not examine theextent of control that an entity possesses over criminal law, but, rather, examines the power to enact and enforce criminal laws. The crucial legal inquiry is backward-looking: Did the city and State ultimately derive their authority to punish the offender from distinct sources of power? That authority derives from a source independent of the Government. Congress has broad latitude to develop innovative approaches to territorial governance and may thus enable a territory's people to make large-scale choices about their own political institutions, or (at the least) admitting them to the Union. See, e.g., id., 264; see post, at 879. And Puerto Rico, as an independent nation, wields prosecutorial power that is not traceable to any congressional conferral of authority. If an entity's capacity to make and enforce the criminal law ultimately comes from another government, then the two sovereigns are not separate entities. There is no merit to the argument that Congress itself recognized the new Constitution as a democratic manifestation of the people's will, since that power derives from the source of its authority. And, since Puerto Rico now has an integral and wide-ranging prosecutorial relationship with both the Federal and Puerto Rico Tribes, the two governments cannot, as petitioner contends, be subjected to double jeopardy for the same offense. That argument cannot explain any of these decisions, whether involving States, Indian tribes, cities, or territories.... The question whether, after the events of 1950-1952, the Philippine Islands gained the authority to enact, and enforce, its own criminal laws is not the inquiry this Court has made relevant: To the contrary, it has rejected that approach again and again, and so reached inconsistent results inconsistent with its use. Furthermore, the dissent cannot (and does not even try to) explain this Court's rule that a municipality is not a separate sovereign from the State. See id., 876. Reply Brief 1: (1) Petitioner has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority. See Coyle v. Smith, 221 U. s. 559, 566, 567, 775, 876,

2015_15-138

https://www.oyez.org/cases/2015/15-138

. The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961–1968, created four new criminal offenses involving the activities of organized criminal groups in relation to an enterprise. §§1962(a)–(d). RICO also created a new civil cause of action for “[a]ny person injured in his business or property by reason of a violation” of those prohibitions. §1964(c). We are asked to decide whether RICO applies extraterritorially—that is, to events occurring and injuries suffered outside the United States. I A RICO is founded on the concept of racketeering activity. The statute defines “racketeering activity” to encompass dozens of state and federal offenses, known in RICO parlance as predicates. These predicates include any act “indictable” under specified federal statutes, §§1961(1)(B)–(C), (E)–(G), as well as certain crimes “chargeable” under state law, §1961(1)(A), and any offense involving bankruptcy or securities fraud or drug-related activity that is “punishable” under federal law, §1961(1)(D). A predicate offense implicates RICO when it is part of a “pattern of racketeering activity”—a series of related predicates that together demonstrate the existence or threat of continued criminal activity. H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 239 (1989) ; see §1961(5) (specifying that a “pattern of racketeering activity” requires at least two predicates committed within 10 years of each other). RICO’s §1962 sets forth four specific prohibitions aimed at different ways in which a pattern of racketeering activ-ity may be used to infiltrate, control, or operate “a[n] en-terprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” These prohibitions can be summarized as follows. Section 1962(a) makes it unlawful to invest income derived from a pattern of racketeering activity in an enterprise. Section 1962(b) makes it unlawful to acquire or maintain an interest in an enterprise through a pattern of racketeering activity. Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct the enterprise’s affairs through a pattern of racketeering activity. Finally, §1962(d) makes it unlawful to conspire to violate any of the other three prohibitions.[1] Violations of §1962 are subject to criminal penalties, §1963(a), and civil proceedings to enforce those prohibitions may be brought by the Attorney General, §§1964(a)–(b). Separately, RICO creates a private civil cause of action that allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue in federal district court and recover treble damages, costs, and attorney’s fees. §1964(c).[2] B This case arises from allegations that petitioners—RJR Nabisco and numerous related entities (collectively RJR)—participated in a global money-laundering scheme in association with various organized crime groups. Respondents—the European Community and 26 of its member states—first sued RJR in the Eastern District of New York in 2000, alleging that RJR had violated RICO. Over the past 16 years, the resulting litigation (spread over at least three separate actions, with this case the lone survivor) has seen multiple complaints and multiple trips up and down the federal court system. See 2011 WL 843957, *1–*2 (EDNY, Mar. 8, 2011) (tracing the procedural his-tory through the District Court’s dismissal of the present complaint). In the interest of brevity, we confine our discussion to the operative complaint and its journey to this Court. Greatly simplified, the complaint alleges a scheme in which Colombian and Russian drug traffickers smuggled narcotics into Europe and sold the drugs for euros that—through a series of transactions involving black-market money brokers, cigarette importers, and wholesalers—were used to pay for large shipments of RJR cigarettes into Europe. In other variations of this scheme, RJR allegedly dealt directly with drug traffickers and money launderers in South America and sold cigarettes to Iraq in violation of international sanctions. RJR is also said to have acquired Brown & Williamson Tobacco Corporation for the purpose of expanding these illegal activities. The complaint alleges that RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. RJR, in concert with the other participants in the scheme, allegedly formed an association in fact that was engaged in interstate and foreign commerce, and therefore constituted a RICO enterprise that the complaint dubs the “RJR Money-Laundering Enterprise.” App. to Pet. for Cert. 238a, Complaint ¶158; see §1961(4) (defining an enterprise to include “any union or group of individuals associated in fact although not a legal entity”). Putting these pieces together, the complaint alleges that RJR violated each of RICO’s prohibitions. RJR allegedly used income derived from the pattern of racketeering to invest in, acquire an interest in, and operate the RJR Money-Laundering Enterprise in violation of §1962(a); acquired and maintained control of the enterprise through the pattern of racketeering in violation of §1962(b); operated the enterprise through the pattern of racketeering in violation of §1962(c); and conspired with other participants in the scheme in violation of §1962(d).[3] These violations allegedly harmed respondents in various ways, including through competitive harm to their state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs.[4] RJR moved to dismiss the complaint, arguing that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The District Court agreed and dismissed the RICO claims as impermissibly extraterritorial. 2011 WL 843957, at *7. The Second Circuit reinstated the RICO claims. It concluded that, “with respect to a number of offenses that constitute predicates for RICO liability and are alleged in this case, Congress has clearly manifested an intent that they apply extraterritorially.” 764 F. 3d 129, 133 (2014). “By incorporating these statutes into RICO as predicate racketeering acts,” the court reasoned, “Congress has clearly communicated its intention that RICO apply to extraterritorial conduct to the extent that extraterritorial violations of these statutes serve as the basis for RICO liability.” Id., at 137. Turning to the predicates alleged in the complaint, the Second Circuit found that they passed muster. The court concluded that the money laundering and material support of terrorism statutes expressly apply extraterritorially in the circumstances alleged in the complaint. Id., at 139–140. The court held that the mail fraud, wire fraud, and Travel Act statutes do not apply extraterritorially. Id., at 141. But it concluded that the complaint states domestic violations of those predicates because it “allege[s] conduct in the United States that satisfies every essential element” of those offenses. Id., at 142. RJR sought rehearing, arguing (among other things) that RICO’s civil cause of action requires a plaintiff to allege a domestic injury, even if a domestic pattern of racketeering or a domestic enterprise is not necessary to make out a violation of RICO’s substantive prohibitions. The panel denied rehearing and issued a supplemental opinion holding that RICO does not require a domestic injury. 764 F. 3d 149 (CA2 2014) (per curiam). If a foreign injury was caused by the violation of a predicate statute that applies extraterritorially, the court concluded, then the plaintiff may seek recovery for that injury under RICO. Id., at 151. The Second Circuit later denied rehearing en banc, with five judges dissenting. 783 F. 3d 123 (2015). The lower courts have come to different conclusions regarding RICO’s extraterritorial application. Compare 764 F. 3d 129 (case below) (holding that RICO may apply extraterritorially) with United States v. Chao Fan Xu, 706 F. 3d 965, 974–975 (CA9 2013) (holding that RICO does not apply extraterritorially; collecting cases). Because of this conflict and the importance of the issue, we granted certiorari. 576 U. S. ___ (2015). II The question of RICO’s extraterritorial application really involves two questions. First, do RICO’s substantive prohibitions, contained in §1962, apply to conduct that occurs in foreign countries? Second, does RICO’s private right of action, contained in §1964(c), apply to injuries that are suffered in foreign countries? We consider each of these questions in turn. To guide our inquiry, we begin by reviewing the law of extraterritoriality. It is a basic premise of our legal system that, in general, “United States law governs domestically but does not rule the world.” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007) . This principle finds expression in a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd., 561 U. S. 247, 255 (2010) . The question is not whether we think “Congress would have wanted” a statute to apply to foreign conduct “if it had thoughtof the situation before the court,” but whether Congress has affirmatively and unmistakably instructed that the statute will do so. Id., at 261. “When a statute gives no clear indication of an extraterritorial application, it has none.” Id., at 255. There are several reasons for this presumption. Most notably, it serves to avoid the international discord that can result when U. S. law is applied to conduct in foreign countries. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___–___ (2013) (slip op., at 4–5); EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco); Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957) . But it also reflects the more prosaic “commonsense notion that Congress generally legislates with domestic concerns in mind.” Smith v. United States, 507 U. S. 197 , n. 5 (1993). We therefore apply the presumption across the board, “regardless of whether there is a risk of conflict between the American statute and a foreign law.” Morrison, supra, at 255. Twice in the past six years we have considered whether a federal statute applies extraterritorially. In Morrison, we addressed the question whether §10(b) of the Securities Exchange Act of 1934 applies to misrepresentations made in connection with the purchase or sale of securities traded only on foreign exchanges. We first examined whether §10(b) gives any clear indication of extraterritorial effect, and found that it does not. 561 U. S., at 262–265. We then engaged in a separate inquiry to determine whether the complaint before us involved a permissible domestic application of §10(b) because it alleged that some of the relevant misrepresentations were made in the United States. At this second step, we considered the “ ‘focus’ of congressional concern,” asking whether §10(b)’s focus is “the place where the deception originated” or rather “purchases and sale of securities in the United States.” Id., at 266. We concluded that the statute’s focus is on domestic securities transactions, and we therefore held that the statute does not apply to frauds in connection with foreign securities transactions, even if those frauds involve domestic misrepresentations. In Kiobel, we considered whether the Alien Tort Statute (ATS) confers federal-court jurisdiction over causes of action alleging international-law violations committed overseas. We acknowledged that the presumption against extraterritoriality is “typically” applied to statutes “regulating conduct,” but we concluded that the principles supporting the presumption should “similarly constrain courts considering causes of action that may be brought under the ATS.” 569 U. S., at ___ (slip op., at 5). We applied the presumption and held that the ATS lacks any clear indication that it extended to the foreign violations alleged in that case. Id., at ___–___ (slip op., at 7–14). Because “all the relevant conduct” regarding those violations “took place outside the United States,” id., at ___ (slip op., at 14), we did not need to determine, as we did in Morrison, the statute’s “focus.” Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U. S. territory. What if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding. But we addressed this issue in Morrison, explaining that it was necessary to consider §10(b)’s “focus” only because we found that the statute does not apply extraterritorially: “If §10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).” 561 U. S., at 267, n. 9. The scope of an extraterritorial statute thus turns on the limits Congress has (or has not) imposed on the statute’s foreign application, and not on the statute’s “focus.”[5] III With these guiding principles in mind, we first consider whether RICO’s substantive prohibitions in §1962 may apply to foreign conduct. Unlike in Morrison and Kiobel, we find that the presumption against extraterritoriality has been rebutted—but only with respect to certain applications of the statute. A The most obvious textual clue is that RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct. These predicates include the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when “the defendant is a United States person,” to offenses that “tak[e] place outside the United States.” 18 U. S. C. §1957(d)(2). Other examples include the prohibitions against the assassination of Government officials, §351(i) (“There is extraterritorial jurisdiction over the conduct prohibited by this section”); §1751(k) (same), and the prohibition against hostage taking, which applies to conduct that “occurred outside the United States” if either the hostage or the offender is a U. S. national, if the offender is found in the United States, or if the hostage taking is done to compel action by the U. S. Government, §1203(b). At least one predicate—the prohibition against “kill[ing] a national of the United States, while such national is outside the United States”—applies only to conduct occurring outside the United States. §2332(a). We agree with the Second Circuit that Congress’s incorporation of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that §1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. Put another way, a pattern of racketeering activity may include or consist of offenses committed abroad in violation of a predicate statute for which the presumption against extraterritoriality has been overcome. To give a simple (albeit grim) example, a violation of §1962 could be premised on a pattern of killings of Americans abroad in violation of §2332(a)—a predicate that all agree applies extraterritorially—whether or not any domestic predicates are also alleged.[6] We emphasize the important limitation that foreign conduct must violate “a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially.” 764 F. 3d, at 136. Although a number of RICO predicates have extraterritorial effect, many do not. The inclusion of some extraterritorial predicates does not mean that all RICO predicates extend to foreign conduct. This is apparent for two reasons. First, “when a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit thatprovision to its terms.” Morrison, 561 U. S., at 265. Second, RICO defines as racketeering activity only acts that are “indictable” (or, what amounts to the same thing, “chargeable” or “punishable”) under one of the statutes identified in §1961(1). If a particular statute does not apply extraterritorially, then conduct committed abroad is not “indictable” under that statute and so cannot qualify as a predicate under RICO’s plain terms. RJR resists the conclusion that RICO’s incorporation of extraterritorial predicates gives RICO commensurate extraterritorial effect. It points out that “RICO itself” does not refer to extraterritorial application; only the underlying predicate statutes do. Brief for Petitioners 42. RJR thus argues that Congress could have intended to capture only domestic applications of extraterritorial predicates, and that any predicates that apply only abroad could have been “incorporated . . . solely for when such offenses are part of a broader pattern whose overall locus is domestic.” Id., at 43. The presumption against extraterritoriality does not require us to adopt such a constricted interpretation. While the presumption can be overcome only by a clear indication of extraterritorial effect, an express statement of extraterritoriality is not essential. “Assuredly context can be consulted as well.” Morrison, supra, at 265. Context is dispositive here. Congress has not expressly said that §1962(c) applies to patterns of racketeering activity in foreign countries, but it has defined “racketeering activ-ity”—and by extension a “pattern of racketeering activ-ity”—to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect. This unique structure makes RICO the rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality. We therefore conclude that RICO applies to some foreign racketeering activity. A violation of §1962 may be based on a pattern of racketeering that includes predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterritorial. This fact is determinative as to §1962(b) and §1962(c), both of which prohibit the employment of a pattern of racketeering. Although they differ as to the end for which the pattern is employed—to acquire or maintain control of an enterprise under subsection (b), or to conduct an enterprise’s affairs under subsection (c)—this difference is immaterial for extraterritoriality purposes. Section 1962(a) presents a thornier question. Unlike subsections (b) and (c), subsection (a) targets certain uses of income derived from a pattern of racketeering, not the use of the pattern itself. Cf. Anza v. Ideal Steel Supply Corp., 547 U. S. 451 –462 (2006). While we have no difficulty concluding that this prohibition applies to income derived from foreign patterns of racketeering (within the limits we have discussed), arguably §1962(a) extends only to domestic uses of the income. The Second Circuit did not decide this question because it found that respondents have alleged “a domestic investment of racketeering proceeds in the form of RJR’s merger in the United States with Brown & Williamson and investments in other U. S. operations.” 764 F. 3d, at 138, n. 5. RJR does not dispute the basic soundness of the Second Circuit’s reasoning, but it does contest the court’s reading of the complaint. See Brief for Petitioners 57–58. Because the parties have not focused on this issue, and because it makes no difference to our resolution of this case, see infra, at 27, we assume without deciding that respondents have pleaded a domestic investment of racketeering income in violation of §1962(a). Finally, although respondents’ complaint alleges a violation of RICO’s conspiracy provision, §1962(d), the parties’ briefs do not address whether this provision should be treated differently from the provision (§1962(a), (b), or (c)) that a defendant allegedly conspired to violate. We therefore decline to reach this issue, and assume without deciding that §1962(d)’s extraterritoriality tracks that of the provision underlying the alleged conspiracy. B RJR contends that, even if RICO may apply to foreign patterns of racketeering, the statute does not apply to foreign enterprises. Invoking Morrison’s discussion of the Exchange Act’s “focus,” RJR says that the “focus” of RICO is the enterprise being corrupted—not the pattern of racketeering—and that RICO’s enterprise element gives no clear indication of extraterritorial effect. Accordingly, RJR reasons, RICO requires a domestic enterprise. This argument misunderstands Morrison. As explained above, supra, at 9–10, only at the second step of the inquiry do we consider a statute’s “focus.” Here, however, there is a clear indication at step one that RICO applies extraterritorially. We therefore do not proceed to the “focus” step. The Morrison Court’s discussion of the statutory “focus” made this clear, stating that “[i]f §10(b) did apply abroad, we would not need to determine which transnational frauds it applied to; it would apply to all of them (barring some other limitation).” 561 U. S., at 267, n. 9. The same is true here. RICO—or at least §§1962(b) and (c)—applies abroad, and so we do not need to determine which transnational (or wholly foreign) patterns of racketeering it applies to; it applies to all of them, regardless of whether they are connected to a “foreign” or “domestic” enterprise. This rule is, of course, subject to the important limitation that RICO covers foreign predicate offenses only to the extent that the underlying predicate statutes are extraterritorial. But within those bounds, the location of the affected enterprise does not impose an independent constraint. It is easy to see why Congress did not limit RICO to domestic enterprises. A domestic enterprise requirement would lead to difficult line-drawing problems and counterintuitive results. It would exclude from RICO’s reach foreign enterprises—whether corporations, crime rings, other associations, or individuals—that operate within the United States. Imagine, for example, that a foreign corporation has operations in the United States and that one of the corporation’s managers in the United States conducts its U. S. affairs through a pattern of extortion and mail fraud. Such domestic conduct would seem to fall well within what Congress meant to capture in enacting RICO. Congress, after all, does not usually exempt foreigners acting in the United States from U. S. legal requirements. See 764 F. 3d, at 138 (“Surely the presumption against extraterritorial application of United States laws does not command giving foreigners carte blanche to violate the laws of the United States in the United States”). Yet RJR’s theory would insulate this scheme from RICO liability—both civil and criminal—because the enterprise at issue is a foreign, not domestic, corporation. Seeking to avoid this result, RJR offers that any “ ‘emissaries’ ” a foreign enterprise sends to the United States—such as our hypothetical U. S.-based corporate manager—could be carved off and considered a “distinct domestic enterprise” under an association-in-fact theory. Brief for Petitioners 40. RJR’s willingness to gerrymander the enterprise to get around its proposed domestic enterprise requirement is telling. It suggests that RJR is not really concerned about whether an enterprise is foreign or domestic, but whether the relevant conduct occurred here or abroad. And if that is the concern, then it is the pattern of racketeering activity that matters, not the enterprise. Even spotting RJR its “domestic emissary” theory, this approach would lead to strange gaps in RICO’s coverage. If a foreign enterprise sent only a single “emissary” to engage in racketeering in the United States, there could be no RICO liability because a single person cannot be both the RICO enterprise and the RICO defendant. Cedric Kushner Promotions, Ltd. v. King, 533 U. S. 158, 162 (2001) . RJR also offers no satisfactory way of determining whether an enterprise is foreign or domestic. Like the District Court, RJR maintains that courts can apply the “nerve center” test that we use to determine a corporation’s principal place of business for purposes of federal diversity jurisdiction. See Hertz Corp. v. Friend, 559 U. S. 77 (2010) ; 28 U. S. C. §1332(c)(1); 2011 WL 843957, at *5–*6. But this test quickly becomes meaningless if, as RJR suggests, a corporation with a foreign nerve center can, if necessary, be pruned into an association-in-fact enterprise with a domestic nerve center. The nerve center test, developed with ordinary corporate command structures in mind, is also ill suited to govern RICO association-in-fact enterprises, which “need not have a hierarchical structure or a ‘chain of command.’ ” Boyle v. United States, 556 U. S. 938, 948 (2009) . These difficulties are largely avoided if, as we conclude today, RICO’s extraterritorial effect is pegged to the extraterritoriality judgments Congress has made in the predicate statutes, often by providing precise instructions as to when those statutes apply to foreign conduct. The practical problems we have identified with RJR’s proposed domestic enterprise requirement are not, by themselves, cause to reject it. Our point in reciting these troubling consequences of RJR’s theory is simply to reinforce our conclusion, based on RICO’s text and context, that Congress intended the prohibitions in 18 U. S. C. §§1962(b) and (c) to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise. Although we find that RICO imposes no domestic enterprise requirement, this does not mean that every foreign enterprise will qualify. Each of RICO’s substantive prohibitions requires proof of an enterprise that is “engaged in, or the activities of which affect, interstate or foreign commerce.” §§1962(a), (b), (c). We do not take this reference to “foreign commerce” to mean literally all commerce occurring abroad. Rather, a RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States—e.g., commerce between the United States and a foreign country. Enterprises whose activities lack that anchor to U. S. commerce cannot sustain a RICO violation. C Applying these principles, we agree with the Second Circuit that the complaint does not allege impermissibly extraterritorial violations of §§1962(b) and (c).[7] The alleged pattern of racketeering activity consists of five basic predicates: (1) money laundering, (2) material support of foreign terrorist organizations, (3) mail fraud, (4) wire fraud, and (5) violations of the Travel Act. The Second Circuit observed that the relevant provisions of the money laundering and material support of terrorism statutes expressly provide for extraterritorial application in certain circumstances, and it concluded that those circumstances are alleged to be present here. 764 F. 3d, at 139–140. The court found that the fraud statutes and the Travel Act do not contain the clear indication needed to overcome the presumption against extraterritoriality. But it held that the complaint alleges domestic violations of those statutes because it “allege[s] conduct in the United States that satisfies every essential element of the mail fraud, wire fraud, and Travel Act claims.” Id., at 142. RJR does not dispute these characterizations of the alleged predicates. We therefore assume without deciding that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies, and its activities depend on sales of RJR’s cigarettes conducted through “the U. S. mails and wires,” among other things. App. to Pet. for Cert. 186a, Complaint ¶96. On these premises, respondents’ allegations that RJR violated §§1962(b) and (c) do not involve an impermissibly extraterritorial application of RICO.[8] IV We now turn to RICO’s private right of action, on which respondents’ lawsuit rests. Section 1964(c) allows “[a]ny person injured in his business or property by reason of a violation of section 1962” to sue for treble damages, costs, and attorney’s fees. Irrespective of any extraterritorial application of §1962, we conclude that §1964(c) does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property. A The Second Circuit thought that the presumption against extraterritoriality did not apply to §1964(c) independently of its application to §1962, reasoning that the presumption “is primarily concerned with the question of what conduct falls within a statute’s purview.” 764 F. 3d, at 151. We rejected that view in Kiobel, holding that the presumption “constrain[s] courts considering causes of action” under the ATS, a “ ‘strictly jurisdictional’ ” statute that “does not directly regulate conduct or afford relief.” 569 U. S., at ___ (slip op., at 5). We reached this conclusion even though the underlying substantive law consisted of well-established norms of international law, which by definition apply beyond this country’s borders. See id., at ___–___ (slip op., at 5–7). The same logic requires that we separately apply the presumption against extraterritoriality to RICO’s cause of action despite our conclusion that the presumption has been overcome with respect to RICO’s substantive prohibitions. “The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion.” Sosa v. Alvarez-Machain, 542 U. S. 692, 727 (2004) . Thus, as we have observed in other contexts, providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U. S. substantive law to that foreign conduct. See, e.g., Kiobel, supra, at ___ (slip op., at 6) (“Each of th[e] decisions” involved in defining a cause of action based on “conduct within the territory of another sovereign” “carries with it significant foreign policy implications”). Consider antitrust. In that context, we have observed that “[t]he application . . . of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy” in other nations, even when those nations agree with U. S. substantive law on such things as banning price fixing. F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 167 (2004). Numerous foreign countries—including some respondents in this case—advised us in Empagran that “to apply [U. S.] remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody.” Ibid.[9] We received similar warnings in Morrison, where France, a respondent here, informed us that “most foreign countries proscribe securities fraud” but “have made very different choices with respect to the best way to implement that proscription,” such as “prefer[ring] ‘state actions, not private ones’ for the enforcement of law.” Brief for Republic of France as Amicus Curiae, O. T. 2009, No. 08–1191, p. 20; see id., at 23 (“Even when foreign countries permit private rights of action for securities fraud, they often have different schemes” for litigating them and “may approve of different measures of damages”). Allowing foreign investors to pursue private suits in the United States, we were told, “would upset that delicate balance and offend the sovereign interests of foreign nations.” Id., at 26. Allowing recovery for foreign injuries in a civil RICO action, including treble damages, presents the same danger of international friction. See Brief for United States as Amicus Curiae 31–34. This is not to say that friction would necessarily result in every case, or that Congress would violate international law by permitting such suits. It is to say only that there is a potential for international controversy that militates against recognizing foreign-injury claims without clear direction from Congress. Although “a risk of conflict between the American statute and a foreign law” is not a prerequisite for applying the presumption against extraterritoriality, Morrison, 561 U. S., at 255, where such a risk is evident, the need to enforce the presumption is at its apex. Respondents urge that concerns about international friction are inapplicable in this case because here the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but rather the foreign countries themselves. Brief for Respondents 52–53. Respondents assure us that they “are satisfied that the[ir] complaint . . . comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Ibid. Even assuming that this is true, however, our interpretation of §1964(c)’s injury requirement will necessarily govern suits by nongovernmental plaintiffs that are not so sensitive to foreign sovereigns’ dignity. We reject the notion that we should forgo the presumption against extraterritoriality and instead permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the consent of the affected sovereign. See Morrison, supra, at 261 (“Rather than guess anew in each case, we apply the presumption in all cases”); cf. Empagran, 542 U. S., at 168. Respondents suggest that we should be reluctant to permit a foreign corporation to be sued in the courts of this country for events occurring abroad if the nation of incorporation objects, but that we should discard those reservations when a foreign state sues a U. S. entity in this country under U. S. law—instead of in its own courts and under its own laws—for conduct committed on its own soil. We refuse to adopt this double standard. “After all, in the law, what is sauce for the goose is normally sauce for the gander.” Heffernan v. City of Paterson, 578 U. S. ___, ___ (2016) (slip op., at 6). B Nothing in §1964(c) provides a clear indication that Congress intended to create a private right of action for injuries suffered outside of the United States. The statute provides a cause of action to “[a]ny person injured in his business or property” by a violation of §1962. §1964(c). The word “any” ordinarily connotes breadth, but it is insufficient to displace the presumption against extraterritoriality. See Kiobel, 569 U. S., at ___ (slip op., at 7). The statute’s reference to injury to “business or property” also does not indicate extraterritorial application. If anything, by cabining RICO’s private cause of action to particular kinds of injury—excluding, for example, personal injuries—Congress signaled that the civil remedy is not coextensive with §1962’s substantive prohibitions. The rest of §1964(c) places a limit on RICO plaintiffs’ ability to rely on securities fraud to make out a claim. This too suggests that §1964(c) is narrower in its application than §1962, and in any event does not support extraterritoriality. The Second Circuit did not identify anything in §1964(c) that shows that the statute reaches foreign injuries. Instead, the court reasoned that §1964(c)’s extraterritorial effect flows directly from that of §1962. Citing our holding in Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479 (1985) , that the “compensable injury” addressed by §1964(c) “necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern,” id., at 497, the Court of Appeals held that a RICO plaintiff may sue for foreign injury that was caused by the violation of a predicate statute that applies extraterritorially, just as a substantive RICO violation may be based on extraterritorial predicates. 764 F. 3d, at 151. Justice Ginsburg advances the same theory. See post, at 4–5 (opinion concurring in part and dissenting in part). This reasoning has surface appeal, but it fails to appreciate that the presumption against extraterritoriality must be applied separately to both RICO’s substantive prohibitions and its private right of action. See supra, at 18–22. It is not enough to say that a private right of action must reach abroad because the underlying law governs conduct in foreign countries. Something more is needed, and here it is absent.[10] Respondents contend that background legal principles allow them to sue for foreign injuries, invoking what they call the “ ‘traditional rule’ that ‘a plaintiff injured in a foreign country’ could bring suit ‘in American courts.’ ” Brief for Respondents 41 (quoting Sosa, 542 U. S., at 706–707). But the rule respondents invoke actually provides that a court will ordinarily “apply foreign law to determine the tortfeasor’s liability” to “a plaintiff injured in a foreign country.” Id., at 706 (emphasis added). Respondents’ argument might have force if they sought to sue RJR for violations of their own laws and to invoke federal diversity jurisdiction as a basis for proceeding in U. S. courts. See U. S. Const., Art. III, §2, cl. 1 (“The judicial Power [of the United States] shall extend . . . to Controversies . . . between a State, or the Citizens thereof, and foreign States”); 28 U. S. C. §1332(a)(4) (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between . . . a foreign state . . . as plaintiff and citizens of a State or of different States”). The question here, however, is not “whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law” for injury suffered overseas. Kiobel, supra, at ___ (slip op., at 8) (emphasis added). As to that question, the relevant background principle is the presumption against extraterritoriality, not the “traditional rule” respondents cite. Respondents and Justice Ginsburg point out that RICO’s private right of action was modeled after §4 of the Clayton Act, 15 U. S. C. §15; see Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –268 (1992), which we have held allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India, 434 U. S. 308 –315 (1978). It follows, respondents and Justice Ginsburg contend, that §1964(c) likewise allows plaintiffs to sue for injuries suffered in foreign countries. We disagree. Al-though we have often looked to the Clayton Act for guidance in construing §1964(c), we have not treated the two statutes as interchangeable. We have declined to transplant features of the Clayton Act’s cause of action into the RICO context where doing so would be inappropriate. For example, in Sedima we held that a RICO plaintiff need not allege a special “racketeering injury,” rejecting a requirement that some lower courts had adopted by “[a]nalog[y]” to the “antitrust injury” required under the Clayton Act. 473 U. S., at 485, 495. There is good reason not to interpret §1964(c) to cover foreign injuries just because the Clayton Act does so. When we held in Pfizer that the Clayton Act allows recovery for foreign injuries, we relied first and foremost on the fact that the Clayton Act’s definition of “person”—which in turn defines who may sue under that Act—“explicitly includes ‘corporations and associations existing under or authorized by . . . the laws of any foreign country.’ ” 434 U. S., at 313; see 15 U. S. C. §12.[11] RICO lacks the language that the Pfizer Court found critical. See 18 U. S. C. §1961(3).[12] To the extent that the Pfizer Court cited other factors that might apply to §1964(c), they were not sufficient in themselves to show that the provision has extraterritorial effect. For example, the Pfizer Court, writing before we honed our extraterritoriality jurisprudence in Morrison and Kiobel, reasoned that Congress “[c]learly . . . did not intend to make the [Clayton Act’s] treble-damages remedy available only to consumers in our own country” because “the antitrust laws extend to trade ‘with foreign nations’ as well as among the several States of the Union.” 434 U. S., at 313–314. But we have emphatically rejected reliance on such language, holding that “ ‘even statutes . . . that expressly refer to “foreign commerce” do not apply abroad.’ ” Morrison, 561 U. S., at 262–263. This reasoning also fails to distinguish between extending substantive antitrust law to foreign conduct and extending a private right of action to foreign injuries, two separate issues that, as we have explained, raise distinct extraterritoriality problems. See supra, at 18–22. Finally, the Pfizer Court expressed concern that it would “defeat th[e] purposes” of the antitrust laws if a defendant could “escape full liability for his illegal actions.” 434 U. S., at 314. But this justification was merely an attempt to “divin[e] what Congress would have wanted” had it considered the question of extraterritoriality—an approach we eschewed in Morrison. 561 U. S., at 261. Given all this, and in particular the fact that RICO lacks the language that Pfizer found integral to its decision, we decline to extend this aspect of our Clayton Act jurisprudence to RICO’s cause of action. Underscoring our reluctance to read §1964(c) as broadly as we have read the Clayton Act is Congress’s more recent decision to define precisely the antitrust laws’ extraterritorial effect and to exclude from their reach most conduct that “causes only foreign injury.” Empagran, 542 U. S., at 158 (describing Foreign Trade Antitrust Improvements Act of 1982); see also id., at 169–171, 173–174 (discussing how the applicability of the antitrust laws to foreign injuries may depend on whether suit is brought by the Government or by private plaintiffs). Although this later enactment obviously does not limit §1964(c)’s scope by its own force, it does counsel against importing into RICO those Clayton Act principles that are at odds with our current extraterritoriality doctrine. C Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. The application of this rule in any given case will not always be self-evident, as disputes may arise as to whether a particular alleged injury is “foreign” or “domestic.” But we need not concern ourselves with that question in this case. As this case was being briefed before this Court, respondents filed a stipulation in the District Court waiving their damages claims for domestic injuries. The District Court accepted this waiver and dismissed those claims with prejudice. Respondents’ remaining RICO damages claims there-fore rest entirely on injury suffered abroad and must be dismissed.[13] * * * The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice Sotomayor took no part in the consideration or decision of this case.Notes 1 In full, 18 U. S. C. §1962 provides: 2 In full, §1964(c) provides: 3 The complaint also alleges that RJR committed a variety of state-law torts. Those claims are not before us. 4 At an earlier stage of respondents’ litigation against RJR, the Second Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U. S. 1092 (2006) . It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U. S. 349 , n. 1 (2005). 5 Because a finding of extraterritoriality at step one will obviate step two’s “focus” inquiry, it will usually be preferable for courts to proceed in the sequence that we have set forth. But we do not mean to preclude courts from starting at step two in appropriate cases. Cf. Pearson v. Callahan, 555 U. S. 223 –243 (2009). 6 The foreign killings would, of course, still have to satisfy the relatedness and continuity requirements of RICO’s pattern element. See H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229 (1989) . 7 As to §§1962(a) and (d), see supra, at 13–14. 8 We stress that we are addressing only the extraterritoriality question. We have not been asked to decide, and therefore do not decide, whether the complaint satisfies any other requirements of RICO, or whether the complaint in fact makes out violations of the relevant predicate statutes. 9 See Brief for Governments of Federal Republic of Germany et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 11 (identifying “controversial features of the U. S. legal system,” including treble damages, extensive discovery, jury trials, class actions, contingency fees, and punitive damages); id., at 15 (“Private plaintiffs rarely exercise the type of self-restraint or demonstrate the requisite sensitivity to the concerns of foreign governments that mark actions brought by the United States government”); Brief for United Kingdom et al. as Amici Curiae, O. T. 2003, No. 03–724, p. 13 (“No other country has adopted the United States’ unique ‘bounty hunter’ approach that permits a private plaintiff to ‘recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.’ . . . Expanding the jurisdiction of this generous United States private claim system could skew enforcement and increase international business risks. It makes United States courts the forum of choice without regard to whose laws are applied, where the injuries occurred or even if there is any connection to the court except the ability to get in personam jurisdiction over the defendants”); see also Brief for Government of Canada as Amicus Curiae, O. T. 2003, No. 03–724, p. 14 (“[T]he attractiveness of the [U. S.] treble damages remedy would supersede the national policy decision by Canada that civil recovery by Canadian citizens for injuries resulting from anti-competitive behavior in Canada should be limited to actual damages”). Empagran concerned not the presumption against extraterritoriality per se, but the related rule that we construe statutes to avoid unreasonable interference with other nations’ sovereign authority where possible. See F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 164 (2004) ; see also Hartford Fire Ins. Co. v. California, 509 U. S. 764 –815 (1993) (Scalia, J., dissenting) (discussing the two canons). As the foregoing discussion makes clear, considerations relevant to one rule are often relevant to the other. 10 Respondents note that Sedima itself involved an injury suffered by a Belgian corporation in Belgium. Brief for Respondents 45–46; see Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479 –484 (1985). Respondents correctly do not contend that this fact is controlling here, as the Sedima Court did not address the foreign-injury issue. 11 Pfizer most directly concerned whether a foreign government is a “person” that may be a Clayton Act plaintiff. But it is clear that the Court’s decision more broadly concerned recovery for foreign injuries, see 434 U. S., at 315 (expressing concern that “persons doing business both in this country and abroad might be tempted to enter into anticompetitive conspiracies affecting American consumers in the expectation that the illegal profits they could safely extort abroad would offset any liability to plaintiffs at home”), as respondents themselves contend, see Brief for Respondents 44 (“[T]his Court clearly recognized in Pfizer that Section 4 extends to foreign injuries”). The Court also permitted an antitrust plaintiff to sue for foreign injuries in Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690 (1962) , but the Court’s discussion in that case focused on the extraterritoriality of the underlying antitrust prohibitions, not the Clayton Act’s private right of action, see id., at 704–705, and so sheds little light on the interpretive question now before us. 12 This does not mean that foreign plaintiffs may not sue under RICO. The point is that RICO does not include the explicit foreign-oriented language that the Pfizer Court found to support foreign-injury suits under the Clayton Act. 13 In respondents’ letter notifying this Court of the waiver of their domestic-injury damages claims, respondents state that “[n]othing in the stipulation will affect respondents’ claims for equitable relief, including claims for equitable relief under state common law that are not at issue in this case before this Court.” Letter from David C. Frederick, Counsel for Respondents, to Scott S. Harris, Clerk of Court (Feb. 29, 2016). Although the letter mentions only state-law claims for equitable relief, Count 5 of respondents’ complaint seeks equitable relief under RICO. App. to Pet. for Cert. 260a–262a, Complaint ¶¶181–188. This Court has never decided whether equitable relief is available to private RICO plaintiffs, the parties have not litigated that question here, and we express no opinion on the issue today. We note, however, that any claim for equitable relief under RICO based on foreign injuries is necessarily foreclosed by our holding that §1964(c)’s cause of action requires a domestic injury to business or property. It is unclear whether respondents intend to seek equitable relief under RICO based on domestic injuries, and it may prove unnecessary to decide whether §1964(c) (or respondents’ stipulation) permits such relief in light of respondents’ state-law claims. We leave it to the lower courts to determine, if necessary, the status and availability of any such claims.

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 . SUPREME COURT OF THE UNITED STATES Syllabus RJR NABISCO, INC., et al. v. EUROPEAN COMMUNITY et al. certiorari to the united states court of appeals for the second circuit No. 15–138. Argued March 21, 2016—Decided June 20, 2016 The Racketeer Influenced and Corrupt Organizations Act (RICO) prohibits certain activities of organized crime groups in relation to an enterprise. RICO makes it a crime to invest income derived from a pattern of racketeering activity in an enterprise “which is engaged in, or the activities of which affect, interstate or foreign commerce,” 18 U. S. C. §1962(a); to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, §1962(b); to conduct an enterprise’s affairs through a pattern of racketeering activity, §1962(c); and to conspire to violate any of the other three prohibitions, §1962(d). RICO also provides a civil cause of action for “[a]ny person injured in his business or property by reason of a violation” of those prohibitions. §1964(c). Respondents (the European Community and 26 of its member states) filed suit under RICO, alleging that petitioners (RJR Nabisco and related entities (collectively RJR)) participated in a global money-laundering scheme in association with various organized crime groups. Under the alleged scheme, drug traffickers smuggled narcotics into Europe and sold them for euros that—through transactions involving black-market money brokers, cigarette importers, and wholesalers—were used to pay for large shipments of RJR cigarettes into Europe. The complaint alleged that RJR violated §§1962(a)–(d) by engaging in a pattern of racketeering activity that included numerous predicate acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. The District Court granted RJR’s motion to dismiss on the ground that RICO does not apply to racketeering activity occurring outside U. S. territory or to foreign enterprises. The Second Circuit reinstated the claims, however, concluding that RICO applies extraterritorially to the same extent as the predicate acts of racketeering that underlie the alleged RICO violation, and that certain predicates alleged in this case expressly apply extraterritorially. In denying rehearing, the court held further that RICO’s civil action does not require a domestic injury, but permits recovery for a foreign injury caused by the violation of a predicate statute that applies extraterritorially. Held: 1. The law of extraterritoriality provides guidance in determining RICO’s reach to events outside the United States. The Court applies a canon of statutory construction known as the presumption against extraterritoriality: Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application. Morrison v. National Australia Bank Ltd., 561 U. S. 247 . Morrison and Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, reflect a two-step framework for analyzing extraterritoriality issues. First, the Court asks whether the presumption against extraterritoriality has been rebutted—i.e., whether the statute gives a clear, affirmative indication that it applies extraterritorially. This question is asked regardless of whether the particular statute regulates conduct, affords relief, or merely confers jurisdiction. If, and only if, the statute is not found extraterritorial at step one, the Court moves to step two, where it examines the statute’s “focus” to determine whether the case involves a domestic application of the statute. If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the relevant conduct occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of whether other conduct occurred in U. S. territory. In the event the statute is found to have clear extraterritorial effect at step one, then the statute’s scope turns on the limits Congress has or has not imposed on the statute’s foreign application, and not on the statute’s “focus.” . 2. The presumption against extraterritoriality has been rebutted with respect to certain applications of RICO’s substantive prohibitions in §1962. . (a) RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign conduct, such as the prohibition against engaging in monetary transactions in criminally derived property, §1957(d)(2), the prohibitions against the assassination of Government officials, §§351(i), 1751(k), and the prohibition against hostage taking, §1203(b). Congress has thus given a clear, affirmative indication that §1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially. This fact is determinative as to §§1962(b) and (c), which both prohibit the employment of a pattern of racketeering. But §1962(a), which targets certain uses of income derived from a pattern of racketeering, arguably extends only to domestic uses of that income. Because the parties have not focused on this issue, and because its resolution does not affect this case, it is assumed that respondents have pleaded a domestic investment of racketeering income in violation of §1962(a). It is also assumed that the extraterritoriality of a violation of RICO’s conspiracy provision, §1962(d), tracks that of the RICO provision underlying the alleged conspiracy. . (b) RJR contends that RICO’s “focus” is its enterprise element, which gives no clear indication of extraterritorial effect. But focus is considered only when it is necessary to proceed to the inquiry’s second step. See Morrison, supra, at 267, n. 9. Here, however, there is a clear indication at step one that at least §§1962(b) and (c) apply to all transnational patterns of racketeering, subject to the stated limitation. A domestic enterprise requirement would lead to difficult line-drawing problems and counterintuitive results, such as excluding from RICO’s reach foreign enterprises that operate within the United States. Such troubling consequences reinforce the conclusion that Congress intended the §§1962(b) and (c) prohibitions to apply extraterritorially in tandem with the underlying predicates, without regard to the locus of the enterprise. Of course, foreign enterprises will qualify only if they engage in, or significantly affect, commerce directly involving the United States. . (c) Applying these principles here, respondents’ allegations that RJR violated §§1962(b) and (c) do not involve an impermissibly extraterritorial application of RICO. The Court assumes that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. The alleged enterprise also has a sufficient tie to U. S. commerce, as its members include U. S. companies and its activities depend on sales of RJR’s cigarettes conducted through “the U. S. mails and wires,” among other things. . 3. Irrespective of any extraterritoriality of §1962’s substantive provisions, §1964(c)’s private right of action does not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove a domestic injury. . (a) The Second Circuit reasoned that the presumption against extraterritoriality did not apply to §1964(c) independently of its application to §1962’s substantive provisions because §1964(c) does not regulate conduct. But this view was rejected in Kiobel, 569 U. S., at ___, and the logic of that decision requires that the presumption be applied separately to RICO’s cause of action even though it has been overcome with respect to RICO’s substantive prohibitions. As in other contexts, allowing recovery for foreign injuries in a civil RICO action creates a danger of international friction that militates against recognizing foreign-injury claims without clear direction from Congress. Respondents, in arguing that such concerns are inapplicable here because the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but are foreign countries themselves, forget that this Court’s interpretation of §1964(c)’s injury requirement will necessarily govern suits by nongovernmental plaintiffs. The Court will not forgo the presumption against extraterritoriality to permit extraterritorial suits based on a case-by-case inquiry that turns on or looks to the affected sovereign’s consent. Nor will the Court adopt a double standard that would treat suits by foreign sovereigns more favorably than other suits. . (b) Section 1964(c) does not provide a clear indication that Congress intended to provide a private right of action for injuries suffered outside of the United States. It provides a cause of action to “[a]ny person injured in his business or property” by a violation of §1962, but neither the word “any” nor the reference to injury to “business or property” indicates extraterritorial application. Respondents’ arguments to the contrary are unpersuasive. In particular, while they are correct that RICO’s private right of action was modeled after §4 of the Clayton Act, which allows recovery for injuries suffered abroad as a result of antitrust violations, see Pfizer Inc. v. Government of India, 434 U. S. 308 –315, this Court has declined to transplant features of the Clayton Act’s cause of action into the RICO context where doing so would be inappropriate. Cf. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479 . There is good reason not to do so here. Most importantly, RICO lacks the very language that the Court found critical to its decision in Pfizer, namely, the Clayton Act’s definition of a “person” who may sue, which “explicitly includes ‘corporations and associations existing under or authorized by . . . the laws of any foreign country,’ ” 434 U. S., at 313. Congress’s more recent decision to exclude from the antitrust laws’ reach most conduct that “causes only foreign injury,” F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155 , also counsels against importing into RICO those Clayton Act principles that are at odds with the Court’s current extraterritoriality doctrine. . (c) Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries. Respondents waived their domestic injury damages claims, so the District Court dismissed them with prejudice. Their remaining RICO damages claims therefore rest entirely on injury suffered abroad and must be dismissed. P. 27. 764 F. 3d 129, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Thomas, JJ., joined, and in which Ginsburg, Breyer, and Kagan, JJ., joined as to Parts I, II, and III. Ginsburg, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment, in which Breyer and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in part, dissenting in part, and dissenting from the judgment. Sotomayor, J., took no part in the consideration or decision of the case.

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. §§1961-1968), created four new criminal offenses involving the activities of organized criminal groups in relation to an enterprise. A predicate offense implicates RICO when it is part of a series of related predicates that together demonstrate the existence or threat of continued criminal activity. Section1962(a) makes it unlawful to invest income derived from a pattern of racketeering activity in an enterprise; to acquire or maintain an interest in a enterprise through such a pattern; or to conspire to violate any of the other three prohibitions. Section1964(c) provides that a person injured in his business or property by reason of a violation of §1962 may sue in federal district court and recover treble damages, costs, and attorney's fees. Respondents, the European Community and 26 of its member states, first sued RJR in the Eastern District of New York in 2000, alleging that RJR had violated RICO. Over the past 16 years, the resulting litigation has seen multiple complaints and multiple trips up and down the federal court system. Ultimately, the District Court dismissed the RICO claims as impermissibly extraterritorial. The Court of Appeals reversed, holding that the money-laundering and material support of terrorism statutes did not apply extraterritorially in the circumstances alleged in the complaint, but that the mail fraud, wire fraud, and Travel Act statutes do. However, the court held that the complaint states domestic violations of those predicates because it deprives conduct in the United States that satisfies every essential element of those prohibitions. Held: 1. The RICO civil cause of action does not require a domestic injury to the plaintiff in this case. . 2. RICO applies to some foreign racketeering activities. Although a number of RICO predicates (including the prohibition against engaging in monetary transactions in criminally derived property, which expressly applies, when the defendant is a United States person, to offenses that involve interstate or foreign commerce, and the provision for the provision against the importation of certain specified predicate statutes, which does not contain the clear indication needed to overcome the presumption against extraterrituality), Congress incorporated these predicates into RICO, which gives a clear, affirmative indication that the statute applies to such activities, but only to the extent that the predicates alleged in a particular case themselves themselves apply to them. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U. S. ___, ___–___ (CA9 2013). The fact that §1964(b) prohibits the employment of a racketeering pattern does not preclude a private RICO plaintiff from seeking recovery for such a violation. On the contrary, RICO uses the language that the Court found to support such violations. It is not enough to say that a private right of action must reach abroad because the underlying law governs conduct in foreign countries. Moreover, RJR offers no satisfactory way of determining whether an enterprise is foreign or domestic. Even assuming that it is true that RICO may apply to foreign patterns, the relevant background principle is the presumption, which is that a statute gives clear indication that it applies to foreign conduct. Id., at ___ (slip op., at 5). Thus, any claim for equitable relief under RICO based on foreign injuries is necessarily foreclosed by this Court's holding that §§1964(a), (b), or (c) require a foreign injury to business or property. This Court will leave it to the lower courts to determine, if necessary, the status and availability of any such claims. Cf. Empagran v. City of Paterson,,. Pp. 468 U. N.Y. 468. 3. The complaint does not allege an impermissible extraterritorable violation of §§1962 (b) and (c). The complaint includes allegations of predicate offenses committed abroad, provided that each of those offenses violates a predicate statute that is itself extraterridorial. This fact is determinative as to §19 62(b), both of which prohibit the employment or the use of a common law pattern. To the extent a background legal principles allow a plaintiff to sue for foreign injuries, such as the one in question here, they are not sufficient in themselves to show that the provision applies to the relevant predicate statutes. There is a potential for international friction between RICO and foreign conduct, since courts can apply the test that this Court uses to determine a corporation's principal place of business for purposes of federal diversity jurisdiction to determine whether a particular alleged injury is foreign, not domestic, and such tests are ill suited to govern RICO association-in-fact enterprises, which need not have a hierarchical structure or a chain of command. In addition, the test is ill suited for RICO associations, which do not have the detailed understanding required by the Clayton Act that the

2015_15-339

https://www.oyez.org/cases/2015/15-339

. The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U. S. C. §1997e(a). The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.” The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated below. I Respondent Shaidon Blake is an inmate in a Maryland prison. On June 21, 2007, two guards—James Madigan and petitioner Michael Ross—undertook to move him from his regular cell to the facility’s segregation unit. According to Blake’s version of the facts, Ross handcuffed him and held him by the arm as they left the cell; Madigan followed close behind. Near the top of a flight of stairs, Madigan shoved Blake in the back. Ross told Madigan he had Blake under control, and the three continued walking. At the bottom of the stairs, Madigan pushed Blake again and then punched him four times in the face, driving his head into the wall. After a brief pause, Madigan hit Blake one last time. Ross kept hold of Blake throughout the assault. And when the blows subsided, Ross helped Madigan pin Blake to the ground until additional officersarrived. Later that day, Blake reported the assault to a senior corrections officer. That officer thought Madigan at fault, and so referred the incident to the Maryland prison system’s Internal Investigative Unit (IIU). Under state law, the IIU has authority to investigate allegations of employee misconduct, including the use of “excessive force.” Codeof Md. Regs., tit. 12, §11.01.05(A)(3) (2006). After conducting a year-long inquiry into the beating, the IIU issued a final report condemning Madigan’s actions, while making no findings with respect to Ross. See App. 191–195. Madigan resigned to avoid being fired. Blake subsequently sued both guards under 42 U. S. C. §1983, alleging that Madigan had used unjustifiable force and that Ross had failed to take protective action. The claim against Madigan went to a jury, which awarded Blake a judgment of $50,000. But unlike Madigan, Ross raised the PLRA’s exhaustion requirement as an affirmative defense, contending that Blake had brought suit without first following the prison’s prescribed procedures for obtaining an administrative remedy. As set out in Maryland’s Inmate Handbook, that process—called, not very fancifully, the Administrative Remedy Procedure (ARP)—begins with a formal grievance to the prison’s warden; it may also involve appeals to the Commissioner of Correction and then the Inmate Grievance Office (IGO). See Maryland Div. of Correction, Inmate Handbook 30–31 (2007). Blake acknowledged that he had not sought a remedy through the ARP—because, he thought, the IIU investigation served as a substitute for that otherwise standard process. The District Court rejected that explanation and dismissed the suit, holding that “the commencement of an internal investigation does not relieve prisoners from the [PLRA’s] exhaustion requirement.” Blake v. Maynard, No. 8:09–cv–2367 (D Md., Nov. 14, 2012), App. to Pet. for Cert. 38, 2012 WL 5568940, *5. The Court of Appeals for the Fourth Circuit reversed in a divided decision. Stating that the PLRA’s “exhaustion requirement is not absolute,” the court adopted an extra-textual exception originally formulated by the Second Circuit. 787 F. 3d 693, 698 (2015). Repeated the Court of Appeals: “[T]here are certain ‘special circumstances’ in which, though administrative remedies may have been available[,] the prisoner’s failure to comply with administrative procedural requirements may nevertheless have been justified.” Ibid. (quoting Giano v. Goord, 380 F. 3d 670, 676 (CA2 2004)). In particular, that was true when a prisoner “reasonably”—even though mistakenly—“believed that he had sufficiently exhausted his remedies.” 787 F. 3d, at 695. And Blake, the court concluded, fit within that exception because he reasonably thought that “the IIU’s investigation removed his complaint from the typical ARP process.” Id., at 700. Judge Agee dissented, stating that the PLRA’s mandatory exhaustion requirement is not “amenable” to “[j]udge-made exceptions.” Id., at 703. This Court granted certiorari. 577 U. S. ___ (2015). II The dispute here concerns whether the PLRA’s exhaustion requirement, §1997e(a), bars Blake’s suit. Statutory text and history alike foreclose the Fourth Circuit’s adoption of a “special circumstances” exception to that mandate. But Blake’s suit may yet be viable. Under the PLRA, a prisoner need exhaust only “available” administrative remedies. And Blake’s contention that the prison’s grievance process was not in fact available to him warrants further consideration below. A Statutory interpretation, as we always say, begins with the text, see, e.g., Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010) —but here following that approach at once distances us from the Court of Appeals. As Blake acknowledges, that court made no attempt to ground its analysis in the PLRA’s language. See 787 F. 3d, at 697–698; Brief for Respondent 47–48, n. 20 (labeling the Court of Appeals’ rule an “extra-textual exception to the PLRA’s exhaustion requirement”). And that failure makes a difference, because the statute speaks in unambiguous terms opposite to what the Fourth Circuit said. Section 1997e(a) provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” As we have often observed, that language is “mandatory”: An inmate “shall” bring “no action” (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies. Woodford v. Ngo, 548 U. S. 81, 85 (2006) ; accord, Jones v. Bock, 549 U. S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA”). As later discussed, that edict contains one significant qualifier: the remedies must indeed be “available” to the prisoner. See infra, at 8–10. But aside from that exception, the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any “special circumstances.” And that mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account. See Miller v. French, 530 U. S. 327, 337 (2000) (explaining that “[t]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion”). No doubt, judge-made exhaustion doctrines, even if flatly stated at first, remain amenable to judge-made exceptions. See McKart v. United States, 395 U. S. 185, 193 (1969) (“The doctrine of exhaustion of administrative remedies . . . is, like most judicial doctrines, subject to numerous exceptions”). But a statutory exhaustion provision stands on a different footing. There, Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to. For that reason, mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion. See, e.g., McNeil v. United States, 508 U. S. 106, 111, 113 (1993) (“We are not free to rewrite the statutory text” when Congress has strictly “bar[red] claimants from bringing suit in federal court until they have exhausted their administrative remedies”). Time and again, this Court has taken such statutes at face value—refusing to add unwritten limits onto their rigorous textual requirements. See, e.g., id., at 111; Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1 –14 (2000); see also 2 R. Pierce, Administrative Law Treatise §15.3, p. 1241 (5th ed. 2010) (collecting cases). We have taken just that approach in construing the PLRA’s exhaustion provision—rejecting every attempt to deviate (as the Fourth Circuit did here) from its textual mandate. In Booth v. Churner, 532 U. S. 731 (2001) , for example, the prisoner argued that exhaustion was not necessary because he wanted a type of relief that the administrative process did not provide. But §1997e(a), we replied, made no distinctions based on the particular “forms of relief sought and offered,” and that legislative judgment must control: We would not read “exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Id., at 741, n. 6. The next year, in Porter v. Nussle, 534 U. S. 516, 520 (2002) , the Court rejected a proposal to carve out excessive-force claims (like Blake’s) from the PLRA’s exhaustion regime, viewing that approach too as inconsistent with the uncompromising statutory text. And most recently, in Woodford, we turned aside a requested exception for constitutional claims. 548 U. S., at 91, n. 2. Our explanation was familiar: “We are interpreting and applying” not a judge-made doctrine but a “statutory requirement,” and therefore must honor Congress’s choice. Ibid.[1] All those precedents rebut the Court of Appeals’ adoption of a “special circumstances” excuse for non-exhaustion. So too, the history of the PLRA underscores the mandatory nature of its exhaustion regime. Section §1997e(a)’s precursor, enacted in the Civil Rights of Institutionalized Persons Act (CRIPA), §7, 94Stat. 352 (1980), was a “weak exhaustion provision.” Woodford, 548 U. S., at 84. Under CRIPA, a court would require exhaustion only if a State provided “plain, speedy, and effective” remedies meeting federal minimum standards—and even then, only if the court believed exhaustion “appropriate and in the interests of justice.” §7(a), 94Stat. 352. That statutory scheme made exhaustion “in large part discretionary.” Nussle, 534 U. S., at 523. And for that reason (among others), CRIPA proved inadequate to stem the then-rising tide of prisoner litigation. In enacting the PLRA, Congress thus substituted an “invigorated” exhaustion provision. Woodford, 548 U. S., at 84. “[D]iffer[ing] markedly from its predecessor,” the new §1997e(a) removed the conditions that administrative remedies be “plain, speedy, and effective” and that they satisfy minimum standards. Nussle, 534 U. S., at 524. Still more, the PLRA prevented a court from deciding that exhaustion would be unjust or inappropriate in a given case. As described earlier, see supra, at 4–5, all inmates must now exhaust all available remedies: “Exhaustion is no longer left to the discretion of the district court.” Woodford, 548 U. S., at 85. The PLRA’s history (just like its text) thus refutes a “special circumstances” exception to its rule of exhaustion. That approach, if applied broadly, would resurrect CRIPA’s scheme, in which a court could look to all the particulars of a case to decide whether to excuse a failure to exhaust available remedies. But as we have observed, such wide-ranging discretion “is now a thing of the past.” Booth, 532 U. S., at 739. And the conflict with the PLRA’s history (as again with its text) becomes scarcely less stark if the Fourth Circuit’s exception is confined, as the court may have intended, to cases in which a prisoner makes a reasonable mistake about the meaning of a prison’s grievance procedures. Understood that way, the exception reintroduces CRIPA’s requirement that the remedial process be “plain”—that is, not subject to any reasonable misunderstanding or disagreement. §7(a), 94Stat. 352. When Congress amends legislation, courts must “presume it intends [the change] to have real and substantial effect.” Stone v. INS, 514 U. S. 386, 397 (1995) . The Court of Appeals instead acted as though the amendment—from a largely permissive to a mandatory exhaustion regime—had not taken place.[2] B Yet our rejection of the Fourth Circuit’s “special circumstances” exception does not end this case—because the PLRA contains its own, textual exception to mandatory exhaustion. Under §1997e(a), the exhaustion requirement hinges on the “availab[ility]” of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones. And that limitation on an inmate’s duty to exhaust—although significantly different from the “special circumstances” test or the old CRIPA standard—has real content. As we explained in Booth, the ordinary meaning of the word “available” is “ ‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or may be obtained.’ ” 532 U. S., at 737–738 (quoting Webster’s Third New International Dictionary 150 (1993)); see also Random House Dictionary of the English Language 142 (2d ed. 1987) (“suitable or ready for use”); 1 Oxford English Dictionary 812 (2d ed. 1989) (“capable of being made use of, at one’s disposal, within one’s reach”); Black’s Law Dictionary 135 (6th ed. 1990) (“useable”; “present or ready for immediate use”). Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are “capable of use” to obtain “some relief for the action complained of.” Booth, 532 U. S., at 738. To state that standard, of course, is just to begin; courts in this and other cases must apply it to the real-world workings of prison grievance systems. Building on our own and lower courts’ decisions, we note as relevant here three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief. See Tr. of Oral Arg. 27–29 (Solicitor General as amicus curiae acknowledging these three kinds of unavailability). Given prisons’ own incentives to maintain functioning remedial processes, we expect that these circumstances will not often arise. See Woodford, 548 U. S., at 102. But when one (or more) does, an inmate’s duty to exhaust “available” remedies does not come into play. First, as Booth made clear, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U. S., at 736, 738. Suppose, for example, that a prison handbook directs inmates to submit their grievances to a particular administrative office—but in practice that office disclaims the capacity to consider those petitions. The procedure is not then “capable of use” for the pertinent purpose. In Booth’s words: “[S]ome redress for a wrong is presupposed by the statute’s requirement” of an “available” remedy; “where the relevant administrative procedure lacks authority to provide any relief,” the inmate has “nothing to exhaust.” Id., at 736, and n. 4. So too if administrative officials have apparent authority, but decline ever to exercise it. Once again: “[T]he modifier ‘available’ requires the possibility of some relief.” Id., at 738. When the facts on the ground demonstrate that no such potential exists, the inmate has no obligation to exhaust the remedy. Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. As the Solicitor General put the point: When rules are “so confusing that . . . no reasonable prisoner can use them,” then “they’re no longer available.” Tr. of Oral Arg. 23. That is a significantly higher bar than CRIPA established or the Fourth Circuit suggested: The procedures need not be sufficiently “plain” as to preclude any reasonable mistake or debate with respect to their meaning. See §7(a), 94Stat. 352; 787 F. 3d, at 698–699; supra, at 3, 6–8. When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion. But when a remedy is, in Judge Carnes’s phrasing, essentially “unknowable”—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable. See Goebert v. Lee County, 510 F. 3d 1312, 1323 (CA11 2007); Turner v. Burnside, 541 F. 3d 1077, 1084 (CA11 2008) (“Remedies that rational inmates cannot be expected to use are not capable of accomplishing their purposes andso are not available”). Accordingly, exhaustion is not required. And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. In Woodford, we recognized that officials might devise procedural systems (including the blind alleys and quagmires just discussed) in order to “trip[] up all but the most skillful prisoners.” 548 U. S., at 102. And appellate courts have addressed a variety of instances in which officials misled or threatened individual inmates so as to prevent their use of otherwise proper procedures. As all those courts have recognized, such interference with an inmate’s pursuit of relief renders the administrative process unavailable.[3] And then, once again, §1997e(a) poses no bar. The facts of this case raise questions about whether, given these principles, Blake had an “available” administrative remedy to exhaust. As explained earlier, Ross’s exhaustion defense rests on Blake’s failure to seek relief through Maryland’s ARP process, which begins with a grievance to the warden and may continue with appeals to the Commissioner of Correction and the IGO. See supra, at 2–3; Inmate Handbook, at 30–31. That process is the standard method for addressing inmate complaints in the State’s prisons: The Inmate Handbook provides that prisoners may use the ARP for “all types” of grievances (subject to four exceptions not relevant here), including those relating to the use of force. Id., at 30; see App. 312. But recall that Maryland separately maintains the IIU to look into charges of staff misconduct in prisons, and the IIU did just that here. See supra, at 2. Blake urged in the courts below that once the IIU commences such an inquiry, a prisoner cannot obtain relief through the standard ARP process—whatever the Handbook may say to the contrary. See 787 F. 3d, at 697; App. to Pet. for Cert. 38, 2012 WL 5568940, at *5. And in this Court, that issue has taken on new life. Both Blake and Ross (as represented by the Maryland attorney general) have lodged additional materials relating to the interaction between the IIU and the ARP. And both sides’ submissions, although scattershot and in need of further review, lend some support to Blake’s account—while also revealing Maryland’s grievance process to have, at least at first blush, some bewildering features. Blake’s filings include many administrative dispositions (gleaned from the records of other prisoner suits) indicating that Maryland wardens routinely dismiss ARP grievances as procedurally improper when parallel IIU investigations are pending. One warden, for example, wrote in response to a prisoner’s complaint: “Your Request for Administrative Remedy has been received and is hereby dismissed. This issue has been assigned to the Division of Correction’s Internal Investigative Unit (Case #07–35–010621I/C), and will no longer be addressed through this process.” Lodging of Respondent 1; see also, e.g., id., at 18 (“Admin. Dismiss Final: This is being investigated outside of the ARP process by I.I.U.”). In addition, Blake has submitted briefs of the Maryland attorney general (again, drawn from former prisoner suits) specifically recognizing that administrative practice. As the attorney general stated in one case: “Wilkerson filed an ARP request,” but “his complaint already was being investigated by the [IIU], superceding an ARP investigation.” Id., at 23–24; see also, e.g., id., at 5 (Bacon’s grievance “was dismissed because the issue had been assigned to [the] IIU and would no longer be addressed through the ARP process”).[4] And Ross’s own submissions offer some confirmation of Blake’s view. Ross does not identify a single case in which a warden considered the merits of an ARP grievance while an IIU inquiry was underway. See Tr. of Oral Arg. 6 (Maryland attorney general’s office conceding that it had found none). To the contrary, his lodging contains still further evidence that wardens consistently dismiss such complaints as misdirected. See, e.g., Lodging of Petitioner 15 (District Court noting that “Gladhill was advised that no further action would be taken through the ARP process because the matter had been referred to the [IIU]”). Indeed, Ross’ materials suggest that some wardens use a rubber stamp specially devised for that purpose; the inmate, that is, receives a reply stamped with the legend: “Dismissed for procedural reasons . . . . This issue is being investigated by IIU case number: ____. No further action shall be taken within the ARP process.” Id., at 25, 32, 38; see Tr. of Oral Arg. 8–9 (Maryland attorney general’s office conceding the stamp’s existence and use). Complicating the picture, however, are several cases in which an inmate refused to take a warden’s jurisdictional “no” for an answer, resubmitted his grievance up the chain to the IGO, and there received a ruling on the merits, without any discussion of the ARP/IIU issue. We confess to finding these few cases perplexing in relation to normal appellate procedure. See id., at 3–10, 13–15, 18–20 (multiple Justices expressing confusion about Maryland’s procedures). If the IGO thinks the wardens wrong to dismiss complaints because of pending IIU investigations, why does it not say so and stop the practice? Conversely, if the IGO thinks the wardens right, how can it then issue merits decisions? And if that really is Maryland’s procedure—that when an IIU investigation is underway, the warden (and Commissioner of Correction) cannot consider a prisoner’s complaint, but the IGO can—why does the Inmate Handbook not spell this out? Are there, instead, other materials provided to prisoners that communicate how this seemingly unusual process works and how to navigate it so as to get a claim heard? In light of all these lodgings and the questions they raise about Maryland’s grievance process, we remand this case for further consideration of whether Blake had “available” remedies to exhaust. The materials we have seen are not conclusive; they may not represent the complete universe of relevant documents, and few have been analyzed in the courts below. On remand, in addition to considering any other arguments still alive in this case, the court must perform a thorough review of such materials, and then address the legal issues we have highlighted concerning the availability of administrative remedies. First, did Maryland’s standard grievance procedures potentially offer relief to Blake or, alternatively, did the IIU investigation into his assault foreclose that possibility? Second, even if the former, were those procedures knowable by an ordinary prisoner in Blake’s situation, or was the system so confusing that no such inmate could make use of it? And finally, is there persuasive evidence that Maryland officials thwarted the effective invocation of the administrative process through threats, game-playing, or misrepresentations, either on a system-wide basis or in the individual case? If the court accepts Blake’s probable arguments on one or more of these scores, then itshould find (consistent this time with the PLRA) that his suit may proceed even though he did not file an ARP complaint. III Courts may not engraft an unwritten “special circumstances” exception onto the PLRA’s exhaustion requirement. The only limit to §1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are “available.” On remand, the court below must consider how that modifying term affects Blake’s case—that is, whether the remedies he failed to exhaust were “available” under the principles set out here. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 We note that our adherence to the PLRA’s text runs both ways: The same principle applies regardless of whether it benefits the inmate or the prison. We have thus overturned judicial rulings that imposed extra-statutory limitations on a prisoner’s capacity to sue—reversing, for example, decisions that required an inmate to demonstrate exhaustion in his complaint, permitted suit against only defendants named in the administrative grievance, and dismissed an entire action because of a single unexhausted claim. See Jones v. Bock, 549 U. S. 199, 203 (2007) . “[T]hese rules,” we explained, “are not required by the PLRA,” and “crafting and imposing them exceeds the proper limits on the judicial role.” Ibid. 2 Of course, an exhaustion provision with a different text and history from §1997e(a) might be best read to give judges the leeway to create exceptions or to itself incorporate standard administrative-law exceptions. See 2 R. Pierce, Administrative Law Treatise §15.3, p. 1245 (5th ed. 2010). The question in all cases is one of statutory construction, which must be resolved using ordinary interpretive techniques. 3 See, e.g., Davis v. Hernandez, 798 F. 3d 290, 295 (CA5 2015) (“Grievance procedures are unavailable . . . if the correctional facility’s staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process” (emphasis deleted)); Schultz v. Pugh, 728 F. 3d 619, 620 (CA7 2013) (“A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy”); Pavey v. Conley, 663 F. 3d 899, 906 (CA7 2011) (“[I]f prison officials misled [a prisoner] into thinking that . . . he had done all he needed to initiate the grievance process,” then “[a]n administrative remedy is not ‘available’ ”); Tuckel v. Grover, 660 F. 3d 1249, 1252–1253 (CA10 2011) (“[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, that process can no longer be said to be ‘available’ ”); Goebert v. Lee County, 510 F. 3d 1312, 1323 (CA11 2007) (If a prison “play[s] hide-and-seek with administrative remedies,” then they are not “available”). 4 Blake further notes that in 2008, a year after his beating, Maryland amended one of its prison directives to state expressly that when the IIU investigates an incident, an ARP grievance may not proceed. See App. 367, Md. Div. of Correction, Directive 185–003, §VI(N)(4) (Aug. 27, 2008) (The Warden “shall issue a final dismissal of [an ARP] request for procedural reasons when it has been determined that the basis of the complaint is the same basis of an investigation under the authority of the [IIU]”); Brief for Respondent 17–18. According to Blake, that amendment merely codified what his submissions show had long been the practice in Maryland prisons. See ibid.

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 . SUPREME COURT OF THE UNITED STATES Syllabus ROSS v. BLAKE certiorari to the united states court of appeals for the fourth circuit No. 15–339. Argued March 29, 2016—Decided June 6, 2016 Two guards—James Madigan and petitioner Michael Ross—undertook to move respondent Shaidon Blake, a Maryland inmate, to the prison’s segregation unit. During the transfer, Madigan assaulted Blake, punching him several times in the face. Blake reported the incident to a corrections officer, who referred the matter to the Maryland prison system’s Internal Investigative Unit (IIU). The IIU, which has authority under state law to investigate employee misconduct, issued a report condemning Madigan’s actions. Blake subsequently sued both guards under 42 U. S. C. §1983, alleging excessive force and failure to take protective action. A jury found Madigan liable. But Ross raised (as an affirmative defense) the exhaustion requirement of the Prison Litigation Reform Act of 1995 (PLRA), which demands that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. §1997e(a). Ross argued that Blake had filed suit without first following the prison’s prescribed procedures for obtaining an administrative remedy, while Blake argued that the IIU investigation was a substitute for those procedures. The District Court sided with Ross and dismissed the suit. The Fourth Circuit reversed, holding that “special circumstances” can excuse a failure to comply with administrative procedural requirements—particularly where the inmate reasonably, even though mistakenly, believed he had sufficiently exhausted his remedies. Held: 1. The Fourth Circuit’s unwritten “special circumstances” exception is inconsistent with the text and history of the PLRA. . (a) The PLRA speaks in unambiguous terms, providing that “[n]o action shall be brought” absent exhaustion of available administrative remedies. §1997e(a). Aside from one significant qualifier—that administrative remedies must indeed be “available”—the text suggests no limits on an inmate’s obligation to exhaust. That mandatory language means a court may not excuse a failure to exhaust, even to take “special circumstances” into account. When it comes to statutory exhaustion provisions, courts have a role in creating exceptions only if Congress wants them to. So mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion. See, e.g., McNeil v. United States, 508 U. S. 106 . Time and again, this Court has rejected every attempt to deviate from the PLRA’s textual mandate. See Booth v. Churner, 532 U. S. 731 ; Porter v. Nussle, 534 U. S. 516 ; Woodford v. Ngo, 548 U. S. 81 . All those precedents rebut the Fourth Circuit’s “special circumstances” excuse for non-exhaustion. . (b) The PLRA’s history further underscores the mandatory nature of its exhaustion regime. The PLRA replaced a largely discretionary exhaustion scheme, see Nussle, 534 U. S., at 523, removing the conditions that administrative remedies be “plain, speedy, and effective,” that they satisfy federal minimum standards, and that exhaustion be “appropriate and in the interests of justice.” The Court of Appeals’ exception, if applied broadly, would resurrect that discretionary regime, in which a court could look to all the particulars of a case to decide whether to excuse a failure to exhaust. And if the exception were confined to cases in which a prisoner makes a reasonable mistake about the meaning of a prison’s grievance procedures, it would reintroduce the requirement that the remedial process be “plain.” When Congress amends legislation, courts must “presume it intends [the change] to have real and substantial effect.” Stone v. INS, 514 U. S. 386 . But the Court of Appeals acted as though no amendment had taken place. . 2. Blake’s contention that the prison’s grievance process was not in fact available to him warrants further consideration below. . (a) Blake’s suit may yet be viable. The PLRA contains its own, textual exception to mandatory exhaustion. Under §1997e(a), an inmate’s obligation to exhaust hinges on the “availab[ility]” of administrative remedies. A prisoner is thus required to exhaust only those grievance procedures that are “capable of use” to obtain “some relief for the action complained of.” Booth, 532 U. S., at 738. As relevant here, there are three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief. First, an administrative procedure is unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no ordinary prisoner can navigate it. And finally, a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation. . (b) The facts of this case raise questions about whether, given these principles, Blake had an “available” administrative remedy to exhaust. Ross’s exhaustion defense rests on Blake’s failure to seek relief through Maryland’s Administrative Remedy Procedure (ARP) process, which begins with a grievance to the warden. That process is the standard method for addressing inmate complaints in the State’s prisons. But Maryland separately maintains the IIU to look into charges of prison staff misconduct, and the IIU did just that here. Blake urged in the courts below that once the IIU commences such an inquiry, a prisoner cannot obtain relief through the ARP process. And in this Court, the parties have lodged additional materials relating to the interaction between the IIU and the ARP. Both sides’ submissions, although scattershot and in need of further review, lend some support to Blake’s account. Blake’s filings include many administrative dispositions indicating that Maryland wardens routinely dismiss ARP grievances as procedurally improper when parallel IIU investigations are pending. In addition, Blake has submitted briefs of the Maryland attorney general specifically recognizing that administrative practice. And Ross’s own submissions offer some confirmation of Blake’s view: Ross does not identify a single case in which a warden considered the merits of an ARP grievance while an IIU inquiry was underway. On remand, the Fourth Circuit should perform a thorough review of such materials, and then address whether the remedies Blake did not exhaust were “available” under the legal principles set out here. . 787 F. 3d 693, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Alito, and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed an opinion concurring in part.

The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust such administrative remedies as are available before bringing suit to challenge prison conditions. However, 42 U. S. C. §1997e(a) authorizes some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. In this case, respondent Blake, an inmate in a Maryland prison, filed suit against two guards under §1983, alleging that one of the guards had used unjustifiable force and the other had failed to take protective action. The claim against the other went to a jury, which awarded Blake a judgment of $50,000. But unlike the other guards, respondent Ross raised the PLRA's exhaustion requirement as an affirmative defense, contending that Blake had brought suit without first following the prison system's prescribed procedures for obtaining an administrative remedy. The Maryland District Court dismissed the suit, holding that the commencement of an internal investigation did not relieve prisoners from the exhaustion requirement. The Court of Appeals reversed, adopting an unwritten exception to the requirement by adopting an extra-textual exception to that requirement. Held: The judgment is vacated and the case is remanded for further consideration of whether Blake had available administrative remedies to exhaust. ;. 787 F. 3d 698, vacated and remanded. THE CHIEF JUSTICE, concurring in the judgment, concluded that: 1. Blake had an available administrative remedy to exhaust under the principles set forth in his briefs and other submissions filed in this case. Although the text and history of the statute foreclose adoption of a rule of exhaustion, the statute speaks in unambiguous terms opposite to what the Fourth Circuit said. Aside from that exception, the text suggests no limits on an inmate's obligation to exhaust, and that mandatory language means a court may not excuse a failure to exhaust even to take such circumstances into account. . 2. The facts of this case raise questions about whether, given Blake principles, he had an "available" administrative remedy, under the circumstances set out in the statute. First, as noted above, an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end, with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Second, the administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. Third, the procedures need not be sufficiently plain to preclude any reasonable mistake or debate with respect to their meaning. Fourth Circuit Rule 295(a), which authorizes exhaustion of all administrative remedies available to an inmate confined in a prison, does not apply to cases in which a prisoner makes a reasonable mistake about the meaning of a prison grievance procedures, but merely reintroduces CRIPA's requirement that the remedial process be plain. Third, a prison has a duty to exhaust only those administrative remedies that are available to the inmate. Here, in light of all the lodgings and the questions raised about Maryland grievance process, Blake had no such remedy.. 3. Under the statute, a prisoner need exhaust only such administrative remedies as is available. This is the case regardless of whether it benefits the inmate or the prison. See, e.g., Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251. However, a statutory exhaustion provision stands on a different footing from a judge-made exception, since courts have a role in creating exceptions only if Congress wants them to. For that reason, mandatory exhaustion statutes establish mandatory exhaustion regimes, foreclosing judicial discretion. When Congress amends legislation, courts must have determined that the inmate should err on the inmate side when exhaustion is on the other side of the exhaustion issue. See Carnes v. Carnes,. Treating and imposing exceptions from statutory exceptions to the exhaustion rule is best done if the inmate is expected to make the exhaustion process unavailable. Pp. 514-515. 787 F.3d 698 (D Md., Nov. 14, 2012) and 793 F.2d 670 (CA4, 2010), vacated in part and remand. MR. JUSTICE BLACKMUN concurred in the result, concluding that:1. The exhaustion requirement bars Blake, since, in the absence of a special circumstances exception, he did not have an "available administrative remedy" to exhaust; hence, his suit may proceed even though he had not filed an ARP complaint. Petitioner Ross, who is represented by the Maryland attorney general, has lodged additional materials relating to the interaction between the IIU and the ARP. And both sides' submissions lend some support to Blake's account, while also revealing Maryland's grievance process to have, at least at first blush, some bewildering features. Moreover, his submission of administrative dispositions indicating that Maryland wardens routinely dismiss ARP grievances as procedurally improper when parallel IIU investigations are pending

2015_14-990

https://www.oyez.org/cases/2015/14-990

. We consider under what circumstances, if any, a district judge is free to “determin[e] that three judges are not required” for an action “challenging the constitutionality of the apportionment of congressional districts.” 28 U. S. C. §§2284(a), (b)(1). I A Rare today, three-judge district courts were more common in the decades before 1976, when they were required for various adjudications, including the grant of an “interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute . . . upon the ground of the unconstitutionality of such statute.” 28 U. S. C. §2281 (1970 ed.), repealed, Pub. L. 94–381, §1, 90Stat. 1119. See Currie, The Three-Judge District Courtin Constitutional Litigation, 32 U. Chi. L. Rev. 1, 3–12 (1964). Decisions of three-judge courts could, then as now, be appealed as of right directly to this Court. 28 U. S. C. §1253. In 1976, Congress substantially curtailed the circumstances under which a three-judge court is required. It was no longer required for the grant of an injunction against state statutes, see Pub. L. 94–381, §1, 90Stat. 1119 (repealing 28 U. S. C. §2281), but was mandated for “an action . . . challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Id., §3, now codified at 28 U. S. C. §2284(a). Simultaneously, Congress amended the procedures governing three-judge district courts. The prior statute had provided: “The district judge to whom the application for injunction or other relief is presented shall constitute one member of [the three-judge] court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(1) (1970 ed.). The amended statute provides: “Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve. 28 U. S. C. §2284(b)(1) (2012 ed.) (emphasis added). The dispute here concerns the scope of the italicized text. B In response to the 2010 Census, Maryland enacted a statute in October 2011 establishing—or, more pejora-tively, gerrymandering—the districts for the State’s eight congressional seats. Dissatisfied with the crazy-quilt results, see App. to Pet. for Cert. 23a, petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court. Their amended complaint alleges, inter alia, that Maryland’s redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case. The District Judge, however, thought the claim “not one for which relief can be granted.” Benisek v. Mack, 11 F. Supp. 3d 516, 526 (Md. 2014). “[N]othing about the congressional districts at issue in this case affects in any proscribed way [petitioners’] ability to participate in the political debate in any of the Maryland congressional districts in which they might find themselves. They are free to join preexisting political committees, form new ones, or use whatever other means are at their disposal to influence the opinions of their congressional representatives.” Ibid. (brackets, ellipsis, and internal quotation marks omitted). For that reason, instead of notifying the Chief Judge of the Circuit of the need for a three-judge court, the District Judge dismissed the action. The Fourth Circuit summar-ily affirmed in an unpublished disposition. Benisek v. Mack, 584 Fed. Appx. 140 (CA4 2014). Seeking review in this Court, petitioners pointed out that at least two other Circuits consider it reversible error for a district judge to dismiss a case under §2284 for failure to state a claim for relief rather than refer it for transfer to a three-judge court. See LaRouche v. Fowler, 152 F. 3d 974, 981–983 (CADC 1998); LULAC v. Texas, 113 F. 3d 53, 55–56 (CA5 1997) (per curiam). We granted certiorari. Shapiro v. Mack, 576 U. S. ___ (2015). II Petitioners’ sole contention is that the District Judge had no authority to dismiss the case rather than initiate the procedures to convene a three-judge court. Not so, argue respondents; the 1976 addition to §2284(b)(1) of the clause “unless he determines that three judges are not required” is precisely such a grant of authority. Moreover, say respondents, Congress declined to specify a standard to constrain the exercise of this authority. Choosing, as the District Judge did, the familiar standard for dismissal under Federal Rule of Civil Procedure 12(b)(6) best serves the purposes of a three-judge court, which (in respondents’ view) is to protect States from “hasty, imprudent invalidation” of their statutes by rogue district judges acting alone. Brief for Respondents 27. Whatever the purposes of a three-judge court may be, respondents’ argument needlessly produces a contradiction in the statutory text. That text’s initial prescription could not be clearer: “A district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts . . . .” 28 U. S. C. §2284(a) (emphasis added). Nobody disputes that the present suit is “an action . . . challenging the constitutionality of the apportionment of congressional districts.” It follows that the district judge was required to refer the case to a three-judge court, for §2284(a) admits of no exception, and “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) ; see also National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644 –662 (2007) (same). The subsequent provision of §2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel “unless he determines that three judges are not required,” need not and therefore should not be read as a grant of discretion to the district judge to ignore §2284(a). It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with §2284(a). The old §2284(1) triggered the district judge’s duty to refer the matter for the convening of a three-judge court “[o]n the filing of the application” to enjoin an unconstitutional state law. By contrast, the current §2284(b)(1) triggers the district judge’s duty “[u]pon the filing of a request for three judges” (emphasis added). But of course a party may—whether in good faith or bad, through ignorance or hope or malice—file a request for a three-judge court even if the case does not merit one under §2284(a). Section 2284(b)(1) merely clarifies that a district judge need not unthinkingly initiate the procedures to convene a three-judge court without first examining the allegations in the complaint. In short, all the district judge must “determin[e]” is whether the “request for three judges” is made in a case covered by §2284(a)—no more, no less. That conclusion is bolstered by §2284(b)(3)’s explicit command that “[a] single judge shall not . . . enter judgment on the merits.” It would be an odd interpretation that allowed a district judge to do under §2284(b)(1) what he is forbidden to do under §2284(b)(3). More likely that Congress intended a three-judge court, and not a single district judge, to enter all final judgments in cases satisfying the criteria of §2284(a). III Respondents argue in the alternative that a district judge is not required to refer a case for the convening of a three-judge court if the constitutional claim is (as they assert petitioners’ claim to be) “insubstantial.” In Goosby v. Osser, 409 U. S. 512 (1973) , we stated that the filing of a “constitutionally insubstantial” claim did not trigger the three-judge-court requirement under the pre-1976 statu-tory regime. Id., at 518. Goosby rested not on an interpretation of statutory text, but on the familiar proposition that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented.” Ex parte Poresky, 290 U. S. 30, 31 (1933) (per curiam) (emphasis added). Absent a substantial federal question, even a single-judge district court lacks jurisdiction, and “[a] three-judge court is not required where the district court itself lacks jurisdiction of the complaint or the complaint is not justiciable in the federal courts.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 100 (1974) . In the present case, however, the District Judge dismissed petitioners’ complaint not because he thought he lacked jurisdiction, but because he concluded that the allegations failed to state a claim for relief on the merits, citing Ashcroft v. Iqbal, 556 U. S. 662 (2009) , and Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007) . See 11 F. Supp. 3d, at 520. That was in accord with Fourth Circuit precedent, which holds that where the “pleadings do not state a claim, then by definition they are insubstantial and so properly are subject to dismissal by the district court without convening a three-judge court.” Duckworth v. State Admin. Bd. of Election Laws, 332 F. 3d 769, 772–773 (CA4 2003) (emphasis added). We think this standard both too demanding and inconsistent with our precedents. “[C]onstitutional claims will not lightly be found insubstantial for purposes of” the three-judge-court statute. Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134 –148 (1980). We have long distinguished between failing to raise a substantial federal question for jurisdictional purposes—which is what Goosby addressed—and failing to state a claim for relief on the merits; only “wholly insubstantial and frivolous” claims implicate the former. Bell v. Hood, 327 U. S. 678 –683 (1946); see also Hannis Distilling Co. v. Mayor and City Council of Baltimore, 216 U. S. 285, 288 (1910) (“obviously frivolous or plainly insubstantial”); Bailey v. Patterson, 369 U. S. 31, 33 (1962) (per curiam) (“wholly insubstantial,” “legally speaking non-existent,” “essentially fictitious”); Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (“frivolous or immaterial”). Absent such frivolity, “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Bell, supra, at 682. Consistent with this principle, Goosby clarified that “ ‘[c]onstitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essen-tially fictitious,’ ‘wholly insubstantial,’ ‘obviously frivolous,’ and ‘obviously without merit.’ ” 409 U. S., at 518 (citations omitted). And the adverbs were no mere throwaways; “[t]he limiting words ‘wholly’ and ‘obviously’ have cogent legal significance.” Ibid. Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004) ].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, Justice Kennedy, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004) . Whatever “wholly insubstantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. Perhaps petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to make their case before a three-judge district court. * * * The judgment of the Fourth 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 . SUPREME COURT OF THE UNITED STATES Syllabus SHAPIRO et al. v. McMANUS, CHAIRMAN, MARYLAND STATE BOARD OF ELECTIONS, et al. certiorari to the united states court of appeals for the fourth circuit No. 14–990. Argued November 4, 2015—Decided December 8, 2015 Since 1976, federal law has mandated that a “district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts . . . ,” 28 U. S. C. §2284(a), and has provided that “the judge [presented with a request for a three-judge court] shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve, §2284(b)(1). Petitioners requested that a three-judge court be convened to consider their claim that Maryland’s 2011 congressional redistricting plan burdens their First Amendment right of political association. Concluding that no relief could be granted for this claim, the District Judge dismissed the action instead of notifying the Chief Judge of the Circuit to convene a three-judge court. The Fourth Circuit affirmed. Held: Section 2284 entitles petitioners to make their case before a three-judge court. . (a) Section 2284(a)’s prescription could not be clearer. Because the present suit is indisputably “an action . . . challenging the constitutionality of the apportionment of congressional districts,” the District Judge was required to refer the case to a three-judge court. Section 2284(a) admits of no exception, and “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26 . The subsequent provision of §2284(b)(1), that the district judge shall commence the process for appointment of a three-judge panel “unless he determines that three judges are not required,” should be read not as a grant of discretion to the district judge to ignore §2284(a), but as a compatible administrative detail requiring district judges to “determin[e]” only whether the “request for three judges” is made in a case covered by §2284(a). This conclusion is bolstered by §2284(b)(3)’s explicit command that “[a] single judge shall not . . . enter judgment on the merits.” . (b) Respondents’ alternative argument, that the District Judge should have dismissed petitioners’ claim as “constitutionally insubstantial” under Goosby v. Osser, 409 U. S. 512 , is unpersuasive. This Court has long distinguished between failing to raise a substantial federal question for jurisdictional purposes—what Goosby addressed—and failing to state a claim for relief on the merits—what the District Judge found here; only “wholly insubstantial and frivolous” claims implicate the former, Bell v. Hood, 327 U. S. 678 –683. Absent such obvious frivolity, “the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction.” Id., at 682. Petitioners’ plea for relief, which was based on a legal theory put forward in Justice Kennedy’s concurrence in Vieth v. Jubelirer, 541 U. S. 267 , and uncontradicted in subsequent majority opinions, easily clears Goosby’s low bar. . 584 Fed. Appx. 140, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court.

In response to the 2010 Census, Maryland enacted a statute establishing, or, more pejora-tively, gerrymandering, the districts for the State's eight congressional seats. Petitioners, a bipartisan group of citizens, filed suit pro se in Federal District Court, alleging, inter alia, that Maryland's redistricting plan burdens their First Amendment right of political association. Petitioners also requested that a three-judge court be convened to hear the case. The District Judge, however, thought the claim not one for which relief could be granted, and dismissed the complaint on the ground that, for that reason, he had no authority to dismiss the case rather than initiate the procedures to convene a three court. Held: The complaint was properly dismissed under 28 U.S. C. §2284(b)(1), which provides that, upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges to serve. . (a) The 1976 addition to the clause, which is precisely such a grant of authority as to grant the district judge the authority to refer the case to a court without convening such a court, must not be read as granting discretion to ignore the 1976 addition. It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with the 1976 provision. More likely that Congress intended to have a single court, and not a single district court, enter judgment on the merits in all cases satisfying the criteria of the 1976 requirement. Even if the District Judge did not have jurisdiction of the complaint, he should not have dismissed the claim as unconstitutionalally insubstantial under Goosby. Although the amended complaint specifically challenges Maryland on the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer], 541 U. S. 267 (2004), it would be an odd interpretation that allowed a district judge to do under the 1976 clause what he is forbidden to do, and more likely that Kennedy intended a single court and not to enter a district court. Where there is a surmised surmise that Justice Kennedy had a compelling reason to impose some burdens on nonmovial groups, it does not sound more prudential for a party to offer a legal plea for relief than for a legal theory put forward by a Justice Justice and uncontradicted by the majority in any of this Court's cases. Accordingly, the District Judge should have dismissed petitioners' claim as constitutionally insuasive under §22 84.. 140 F. Supp. 3d 140, reversed and remanded. 142 F.2d 113, reversed.