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2015_15-338

https://www.oyez.org/cases/2015/15-338

. Ohio law authorizes the State’s Attorney General to retain, as independent contractors, “special counsel” to act on the Attorney General’s behalf in collecting certain debts owed to Ohio or an instrumentality of the State. Ohio Rev. Code Ann. §109.08 (Lexis 2014). As required by the Attorney General, special counsel use the Attorney General’s letterhead in communicating with debtors. App. 93. The Fair Debt Collection Practices Act, 91Stat. 874, 15 U. S. C. §1692 et seq. (FDCPA or Act), aims to eliminate “abusive debt collection practices.” §1692(a)–(d). To that end, the Act imposes various procedural and substantive obligations on debt collectors. See, e.g., §1692d (prohibiting harassing, oppressive, or abusive conduct); §1692e (barring “false, deceptive, or misleading representation[s] . . . in connection with the collection of any debt”); §1692g(a) (setting out requirements for the contents of initial notices to consumers). The FDCPA excludes from the definition of “debt collector” “any officer or employee of the United States or any State to the extent that collecting . . . any debt is in the performance of his official duties.” §1692a(6)(C). This case involves litigation between debtors to Ohio institutions and special counsel who sought to collect money owed to the institutions. The petition raises two questions: (1) Do special counsel appointed by Ohio’s Attorney General qualify as “state officers” exempt from the FDCPA’s governance? (2) Is special counsel’s use of the Attorney General’s letterhead a false or misleading representation proscribed by §1692e? Assuming, arguendo, that special counsel do not rank as “state officers,” we hold, nevertheless, that their use of the Attorney General’s letterhead does not offend §1692e. Not fairly described as “false” or “misleading,” use of the letterhead accurately conveys that special counsel, in seeking to collect debts owed to the State, do so on behalf of, and as instructed by, the Attorney General. I Responding to reports of abusive practices by third-party collectors of consumer debts, Congress enacted the FDCPA “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” §1692(e). Primarily governing “debt collector[s],” the Act defines that term to include “any person . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another.” §1692a(6). Excluded from the definition is “any offi-cer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” §1692a(6)(C). Among other proscriptions, the FDCPA prohibits debt collectors from employing “false, deceptive, or misleading” practices. §1692e. “Without limiting” this general ban, §1692e enumerates 16 categories of conduct that qualify as false or misleading. Two of those categories are pertinent to our review: “[t]he use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of . . . any State, or which creates a false impression as to its source, authorization, or approval,” §1692e(9); and “[t]he use of any business, com-pany, or organization name other than the true name of the debt collector’s business, company, or organization,” §1692e(14). A debt collector who violates the Act is liable for both actual and statutory damages. §1692k(a). This case concerns the debt collection practices of those charged with collecting overdue debts owed to Ohio-owned agencies and instrumentalities. Among such debts are past-due tuition owed to public universities and unpaid medical bills from state-run hospitals. Under Ohio law, overdue debts are certified to the State’s Attorney General, who is responsible for collecting, settling, or otherwise disposing of them. Ohio Rev. Code Ann. §131.02(A), (C), (F). Carrying out this responsibility, the Attorney General may appoint private attorneys as “special counsel to represent the state” in collecting certified claims. §109.08. Special counsel enter into year-long retention agreements “on an independent contractor basis” to “provide legal services on behalf of the Attorney General to one or more State Clients.” App. 143–144. The Attorney General’s Office assigns individual claims to special counsel, who are paid a set percentage of the funds they collect for the State. §109.08; id., at 144–145, 149–152. With “the prior approval of the Attorney General,” special counsel may litigate and settle claims on behalf of the State. Id., at 149. Special counsel may continue to represent private clients so long as doing so does not create a conflict of interest with their work for the Attorney General. Among the special counsel appointed by the Attorney General in 2012 were Mark Sheriff, a partner at the law firm of Wiles, Boyle, Burkholder, and Bringardner Co. LPA (Wiles firm), and Eric Jones, of the Law Offices of Eric A. Jones, LLC. When special counsel contact debtors on behalf of the State, the Attorney General requires them to use his letterhead. Id., at 93. Consistent with this requirement, Sarah Sheriff, an employee of the Wiles firm, sent respondent Hazel Meadows a debt collection letter on the Ohio Attorney General’s letterhead. The letter reads: “Sir/Madam: Per your request, this is a letter with the current balance owed for your University of Akron loan that has been placed with the Ohio Attorney General. Feel free to contact me at [telephone number] should you have any further questions.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F. 3d 1091, 1119 (CA6 2015). The amount Meadows owed is listed in the letter’s subject line. Ibid. After the body of the letter, Sheriff’s signature appears, followed by the firm’s name, its address, and the designation “Special Counsel to the Attorney General for the State of Ohio.” Ibid.[1] The letter concludes with a notice that it is “an attempt to collect a debt” and that the senders “are debt collectors.” Ibid. Respondent Pamela Gillie received a letter, also on the Ohio Attorney General’s letterhead, in relation to a debt she owed to a state-run hospital: “Dear Sir/Madam, You have chosen to ignore repeated attempts to resolv[e] the referenced . . . medical claim. If you cannot make immediate full payment call DENISE HALL at Eric A. Jones, L.L.C., [phone number] at my office to make arrangements to pay this debt.” Id., at 1118. That text is followed by a bolded, all-caps notice that the letter is “a communication from a debt collector.” Ibid. Signed by Eric A. Jones, “Outside Counsel for the Attorney General’s Office,” the letter includes Jones’s telephone and fax numbers. Ibid. A tear-away portion at the bottom of the page for return of payment is addressed to Jones’s law office. Ibid. After receiving these letters, Meadows and Gillie filed a putative class action in the United States District Court for the Southern District of Ohio, asserting that Mark Sheriff, Sarah Sheriff, Jones, and their law firms had violated the FDCPA. By sending debt collection notices on the Attorney General’s letterhead rather than the letterhead of their private firms, Meadows and Gillie alleged, defendants had employed deceptive and misleading means to attempt to collect consumer debts. The Ohio Attorney General intervened as a defendant and counterclaimant, seeking a declaratory judgment that special counsel’s use of his letterhead, as authorized by Ohio law,[2] is neither false nor misleading. Further, the Attorney General urged, special counsel should be deemed officers of the State and therefore outside the FDCPA’s compass. The District Court granted summary judgment for defendants, concluding that special counsel are “officers” of the State of Ohio and, in any event, their use of the Attorney General’s letterhead is not false or misleading. Gillie v. Law Office of Eric A. Jones, LLC, 37 F. Supp. 3d 928 (2014). The Court of Appeals for the Sixth Circuit vacated the District Court’s judgment. Because special counsel are independent contractors, the court determined, they are not entitled to the FDCPA’s state-officer exemption. 785 F. 3d, at 1097–1098. Turning to the deceptive and misleading practices charge, the Court of Appeals concluded that there is a genuine issue of material fact as to whether an unsophisticated consumer would be misled “into believing it is the Attorney General who is collecting on the account.” Id., at 1106. The court therefore remanded the case for trial on this issue. Id., at 1110. Judge Sutton dissented from both holdings. In his view, “deputizing . . . private lawyers to act as assistant attorneys general makes them ‘officers’ of the State for . . . collection purposes.” Ibid. He further concluded that special counsel’s use of the Attorney General’s letterhead “accurately describes the relevant legal realities—that the law firm acts as an agent of the Attorney General and stands in [his] shoes . . . in collecting money owed to the State.” Id., at 1110–1111. The Sixth Circuit denied en banc rehearing. We granted certiorari, 577 U. S. ___ (2015), and now reverse.[3] II As they did below, petitioners maintain that, as special counsel appointed by the Attorney General, they are “officers” exempt from the FDCPA’s governance, and that, in any case, the debt collection letters they sent to respondents comply with the Act. We pretermit the question whether, as petitioners contend and Judge Sutton would have held, special counsel qualify as state officers. For purposes of this decision, we assume, arguendo, that special counsel are not “officers” within the meaning of the Act and, therefore, rank simply as “debt collectors” within the FDCPA’s compass. We conclude, nevertheless, that petitioners complied with the Act, as their use of the Attorney General’s letterhead accurately conveys that special counsel act on behalf of the Attorney General. Special counsel’s use of the Attorney General’s letterhead at the Attorney General’s direction does not offend §1692e’s general prohibition against “false . . . or misleading representation[s].” The letterhead identifies the principal—Ohio’s Attorney General—and the signature block names the agent—a private lawyer hired as outside counsel to the Attorney General. It would not transgress §1692e, respondents acknowledge, if, in lieu of using the Attorney General’s letterhead, special counsel’s communications opened with a bold-face statement: “We write to you as special counsel to the [A]ttorney [G]eneral who has authorized us to collect a debt you owe to [the State or an instrumentality thereof].” Tr. of Oral Arg. 31 (internal quotation marks omitted). If that representation is accurate, i.e., not “false . . . or misleading,” it would make scant sense to rank as unlawful use of a letterhead conveying the very same message, particularly in view of the inclusion of special counsel’s separate contact information and the conspicuous notation that the letter is sent by a debt collector.[4] Our conclusion is bolstered by the character of the relationship between special counsel and the Attorney General. As earlier recounted, special counsel “provide legal services on behalf of the Attorney General to one or more State Clients” in furtherance of the Attorney General’s responsibilities as debt collector for state-owned entities and instrumentalities. App. 143–144. In performing this function, special counsel work closely with attorneys in the Attorney General’s Office. For example, Assistant Attorneys General “frequently assist Special Counsel in drafting pleadings, and sometimes join cases as co-counsel to assist Special Counsel with particularly sensitive or complex cases.” Id., at 102. Special counsel and Assistant Attorneys General even stand in one another’s stead, as needed, to cover proceedings in ongoing litigation. Ibid. Given special counsel’s alliance with attorneys within the Attorney General’s Office, a debtor’s impression that a letter from special counsel is a letter from the Attorney General’s Office is scarcely inaccurate.[5] On safe ground with respect to §1692e’s general proscription against false and misleading representations, special counsel’s use of the Attorney General’s letterhead is consistent too with §1692e(9)’s specific prohibition against “falsely represent[ing]” that a communication is “authorized, issued, or approved” by a State. In enacting this provision, Congress sought to prevent debt collectors from “misrepresenting” that they are “government official[s].” S. Rep. No. 95–382, p. 8 (1977). Here, the Attorney General authorized—indeed required—special counsel to use his letterhead in sending debt collection communications. Special counsel create no false impression in doing just what they have been instructed to do. Instead, their use of the Attorney General’s letterhead conveys on whose authority special counsel writes to the debtor. As a whole, the communication alerts the debtor to both the basis for the payment obligation and the official responsible for enforcement of debts owed to the State, while the signature block conveys who the Attorney General has engaged to collect the debt. Nor did special counsel, in sending letters on the Attorney General’s letterhead, use a name other than their “true name,” in violation of §1692e(14). Although the FDCPA does not say “what a ‘true name’ is, its import is straightforward: A debt collector may not lie about his institutional affiliation.” 785 F. 3d, at 1115 (Sutton, J., dissenting). Special counsel do not employ a false name when using the Attorney General’s letterhead at his instruction, for special counsel, as the Attorney General’s agents, act for him in debt-related matters. Far from misrepresenting special counsel’s identity, letters sent by special counsel accurately identify the office primarily responsible for collection of the debt (the Attorney General), special counsel’s affiliation with that office, and the address (special counsel’s law firm) to which payment should be sent.[6] We further note a federalism concern. “Ohio’s enforcement of its civil code—by collecting money owed to it—[is] a core sovereign function.” Gillie v. Law Office of Eric A. Jones, LLC, No. 14–3836 (CA6, July 14, 2015), App. to Pet. for Cert. 10a (Sutton, J., dissenting from denial of rehearing en banc). Ohio’s Attorney General has chosen toappoint special counsel to assist him in fulfilling his obliga-tion to collect the State’s debts, and he has instructed his appointees to use his letterhead when acting on his behalf. There is no cause, in this case, to construe federal law in a manner that interferes with “States’ arrangements for conducting their own governments.” Nixon v. Missouri Municipal League, 541 U. S. 125, 140 (2004) (citing Greg-ory v. Ashcroft, 501 U. S. 452, 460 (1991) ). The Sixth Circuit’s contrary exposition is unconvincing. Use of the Attorney General’s letterhead, the Court of Appeals emphasized, has led to confusion among debtors, as the Attorney General has received phone calls inquiring whether letters sent by special counsel are authentic. 785 F. 3d, at 1107. But the Sixth Circuit overlooked that the Attorney General’s prompt and invariable answer to those inquiries was “yes.” To the extent that consumers may be concerned that the letters are a “scam,” the solution is for special counsel to say more, not less, about their role as agents of the Attorney General. Special counsel’s use of the Attorney General’s letterhead, furthermore, encourages consumers to use official channels to ensure the legitimacy of the letters, assuaging the very concern the Sixth Circuit identified. In addition to the specter of consumer confusion, the Sixth Circuit stressed the risk of intimidation—that the Attorney General’s letterhead would “place pressure on those individuals receiving the letters” to pay their state debts. Id., at 1105. There are two bases for this concern, neither of which is persuasive. First, invocation of the Attorney General’s imprimatur could lead debtors to prioritize their debt to the State over other, private debts out of a belief that the consequences of failing to pay a state debt would be more severe. This impression is not false; the State does have enforcement powers beyond those afforded private creditors. A debtor’s tax refund, for example, “may be applied in satisfaction” of her debt, regardless of whether the State has obtained a judgment, Ohio Rev. Code Ann. §5747.12 (Lexis 2013), and a debt owed to the State takes priority over most private debts in state probate proceedings, §2117.25(A) (Lexis Supp. 2015). “The special consequences of state debts explain why the Act bars debt collectors unaffiliated with a State from using the State’s name to scare debtors into paying. When the State itself is doing the demanding, however, nothing about the resulting fear misleads.” 785 F. 3d, at 1116 (Sutton, J., dissenting). In other words, §1692e bars debt collectors from deceiving or misleading consumers; it does not protect consumers from fearing the actual consequences of their debts. Second, debtors might worry that the letters imply that the Attorney General, as the State’s top law enforcement official, intends to take punitive action against them. “But neither of the milquetoast letters [received by respondents] . . . threatens criminal prosecution, civil penalties, or any action whatsoever.” Id., at 1116–1117. Use of the Attorney General’s letterhead merely clarifies that the debt is owed to the State, and the Attorney General is the State’s debt collector. The FDCPA is not sensibly read to require special counsel to obscure that reality.[7] * * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 As noted above, Mark Sheriff, not Sarah Sheriff, was appointed special counsel. 2 Ohio Rev. Code Ann. §109.08 (Lexis 2014) requires the Attorney General to provide special counsel with his “official letterhead stationery” for the collection of tax debts. The Attorney General has interpreted this provision as mandating the use of his letterhead for tax claims, but permitting its use for the collection of other debts. Whether this is a correct interpretation of Ohio law is not before us. 3 We granted the petition for certiorari filed by Mark Sheriff, Sarah Sheriff, the Wiles firm, and the Ohio Attorney General. Jones and the Law Offices of Eric A. Jones, LLC, filed a separate petition for certio-rari as well as a separate brief in this case in support of petitioners. We refer to defendants collectively as “petitioners.” 4 Although respondents argued below that Sarah Sheriff’s inaccurate use of the “special counsel” designation also violates the FDCPA, they have not pursued that argument before this Court. In any case, the letter merely conveyed the debtor’s remaining balance, without any suggestion of followup action. Sarah Sheriff’s misstatement of her title thus qualifies as an immaterial, harmless mistake. 5 We address here only “special counsel.” The considerationsrelevant to that category may not carry over to other debt-collector relationships. 6 Because we conclude that the letters sent by petitioners were truthful, we need not consider the parties’ arguments as to whether a false or misleading statement must be material to violate the FDCPA, or whether a potentially false or misleading statement should be viewed from the perspective of “the least sophisticated consumer,” Brief for Respondent Gillie et al. 57, or “[t]he average consumer who has defaulted on a debt,” Brief for Petitioners 41. 7 Having determined that use of the Attorney General’s letterhead inaccurately suggested that the letters were from the Attorney General’s Office, the Sixth Circuit remanded to the District Court for trial on whether this practice was “materially false, deceptive and misleading.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F. 3d 1091, 1109–1110 (2015). But all of the relevant facts are undisputed, and the application of the FDCPA to those facts is a question of law. The District Court therefore properly granted summary judgment for defendants.

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 SHERIFF et al. v. GILLIE et al. certiorari to the united states court of appeals for the sixth circuit No. 15–338. Argued March 29, 2016—Decided May 16, 2016 The Fair Debt Collection Practices Act (FDCPA or Act) aims to eliminate “abusive debt collection practices,” 15 U. S. C. §1692(a)–(d), by, as relevant here, barring “false, deceptive, or misleading representation[s] . . . in connection with the collection of any debt,” §1692e. Governing “debt collectors,” the Act excludes from the definition of that term “any officer . . . of . . . any State to the extent that collecting . . . any debt is in the performance of his official duties.” §1692a(6)(C). Under Ohio law, overdue debts owed to state-owned agencies and instrumentalities are certified to the State’s Attorney General for collection or disposition. Carrying out this responsibility, the Attorney General appoints, as independent contractors, private attorneys, naming them “special counsel” to act on the Attorney General’s behalf. The Attorney General requires special counsel to use the Attorney General’s letterhead in communicating with debtors. Among the special counsel appointed by the Attorney General in 2012 were petitioners Mark Sheriff and Eric Jones. Consistent with the Attorney General’s direction, Sheriff’s law firm and Jones sent debt collection letters on the Attorney General’s letterhead to respondents Hazel Meadows and Pamela Gillie, respectively. The signature block of each letter contained the name and address of the signatory as well as the designation “special” or “outside” counsel to the State Attorney General. Each letter also identified the sender as a debt collector seeking payment for debts to a state institution. Meadows and Gillie filed a putative class action in Federal District Court, alleging that defendants had, by using the Attorney General’s letterhead, employed deceptive and misleading means to attempt to collect consumer debts, in violation of the FDCPA. The Ohio Attorney General intervened, seeking a declaratory judgment that special counsel’s use of the Attorney General’s letterhead is neither false nor misleading, and urging that special counsel be deemed officers of the State exempted from the Act. The District Court granted summary judgment for defendants, holding that special counsel are “officers” of the State and, in any event, their use of the Attorney General’s letterhead is not false or misleading. The Sixth Circuit vacated that judgment, concluding that special counsel, as independent contractors, are not entitled to the FDCPA’s state-officer exemption. The appeals court remanded for trial the question whether use of the Attorney General’s letterhead would mislead a debtor into believing that it is the Attorney General who is collecting the debt. Held: Assuming, arguendo, that special counsel do not rank as “state officers” within the meaning of the Act, petitioners’ use of the Attorney General’s letterhead, nevertheless, does not offend §1692e. Special counsel’s use of the Attorney General’s letterhead at the Attorney General’s direction does not offend §1692e’s general prohibition against “false . . . or misleading representation[s].” The letterhead identifies the principal—Ohio’s Attorney General—and the signature block names the agent—a private lawyer hired as outside counsel to the Attorney General. The character of the relationship between special counsel and the Attorney General bolsters the Court’s determination. Special counsel work closely with attorneys in the Attorney General’s Office, providing legal services on the Attorney General’s behalf in furtherance of the Attorney General’s debt collection responsibilities for the State. A debtor’s impression that a letter from special counsel is a letter from the Attorney General’s Office is thus scarcely inaccurate. Special counsel’s use of the Attorney General’s letterhead is also consistent with §1692e(9)’s specific prohibition against “falsely represent[ing]” that a communication is “authorized, issued, or approved” by a State. Because the Attorney General authorized—indeed required—special counsel to use his letterhead, special counsel create no false impression in doing just that. Nor did special counsel use an untrue name in their letters, in violation of §1692e(14). Special counsel do not employ a false name when they use the Attorney General’s letterhead at his instruction, for special counsel act as the Attorney General’s agents in debt-related matters. The Court sees no reason, furthermore, to construe the FDCPA in a manner that would interfere with the Attorney General’s chosen method of fulfilling his statutory obligation to collect the State’s debts. The Sixth Circuit raises the specter of consumer confusion and the risk of intimidation from special counsel’s use of the Attorney General’s letterhead, but its exposition is unconvincing. . 785 F. 3d 1091, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.

The Fair Debt Collection Practices Act (FDCPA or Act) aims to eliminate abusive third-party collection practices by debt collectors, and to insure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and promote consistent State action to protect consumers against debt collection abuses. The Act also prohibits debt collectors from employing false, deceptive, or misleading practices. Petitioner Ohio Attorney General intervened as a defendant and counterclaimant, seeking a declaratory judgment that special counsel use of the Attorney General letterhead, as authorized by Ohio law, is neither false nor misleading, and that, in any event, special counsel should be deemed officers of the State and therefore outside the FDCPA compass. The District Court granted summary judgment for petitioners. The Court of Appeals vacated the judgment and remanded the case for trial on this issue. Held: Petitioners complied with the Act. . (a) Although special counsel does not rank as a state officer within the meaning of the Act, his use of that letterhead accurately conveys that he acts on behalf of the Governor. P.. (b) The fact that the letterhead identifies the principal (Ohio State Attorney General) and the agent (a private lawyer hired as outside counsel to the attorney General) rather than his private firm accurately identifies the office primarily responsible for collection of the debt (the Attorney General), special counsel’s affiliation with that office, and the address (special counsels law firm) to which payment should be sent, and does not offend the Act's general prohibition against false or misleading representation. In addition, invocation of the imprimatur could lead debtors to prioritize their debt to the State over other, private debts out of a belief that the consequences of failing to pay a state debt would be more severe. This impression is not false; the State does have enforcement powers beyond those afforded private creditors. On the other hand, the Act is not sensibly read to require special counsel to obscure the reality of the consequences resulting from using a letter from special counsel. To the extent that consumers may be concerned that the letters are a "scam,� the solution is for them to say more, not less, about their role as debt collectors. And the risk of intimidation from consumers is not present here, since the Act bars consumers from demanding enforcement of their debt or from fearing that the State intends to take punitive action against enforcement of the law. Neither of the milquetoast letters (received by petitioners) threatens criminal prosecution, civil penalties, or any action whatsoever. (c) In any case, the letter merely conveyed the debtor's remaining balance, without any suggestion of followup action, and thus qualifies as an immaterial, harmless mistake. Moreover, the character of the relationship between special counsel and the State, as well as its relationship with attorneys within its Attorney General's Office, makes it unlikely that a debtor would be misled into believing that the attorney general has authorized the State to collect a debt over other private debts, or that the threat of punitive action should be taken against the official official responsible for enforcement of such debts. See, e.g., Ohio Rev. Code Ann. §109.08 (Lexis 2014). Pp. 785 F. 3d 1091. (d) Because the letters were truthful, it need not be considered the parties' arguments as to whether a false and misleading statement must be material to violate the Federal Deposit Insurance Program (FDP) or whether a potentially false or misled statement should be viewed from the perspective of the least sophisticated consumer, or the average consumer who has defaulted on a debt. Having determined that the use of the Attorney Attorney General letterhead inaccurately suggested that petitioners were from the Attorney General Office, the Sixth Circuit remanded to the District Court on whether this practice was aterially false- deceptive and misleading. But all of the relevant facts are undisputed, and application of the FDCPPA to those facts is a question of law, and therefore the court therefore properly granted summary judgments for the defendants. However, the court below vacated a judgment for the state, holding that, because they are state contractors, they are not entitled to the exemption for deceptive or misleading state-apportionment practices, the exemption is not an exemption for state contractors. Because they are independent contractors, and because they do not appear to be state officers, the case is remanded for further proceedings consistent with the opinion of this Court. Cf. Gillie v. Law Office of Eric A. Jones, LLC,. P. 489 U.S. 598. 752 F.2d 1097 (CA6, 2014) (CA 6, certiorari) and 785 U. S. ___ (CADC) affirmed. After determining that the practice of using the Attorney General to collect consumer debts was fraud, the

2015_15-109

https://www.oyez.org/cases/2015/15-109

. The Federal Tort Claims Act (FTCA) allows plaintiffs to seek damages from the United States for certain torts committed by federal employees. 28 U. S. C. §§1346(b), 2674. Many of the FTCA’s procedural provisions are contained in a single chapter of the United States Code, Chapter 171. See §§2671–2680. But an “Exceptions” section of the FTCA dictates that “the provisions of [Chapter 171] . . . shall not apply” to certain categories of claims. At issue in this case is whether one of the “provisions of [Chapter 171]”—the so-called judgment bar provision, §2676—might nonetheless apply to one of the excepted claims. We conclude it does not. I A This case began with two suits filed by Walter Himmelreich. In each, Himmelreich alleged that he had been severely beaten by a fellow inmate in federal prison and that the beating was the result of prison officials’ negligence. At the time of the beating, Himmelreich was incarcerated for producing child pornography. His assailant had warned prison officials that he would “ ‘smash’ ” a pedophile if given the opportunity but was nonetheless released into the general prison population, where he assaulted Himmelreich. App. 46. Himmelreich filed a first suit against the United States. The Government treated this first suit as a claim under the FTCA and moved to dismiss the action, arguing that the claim fell into one of the “Exceptions” to the FTCA for “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function,” namely, deciding where to house inmates. §2680(a). The District Court granted the Government’s motion to dismiss. (Neither party here challenges the outcome of that first suit.) But before the District Court dismissed that first suit, Himmelreich filed a second suit, this one a constitutional tort suit against individual Bureau of Prison employees rather than against the United States. Ordinarily, the FTCA would have nothing to say about such claims. But after the dismissal of Himmelreich’s first suit, the individual employee defendants argued that Himmelreich’s second suit was foreclosed by the FTCA’s judgment bar provision, according to which a judgment in an FTCA suit forecloses any future suit against individual employees. See §2676. As relevant here, the District Court agreed and granted summary judgment in favor of the individual prison employees. Himmelreich appealed that ruling. The Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. Himmelreich v. Federal Bureau of Prisons et al., 766 F. 3d 576 (2014) (per curiam). We granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “Exceptio[n]” to the FTCA.[1] 577 U. S. ___ (2015). B The FTCA’s provisions are contained in two areas of the United States Code. One, 28 U. S. C. §1346(b), gives federal district courts exclusive jurisdiction over tort claims against the United States for the acts of its employees “[s]ubject to the provisions of chapter 171” of Title 28.[2] Chapter 171, in turn, is labeled “Tort Claims Procedure” and comprises the remaining provisions of the FTCA. §§2671–2680. Chapter 171 contains an array of provisions. Some provisions govern how FTCA claims are to be adjudicated. See, e.g., §2674 (specifying scope of United States’ liability); §2675(a) (exhaustion requirement); §2678 (restricting attorney’s fees). Other provisions limit plaintiffs’ remedies outside the FTCA. See, e.g., §2679(a) (cannot sue agency for claims within scope of FTCA); §2679(d)(1) (suit against federal employee acting within scope of employment automatically converted to FTCA action). The District Court in this case relied on one suchremedies-limiting provision of Chapter 171, the judgment bar provision.[3] See §2676. Under the judgment bar provision, once a plaintiff receives a judgment (favorable or not) in an FTCA suit, he generally cannot proceed with a suit against an individual employee based on the same underlying facts. The District Court below held that Himmelreich had received a judgment in the first suit (the FTCA suit against the United States) and so could not proceed with the second suit (the individual employee suit based on the same underlying facts). The FTCA explicitly excepts from its coverage certain categories of claims, including the one into which Himmelreich’s first suit fell: “Exceptions “The provisions of this chapter and section 1346(b) of this title shall not apply to— “(a) Any claim based upon . . . the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused. . . .” §2680. “The provisions of this chapter” referenced in the first line are the provisions of Chapter 171. “[S]ection 1346(b) of this title” is the provision giving district courts FTCA jurisdiction. And the “Exceptions” to which those portions of the FTCA “shall not apply” are 13 categories of claims, such as any claim that—like Himmelreich’s first suit—arises from the performance of a “discretionary function,” §2680(a); “[a]ny claim arising in a foreign country,” §2680(k); and “[a]ny claim arising from the activities of the Tennessee Valley Authority,” §2680(l). Both parties agree that district courts do not have jurisdiction over claims that fall into one of the 13 categories of “Exceptions” because “section 1346(b) of this title”—the provision conferring jurisdiction on district courts—does “not apply” to such claims. Both parties also agree that at least one of “[t]he provisions of [Chapter 171]”—the provision delimiting the United States’ liability, §2674—need “not apply” to claims in the “Exceptions” categories because no court will have jurisdiction to hold the United States liable on such claims in any event. The parties disagree, however, about whether the judgment bar provision of Chapter 171 “shall not apply” to claims in one of the “Exceptions” categories. The Government maintains that the judgment bar provision does apply to such claims. In that case, it applied to Himmelreich’s first suit and would preclude any future actions, including his second suit. Himmelreich urges that it does not apply. On that reading, there is no reason he cannot proceed with his second suit. II Himmelreich is correct. The “Exceptions” section of the FTCA reads: “[T]he provisions of this chapter”—Chapter 171—“shall not apply to . . . [a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function or duty.” §2680(a). The judgment bar is a provision of Chapter 171; the plain text of the “Exceptions” section therefore dictates that it does “not apply” to cases that, like Himmelreich’s first suit, are based on the performance of a discretionary function. Because the judgment bar provision does not apply to Himmelreich’s first suit, Himmelreich’s second suit—the one against individual prison employees—should be permitted to go forward. Absent persuasive indications to the contrary, we presume Congress says what it means and means what it says. Nothing about the “Exceptions” section or the judgment bar provision gives us any reason to doubt the plain-text result in this case. III A Given the clarity of the “Exceptions” section’s command, a reader might be forgiven for wondering how there could be any confusion about the statute’s operation. The main source of uncertainty on this score, the Government submits, is United States v. Smith, 499 U. S. 160 (1991) . In Smith, we considered another provision of Chapter 171, the exclusive remedies provision. Id., at 162. Under the exclusive remedies provision, a plaintiff generally cannot sue an employee where the FTCA would allow him to sue the United States instead. See §2679(b)(1).[4] The Smith Court held that this exclusive remedies provision applied to a claim for injuries sustained at an Army hospital in Italy, even though that claim fell within the category of “[a]ny claim arising in a foreign country,” one of the “Exceptions” to which “the provisions of [Chapter 171] . . . shall not apply.” §2680(k). The Government argues that our literal reading of the “Exceptions” provision would foreclose Smith’s outcome because the Smith Court applied a provision of Chapter 171 (the exclusive remedies provision) to a claim falling within one of the “Exceptions” categories (a claim arising in a foreign country). Smith, the Government argues, thus establishes that we cannot read the command of the “Exceptions” section literally and that the judgment bar provision therefore should apply to Himmelreich’s discretionary function claim. The Government’s position has some force. Nonetheless, Smith does not control this case. First, Smith does not even cite, let alone discuss, the “shall not apply” language “Exceptions” provision. Second, the exclusive remedies provision at issue in Smith was enacted as part of the Federal Employee Liability Reform and Tort Compensation Act of 1988, which contained a mechanism to reduce the number of tort suits against Government employees. As the Smith Court explained, if “the Attorney General . . . certif[ies] that a Government employee named as defendant was acting within the scope of his employment when he committed the alleged tort,” the Liability Reform Act dictates that the United States be substituted as the sole defendant, and that the action “ ‘shall proceed in the same manner’ ” as an FTCA action “ ‘and shall be subject to the limitations and exceptions applicable to those actions.’ ” 499 U. S., at 166 (quoting §2679(d)(4)); (emphasis in Smith). The Smith Court held that the Liability Reform Act’s reference to “limitations and exceptions” was most naturally read to refer to the “Exceptions” section of the FTCA. And by taking note of the “Exceptions” section, the Smith court reasoned, the Liability Reform Act was intended to apply to those “Exceptions.” In light of the unique language of the Liability Reform Act, Smith is distinguishable from this case. Nothing in the text of the judgment bar provision compels the same result. B The Government’s remaining counterargument amounts to a parade of horribles that it believes will come to pass if every provision of Chapter 171 “shall not apply” to the “Exceptions” categories of claims. See Brief for Petitioners 52. If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case. See Smith, 499 U. S., at 175. But this case deals only with the judgment bar provision, and, aside from a passing concern about duplicative litigation, the Government does not argue that any such cavalcade would follow if that provision does not apply to the excepted claims. It is enough for our purposes that the statute’s clear directive would not lead to hard-to-explain results when applied to the judgment bar provision in particular. To the contrary, our holding that the judgment bar provision “shall not apply” to the categories of claims in the “Exceptions” section in fact allows the statute to operate in an utterly sensible manner. Ordinarily, the judgment bar provision prevents unnecessarily duplicative litigation. If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple by allowing suit against the employees: Himmelreich’s first suit would have given him a fair chance to recover dam-ages for his beating. Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.[5] To apply the judgment bar so as to foreclose a future suit against an employee thus would be passing strange. The Government’s reading would yield another strange result. According to the Government, the viability of a plaintiff’s meritorious suit against an individual employee should turn on the order in which the suits are filed (or the order in which the district court chooses to address motions). For example, had the District Court in this case addressed the individual employee suit first, there would be no FTCA judgment in the picture, and so the judgment bar provision would not affect the outcome of the suit. The Government’s reading would thus encourage litigants to file suit against individual employees before suing the United States to avoid being foreclosed from recovery altogether. Yet this result is at odds with one of the FTCA’s purposes, channeling liability away from individual employees and toward the United States. See Dalehite v. United States, 346 U. S. 15, 25 (1953) . We decline to ignore the text of the statute to achieve these imprudently restrictive results. Accordingly, we read “[t]he provisions of this chapter . . . shall not apply” as it was written. The judgment bar provision—one of the “provisions of this chapter”—does not apply to the categories of claims in the “Exceptions” sections of the FTCA. We therefore affirm 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 Hallock v. Bonner, 387 F. 3d 147 (CA2 2004), vacated on other grounds sub nom. Will v. Hallock, 546 U. S. 345 (2006) ; Pesnell v. Arsenault, 543 F. 3d 1038 (CA9 2008); Williams v. Fleming, 597 F. 3d 820, 823–824 (CA7 2010). 2 The precise claims at issue are “claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circum-stances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. §1346(b). 3 It reads in full: “The judgment in an action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim.” §2676. 4 There is an exception to this provision for suits alleging constitutional violations. See §2679(b)(2)(A). Himmelreich’s second suit—the one against individual prison employees—alleged a violation of the Constitution and so was not foreclosed by the exclusive remedies provision. 5 This conclusion is buttressed by analogy to the common-law doctrine of claim preclusion, which prevents duplicative litigation by barring one party from again suing the other over the same underlying facts. This Court has said that the judgment bar provision “functions in much the same way” as that doctrine. Will, 546 U. S., at 354. (The judgment bar provision supplements common-law claim preclusion by closing a narrow gap: At the time that the FTCA was passed, common-law claim preclusion would have barred a plaintiff from suing the United States after having sued an employee but not vice versa. See Restatement of Judgments §§99, 96(1)(a), Comments b and d (1942). The judgment bar provision applies where a plaintiff first sues the United States and then sues an employee.)

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 SIMMONS et al. v. HIMMELREICH certiorari to the united states court of appeals for the sixth circuit No. 15–109. Argued March 22, 2016—Decided June 6, 2016 This case began with two suits filed by respondent Walter Himmelreich, a federal prisoner. He first filed suit against the United States, alleging that a severe beating he received from a fellow inmate was the result of negligence by prison officials. The Government treated the suit as a claim under the Federal Tort Claims Act (FTCA), which allows plaintiffs to seek damages from the United States for certain torts committed by federal employees, 28 U. S. C. §1346(b), “[s]ubject to the provisions of chapter 171” of Title 28. But an “Exceptions” section of the FTCA dictates that “the provisions of [Chapter 171] and section 1346(b) of this title . . . shall not apply” to certain categories of claims. The Government moved to dismiss the action on the ground that the claim fell into the exception for “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function,” namely, deciding where to house inmates, §2680(a). While the motion was pending, Himmelreich filed a second suit: a constitutional tort suit against individual Bureau of Prison employees, again alleging that his beating was the result of prison officials’ negligence. Ordinarily, the FTCA would have no bearing on that claim. But after the dismissal of Himmelreich’s first suit, the individual employee defendants argued that Himmelreich’s second suit was foreclosed by the FTCA’s judgment bar provision, according to which a judgment in an FTCA suit forecloses any future suit against individual employees. Agreeing, the District Court granted summary judgment in favor of the individual prison employees. The Sixth Circuit reversed, however, holding that the judgment bar provision did not apply to Himmelreich’s suit. Held: The judgment bar provision does not apply to the claims dismissed for falling within the “Exceptions” section of the FTCA. . (a) The FTCA explicitly excepts from its coverage certain categories of claims, including the one into which Himmelreich’s first suit fell. If, as the Government maintains, Chapter 171’s judgment bar provision applies to claims in that “Exceptions” category, it applied to Himmelreich’s first suit and would preclude any future actions, including his second suit. On Himmelreich’s reading, however, the provision does not apply and he may proceed with his second suit. . (b) Himmelreich is correct. The FTCA’s “Exceptions” section reads: “[T]he provisions of this chapter”—Chapter 171—“shall not apply to . . . [a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function or duty.” §2680(a). The judgment bar is a provision of Chapter 171. The “Exceptions” section’s plain text thus dictates that the judgment bar does “not apply” to cases that, like Himmelreich’s first suit, are based on the performance of a discretionary function. Because the judgment bar provision does not apply to Himmelreich’s first suit, his second suit—against individual prison employees—should be permitted to go forward. Nothing about the “Exceptions” section or the judgment bar provision gives this Court any reason to disregard the plain text of the statute. P. 5. (c) United States v. Smith, 499 U. S. 160 , does not require a different result. There, the Court found that the exclusive remedies provision of Chapter 171—which prevents a plaintiff from suing an employee where the FTCA would allow him to sue the United States instead, see §2679(b)(1)—applied to a claim for injuries sustained at a hospital in Italy, even though that claim fell within the category of “[a]ny claim arising in a foreign country,” one of the “Exceptions” to which “the provisions of [Chapter 171] . . . shall not apply,” §2680(k). Smith’s outcome, the Government argues, forecloses a literal reading of the “Exceptions” provision, but Smith does not control here. First, Smith does not even mention the “Exceptions” section’s “shall not apply” language. Second, the exclusive remedies provision at issue there was enacted as part of the Federal Employee Liability Reform and Tort Compensation Act of 1988, which also contained a mechanism to convert tort suits against Government employees into FTCA suits “subject to the limitations and exceptions applicable to those actions.” 499 U. S., at 166 (quoting §2679(d)(4); emphasis in Smith). By taking note of those “limitations and exceptions,” the Smith Court reasoned, the Liability Reform Act was intended to apply to the “Exceptions” categories of claims. Nothing in the text of the judgment bar provision compels the same result here. . (d) The Government’s remaining counterargument is a parade of horribles that it believes will come to pass if every provision of Chapter 171 “shall not apply” to the “Exceptions” categories of claims, but it raises few concerns about the judgment bar provision itself. If the Government is right about Chapter 171’s other provisions, the Court may hold so in the appropriate case, see Smith, 499 U. S., at 175, but the reading adopted here yields utterly sensible results. Had the District Court in this case issued a judgment dismissing Himmelreich’s first suit because, e.g., the prison employees were not negligent, it would make sense that the judgment bar provision would prevent a second suit against the employees. But where an FTCA claim is dismissed because it falls within one of the “Exceptions,” the dismissal signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be liable instead. . 766 F. 3d 576, affirmed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

The Federal Tort Claims Act (FTCA) allows plaintiffs to seek damages from the United States for certain torts committed by federal employees. Chapter 171 of the FTCA contains an array of provisions, some of which govern how FTCA claims are to be adjudicated, and other provisions limiting plaintiffs to claims within the scope of their employment. But an exception to Chapter 171 dictates that "the provisions of [Chapter 171]... shall not apply" to certain categories of claims. Petitioner Himmelreich filed suits in Federal District Court against the Government and the individual Bureau of Prison employees, alleging that he had been severely beaten by a fellow inmate in federal prison and that the beating was the result of prison officials' negligence. The District Court granted the Government's motion to dismiss the action on the ground that the claim fell into one of the applicable Exceptions to FTCA, 28 U. S. C. §1346(b), which provides that a judgment in an FTCA suit forecloses any future suit against individual employees, and granted summary judgment in favor of the individual prison employees. The Court of Appeals reversed, holding that the judgment bar provision did not apply to the suit. Held: One of the excepted claims in Chapter 171 is that of a federal employee. United States v. Smith,, distinguished. . (a) The judgment bar is a provision of Chapter 171, which reads in full that it shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim. Section2680(a). The plain text of the Chapter 171 plain text dictates that it does not apply. P.. (b) There is no reason to doubt the plain-text result in this case, since nothing in the text of chapter 171 compels the same result. Smith does not even cite, let alone discuss, the exclusive remedies provision at issue, and since the exclusive remedy provision was enacted as part of the Federal Employee Liability Reform and Tort Compensation Act of 1988, which contained a mechanism to reduce the number of tort suits against Government employees, which included the filing of actions against the Federal Government. It is enough for this Court purposes that the statute's clear directive would not lead to hard-to-explain results when applied to the provision in particular. To the contrary, the holding that §2679(b)(2)(A) applies to the category of claims in the "Exceptions" section allows the statute to operate in an utterly sensible manner, and avoids unnecessarily duplicative litigation by barring one party from again suing the other over the same underlying facts. Here, where the dismissal of a FTCA claim is dismissed because it falls within one of the Exceptions, it signals merely that the Government cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead. Moreover, to apply a judgment bar so as to foreclose a future suit would be passing on the viability of an individual plaintiff, and would encourage litigants to file meritorious suits in the District Court, thus channeling the Government away from individual liability and toward the Government.. 766 F. 3d 576 (CA6), affirmed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p..

2015_13-1339

https://www.oyez.org/cases/2015/13-1339

. This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84Stat. 1127, as amended, 15 U. S. C. §1681 et seq. Spokeo operates a “people search engine.” If an individual visits Spokeo’s Web site and inputs a person’s name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals. The District Court dismissed Robins’ complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that “Spokeo violated his statutory rights, not just the statu-tory rights of other people,” and, second, that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” 742 F. 3d 409, 413 (2014). Based on these two observations, the Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution. Id., at 413–414. This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 –181 (2000) (emphasis added). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement. I The FCRA seeks to ensure “fair and accurate credit reporting.” §1681(a)(1). To achieve this end, the Act regulates the creation and the use of “consumer report[s]”[1] by “consumer reporting agenc[ies]”[2] for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§1681a(d)(1)(A)–(C); §1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.” §1681a(d)(1). The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports, §1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, §1681e(d); to limit the circumstances in which such agencies provide consumer reports “for employment purposes,” §1681b(b)(1); and to post toll-free numbers for consumers to request reports, §1681j(a). The Act also provides that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual[3]] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. §1681n(a). Spokeo is alleged to qualify as a “consumer reporting agency” under the FCRA.[4] It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. App. 7, 10–11. According to Robins, Spokeo markets its services to a variety of users, including not only “employers who want to evaluate prospective employees,” but also “those who want to investigate prospective romantic partners or seek other personal information.” Brief for Respondent 7. Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free. At some point in time, someone (Robins’ complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins’ complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree. App. 14. According to Robins’ complaint, all of this information is incorrect. Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above. The District Court initially denied Spokeo’s motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice. App. to Pet. for Cert. 23a. The court found that Robins had not “properly pled” an injury in fact, as required by Article III. Ibid. The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent,[5] the court began by stating that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” 742 F. 3d, at 412. The court recognized that “the Constitution limits the power of Congress to confer standing.” Id., at 413. But the court held that those limits were honored in this case because Robins alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and because his “personal interests in the handling of his credit information are individualized rather than collective.” Ibid. (emphasis in original). The court thus concluded that Robins’ “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.” Id., at 413–414. We granted certiorari. 575 U. S. ___ (2015). II A The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated “legislative Powers,” Art. I, §1; it confers upon the President “[t]he executive Power,” Art. II, §1, cl. 1; and it endows the federal courts with “[t]he judicial Power of the United States,” Art. III, §1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) ; Lujan v. Defenders of Wildlife, 504 U. S. 555 –560 (1992). Although the Constitution does not fully explain what is meant by “[t]he judicial Power of the United States,” Art. III, § 1, it does specify that this power extends only to “Cases” and “Controversies,” Art. III, §2. And “ ‘[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U. S. 811, 818 (1997) . Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. See id., at 820. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473 (1982) ; Warth v. Seldin, 422 U. S. 490 –499 (1975). In this way, “[t]he law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 9); Lujan, supra, at 576–577, and confines the federal courts to a properly judicial role, see Warth, supra, at 498. Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. Lujan, 504 U. S., at 560. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id., at 560–561; Friends of the Earth, Inc., 528 U. S., at 180–181. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990) . Where, as here, a case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each element. Warth, supra, at 518.[6] B This case primarily concerns injury in fact, the “[f ]irst and foremost” of standing’s three elements. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998) . Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Raines, supra, at 820, n. 3; see Summers v. Earth Island Institute, 555 U. S. 488, 497 (2009) ; Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979) (“In no event . . . may Congress abrogate the Art. III minima”). To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U. S., at 560 (internal quotation marks omitted). We discuss the particularization and concreteness requirements below. 1 For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Ibid., n. 1; see also, e.g., Cuno, supra, at 342 (“ ‘plaintiff must allege personal injury’ ”); Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) (“ ‘distinct’ ”); Allen v. Wright, 468 U. S. 737, 751 (1984) (“personal”); Valley Forge, supra, at 472 (standing requires that the plaintiff “ ‘personally has suffered some actual or threatened injury’ ”); United States v. Richardson, 418 U. S. 166, 177 (1974) (not “undifferenti-ated”); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F. 3d 1279, 1292–1293 (CADC 2007) (collecting cases).[7] Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.” Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins’ complaint alleges “concrete, de facto” injuries for essentially two reasons. 742 F. 3d, at 413. First, the court noted that Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.” Ibid. Second, the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Ibid. (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___ (2014) (slip op., at 8); Summers, supra, at 493; Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 274 (2008) ; Massachusetts v. EPA, 549 U. S. 497, 517 (2007) . A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term—“real,” and not “abstract.” Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization. 2 “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City v. Summum, 555 U. S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (free exercise). In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 –777 (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” 504 U. S., at 578. Similarly, Justice Kennedy’s concurrence in that case explained that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id., at 580 (opinion concurring in part and concurring in judgment). Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, 555 U. S., at 496 (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing”); see also Lujan, supra, at 572. This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. ____. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§569 (libel), 570 (slander per se) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. See Federal Election Comm’n v. Akins, 524 U. S. 11 –25 (1998) (confirming that a group of voters’ “inability to obtain information” that Congress had decided to make public is a sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice, 491 U. S. 440, 449 (1989) (holding that two advocacy organizations’ failure to obtain information subject to disclosure under the Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue”). In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.[8] Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit’s ultimate conclusion—that Robins adequately alleged an injury in fact—was correct. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered.Notes 1 The Act defines the term “consumer report” as: 2 “The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” §1681a(f ). 3 This statutory provision uses the term “consumer,” but that term is defined to mean “an individual.” §1681a(c). 4 For purposes of this opinion, we assume that Spokeo is a consumer reporting agency. 5 See Edwards v. First American Corp., 610 F. 3d 514 (CA9 2010), cert. granted sub nom. First American Financial Corp. v. Edwards, 564 U. S. 1018 (2011) , cert. dism’d as improvidently granted, 567 U. S. ___ (2012) ( per curiam). 6 “That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.’ ” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976) (quoting Warth, 422 U. S., at 502). 7 The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance. The victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm. 8 We express no view about any other types of false information that may merit similar treatment. We leave that issue for the Ninth Circuit to consider on remand.

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 SPOKEO, INC. v. ROBINS certiorari to the united states court of appeals for the ninth circuit No. 13–1339. Argued November 2, 2015—Decided May 16, 2016 The Fair Credit Reporting Act of 1970 (FCRA) requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports, 15 U. S. C. §1681e(b), and imposes liability on “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any” individual, §1681n(a). Petitioner Spokeo, Inc., an alleged consumer reporting agency, operates a “people search engine,” which searches a wide spectrum of databases to gather and provide personal information about individuals to a variety of users, including employers wanting to evaluate prospective employees. After respondent Thomas Robins discovered that his Spokeo-generated profile contained inaccurate information, he filed a federal class-action complaint against Spokeo, alleging that the company willfully failed to comply with the FCRA’s requirements. The District Court dismissed Robins’ complaint, holding that he had not properly pleaded injury in fact as required by Article III. The Ninth Circuit reversed. Based on Robins’ allegation that “Spokeo violated his statutory rights” and the fact that Robins’ “personal interests in the handling of his credit information are individualized,” the court held that Robins had adequately alleged an injury in fact. Held: Because the Ninth Circuit failed to consider both aspects of the injury-in-fact requirement, its Article III standing analysis was incomplete. . (a) A plaintiff invoking federal jurisdiction bears the burden of establishing the “irreducible constitutional minimum” of standing by demonstrating (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U. S. 555 –561. . (b) As relevant here, the injury-in-fact requirement requires a plaintiff to show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, supra, at 560. . (1) The Ninth Circuit’s injury-in-fact analysis elided the independent “concreteness” requirement. Both observations it made concerned only “particularization,” i.e., the requirement that an injury “affect the plaintiff in a personal and individual way,” Lujan, supra, at 560, n. 1, but an injury in fact must be both concrete and particularized, see, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___. Concreteness is quite different from particularization and requires an injury to be “de facto,” that is, to actually exist. . (2) The Ninth Circuit also failed to address whether the alleged procedural violations entail a degree of risk sufficient to meet the concreteness requirement. A “concrete” injury need not be a “tangible” injury. See, e.g., Pleasant Grove City v. Summum, 555 U. S. 460 . To determine whether an intangible harm constitutes injury in fact, both history and the judgment of Congress are instructive. Congress is well positioned to identify intangible harms that meet minimum Article III requirements, but a plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a right and purports to authorize a suit to vindicate it. Article III standing requires a concrete injury even in the context of a statutory violation. This does not mean, however, that the risk of real harm cannot satisfy that requirement. See, e.g., Clapper v. Amnesty Int’l USA, 568 U. S. ____. The violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact; in such a case, a plaintiff need not allege any additional harm beyond the one identified by Congress, see Federal Election Comm’n v. Akins, 524 U. S. 11 –25. This Court takes no position on the correctness of the Ninth Circuit’s ultimate conclusion, but these general principles demonstrate two things: that Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk and that Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. . 742 F. 3d 409, vacated and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.

The Fair Credit Reporting Act of 1970 (Act) requires a plaintiff to show that he or she suffered an invasion of a legally protected interest that is concrete and particularized, and that is likely to be redressed by a favorable judicial decision. To establish injury in fact, a plaintiff must show (1) that he suffered an injury, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) likely to redress by favorable judicial judgment. In order to remain faithful to the tripartite structure of the Act, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. . (a) Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy that limits the category of litigants empowered to maintain a lawsuit in a federal court to seek redress to a wrong. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341; Lujan v. Defenders of Wildlife, 504 U.S. 555 –560. P.. (b) Robins Robins has standing to maintain an action in Federal District Court against petitioner Spokeo under the Act. The District Court dismissed Robins' complaint for lack of standing, but the Court of Appeals reversed, holding that Robins had adequately alleged injury, as required by Article III of the Constitution. Although recognizing that the Constitution limits Congress to confer standing, the court held that the injury-in-fact requirement of Article III was honored in this case because Robins alleged that petitioner violated his statutory rights, not just the statutory rights of other people, and because his personal interests in the handling of his credit information were individualized rather than collective. Held: Robins did not satisfy Article III standing.. 742 F. 3d 409, vacated and remanded. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p..

2015_14-1209

https://www.oyez.org/cases/2015/14-1209

. For almost 40 years, John Sturgeon has hunted moose along the Nation River in Alaska. Because parts of the river are shallow and difficult to navigate, Sturgeon travels by hovercraft, an amphibious vehicle capable of gliding over land and water. To reach his preferred hunting grounds, Sturgeon must pilot his hovercraft over a stretch of the Nation River that flows through the Yukon-Charley Rivers National Preserve, a 1.7 million acre federal preservation area managed by the National Park Service. 16 U. S. C. §410hh(10). Alaska law permits the use of hovercraft. National Park Service regulations do not. See 36 CFR §2.17(e) (2015). After Park Service rangers informed Sturgeon that he was prohibited from using his hovercraft within the boundaries of the preserve, Sturgeon filed suit, seeking declaratory and injunctive relief. He argues that the Nation River is owned by the State, and that the Alaska National Interest Lands Conservation Act (ANILCA) prohibits the Park Service from enforcing its regulations on state-owned land in Alaska. The Park Service disagrees, contending that it has authority to regulate waters flowing through federally managed preservation areas. The District Court and the Court of Appeals ruled in favor of the Park Service. We granted certiorari. I In 1867, Secretary of State William Seward, serving under President Andrew Johnson, negotiated a treaty to purchase Alaska from Russia for $7.2 million. Treaty Concerning the Cession of the Russian Possessions in North America, Mar. 30, 1867, 15Stat. 539. In a single stroke, the United States gained 365 million acres of land—an area more than twice the size of Texas. Despite the bargain price of two cents an acre, however, the purchase was mocked by contemporaries as “Seward’s Folly” and President Johnson’s “Polar Bear Garden.” See C. Naske & H. Slotnick, Alaska: A History 92–94 (2011) (Naske & Slotnick); S. Rep. No. 1163, 85th Cong., 1st Sess., 2 (1957). The monikers didn’t stick. In 1898, the “Three Lucky Swedes”—Jafet Lindeberg, Eric Lindblom, and Jon Brynteson—struck gold in Nome, Alaska. As word of their discovery spread, thousands traveled to Alaska to try their hand at mining. Once the gold rush subsided, settlers turned to other types of mining, fishing, and trapping, fueling an emerging export economy. See Naske & Slotnick 128–129, 155, 249–251; D. Wharton, The Alaska Gold Rush 186–187 (1972). Despite newfound recognition of Alaska’s economic potential, however, it was not until the 1950’s that Congress seriously considered admitting Alaska as a State. By that time, it was clear that Alaska was strategically important both in the Pacific and Arctic, and that the Territory was rich in natural resources, including oil. Moreover, the people of Alaska favored statehood. See Naske & Slotnick 201, 224–235. But there was a problem: Out of the 365 million acres of land in Alaska, 98 percent were owned by the Federal Government. As a result, absent a land grant from the Federal Government to the State, there would be little land available to drive private economic activity and contribute to the state tax base. See S. Rep. No. 1163, at 2, 12 (“The expenses of the State of Alaska will be comparatively high, partially due to the vast land areas within the State; but the State would be able to realize revenues from only 2 percent of this vast area unless some provision were made to modify the present land-ownership conditions”). A solution was struck. The 1958 Alaska Statehood Act permitted Alaska to select 103 million acres of “vacant, unappropriated, and unreserved” federal land—just over a quarter of all land in Alaska—for state ownership. §§6(a)–(b), 72Stat. 340. That land grant included “mineral deposits,” which were “subject to lease by the State as the State legislature may direct.” §6(i), id., at 342. Upon statehood, Alaska also gained “title to and ownership of the lands beneath navigable waters” within the State, in addition to “the natural resources within such lands and waters,” including “the right and power to manage, administer, lease, develop, and use the said lands and natural resources.” §3(a), 67Stat. 30, 43 U. S. C. §1311(a); §6(m), 72Stat. 343. With over 100 million acres of land now available to the new State, Alaska could begin to fulfill its state policy “to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest.” Alaska Const., Art. VIII, §1 (2014). The Statehood Act did not, however, determine the rights of the Alaska Natives, who asserted aboriginal title to much of the same land now claimed by the State. Naske & Slotnick 287–289. To resolve the dispute, Congress in 1971 passed the Alaska Native Claims Settlement Act (ANCSA), which extinguished aboriginal land claims in Alaska. 85Stat. 688, as amended, 43 U. S. C. §1601 et seq. In exchange, Congress provided for a $960 million settlement and permitted corporations organized by groups of Alaska Natives to select 40 million acres of federal land to manage within the State. §§1605, 1610–1615; Naske & Slotnick 296–297. Congress sought to implement the settlement “rapidly, with certainty, in conformity with the real economic and social needs” of Alaska Natives. §1601(b). In addition to settling the claims of the Alaska Natives, ANCSA directed the Secretary of the Interior to select up to 80 million acres of unreserved federal land in Alaska for addition to the National Park, Forest, Wildlife Refuge, and Wild and Scenic Rivers Systems, subject to congressional approval. §1616(d)(2). When Congress failed to approve the Secretary’s selections, however, President Carter unilaterally designated 56 million acres of federal land in Alaska as national monuments. See Presidential Proclamation Nos. 4611–4627, 3 CFR 69–104 (1978 Comp.). President Carter’s actions were unpopular among many Alaskans, who were concerned that the new monuments would be subject to restrictive federal regulations. Protesters demonstrated in Fairbanks, and more than 2,500 Alaskans participated in the “Great Denali-McKinley Trespass.” The goal of the trespass was to break over 25 Park Service rules in a two-day period—including by camping, hunting, snowmobiling, setting campfires, shooting guns, and unleashing dogs. During the event, a “rider on horseback, acting the part of Paul Revere, galloped through the crowd yelling, ‘The Feds are coming! The Feds are coming!’ ” N. Y. Times, Jan. 15, 1979, p. A8; Anchorage Daily News, Jan. 15, 1979, pp. 1–2. Congress once again stepped in to settle the controversy, passing the Alaska National Interest Lands Conservation Act. 94Stat. 2371, 16 U. S. C. §3101 et seq. ANILCA had two stated goals: First, to provide “sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska.” §3101(d). And second, to provide “adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people.” Ibid. ANILCA set aside 104 million acres of land in Alaska for preservation purposes, in the process creating ten new national parks, preserves, and monuments—including the Yukon-Charley Rivers National Preserve—and tripling the number of acres set aside in the United States for federal wilderness preservation. See §410hh; Naske & Slotnick 315–316. At the same time, ANILCA specified that the Park Service could not prohibit on those lands certain activities of particular importance to Alaskans. See, e.g., §3170(a) (Secretary must permit reasonable use of vehicles “for travel to and from villages and homesites”); §3201 (Secretary must permit “the taking of fish and wildlife for sport purposes and subsistence uses” within National Preserves in Alaska, subject to regulation and certain exceptions). President Carter’s earlier land designations were rescinded. See §3209(a). Under ANILCA, federal preservation lands in Alaska were placed into “conservation system units,” which were defined to include “any unit in Alaska of the National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers Systems, National Trails System, National Wilderness Preservation System, or a National Forest Monument.” §3102(4). Congress drew the bound-aries of those units to “follow hydrographic divides or em-brace other topographic or natural features,” however, rather than to map the Federal Government’s landholdings. §3103(b). As a consequence, in addition to federal land, over 18 million acres of state, Native Corporation, and private land ended up inside the boundaries of conservation system units. See Brief for Petitioner 6. This brings us back to Sturgeon and his hovercraft. II A One fall day in 2007, Sturgeon was piloting his hovercraft on the Nation River, which rises in the Ogilvie Mountains in Canada and joins the Yukon River within the boundaries of the Yukon-Charley Rivers National Preserve conservation system unit (Yukon-Charley). Sturgeon was headed to a hunting ground upstream from the preserve, just shy of the Canadian border. To reach that hunting ground, dubbed “moose meadows,” Sturgeon had to travel on a portion of the river that flows through the preserve. About two miles into his trip on the Nation River, Sturgeon stopped on a gravel bar to repair the steering cable of his hovercraft. As he was performing the repairs, Sturgeon was approached by three Park Service rangers. The rangers informed him that hovercraft were prohibited under Park Service regulations, and that he was committing a crime by operating his hovercraft within the boundaries of the Yukon-Charley. Despite Sturgeon’s protests that Park Service regulations did not apply because the river was owned by the State of Alaska, the rangers ordered Sturgeon to remove his hovercraft from the preserve. Sturgeon complied, heading home without a moose. Sturgeon now fears that he will be criminally prosecuted if he returns to hunt along the Nation River in his hovercraft. To avoid prosecution, Sturgeon sued the Park Service and several federal officials in the United States District Court for the District of Alaska. He seeks declaratory and injunctive relief permitting him to operate his hovercraft within the boundaries of the Yukon-Charley. Alaska intervened in support of Sturgeon, and the Park Service opposed the suit. The District Court granted summary judgment to the Park Service. Sturgeon v. Masica, 2013 WL 5888230 (Oct. 30, 2013). The Court of Appeals for the Ninth Circuit affirmed in pertinent part. Sturgeon v. Masica, 768 F. 3d 1066 (2014). We granted certiorari. 576 U. S. ___ (2015). B The Secretary of the Interior has authority to “prescribe regulations” concerning “boating and other activities on or relating to water located within System units, including water subject to the jurisdiction of the United States.” 54 U. S. C. §100751(b) (2012 ed., Supp. II). “System units” are in turn defined as “any area of land and water administered by the Secretary, acting through the Director [of the Park Service], for park, monument, historic, parkway, recreational, or other purposes.” §§100102, 100501. The Park Service’s hovercraft regulation was adopted pursuant to Section 100751(b). The hovercraft ban applies not only within “[t]he boundaries of federally owned lands and waters administered by the National Park Service,” but also to “[w]aters subject to the jurisdiction of theUnited States located within the boundaries of the National Park System, including navigable waters . . . withoutregard to the ownership of submerged lands.” 36 CFR §1.2(a). The hovercraft ban is not limited to Alaska, but instead has effect in federally managed preservation areas across the country. Section 103(c) of ANILCA, in contrast, addresses the scope of the Park Service’s authority over lands within the boundaries of conservation system units in Alaska. The first sentence of Section 103(c) specifies the property included as a portion of those units. It states: “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.” 16 U. S. C. §3103(c). ANILCA defines the word “land” to include “lands, waters, and interests therein,” and the term “public lands” to include “lands the title to which is in the United States after December 2, 1980,” with certain exceptions. §3102. In sum, only “lands, waters, and interests therein” to which the United States has “title” are considered “public” land “included as a portion” of the conservation system units in Alaska. The second sentence of Section 103(c) concerns the Park Service’s authority to regulate “non-public” lands in Alaska, which include state, Native Corporation, and private property. It provides: “No lands which, before, on, or after December 2, 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” §3103(c). The third sentence of Section 103(c) explains how new lands become part of conservation system units: “If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.” Ibid. C The parties dispute whether Section 103(c) of ANILCA created an Alaska-specific exception to the Park Service’s general authority over boating and related activities in federally managed preservation areas. Sturgeon, the Park Service, and the Ninth Circuit each adopt a different reading of Section 103(c), reaching different conclusions about the scope of the Park Service’s powers. Sturgeon, joined by the State, understands Section 103(c) to stand for a simple proposition: The Park Service is prohibited from regulating “non-public” land in Alaska as if that land were owned by the Federal Government. He contends that his reading is consistent with the history of federal land management in Alaska, beginning with the Alaska Statehood Act and culminating in ANILCA. Sturgeon’s argument proceeds in two steps. First, he asserts that the Nation River is not “public land” for purposes of ANILCA and is therefore not part of the Yukon-Charley. As discussed, ANILCA defines “public lands” as lands to which the United States has “title.” 16 U. S. C. §3102. And Section 103(c) provides that “[o]nly those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.” §3103(c). Sturgeon argues that the Nation River is not “public land” because it is owned by the State and not by the Federal Government. To support his argument, Sturgeon relies on the Alaska Statehood Act, which granted ownership of the submerged lands beneath the navigable waters in Alaska, and the resources within those waters, to the State. See §6(m), 72Stat. 343; 43 U. S. C. §1311(a). He also cites this Court’s decision in United States v. California, 436 U. S. 32 (1978) , which stated that “the Submerged Lands Act transferred title to and ownership of the submerged lands and waters” to the States. Id., at 40 (internal quotation marks omitted). Because the State and not the Federal Government owns the Nation River, Sturgeon urges, it is not “public” land under ANILCA and is therefore not part of the Yukon-Charley. Second, Sturgeon asserts that because the Nation River is not part of the Yukon-Charley, the Park Service lacks authority to regulate it. His argument rests on the second sentence of Section 103(c), which states that “[n]o lands which, before, on, or after December 2, 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” 16 U. S. C. §3103(c). Sturgeon argues that the phrase “regulations applicable solely to public lands within such units” refers to those regulations that apply “solely” by virtue of the Park Service’s “authority to manage national parks.” Brief for Petitioner 18, 26–27. The word “solely,” Sturgeon contends, simply ensures that “non-public” lands within the boundaries of those units remain subject to laws generally “applicable to both public and private lands (such as the Clean Air Act and Clean Water Act).” Id., at 19. Because the hovercraft regulation was adopted pursuant to the Park Service’s authority over federally managed preservation areas, and is not a law of general applicability like the Clean Air Act or the Clean Water Act, Sturgeon concludes that Section 103(c) bars enforcement of the regulation. The Park Service, in contrast, reads Section 103(c) more narrowly. In its brief in this Court, the Park Service, while defending the reasoning of the Ninth Circuit, relies primarily on very different arguments. The agency stresses that it has longstanding authority to regulate waters within federally managed preservation areas, and that Section 103(c) does not take any of that authority away. In reaching its conclusion, the Park Service disagrees with Sturgeon at each step. First, the Park Service contends that the Nation River is part of the Yukon-Charley. To support that contention, the agency cites ANILCA’s definition of “public lands,” which—as noted—includes “lands, waters, and interests therein” to which the United States has “title.” 16 U. S. C. §3102. The Park Service argues that the United States has “title” to an “interest” in the water within the boundaries of the Yukon-Charley under the reserved water rights doctrine. The reserved water rights doctrine specifies that “when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.” Cappaert v. United States, 426 U. S. 128, 138 (1976) . By creating the Yukon-Charley, the Park Service urges, the Federal Government reserved the water within the boundaries of the conservation system unit to achieve the Government’s conservation goals. As a result, the Federal Government has “title” to an “interest” in the Nation River, making it “public” land subject to Park Service regulations. Second, the Park Service contends that even if the Nation River is not “public” land, the agency still has authority to regulate it. According to the Park Service, the second sentence of Section 103(c) imposes only a limited restriction on the agency’s power, prohibiting it from enforcing on “non-public” lands only those regulations that explicitly apply “solely to public lands.” The hovercraft regulation applies both within “[t]he boundaries of feder-ally owned lands and waters administered by the National Park Service” and to “[w]aters subject to the jurisdiction of the United States located within the boundaries of the National Park System, including navigable waters . . . without regard to the ownership of submerged lands.” 36 CFR §1.2(a). Accordingly, the Park Service asserts, the hovercraft regulation does not apply “solely to public lands,” and Section 103(c) therefore does not prevent enforcement of the regulation. See Brief for Respondents 56–58. The Ninth Circuit, for its part, adopted a reading of Section 103(c) different from the primary argument advanced by the Park Service in this Court. The Court of Appeals did not reach the question whether the Nation River counts as “public” land for purposes of ANILCA. Instead, it held that the phrase “regulations applicable solely to public lands within such units” distinguishes between Park Service regulations that apply solely to “public” lands in Alaska, and Park Service regulations that apply to federally managed preservation areas across the country. In the Ninth Circuit’s view, the Park Service may enforce nationally applicable regulations on both “public” and “non-public” property within the boundaries of conservation system units in Alaska, because such regulations do not apply “solely to public lands within such units.” The Park Service may not, however, apply Alaska-specific regulations to “non-public” lands within the boundaries of those units. According to the Ninth Circuit, because the hovercraft regulation “applies to all federal-owned lands and waters administered by [the Park Service] nationwide, as well as all navigable waters lying within national parks,” the hovercraft ban does not apply “solely” within conservation system units in Alaska. 768 F. 3d, at 1077. The Ninth Circuit concluded that the Park Service therefore has authority to enforce its hovercraft regulation on the Nation River. Id., at 1078. The Ninth Circuit’s holding is subject to some interpretation, but Sturgeon, the State, the Alaska Native Corporations, and the Park Service (at least at times) concur in our understanding of the decision below. See Brief for Petitioner 25; Brief for State of Alaska as Amicus Curiae 23; Brief for Arctic Slope Regional Corporation et al. as Amici Curiae 12–13; Brief for Doyon, Ltd., et al. as Amici Curiae 31–32; Brief for Respondents 20; Tr. of Oral Arg. 61; 80 Fed. Reg. 65573 (2015). III We reject the interpretation of Section 103(c) adopted by the Ninth Circuit. The court’s reading of the phrase “regulations applicable solely to public lands within such units” may be plausible in the abstract, but it is ultimately inconsistent with both the text and context of the statute as a whole. Statutory language “cannot be construed in a vacuum. 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.” Roberts v. Sea-Land Services, Inc., 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted). Under the reading of the statute adopted below, the Park Service may apply nationally applicable regulations to “non-public” lands within the boundaries of conservation system units in Alaska, but it may not apply Alaska-specific regulations to those lands. That is a surprising conclusion. ANILCA repeatedly recognizes that Alaska is different—from its “unrivaled scenic and geological values,” to the “unique” situation of its “rural residents dependent on subsistence uses,” to “the need for development and use of Arctic resources with appropriate recognition and consideration given to the unique nature of the Arctic environment.” 16 U. S. C. §§3101(b), 3111(2), 3147(b)(5). ANILCA itself accordingly carves out numerous Alaska-specific exceptions to the Park Service’s general authority over federally managed preservation areas. For example, ANILCA requires the Secretary of the Interior to permit “the exercise of valid commercial fishing rights or privi-leges” within the National Wildlife Refuge System in Alaska, including the use of “campsites, cabins, motorized vehicles, and aircraft landings directly incident to the exercise of such rights or privileges,” with certain exceptions. 94Stat. 2393. ANILCA also requires the Secretary to “permit on the public lands appropriate use for subsistence purposes of snowmobiles, motorboats, and other means of surface transportation traditionally employed for such purposes by local residents, subject to reasonable regulation.” 16 U. S. C. §3121(b). And it provides that National Preserves “in Alaska shall be administered and managed as a unit of the National Park System in the same manner as a national park except as otherwise provided in this Act and except that the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed” pursuant to applicable law. §3201 (emphasis added). Many similar examples are woven throughout ANILCA. See, e.g., 94Stat. 2393 (Secretary must administer wildlife refuge “so as to not impede the passage of navigation and access by boat on the Yukon and Kuskokwim Rivers,” subject to reasonable regulation); id., at 2388 (Secretary must allow reindeer grazing uses in certain areas, including construction of necessary facilities); 16 U. S. C. §3203(a) (Alaska-specific rules for wilderness management apply “in recognition of the unique conditions in Alaska”); §3170(a) (Secretary must permit reasonable use of snowmachines, motorboats, and airplanes within conserva-tion system units “for travel to and from villages and homesites”). All those Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not the rule. Yet the reading below would prevent the Park Service from recognizing Alaska’s unique conditions. Under that reading, the Park Service could regulate “non-public” lands in Alaska only through rules applicable outside Alaska as well. Thus, for example, if the Park Service elected to allow hovercraft during hunting season in Alaska—in a departure from its nationwide rule—the more relaxed regulation would apply only to the “public” land within the boundaries of the unit. Hovercraft would still be banned from the “non-public” land, even during hunting season. Whatever the reach of the Park Service’s authority under ANILCA, we cannot conclude that Section 103(c) adopted such a topsy-turvy approach. Moreover, it is clear that Section 103(c) draws a distinction between “public” and “non-public” lands within the boundaries of conservation system units in Alaska. See §3103(c) (“Only those lands within the boundaries of any conservation system unit which are public lands . . . shall be deemed to be included as a portion of such unit”); ibid. (No lands “conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units”). And yet, according to the court below, if the Park Service wanted to differentiate between that “public” and “non-public” land in an Alaska-specific way, it would have to regulate the “non-public” land pursuant to rules applicable outside Alaska, and the “public” land pursuant to Alaska-specific provisions. Assuming the Park Service has authority over “non-public” land in Alaska (an issue we do not decide), that strikes us as an implausible reading of the statute. Looking at ANILCA both as a whole and with respect to Section 103(c), the Act contemplates the possibility that all the land within the boundaries of conservation system units in Alaska may be treated differently from federally managed preservation areas across the country, and that “non-public” lands within the boundaries of those units may be treated differently from “public” lands within the unit. Under the Ninth Circuit’s reading of Section 103(c), however, the former is not an option, and the latter would require contorted and counterintuitive measures. We therefore reject the interpretation of Section 103(c) adopted by the court below. That reading of the statute was the sole basis for the disposition of this case by the Court of Appeals. We accordingly vacate the judgment of that court and remand for further proceedings. We do not reach the remainder of the parties’ arguments. In particular, we do not decide whether the Nation River qualifies as “public land” for purposes of ANILCA. Sturgeon claims that it does not; the Park Service that it does. The parties’ arguments in this respect touch on vital issues of state sovereignty, on the one hand, and federal authority, on the other. We find that in this case those issues should be addressed by the lower courts in the first instance. Given this determination, we also do not decide whether the Park Service has authority under Section 100751(b) to regulate Sturgeon’s activities on the Nation River, even if the river is not “public” land, or whether—as Sturgeon argues—any such authority is limited by ANILCA. Fin-ally, we do not consider the Park Service’s alternative ar-gument that it has authority under ANILCA over both “public” and “non-public” lands within the boundaries of conservation system units in Alaska, to the extent a regulation is written to apply specifically to both types of land. We leave those arguments to the lower courts for consideration as necessary. The judgment of the Court of Appeals for the Ninth 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 STURGEON v. FROST, ALASKA REGIONAL DIRECTOR OF THE NATIONAL PARK SERVICE, et al. certiorari to the united states court of appeals for the ninth circuit No. 14–1209. Argued January 20, 2016—Decided March 22, 2016 The Alaska National Interest Lands Conservation Act (ANILCA) set aside 104 million acres of land in Alaska for preservation purposes. Under ANILCA, those lands were placed into “conservation system units,” which were defined to include “any unit in Alaska of the National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers Systems, National Trails System, National Wilderness Preservation System, or a National Forest Monument.” 16 U. S. C. §3102(4). In addition to federal land, over 18 million acres of state, Native Corporation, and private land were also included within the boundaries of those conservation system units. In 2007, John Sturgeon was piloting his hovercraft over a stretch of the Nation River that flows through the Yukon-Charley Rivers National Preserve, a conservation system unit in Alaska that is managed by the National Park Service. Alaska law permits the use of hovercraft. National Park Service regulations do not. See 36 CFR §2.17(e). Park Service rangers approached Sturgeon, informing him that hovercraft were prohibited within the preserve under Park Service regulations. Sturgeon protested that Park Service regulations did not apply because the river was owned by the State of Alaska. The rangers ordered Sturgeon to remove his hovercraft from the preserve, and he complied. Sturgeon later filed suit against the Park Service in the United States District Court for the District of Alaska, seeking declaratory and injunctive relief permitting him to operate his hovercraft within the boundaries of the Yukon-Charley. Alaska intervened in support of Sturgeon. The Secretary of the Interior has authority to “prescribe regulations” concerning “boating and other activities on or relating to water located within System units.” 54 U. S. C. §100751(b). The Park Service’s hovercraft regulation was adopted pursuant to Section 100751(b). The hovercraft ban is not limited to Alaska, but instead has effect in federally managed preservation areas across the country. Section 103(c) of ANILCA, in contrast, addresses the scope of the Park Service’s authority over lands within the boundaries of conservation system units in Alaska. The first sentence of Section 103(c) specifies the property included as a portion of those units. It states: “Only those lands within the boundaries of any conservation system unit which are public lands (as such term is defined in this Act) shall be deemed to be included as a portion of such unit.” 16 U. S. C. §3103(c). ANILCA defines the word “land” to include “lands, waters, and interests therein,” and the term “public lands” to include lands to which the United States has “title,” with certain exceptions. §3102. The second sentence of Section 103(c) concerns the Park Service’s authority to regulate “non-public” lands in Alaska, which include state, Native Corporation, and private property. It provides: “No lands which, before, on, or after December 2, 1980, are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” §3103(c). The third sentence of Section 103(c) explains how new lands become part of conservation system units: “If the State, a Native Corporation, or other owner desires to convey any such lands, the Secretary may acquire such lands in accordance with applicable law (including this Act), and any such lands shall become part of the unit, and be administered accordingly.” Ibid. Interpreting Section 103(c) of ANILCA, the District Court granted summary judgment to the Park Service, and the Ninth Circuit affirmed in pertinent part. According to the Ninth Circuit, because the hovercraft regulation “applies to all federal-owned lands and waters administered by [the Park Service] nationwide, as well as all navigable waters lying within national parks,” the hovercraft ban does not apply “solely” within conservation system units in Alaska. 768 F. 3d 1066, 1077. The Ninth Circuit concluded that the Park Service therefore has authority to enforce its hovercraft regulation on the Nation River. The Ninth Circuit did not address whether the Nation River counts as “public land” for purposes of ANILCA. Held: The Ninth Circuit’s interpretation of Section 103(c) is inconsistent with both the text and context of ANILCA. . (a) The Ninth Circuit’s interpretation of Section 103(c) violates “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,” Roberts v. Sea-Land Services, Inc., 566 U. S. ___, ___. ANILCA repeatedly recognizes that Alaska is different, and ANILCA itself accordingly carves out numerous Alaska-specific exceptions to the Park Service’s general authority over federally managed preservation areas. Those Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not the rule. Yet the reading below would prevent the Park Service from recognizing Alaska’s unique conditions. Under that reading, the Park Service could regulate “non-public” lands in Alaska only through rules applicable outside Alaska as well. The Court concludes that, whatever the reach of the Park Service’s authority under ANILCA, Section 103(c) did not adopt such a “topsy-turvy” approach. . (b) Moreover, it is clear that Section 103(c) draws a distinction between “public” and “non-public” lands within the boundaries of conservation system units in Alaska. And yet, according to the court below, if the Park Service wanted to differentiate between that “public” and “non-public” land in an Alaska-specific way, it would have to regulate the “non-public” land pursuant to rules applicable outside Alaska, and the “public” land pursuant to Alaska-specific provisions. Assuming the Park Service has authority over “non-public” land in Alaska (an issue the Court does not decide), the Court concludes that this is an implausible reading of the statute. The Court therefore rejects the interpretation of Section 103(c) adopted by the court below. . (c) The Court does not reach the remainder of the parties’ arguments. In particular, it does not decide whether the Nation River qualifies as “public land” for purposes of ANILCA. It also does not decide whether the Park Service has authority under Section 100751(b) to regulate Sturgeon’s activities on the Nation River, even if the river is not “public” land, or whether—as Sturgeon argues—any such authority is limited by ANILCA. Finally, the Court does not consider whether the Park Service has authority under ANILCA over both “public” and “non-public” lands within the boundaries of conservation system units in Alaska, to the extent a regulation is written to apply specifically to both types of land. The Court leaves those arguments to the lower courts for consideration as necessary. . 768 F. 3d 1066, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

The Alaska Native Claims Settlement Act (ANCSA) extinguished aboriginal land claims in Alaska. In exchange, Congress provided for a $960 million settlement and permitted corporations organized by groups of Alaska Natives to select 40 million acres of federal land to manage within the State. However, in order to implement the settlement, the Secretary of the Interior (Secretary) was authorized to designate 56 million acres in Alaska as national monuments, including the Yukon-Charley Rivers National Preserve, a 1.7 million acre federal preservation area managed by the National Park Service (Park Service). The Park Service, contending that the Alaska National Interest Lands Conservation Act (ANILCA) prohibits its enforcement of its regulations on state-owned land in Alaska, sued the Park Service and several federal officials in Federal District Court, seeking declaratory and injunctive relief permitting him to operate his hovercraft within the boundaries of the river. Alaska intervened in support of the suit, and the park service opposed the suit. The District Court granted summary judgment to Park Service. The Court of Appeals affirmed in pertinent part. Held: Section 103(c) of the ANILCA does not bar enforcement of the hovercraft regulation on the Nation River.. (a) The phrase in the statute distinguishes between Park Service regulations that apply solely to public lands in Alaska and those that apply to federally managed preservation areas across the country. The first sentence specifies the property included as a portion of those units. In contrast, the second sentence of the statute simply ensures that non-public public lands within Alaska boundaries remain subject to laws generally applicable to both public and private lands. See, e.g., 16 U. S. C. §3103(c), which defines the word "land" to include "lands, waters, and interests therein," and the term to include the title to which is in the United States after December 2, 1980, with certain exceptions. Here, only federal-owned lands, including navigable waters, within Alaska, are subject to the regulations applicable solely to public lands, and hence the statute does not create an Alaska-specific exception to the park Service's general authority over boating and related activities in federally managed wildlife preservation areas. . (b) The second sentence does not prohibit the park agency from enforcing on nonpublic nonpublic lands only those regulations that explicitly applysolely to public land. That sentence imposes only a limited restriction on the agency's power, prohibiting it from enforcing, inter alia, on those regulations explicitly applyingsolely, to public lands, but not on such regulations as is involved in the first sentence. To support his argument, the park officer relies on the Alaska Statehood Act, which granted ownership of the submerged lands beneath navigable navigable waters and the resources within those waters to the State, and on United States v. California, 436 U.S. 32 (1978), which stated that the Submerged Lands Act transferred title to and ownership of such lands to the States. Thus, the word meaning that the statute applies solely to "public lands within such units shall be deemed to be part of such unit...." Under the statute, the statute may be construed in a whole, abstract, and abstract context. It must be read in a vacuum with respect to both the overall statutory scheme and the overall statute. This interpretation of § 103 (c) adopted by the court below was the sole basis for the disposition of this case. Accordingly, the judgment of that court is vacated and the case is remanded for further proceedings. 768 F. 3d 1066, vacated and remanded. STEWART, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I, II, and III of which STEVENS and O'CONNOR, JJ. joined. POWELL and O.J. filed an opinion concurring in part and dissenting in part, post, p.. SCALIA,

2015_14-6166

https://www.oyez.org/cases/2015/14-6166

. The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. 18 U. S. C. §1951(a). The Act defines “commerce” broadly as interstate commerce “and all other commerce over which the United States has jurisdiction.” §1951(b)(3). This case requires us to decide what the Government must prove to satisfy the Hobbs Act’s commerce element when a defendant commits a robbery that targets a marijuana dealer’s drugs or drug proceeds. The answer to this question is straightforward and dictated by our precedent. We held in Gonzales v. Raich, 545 U. S. 1 (2005) , that the Commerce Clause gives Congress authority to regulate the national market for marijuana, including the authority to proscribe the purely intrastate production, possession, and sale of this controlled substance. Because Congress may regulate these intrastate activities based on their aggregate effect on interstate commerce, it follows that Congress may also regulate intrastate drug theft. And since the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce “over which the United States has jurisdiction,” §1951(b)(3), the prosecution in a Hobbs Act robbery case satisfies the Act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect commerce over which the United States has jurisdiction. In this case, petitioner Anthony Taylor was convicted on two Hobbs Act counts based on proof that he attempted to rob marijuana dealers of their drugs and drug money. We hold that this evidence was sufficient to satisfy the Act’s commerce element. I Beginning as early as 2009, an outlaw gang called the “Southwest Goonz” committed a series of home invasion robberies targeting drug dealers in the area of Roanoke, Virginia. 754 F. 3d 217, 220 (CA4 2014). For obvious reasons, drug dealers are more likely than ordinary citizens to keep large quantities of cash and illegal drugs in their homes and are less likely to report robberies to the police. For participating in two such home invasions, Taylor was convicted of two counts of Hobbs Act robbery, in violation of §1951(a), and one count of using a firearm in furtherance of a crime of violence, in violation of §924(c). The first attempted drug robbery for which Taylor was convicted occurred in August 2009. Id., at 220. Taylor and others targeted the home of Josh Whorley, having obtained information that Whorley dealt “exotic and high grade” marijuana. Ibid. “The robbers expected to find both drugs and money” in Whorley’s home. Ibid. Taylor and the others broke into the home, searched it, and assaulted Whorley and his girlfriend. They demanded to be told the location of money and drugs but, not locating any, left with only jewelry, $40, two cell phones, and a marijuana cigarette. Ibid. The second attempted drug robbery occurred two months later in October 2009 at the home of William Lynch. Ibid. A source informed the leader of the gang that, on a prior occasion, the source had robbed Lynch of 20 pounds of marijuana in front of Lynch’s home. The gang also received information that Lynch continued to deal drugs. Taylor and others broke into Lynch’s home, held his wife and young children at gunpoint, assaulted his wife, and demanded to know the location of his drugs and money. Again largely unsuccessful, the robbers made off with only a cell phone. Id., at 221. For his participation in these two home invasions, Taylor was indicted under the Hobbs Act on two counts of affecting commerce or attempting to do so through robbery. App. 11a–13a. His first trial resulted in a hung jury. On retrial, at the urging of the Government, the District Court precluded Taylor from introducing evidence that the drug dealers he targeted might be dealing in only locally grown marijuana. Id., at 60a; see 754 F. 3d, at 221. During the second trial, Taylor twice moved for a judgment of acquittal on the ground that the prosecution had failed to meet its burden on the commerce element, Tr. 445–447, 532–533; see 754 F. 3d, at 221, but the District Court denied those motions, holding that the proof that Taylor attempted to rob drug dealers was sufficient as a matter of law to satisfy that element. Tr. 446, 532–533. The jury found Taylor guilty on both of the Hobbs Act counts and one of the firearms counts. App. 67a–69a. On appeal, Taylor challenged the sufficiency of the evidence to prove the commerce element of the Hobbs Act, but the Fourth Circuit affirmed. “Because drug dealing in the aggregate necessarily affects interstate commerce,” the court reasoned, “the government was simply required to prove that Taylor depleted or attempted to deplete the assets of such an operation.” 754 F. 3d, at 224. We granted certiorari to resolve a conflict in the Circuits regarding the demands of the Hobbs Act’s commerce element in cases involving the theft of drugs and drug proceeds from drug dealers. 576 U. S. ___ (2015). II A The Hobbs Act provides in relevant part as follows: “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery . . . or attemptsor conspires so to do . . . shall be fined under this title or imprisoned not more than twenty years, or both.” 18U. S. C. §1951(a). The Act then defines the term “commerce” to mean “commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.” §1951(b)(3). The language of the Hobbs Act is unmistakably broad. It reaches any obstruction, delay, or other effect on commerce, even if small, and the Act’s definition of commerce encompasses “all . . . commerce over which the United States has jurisdiction.” Ibid. We have noted the sweep of the Act in past cases. United States v. Culbert, 435 U. S. 371, 373 (1978) (“These words do not lend themselves to restrictive interpretation”); Stirone v. United States, 361 U. S. 212, 215 (1960) (The Hobbs Act “speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence”). B To determine how far this commerce element extends—and what the Government must prove to meet it—we look to our Commerce Clause cases. We have said that there are three categories of activity that Congress may regulate under its commerce power: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities having a substantial relation to interstate commerce, . . . i. e., those activities that substantially affect interstate commerce.” United States v. Lopez, 514 U. S. 549 –559 (1995). We have held that activities in this third category—those that “substantially affect” commerce—may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal. See Wickard v. Filburn, 317 U. S. 111, 125 (1942) (“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”). While this final category is broad, “thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” United States v. Morrison, 529 U. S. 598, 613 (2000) . In this case, the activity at issue, the sale of marijuana, is unquestionably an economic activity. It is, to be sure, a form of business that is illegal under federal law and the laws of most States. But there can be no question that marijuana trafficking is a moneymaking endeavor—and a potentially lucrative one at that. In Raich, the Court addressed Congress’s authority to regulate the marijuana market. The Court reaffirmed “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” 545 U. S., at 17. The production, possession, and distribution of controlled substances constitute a “class of activities” that in the aggregate substantially affect interstate commerce, and therefore, the Court held, Congress possesses the authority to regulate (and to criminalize) the production, possession, and distribution of controlled substances even when those activities occur entirely within the boundaries of a single State. Any other outcome, we warned, would leave a gaping enforcement hole in Congress’s regulatory scheme. Id., at 22. The case now before us requires no more than that we graft our holding in Raich onto the commerce element of the Hobbs Act. The Hobbs Act criminalizes robberies affecting “commerce over which the United States has jurisdiction.” §1951(b)(3). Under Raich, the market for marijuana, including its intrastate aspects, is “commerce over which the United States has jurisdiction.” It therefore follows as a simple matter of logic that a robberwho affects or attempts to affect even the intrastate saleof marijuana grown within the State affects or attemptsto affect commerce over which the United States has jurisdiction. C Rejecting this logic, Taylor takes the position that the robbery or attempted robbery of a drug dealer’s inventory violates the Hobbs Act only if the Government proves something more. This argument rests in part on the fact that Raich concerned the Controlled Substances Act (CSA), the criminal provisions of which lack a jurisdictional element. See 21 U. S. C. §§841(a), 844. The Hobbs Act, by contrast, contains such an element—namely, the conduct criminalized must affect or attempt to affect commerce in some way or degree. See 18 U. S. C. §1951(a). Therefore, Taylor reasons, the prosecution must prove beyond a reasonable doubt either (1) that the particular drugs in question originated or were destined for sale out of State or (2) that the particular drug dealer targeted in the robbery operated an interstate business. See Brief for Petitioner 25–27; Reply Brief 8. The Second and Seventh Circuits have adopted this same argument. See United States v. Needham, 604 F. 3d 673, 681 (CA2 2010); United States v. Peterson, 236 F. 3d 848, 855 (CA7 2001). This argument is flawed. It confuses the standard of proof with the meaning of the element that must be proved. There is no question that the Government in a Hobbs Act prosecution must prove beyond a reasonable doubt that the defendant engaged in conduct that satisfies the Act’s commerce element, but the meaning of that element is a question of law. And, as noted, Raich established that the purely intrastate production and sale of marijuana is commerce over which the Federal Government has jurisdiction. Therefore, if the Government proves beyond a reasonable doubt that a robber targeted a marijuana dealer’s drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected. The only way to escape that conclusion would be to hold that the Hobbs Act does not exercise the full measure of Congress’s commerce power. But we reached the opposite conclusion more than 50 years ago, see Stirone, 361 U. S., at 215, and it is not easy to see how the expansive language of the Act could be interpreted in any other way. This conclusion does not make the commerce provision of the Hobbs Act superfluous. That statute, unlike the criminal provisions of the CSA, applies to forms of conduct that, even in the aggregate, may not substantially affect commerce. The Act’s commerce element ensures that applications of the Act do not exceed Congress’s authority. But in a case like this one, where the target of a robbery is a drug dealer, proof that the defendant’s conduct in and of itself affected or threatened commerce is not needed. All that is needed is proof that the defendant’s conduct fell within a category of conduct that, in the aggregate, had the requisite effect. D Contrary to the dissent, see post, at 10–12 (opinion of Thomas, J.), today’s holding merely applies—it in no way expands—Raich’s interpretation of the scope of Congress’s power under the Commerce Clause. The dissent resists the substantial-effects approach and the aggregation principle on which Raich is based, see post, at 11–12. But we have not been asked to reconsider Raich. So our decision in Raich controls the outcome here. As long as Congress may regulate the purely intrastate possession and sale of illegal drugs, Congress may criminalize the theft or attempted theft of those same drugs. We reiterate what this means. In order to obtain a conviction under the Hobbs Act for the robbery or attempted robbery of a drug dealer, the Government need not show that the drugs that a defendant stole or attempted to steal either traveled or were destined for transport across state lines. Rather, to satisfy the Act’s commerce element, it is enough that a defendant knowingly stole or attempted to steal drugs or drug proceeds, for, as a matter of law, the market for illegal drugs is “commerce over which the United States has jurisdiction.” And it makes no difference under our cases that any actual or threatened effect on commerce in a particular case is minimal. See Perez v. United States, 402 U. S. 146, 154 (1971) (“Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class” (emphasis deleted)). E In the present case, the Government met its burden by introducing evidence that Taylor’s gang intentionally targeted drug dealers to obtain drugs and drug proceeds. One of the victims had been robbed of substantial quantities of drugs at his residence in the past, and the other was thought to possess high-grade marijuana. The robbers also made explicit statements in the course of the robberies revealing that they believed that the victims possessed drugs and drug proceeds. Tr. 359 (asking Lynch “where the weed at”); id., at 93 (asking Whorley “where the money was at, where the weed was at”); id., at 212–213 (asking Whorley, “Where is your money and where is your weed at?”). Both robberies were committed with the express intent to obtain illegal drugs and the proceeds from the sale of illegal drugs. Such proof is sufficient to meet the commerce element of the Hobbs Act. Our holding today is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds. We do not resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted. See, e.g., Stirone, supra, at 215 (Government offered evidence that the defendant attempted to extort a concrete business that actually obtained supplies and materials from out of State). * * * The judgment of the Fourth Circuit is affirmed. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus TAYLOR v. UNITED STATES certiorari to the united states court of appeals for the fourth circuit No. 14–6166. Argued February 23, 2016—Decided June 20, 2016 Petitioner Taylor was indicted under the Hobbs Act on two counts of affecting commerce or attempting to do so through robbery for his participation in two home invasions targeting marijuana dealers. In both cases, Taylor and other gang members broke into the homes, confronted the residents, demanded the location of drugs and money, found neither, and left relatively empty handed. Taylor’s trial resulted in a hung jury. At his retrial, the Government urged the trial court to preclude Taylor from offering evidence that the drug dealers he targeted dealt only in locally-grown marijuana. The trial court excluded that evidence and Taylor was convicted on both counts. The Fourth Circuit affirmed, holding that, given the aggregate effect of drug dealing on interstate commerce, the Government needed only to prove that Taylor robbed or attempted to rob a drug dealer of drugs or drug proceeds to satisfy the commerce element. Held: 1. The prosecution in a Hobbs Act robbery case satisfies the Act’s commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. . (a) The language of the Hobbs Act is unmistakably broad and reaches any obstruction, delay, or other effect on commerce, 18 U. S. C. §1951(a), “over which the United States has jurisdiction,” §1951(b)(3). See United States v. Culbert, 435 U. S. 371 . . (b) Under its commerce power, this Court has held, Congress may regulate, among other things, activities that have a substantial aggregate effect on interstate commerce, see Wickard v. Filburn, 317 U. S. 111 . This includes “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce,” Gonzales v. Raich, 545 U. S. 1 , so long as those activities are economic in nature. See United States v. Morrison, 529 U. S. 598 . One such “class of activities” is the production, possession, and distribution of controlled substances. 545 U. S., at 22. Grafting the holding in Raich onto the Hobbs Act’s commerce element, it follows that a robber who affects even the intrastate sale of marijuana affects commerce over which the United States has jurisdiction. . (c) In arguing that Raich should be distinguished because the Controlled Substances Act lacks the Hobbs Act’s additional commerce element, Taylor confuses the standard of proof with the meaning of the element that must be proved. The meaning of the Hobbs Act’s commerce element is a question of law, which, Raich establishes, includes purely intrastate drug production and sale. Applying, without expanding, Raich’s interpretation of the scope of Congress’s Commerce Clause power, if the Government proves beyond a reasonable doubt that a robber targeted a marijuana dealer’s drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over which the United States has jurisdiction was affected. . 2. Here, the Government met its burden by introducing evidence that Taylor’s gang intentionally targeted drug dealers to obtain drugs and drug proceeds. That evidence included information that the gang members targeted the victims because of their drug dealing activities, as well as explicit statements made during the course of the robberies that revealed their belief that drugs and money were present. Such proof is sufficient to meet the Hobbs Act’s commerce element. P. 9. 754 F. 3d 217, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion.

The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery. 18 U. S. C. §1951(a). The Act defines interstate commerce broadly as interstate commerce and all other commerce over which the United States has jurisdiction. In this case, petitioner was convicted on two counts based on proof that he attempted to rob marijuana dealers of their drugs and drug money. The District Court precluded introducing evidence that the drug dealers might be locally grown marijuana, but precluded petitioner from introducing such evidence. During the trial, the District Court denied both motions to meet the burden of proof on the commerce element of the Act. On appeal, the Court of Appeals affirmed. Held: The evidence was sufficient to satisfy the Commerce Clause. . (a) The commerce element is an economic activity that Congress may regulate under its commerce power. Congress has authority to regulate the national market for marijuana, including the authority to proscribe the purely intrastate production, possession, and sale of the controlled substance. By targeting a drug dealer in this way, a robber necessarily affects or attempts to affect interstate commerce. Here, petitioner met its burden by introducing evidence of his gang's intentionally targeted drug dealers to obtain drugs or drug proceeds. Such proof is sufficient to meet that element. P.. (b) The fact that Raich v. Raich concerned the Controlled Substances Act (CSA), the criminal provisions of which lack a jurisdictional element, does not mean that the Hobbs Act does not exercise the full measure of Congress' commerce power, but rather controls the outcome of this case. As long as Congress regulates intrastates sales and the possession of illegal drugs and illegal proceeds, Congress has the power to regulate local activities that have a purely local economic effect on interstate commerce, and therefore control the aggregate effects of controlled substances and other controlled substances within a single regulatory scheme. See, e.g., Stirone v. United States, 361 U.S. 212, 215. Moreover, if the Government proves beyond a reasonable doubt that a robber targeted a marijuana dealer's drugs or illegal proceeds, the Government has proved beyond a reasonable doubt that commerce over that which the Federal Government has jurisdiction was affected. This conclusion does not make the commerce provision of the Humbbs Act superfluous. That statute applies to forms of conduct that, even in the aggregate, may not substantially affect commerce, but in a case like this one, where the target of a robbery is a Drug Dealer, proof that the defendant's conduct in and of itself affected or threatened commerce is not needed. All that is needed is proof that his conduct fell within a category of conduct that, in aggregate, had the requisite effect. Raich, supra, controlling the outcome here, controls what the Government must prove to prove to establish Hobbs-Act robbery where some other type of business or victim is targeted.. 754 F. 3d 217, affirmed. WHITE, J., granted certiorari.

2015_14-1146

https://www.oyez.org/cases/2015/14-1146

. Following a jury trial, a class of employees recovered $2.9 million in compensatory damages from their employer for a violation of the Fair Labor Standards Act of 1938 (FLSA), 52Stat. 1060, as amended, 29 U. S. C. §201 et seq. The employees’ primary grievance was that they did not receive statutorily mandated overtime pay for time spent donning and doffing protective equipment. The employer seeks to reverse the judgment. It makes two arguments. Both relate to whether it was proper to permit the employees to pursue their claims as a class. First, the employer argues the class should not have been certified because the primary method of proving injury assumed each employee spent the same time donning and doffing protective gear, even though differences in the composition of that gear may have meant that, in fact, employees took different amounts of time to don and doff. Second, the employer argues certification was improper because the damages awarded to the class may be distributed to some persons who did not work any uncompensated overtime. The Court of Appeals for the Eighth Circuit concluded there was no error in the District Court’s decision to cer-tify and maintain the class. This Court granted certiorari. 576 U. S. ___ (2015). I Respondents are employees at petitioner Tyson Foods’ pork processing plant in Storm Lake, Iowa. They work in the plant’s kill, cut, and retrim departments, where hogs are slaughtered, trimmed, and prepared for shipment. Grueling and dangerous, the work requires employees to wear certain protective gear. The exact composition of the gear depends on the tasks a worker performs on a given day. Until 1998, employees at the plant were paid under a system called “gang-time.” This compensated them only for time spent at their workstations, not for the time required to put on and take off their protective gear. In response to a federal-court injunction, and a Department of Labor suit to enforce that injunction, Tyson in 1998 began to pay all its employees for an additional four minutes a day for what it called “K-code time.” The4-minute period was the amount of time Tyson estimated employees needed to don and doff their gear. In 2007, Tyson stopped paying K-code time uniformly to all employees. Instead, it compensated some employees for between four and eight minutes but paid others nothing beyond their gang-time wages. At no point did Tyson record the time each employee spent donning and doffing. Unsatisfied by these changes, respondents filed suit in the United States District Court for the Northern District of Iowa, alleging violations of the FLSA. The FLSA requires that a covered employee who works more than 40 hours a week receive compensation for excess time worked “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U. S. C. §207(a). In 1947, nine years after the FLSA was first enacted, Congress passed the Portal-to-Portal Act, which clarified that compensable work does not include time spent walking to and from the employee’s workstation or other “preliminary or postliminary activities.” §254(d). The FLSA, however, still requires employers to pay employees for activities “integral and indispensable” to their regular work, even if those activities do not occur at the employee’s workstation. Steiner v. Mitchell, 350 U. S. 247, 249, 255 (1956) . The FLSA also requires an employer to “make, keep, and preserve . . . records of the persons employed by him and of the wages, hours, and other conditions and practices of employment.” §211(c). In their complaint, respondents alleged that donning and doffing protective gear were integral and indispensable to their hazardous work and that petitioner’s policy not to pay for those activities denied them overtime compensation required by the FLSA. Respondents also raised a claim under the Iowa Wage Payment Collection Law. This statute provides for recovery under state law when an employer fails to pay its employees “all wages due,” which includes FLSA-mandated overtime. Iowa Code §91A.3 (2013); cf. Anthony v. State, 632 N. W. 2d 897, 901–902 (Iowa 2001). Respondents sought certification of their Iowa law claims as a class action under Rule 23 of the Federal Rules of Civil Procedure. Rule 23 permits one or more individ-uals to sue as “representative parties on behalf of all mem-bers” of a class if certain preconditions are met. Fed. Rule Civ. Proc. 23(a). Respondents also sought certification of their federal claims as a “collective action” under 29 U. S. C. §216. Section 216 is a provision of the FLSA that permits employees to sue on behalf of “themselves and other employees similarly situated.” §216(b). Tyson objected to the certification of both classes on the same ground. It contended that, because of the variance in protective gear each employee wore, the employees’ claims were not sufficiently similar to be resolved on a classwide basis. The District Court rejected that position. It concluded there were common questions susceptible to classwide resolution, such as “whether the donning and doffing of [protective gear] is considered work under the FLSA, whether such work is integral and [in]dispensable, and whether any compensable work is de minim[i]s.” 564 F. Supp. 2d 870, 899 (ND Iowa 2008). The District Court acknowledged that the workers did not all wear the same protective gear, but found that “when the putative plaintiffs are limited to those that are paid via a gang time system, there are far more factual similarities than dissimilarities.” Id., at 899–900. As a result, the District Court certified the following classes: “All current and former employees of Tyson’s Storm Lake, Iowa, processing facility who have been employed at any time from February 7, 2004 [in the case of the FLSA collective action and February 7, 2005, in the case of the state-law class action], to the present, and who are or were paid under a ‘gang time’ compensation system in the Kill, Cut, or Retrim departments.” Id., at 901. The only difference in definition between the classes was the date at which the class period began. The size of the class certified under Rule 23, however, was larger than that certified under §216. This is because, while a class under Rule 23 includes all unnamed members who fall within the class definition, the “sole consequence of conditional certification [under §216] is the sending of court-approved written notice to employees . . . who in turn become parties to a collective action only by filing written consent with the court.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 8). A total of 444 employees joined the collective action, while the Rule 23 class contained 3,344 members. The case proceeded to trial before a jury. The parties stipulated that the employees were entitled to be paid for donning and doffing of certain equipment worn to protect from knife cuts. The jury was left to determine whether the time spent donning and doffing other protective equipment was compensable; whether Tyson was required to pay for donning and doffing during meal breaks; and the total amount of time spent on work that was not compensated under Tyson’s gang-time system. Since the employees’ claims relate only to overtime, each employee had to show he or she worked more than 40 hours a week, inclusive of time spent donning and doffing, in order to recover. As a result of Tyson’s failure to keep records of donning and doffing time, however, the employees were forced to rely on what the parties describe as “representative evidence.” This evidence included employee testimony, video recordings of donning and doffing atthe plant, and, most important, a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted 744 videotaped observations and analyzed how long various donning and doffing activities took. He then averaged the time taken in the observations to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. Although it had not kept records for time spent donning and doffing, Tyson had information regarding each employee’s gang-time and K-code time. Using this data, the employees’ other expert, Dr. Liesl Fox, was able to estimate the amount of uncompensated work each employee did by adding Mericle’s estimated average donning and doffing time to the gang-time each employee worked and then subtracting any K-code time. For example, if an employee in the kill department had worked 39.125 hours of gang-time in a 6-day workweek and had been paid an hour of K-code time, the estimated number of compensable hours the employee worked would be: 39.125 (individual number of gang-time hours worked) + 2.125 (the average donning and doffing hours for a 6-day week, based on Mericle’s estimated average of 21.25 minutes a day) – 1 (K-code hours) = 40.25. That would mean the employee was being undercompensated by a quarter of an hour of overtime a week, in violation of the FLSA. On the other hand, if the employee’s records showed only 38 hours of gang-time and an hour of K-code time, the calculation would be: 38 + 2.125 – 1 = 39.125. Having worked less than 40 hours, that employee would not be entitled to overtime pay and would not have proved an FLSA violation. Using this methodology, Fox stated that 212 employees did not meet the 40-hour threshold and could not recover. The remaining class members, Fox maintained, had potentially been undercompensated to some degree. Respondents proposed to bifurcate proceedings. They requested that, first, a trial be conducted on the questions whether time spent in donning and doffing was compensable work under the FLSA and how long those activities took to perform on average; and, second, that Fox’s methodology be used to determine which employees suffered an FLSA violation and how much each was entitled to recover. Petitioner insisted upon a single proceeding in whichdamages would be calculated in the aggregate and by the jury. The District Court submitted both issues of liability and damages to the jury. Petitioner did not move for a hearing regarding the statistical validity of respondents’ studies under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) , nor did it attempt to discredit the evidence with testimony from a rebuttal expert. Instead, as it had done in its opposition to class certification, petitioner argued to the jury that the varying amounts of time it took employees to don and doff different protective equipment made the lawsuit too speculative for classwide recovery. Petitioner also argued that Mericle’s study overstated the average donning and doffing time. The jury was in-structed that nontestifying members of the class could only recover if the evidence established they “suffered the same harm as a result of the same unlawful decision or policy.” App. 471–472. Fox’s calculations supported an aggregate award of approximately $6.7 million in unpaid wages. The jury returned a special verdict finding that time spent in donning and doffing protective gear at the beginning and end of the day was compensable work but that time during meal breaks was not. The jury more than halved the damages recommended by Fox. It awarded the class about $2.9 million in unpaid wages. That damages award has not yet been disbursed to the individual employees. Tyson moved to set aside the jury verdict, arguing, among other things, that, in light of the variation in donning and doffing time, the classes should not have been certified. The District Court denied Tyson’s motion, and the Court of Appeals for the Eighth Circuit affirmed the judgment and the award. The Court of Appeals recognized that a verdict for the employees “require[d] inference” from their representative proof, but it held that “this inference is allowable under Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 –688 (1946).” 765 F. 3d 791, 797 (2014). The Court of Appeals rejected petitioner’s challenge to the sufficiency of the evidence for similar reasons, holding that, under the facts of this case, the jury could have drawn “a ‘reasonable inference’ of class-wide liability.” Id., at 799 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, 687 (1946) ). Judge Beam dissented, stating that, in his view, the class should not have been certified. For the reasons that follow, this Court now affirms. II Petitioner challenges the class certification of the state- law claims and the certification of the FLSA collective action. The parties do not dispute that the standard for certifying a collective action under the FLSA is no more stringent than the standard for certifying a class under the Federal Rules of Civil Procedure. This opinion assumes, without deciding, that this is correct. For purposes of this case then, if certification of respondents’ class action under the Federal Rules was proper, certification of the collective action was proper as well. Furthermore, as noted above, Iowa’s Wage Payment Collection Law was used in this litigation as a state-law mechanism for recovery of FLSA-mandated overtime pay. The parties do not dispute that, in order to prove a violation of the Iowa statute, the employees had to do no more than demonstrate a violation of the FLSA. In this opinion, then, no distinction is made between the requirements for the class action raising the state-law claims and the collective action raising the federal claims. A Federal Rule of Civil Procedure 23(b)(3) requires that, before a class is certified under that subsection, a district court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members.” The “predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997) . This calls upon courts to give careful scrutiny to the relation between common and individual questions in a case. An individual question is one where “members of a proposed class will need to present evidence that varies from member to member,” while a common question is one where “the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.” 2 W. Rubenstein, Newberg on Class Actions §4:50, pp. 196–197 (5th ed. 2012) (internal quotation marks omitted). The predominance inquiry “asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues.” Id., §4:49, at 195–196. When “one or more of the central issues in the action are common to the class and can be said to predominate, the action may be considered proper under Rule 23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members.” 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1778, pp. 123–124 (3d ed. 2005) (footnotes omitted). Here, the parties do not dispute that there are important questions common to all class members, the most significant of which is whether time spent donning and doffing the required protective gear is compensable work under the FLSA. Cf. IBP, Inc. v. Alvarez, 546 U. S. 21 (2005) (holding that time spent walking between the locker room and the production area after donning protective gear is compensable work under the FLSA). To be entitled to recovery, however, each employee must prove that the amount of time spent donning and doffing, when added to his or her regular hours, amounted to more than 40 hours in a given week. Petitioner argues that these necessarily person-specific inquiries into individual work time predominate over the common questions raised by respondents’ claims, making class certification improper. Respondents counter that these individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time observed in Mericle’s sample. Whether this inference is permissible becomes the central dispute in this case. Petitioner contends that Mericle’s study manufactures predominance by assuming away the very differences that make the case inappropriate for classwide resolution. Reliance on a representative sample, petitioner argues, absolves each employee of the responsibility to prove personal injury, and thus deprives petitioner of any ability to litigate its defenses to individual claims. Calling this unfair, petitioner and various of its amici maintain that the Court should announce a broad rule against the use in class actions of what the parties call representative evidence. A categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes—be it a class or individual action—but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. See Fed. Rules Evid. 401, 403, and 702. It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class- action cases. Evidence of this type is used in various substantive realms of the law. Brief for Complex Litigation Law Professors as Amici Curiae 5–9; Brief for Economists et al. as Amici Curiae 8–10. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804, 809 (2011) . In many cases, a representative sample is “the only practicable means to collect and present relevant data” establishing a defendant’s liability. Manual of Complex Litigation §11.493, p. 102 (4th ed. 2004). In a case where representative evidence is relevant in proving a plaintiff’s individual claim, that evidence cannot be deemed im-proper merely because the claim is brought on behalf of a class. To so hold would ignore the Rules Enabling Act’s pellucid instruction that use of the class device cannot “abridge . . . any substantive right.” 28 U. S. C. §2072(b). One way for respondents to show, then, that the sample relied upon here is a permissible method of proving classwide liability is by showing that each class member could have relied on that sample to establish liability if he or she had brought an individual action. If the sample could have sustained a reasonable jury finding as to hours worked in each employee’s individual action, that sample is a permissible means of establishing the employees’ hours worked in a class action. This Court’s decision in Anderson v. Mt. Clemens explains why Mericle’s sample was permissible in the circumstances of this case. In Mt. Clemens, 7 employees and their union, seeking to represent over 300 others, brought a collective action against their employer for failing to compensate them for time spent walking to and from their workstations. The variance in walking time among workers was alleged to be upwards of 10 minutes a day, which is roughly consistent with the variances in donning and doffing times here. 328 U. S., at 685. The Court in Mt. Clemens held that when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work, the “remedial nature of [the FLSA] and the great public policy which it embodies . . . militate against making” the burden of proving uncompensated work “an impossible hurdle for the employee.” Id., at 687; see also Hoffmann-La Roche Inc. v. Sperling, 493 U. S. 165, 173 (1989) (“The broad remedial goal of the statute should be enforced to the full extent of its terms”). Instead of punishing “the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work,” the Court held “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U. S., at 687. Under these circumstances, “[t]he burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.” Id., at 687–688. In this suit, as in Mt. Clemens, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce Mericle’s study to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. Reliance on Mericle’s study did not deprive petitioner of its ability to litigate individual defenses. Since there were no alternative means for the employees to establish their hours worked, petitioner’s primary defense was to show that Mericle’s study was unrepresentative or inaccurate. That defense is itself common to the claims made by all class members. Respondents’ “failure of proof on th[is] common question” likely would have ended “the litigation and thus [would not have] cause[d] individual questions . . . to overwhelm questions common to the class.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. ___, ___ (2013) (slip op., at 11). When, as here, “the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs’ cause of action—courts should engage that question as a matter of summary judgment, not class certification.” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 107 (2009). Petitioner’s reliance on Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011) , is misplaced. Wal-Mart does not stand for the broad proposition that a representative sample is an impermissible means of establishing classwide liability. Wal-Mart involved a nationwide Title VII class of over 11∕2 million employees. In reversing class certification, this Court did not reach Rule 23(b)(3)’s predominance prong, holding instead that the class failed to meet even Rule 23(a)’s more basic requirement that class members share a common question of fact or law. The plaintiffs in Wal-Mart did not provide significant proof of a common policy of discrimination to which each employee was subject. “The only corporate policy that the plaintiffs’ evidence convincingly establishe[d was] Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters”; and even then, the plaintiffs could not identify “a common mode of exercising discretion that pervade[d] the entire company.” Id., at 355–356 (emphasis deleted). The plaintiffs in Wal-Mart proposed to use representative evidence as a means of overcoming this absence of a common policy. Under their proposed methodology, a “sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master.” Id., at 367. The aggregate damages award was to be derived by taking the “percentage of claims determined to be valid” from this sample and applying it to the rest of the class, and then multiplying the “number of (presumptively) valid claims” by “the average backpay award in the sample set.” Ibid. The Court held that this “Trial By Formula” was contrary to the Rules Enabling Act because it “ ‘enlarge[d]’ ” the class members’ “ ‘substantive right[s]’ ” and deprived defendants of their right to litigate statutory defenses to individual claims. Ibid. The Court’s holding in the instant case is in accord with Wal-Mart. The underlying question in Wal-Mart, as here, was whether the sample at issue could have been used to establish liability in an individual action. Since the Court held that the employees were not similarly situated, none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. By extension, if the employees had brought 11∕2 million individual suits, there would be little or no role for representative evidence. Permitting the use of that sample in a class action, therefore, would have violated the Rules Enabling Act by giving plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action. In contrast, the study here could have been sufficient to sustain a jury finding as to hours worked if it were introduced in each employee’s individual action. While the experiences of the employees in Wal-Mart bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy. As Mt. Clemens confirms, under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them. This is not to say that all inferences drawn from representative evidence in an FLSA case are “just and reason-able.” Mt. Clemens, 328 U. S., at 687. Representativeevidence that is statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked. Petitioner, however, did not raise a challenge to respondents’ experts’ methodology under Daubert; and, as a result, there is no basis in the record to conclude it was legal error to admit that evidence. Once a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury. Reasonable minds may differ as to whether the average time Mericle calculated is probative as to the time actually worked by each employee. Resolving that question, however, is the near-exclusive province of the jury. The District Court could have denied class certification on this ground only if it concluded that no reasonable juror could have believed that the employees spent roughly equal time donning and doffing. Cf. Anderson v. Liberty Lobby, Inc., 477 U. S. 242 –252 (1986). The District Court made no such finding, and the record here provides no basis for this Court to second-guess that conclusion. The Court reiterates that, while petitioner, respondents, or their respective amici may urge adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions, this case provides no occasion to do so. Whether a representative sample may be used to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible. Mt. Clemens, supra, at 687; see also Fed. Rules Evid. 402 and 702. The fairness and utility of statistical methods in contexts other than those presented here will depend on facts and circumstances particular to those cases. B In its petition for certiorari petitioner framed its second question presented as whether a class may be certified if it contains “members who were not injured and have no legal right to any damages.” Pet. for Cert. i. In its merits brief, however, petitioner reframes its argument. It now concedes that “[t]he fact that federal courts lack authority to compensate persons who cannot prove injury does not mean that a class action (or collective action) can never be certified in the absence of proof that all class members were injured.” Brief for Petitioner 49. In light of petitioner’s abandonment of its argument from the petition, the Court need not, and does not, address it. Petitioner’s new argument is that, “where class plaintiffs cannot offer” proof that all class members are injured, “they must demonstrate instead that there is some mechanism to identify the uninjured class members prior to judgment and ensure that uninjured members (1) do not contribute to the size of any damage award and (2) cannot recover such damages.” Ibid. Petitioner contends that respondents have not demonstrated any mechanism for ensuring that uninjured class members do not recover damages here. Petitioner’s new argument is predicated on the assumption that the damages award cannot be apportioned so that only those class members who suffered an FLSA violation recover. According to petitioner, because Fox’s mechanism for determining who had worked over 40 hours depended on Mericle’s estimate of donning and doffing time, and because the jury must have rejected Mericle’s estimate when it reduced the damages award by more than half, it will not be possible to know which workers are entitled to share in the award. As petitioner and its amici stress, the question whether uninjured class members may recover is one of great importance. See, e.g., Brief for Consumer Data Industry Association as Amicus Curiae. It is not, however, a question yet fairly presented by this case, because the damages award has not yet been disbursed, nor does the record indicate how it will be disbursed. Respondents allege there remain ways of distributing the award to only those individuals who worked more than 40 hours. For example, by working backwards from the damages award, and assuming each employee donned and doffed for an identical amount of time (an assumption that follows from the jury’s finding that the employees suffered equivalent harm under the policy), it may be possible to calculate the average donning and doffing time the jury necessarily must have found, and then apply this figure to each employee’s known gang-time hours to determine which employees worked more than 40 hours. Whether that or some other methodology will be successful in identifying uninjured class members is a question that, on this record, is premature. Petitioner may raise a challenge to the proposed method of allocation when the case returns to the District Court for disbursal of the award. Finally, it bears emphasis that this problem appears to be one of petitioner’s own making. Respondents proposed bifurcating between the liability and damages phases of this proceeding for the precise reason that it may be difficult to remove uninjured individuals from the class after an award is rendered. It was petitioner who argued against that option and now seeks to profit from the difficulty it caused. Whether, in light of the foregoing, any error should be deemed invited, is a question for the District Court to address in the first instance. * * * The judgment of the Court of Appeals for the Eighth 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, 337. SUPREME COURT OF THE UNITED STATES Syllabus TYSON FOODS, INC. v. BOUAPHAKEO et al., individually and on behalf of all others similarly situated certiorari to the united states court of appeals for the eighth circuit No. 14–1146. Argued November 10, 2015—Decided March 22, 2016 Respondents, employees of petitioner Tyson Foods, work in the kill, cut, and retrim departments of a pork processing plant in Iowa. Respondents’ work requires them to wear protective gear, but the exact composition of the gear depends on the tasks a worker performs on a given day. Petitioner compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Respondents filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that petitioner’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). Respondents also raised a claim under an Iowa wage law. They sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a “collective action.” See 29 U. S. C. §216. Petitioner objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees’ claims were not sufficiently similar to be resolved on a classwide basis. The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear. To recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because petitioner failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery. Petitioner argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle’s sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The award has not yet been disbursed to individual employees. The Eighth Circuit affirmed the judgment and the award. Held: The District Court did not err in certifying and maintaining the class. . (a) Before certifying a class under Rule 23(b)(3), a district court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members.” The parties agree that the most significant question common to the class is whether donning and doffing protective gear is compensable under the FLSA. Petitioner claims, however, that individual inquiries into the time each worker spent donning and doffing predominate over this common question. Respondents argue that individual inquiries are unnecessary because it can be assumed each employee donned and doffed for the same average time observed in Mericle’s sample. Whether and when statistical evidence such as Mericle’s sample can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action,” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809. Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Respondents can show that Mericle’s sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, shows why Mericle’s sample was permissible in the circumstances of this case. There, where an employer violated its statutory duty to keep proper records, the Court concluded the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and . . . produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id., at 687. Here, similarly, respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle’s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an individual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle’s study in a series of individual suits. This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible. Mt. Clemens, supra, at 687. . (b) Petitioner contends that respondents are required to demonstrate that uninjured class members will not recover damages here. That question is not yet fairly presented by this case, because the damages award has not yet been disbursed and the record does not indicate how it will be disbursed. Petitioner may raise a challenge to the allocation method when the case returns to the District Court for disbursal of the award. . 765 F.3d 791, affirmed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined as to Part II. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Respondents, employees at petitioner meat processing plant, brought suit in Federal District Court, alleging violations of the Fair Labor Standards Act of 1938 (FLSA), which requires employers to pay employees for activities that are "integral and indispensable" to their regular work, even if those activities do not occur at the employee's workstation. Petitioner objected to the certification of both classes on the same ground, contending that, because of the variance in protective gear each employee wore, the employees' claims were not sufficiently similar to be resolved on a classwide basis, and that certification was improper because the damages awarded to the class may be distributed to some persons who did not work any uncompensated overtime. The District Court held that there was no error in the District Court's decision to cer-tify and maintain the class. The Court of Appeals affirmed. Held: The judgment is affirmed. ; 765 F. 3d 791, affirmed in part and reversed in part. . (a) The standard for certifying a collective action under the FLSA is no more stringent than the standard under the Federal Rules of Civil Procedure, and this opinion assumes, without deciding, that this case is correct. For purposes of class certification purposes, this case should not be confused with a class action under Fed.Rule Civ.Proc. 23, which permits employees to sue on behalf of themselves and other employees similarly situated. Here, the primary method of proving injury assumed each employee spent the same amount of time donning and doffing protective gear, even though differences in the composition of that gear may have meant that, in fact, employees took different amounts of time to don and to doff. However, the court rejected petitioner's argument that the differences in equipment used by the class were not sufficient to require classwide resolution. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. . (b) A representative or statistical sample, like all evidence, is a means to establish or defend against liability. Its permissibility turns not on the form a proceeding takes, be it a class or individual action, but on the degree to which the evidence is reliable in proving or disproving the elements of the relevant cause of action. When, as here, the concern about the proposed class is not that it exhibits some fatal dissimilarity but, rather, a fatal similarity, statistical evidence can be used to establish classwide liability. Whether such evidence will be used in class actions is a matter for the courts to decide, and not merely a matter of fact or law. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, ___. P.. (c) Here, where respondents sought to introduce a representative sample to fill an evidentiary gap created by the employer's failure to keep adequate records, the question whether each employee could have relied on that sample to establish liability if he or she had brought an individual action is one of great importance. Although the experiences of the employees in Wal-Mart bore little relationship to one another, in this case each employee worked in the same facility, did similar work, and was paid under the same policy. Even if the employees were not similarly situated, none of them could prevail in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. Moreover, since there were no alternative means for the employees to establish their hours worked, petitioner's primary defense was to show that Mericle Inc. study was unrepresentative or inaccurate. That defense is itself common to the claims made by all class members, and the study could have been sufficient to sustain a jury finding as to hours worked. Resolving that question is the near-exclusive province of the jury. Respondents proposed bifurcating between the liability and damages phases of this proceeding for the precise reason that it may be difficult to remove uninjured individuals from the class after an award is rendered. On the facts of this case, there is no basis in the record to conclude it was legal error to admit that evidence. A categorical exclusion of such evidence would make little sense, since, once a district court finds evidence to be admissible, its persuasiveness is, in general, the jury's exclusive province. Nor can the Court reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class- action cases.. Pp. 462 U.S. 703-717. (d) Petitioner reframes its argument that, where class plaintiffs cannot offer proof of a common policy of discrimination, they must demonstrate instead that there is some mechanism to identify the uninjured class members prior to judgment and ensure that uninjured members (1) do not contribute to the size of

2015_15-290

https://www.oyez.org/cases/2015/15-290

. The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.” 33 U. S. C. §§1311(a), 1362(7), (12). Because it can be difficult to determine whether a particular parcel of property contains such waters, the U. S. Army Corps of Engineers will issue to property owners an “approved jurisdictional determination” stating the agency’s definitive view on that matter. See 33 CFR §331.2 and pt. 331, App. C (2015). The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U. S. C. §704. I A The Clean Water Act prohibits “the discharge of any pollutant” without a permit into “navigable waters,” which it defines, in turn, as “the waters of the United States.” 33 U. S. C. §§1311(a), 1362(7), (12). During the time period relevant to this case, the U. S. Army Corps of Engineers defined the waters of the United States to include land areas occasionally or regularly saturated with water—such as “mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes”—the “use, degradation or destruction of which could affect interstate or foreign commerce.” 33 CFR §328.3(a)(3) (2012). The Corps has applied that definition to assert jurisdiction over “270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States.” Rapanos v. United States, 547 U. S. 715, 722 (2006) (plurality opinion).[1] It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does. The Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps. See 33 U. S. C. §§1311(a), 1319(c), (d), 1344(a). The costs of obtaining such a permit are significant. For a specialized “individ-ual” permit of the sort at issue in this case, for example, one study found that the average applicant “spends 788 days and $271,596 in completing the process,” without “counting costs of mitigation or design changes.” Rapanos, 547 U. S., at 721. Even more readily available “general” permits took applicants, on average, 313 days and $28,915 to complete. Ibid. See generally 33 CFR §323.2(h) (limiting “general” permits to activities that “cause only minimal individual and cumulative environmental impacts”). The Corps specifies whether particular property contains “waters of the United States” by issuing “jurisdictional determinations” (JDs) on a case-by-case basis. §331.2. JDs come in two varieties: “preliminary” and “approved.” Ibid. While preliminary JDs merely advise a property owner “that there may be waters of the United States on a parcel,” approved JDs definitively “stat[e] the presence or absence” of such waters. Ibid. (emphasis added). Unlike preliminary JDs, approved JDs can be administratively appealed and are defined by regulation to “constitute a Corps final agency action.” §§320.1(a)(6), 331.2. They are binding for five years on both the Corps and the Environmental Protection Agency, which share authority to enforce the Clean Water Act. See 33 U. S. C. §§1319, 1344(s); 33 CFR pt. 331, App. C; EPA, Memorandum of Agreement: Exemptions Under Section 404(F) of the Clean Water Act §VI–A (1989) (Memorandum of Agreement). B Respondents are three companies engaged in mining peat in Marshall County, Minnesota. Peat is an organic material that forms in waterlogged grounds, such as wetlands and bogs. See Xuehui & Jinming, Peat and Peatlands, in 2 Coal, Oil Shale, Natural Bitumen, Heavy Oil and Peat 267–272 (G. Jinsheng ed. 2009) (Peat and Peatlands). It is widely used for soil improvement and burned as fuel. Id., at 277. It can also be used to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts. See Monteith & Welton, Use of Peat and Other Organic Materials on Golf Courses, 13 Bulletin of the United States Golf Association Green Section 90, 95–100 (1933). At the same time, peat mining can have significant environmental and ecological impacts, see Peat and Peatlands 280–281, and therefore is regulated by both federal and state environmental protection agencies, see, e.g., Minn. Stat. §103G.231 (2014). Respondents own a 530-acre tract near their existing mining operations. The tract includes wetlands, which respondents believe contain sufficient high quality peat, suitable for use in golf greens, to extend their mining operations for 10 to 15 years. App. 8, 14–15, 31. In December 2010, respondents applied to the Corps for a Section 404 permit for the property. Id., at 15. A Section 404 permit authorizes “the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U. S. C. §1344(a). Over the course of several communications with respondents, Corps officials signaled that the permitting process would be very expensive and take years to complete. The Corps also advised respondents that, if they wished to pursue their application, they would have to submit numerous assessments of various features of the property, which respondents estimate would cost more than $100,000. App. 16–17, 31–35. In February 2012, in connection with the permitting process, the Corps issued an approved JD stating that the property contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Id., at 13, 18, 20. Respondents appealed the JD to the Corps’ Mississippi Valley Division Commander, who remanded for further factfinding. On remand, the Corps reaffirmed its original conclusion and issued a revised JD to that effect. Id., at 18–20; App. to Pet. for Cert. 44a–45a. Respondents then sought judicial review of the revised JD under the Administrative Procedure Act (APA), 5 U. S. C. §500 et seq. The District Court dismissed for want of subject matter jurisdiction, holding that the revised JD was not “final agency action for which there is no other adequate remedy in a court,” as required by the APA prior to judicial review, 5 U. S. C. §704. 963 F. Supp. 2d 868, 872, 878 (Minn. 2013). The Court of Appeals for the Eighth Circuit reversed, 782 F. 3d 994, 1002 (2015), and we granted certiorari, 577 U. S. ___ (2015). II The Corps contends that the revised JD is not “final agency action” and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns. A In Bennett v. Spear, 520 U. S. 154 (1997) , we distilled from our precedents two conditions that generally must be satisfied for agency action to be “final” under the APA. “First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id., at 177–178 (internal quotation marks and citation omitted).[2] The Corps does not dispute that an approved JD satisfies the first Bennett condition. Unlike preliminary JDs— which are “advisory in nature” and simply indicate that “there may be waters of the United States” on a parcel of property, 33 CFR §331.2—an approved JD clearly “mark[s] the consummation” of the Corps’ decisionmaking process on that question, Bennett, 520 U. S., at 178 (internal quotation marks omitted). It is issued after extensive factfinding by the Corps regarding the physical and hydrological characteristics of the property, see U. S. Army Corps of Engineers, Jurisdictional Determination Form Instructional Guidebook 47–60 (2007), and is typically not revisited if the permitting process moves forward. Indeed, the Corps itself describes approved JDs as “final agency action,” see 33 CFR §320.1(a)(6), and specifies that an approved JD “will remain valid for a period of five years,” Corps, Regulatory Guidance Letter No. 05–02, §1(a), p. 1 (June 14, 2005) (2005 Guidance Letter); see also 33 CFR pt. 331, App. C. The Corps may revise an approved JD within the five-year period based on “new information.” 2005 Guidance Letter §1(a), at 1. That possibility, however, is a common characteristic of agency action, and does not make an otherwise definitive decision nonfinal. See Sackett v. EPA, 566 U. S. ___, ___ (2012); see also National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981 (2005) . By issuing respondents an approved JD, the Corps for all practical purposes “has ruled definitively” that respondents’ property contains jurisdictional waters. Sackett, 566 U. S., at ___ (Ginsburg, J., concurring) (slip op., at 1). The definitive nature of approved JDs also gives rise to “direct and appreciable legal consequences,” thereby satisfying the second prong of Bennett. 520 U. S., at 178. Consider the effect of an approved JD stating that a party’s property does not contain jurisdictional waters—a “negative” JD, in Corps parlance. As noted, such a JD will generally bind the Corps for five years. See 33 CFR pt. 331, App. C; 2005 Guidance Letter §1. Under a longstanding memorandum of agreement between the Corps and EPA, it will also be “binding on the Government and represent the Government’s position in any subsequent Federal action or litigation concerning that final determination.” Memorandum of Agreement §§IV–C–2, VI–A. A negative JD thus binds the two agencies authorized to bring civil enforcement proceedings under the Clean Water Act, see 33 U. S. C. §1319, creating a five-year safe harbor from such proceedings for a property owner. Additionally, although the property owner may still face a citizen suit under the Act, such a suit—unlike actions brought by the Government—cannot impose civil liability for wholly past violations. See §§1319(d), 1365(a); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49 –59 (1987). In other words, a negative JD both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for discharging pollutants without a permit. Each of those effects is a “legal consequence[ ]” satisfying the second Bennett prong. 520 U. S., at 178; see also Sackett, 566 U. S., at ___. It follows that affirmative JDs have legal consequences as well: They represent the denial of the safe harbor that negative JDs afford. See 5 U. S. C. §551(13) (defining “agency action” to include an agency “rule, order, license, sanction, relief, or the equivalent,” or the “denial thereof ”). Because “legal consequences . . . flow” from approved JDs, they constitute final agency action. Bennett, 520 U. S., at 178 (internal quotation marks omitted).[3] This conclusion tracks the “pragmatic” approach we have long taken to finality. Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967) . For example, in Frozen Food Express v. United States, 351 U. S. 40 (1956) , we considered the finality of an order specifying which commodities the Interstate Commerce Commission believed were exempt by statute from regulation, and which it believed were not. Although the order “had no authority except to give notice of how the Commission interpreted” the relevant statute, and “would have effect only if and when a particular action was brought against a particular carrier,” Abbott, 387 U. S., at 150, we held that the order was nonetheless immediately reviewable, Frozen Food, 351 U. S., at 44–45. The order, we explained, “warns every carrier, who does not have authority from the Commission to transport those commodities, that it does so at the risk of incurring criminal penalties.” Id., at 44. So too here, while no administrative or criminal proceeding can be brought for failure to conform to the approved JD itself, that final agency determination not only deprives respondents of a five-year safe harbor from liability under the Act, but warns that if they discharge pollutants onto their property without obtaining a permit from the Corps, they do so at the risk of significant criminal and civil penalties. B Even if final, an agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court. 5 U. S. C. §704. The Corps contends that respondents have two such alternatives: either discharge fill material without a permit, risking an EPA enforcement action during which they can argue that no permit was required, or apply for a permit and seek judicial review if dissatisfied with the results. Brief for Petitioner 45–51. Neither alternative is adequate. As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” Abbott, 387 U. S., at 153. If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they would expose themselves to civil penalties of up to $37,500 for each day they violated the Act, to say nothing of potential criminal liability. See 33 U. S. C. §§1319(c), (d); Sackett, 566 U. S., at ___, n. 1 (citing 74 Fed. Reg. 626, 627 (2009)). Respondents need not assume such risks while waiting for EPA to “drop the hammer” in order to have their day in court. Sackett, 566 U. S., at ___ (slip op., at 6). Nor is it an adequate alternative to APA review for a landowner to apply for a permit and then seek judicial review in the event of an unfavorable decision. As Corps officials indicated in their discussions with respondents, the permitting process can be arduous, expensive, and long. See Rapanos, 547 U. S., at 721 (plurality opinion). On top of the standard permit application that respondents were required to submit, see 33 CFR §325.1(d) (detailing contents of permit application), the Corps demanded that they undertake, among other things, a “hydrogeologic assessment of the rich fen system including the mineral/nutrient composition and pH of the groundwater; groundwater flow spatially and vertically; discharge and recharge areas”; a “functional/resource assessment of the site including a vegetation survey and identification of native fen plan communities across the site”; an “inven-tory of similar wetlands in the general area (watershed), including some analysis of their quality”; and an “inven-tory of rich fen plant communities that are within sites of High and Outstanding Biodiversity Significance in the area.” App. 33–34. Respondents estimate that undertaking these analyses alone would cost more than $100,000. Id., at 17. And whatever pertinence all this might have to the issuance of a permit, none of it will alter the finality of the approved JD, or affect its suitability for judicial review. The permitting process adds nothing to the JD. The Corps nevertheless argues that Congress made the “evident[ ]” decision in the Clean Water Act that a coverage determination would be made “as part of the permitting process, and that the property owner would obtain any necessary judicial review of that determination at the conclusion of that process.” Brief for Petitioner 46. But as the Corps acknowledges, the Clean Water Act makes no reference to standalone jurisdictional determinations, ibid., so there is little basis for inferring anything from it concerning the reviewability of such distinct final agency action. And given “the APA’s presumption of reviewability for all final agency action,” Sackett, 566 U. S., at ___ (slip op., at 8), “[t]he mere fact” that permitting decisions are “reviewable should not suffice to support an implication of exclusion as to other[ ]” agency actions, such as approved JDs, Abbott, 387 U. S., at 141 (internal quotation marks omitted); see also Sackett, 566 U. S., at ___ (slip op., at 8) (“[I]f the express provision of judicial review in one section of a long and complicated statute were alone enough to overcome the APA’s presumption of reviewability . . . , it would not be much of a presumption at all”). Finally, the Corps emphasizes that seeking review in an enforcement action or at the end of the permitting process would be the only available avenues for obtaining review “[i]f the Corps had never adopted its practice of issuing standalone jurisdictional determinations upon request.” Reply Brief 3; see also id., at 4, 23. True enough. But such a “count your blessings” argument is not an adequate rejoinder to the assertion of a right to judicial review under the APA. The judgment of the Court of Appeals for the Eighth Circuit is affirmed. It is so ordered.Notes 1 In 2015, the Corps adopted a new rule modifying the definition of the scope of waters covered by the Clean Water Act in light of scientific research and decisions of this Court interpreting the Act. See Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37054, 37055–37056. That rule is currently stayed nationwide, pending resolution of claims that the rule is arbitrary, capricious, and contrary to law. See In re EPA, 803 F. 3d 804, 807–809 (CA6 2015). 2 Because we determine that a JD satisfies both prongs of Bennett, we need not consider respondents’ argument that an agency action that satisfies only the first may also constitute final agency action. See Brief for Respondents 19–20. 3 The Corps asserts that the Memorandum of Agreement addresses only “special case” JDs, rather than “mine-run” ones “of the sort at issue here.” Reply Brief 12, n. 3. But the memorandum plainly makes binding “[a]ll final determinations,” whether in “[s]pecial” or “[n]on-special” cases. Memorandum of Agreement §§IV–C, VI–A; see also Corps, Memorandum of Understanding Geographical Jurisdiction of the Section 404 Program, 45 Fed. Reg. 45019, n. 1 (1980) (“[U]nder this [memorandum], except in special cases previously agreed to, the [Corps] is authorized to make a final determination . . . and such determination shall be binding.”).

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 ARMY CORPS OF ENGINEERS v. HAWKES CO., INC., et al. certiorari to the united states court of appeals for the eighth circuit No. 15–290. Argued March 30, 2016—Decided May 31, 2016 The Clean Water Act regulates “the discharge of any pollutant” into “the waters of the United States.” 33 U. S. C. §§1311(a), 1362(7), (12). When property contains such waters, landowners who discharge pollutants without a permit from the Army Corps of Engineers risk substantial criminal and civil penalties, §§1319(c), (d), while those who do apply for a permit face a process that is often arduous, expensive, and long. It can be difficult to determine in the first place, however, whether “waters of the United States” are present. During the time period relevant to this case, for example, the Corps defined that term to include all wetlands, the “use, degradation or destruction of which could affect interstate or foreign commerce.” 33 CFR §328.3(a)(3). Because of that difficulty, the Corps allows property owners to obtain a standalone “jurisdictional determination” (JD) specifying whether a particular property contains “waters of the United States.” §331.2. A JD may be either “preliminary,” advising a property owner that such waters “may” be present, or “approved,” definitively “stating the presence or absence” of such waters. Ibid. An “approved” JD is considered an administratively appealable “final agency action,” §§320.1(a)(6), 331.2, and is binding for five years on both the Corps and the Environmental Protection Agency, 33 CFR pt. 331, App. C; EPA, Memorandum of Agreement: Exemptions Under Section 404(F) of the Clean Water Act §VI–A. Respondents, three companies engaged in mining peat, sought a permit from the Corps to discharge material onto wetlands located on property that respondents own and hope to mine. In connection with the permitting process, respondents obtained an approved JD from the Corps stating that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. After exhausting administrative remedies, respondents sought review of the approved JD in Federal District Court under the Administrative Procedure Act (APA), but the District Court dismissed for want of jurisdiction, holding that the revised JD was not a “final agency action for which there is no other adequate remedy in a court,” 5 U. S. C. §704. The Eighth Circuit reversed. Held: The Corps’ approved JD is a final agency action judicially reviewable under the APA. . (a) In general, two conditions must be satisfied for an agency action to be “final” under the APA: “First, the action must mark the consummation of the agency’s decisionmaking process,” and “second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U. S. 154 –178. . (1) An approved JD satisfies Bennett’s first condition. It clearly “mark[s] the consummation” of the Corps’ decisionmaking on the question whether a particular property does or does not contain “waters of the United States.” It is issued after extensive factfinding by the Corps regarding the physical and hydrological characteristics of the property, see U. S. Army Corps of Engineers, Jurisdictional Determination Form Instructional Guidebook 47–60, and typically remains valid for a period of five years, see 33 CFR pt. 331, App. C. The Corps itself describes approved JDs as “final agency action.” Id. §320.1(a)(6). . (2) The definitive nature of approved JDs also gives rise to “direct and appreciable legal consequences,” thereby satisfying Bennett’s second condition as well. 520 U. S., at 178. A “negative” JD—i.e., an approved JD stating that property does not contain jurisdictional waters—creates a five-year safe harbor from civil enforcement proceedings brought by the Government and limits the potential liability a property owner faces for violating the Clean Water Act. See 33 U. S. C. §§1319, 1365(a). Each of those effects is a legal consequence. It follows that an “affirmative” JD, like the one issued here, also has legal consequences: It deprives property owners of the five-year safe harbor that “negative” JDs afford. This conclusion tracks the “pragmatic” approach the Court has long taken to finality. Abbott Laboratories v. Gardner, 387 U. S. 136 . . (b) A “final” agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court. The Corps contends that respondents have two such alternatives: They may proceed without a permit and argue in a Government enforcement action that a permit was not required, or they may complete the permit process and then seek judicial review, which, the Corps suggests, is what Congress envisioned. Neither alternative is adequate. Parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” Abbott, 387 U. S., at 153. And the permitting process is not only costly and lengthy, but also irrelevant to the finality of the approved JD and its suitability for judicial review. Furthermore, because the Clean Water Act makes no reference to standalone jurisdictional determinations, there is little basis for inferring anything from it concerning their reviewability. Given “the APA’s presumption of reviewability for all final agency action,” Sackett v. EPA, 566 U. S. ___, ___, “[t]he mere fact” that permitting decisions are reviewable is insufficient to imply “exclusion as to other[ ]” agency actions, such as approved JDs, Abbott, 387 U. S., at 141. . 782 F. 3d 994, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Kennedy, J., filed a concurring opinion, in which Thomas and Alito, JJ., joined. Kagan, J., filed a concurring opinion. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment.

The Clean Water Act prohibits the discharge of pollutants into navigable waters, which it defines as the waters of the United States. Because it can be difficult to determine whether a particular parcel of property contains such waters, the Army Corps of Engineers ( Corps) will issue to property owners an approved jurisdictional determination stating the agency's definitive view on that matter. Respondents own a 530-acre tract near their existing mining operations, which includes wetlands, which they believe contain sufficient high quality peat, suitable for use in golf courses, to extend their mining operations for 10 to 15 years. In connection with the permitting process, the Corps issued an approved JD stating that the property contained such water because its wetlands had a significant nexus to the Red River of the North, located some 120 miles away. The District Court dismissed for want of subject matter jurisdiction, holding that the revised JD was not final agency action judicially reviewable under the Administrative Procedure Act (APA). The Court of Appeals reversed. Held: The revised JD is not final Department of the Interior action that, even if it were, there are adequate alternatives for challenging it in court. Bennett v. Spear, 520 U. S. 154, distilled from this precedents two conditions that generally must be satisfied for agency action to be "final" under the APA: (1) the action must mark the consummation of the agency agency's decisionmaking process, which must not be of a merely tentative or interlocutory nature; and (2) action must be one by which rights or obligations have been determined, or from which legal consequences will flow. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 149. . 82 F. 3d 994, reversed. (a) The Corps contends that the revision of its revised JD satisfies the first Bennett condition. Unlike preliminary JDs, which simply indicate that there may be waters of United States on a parcel, which clearly clearly marked the Corps' decision-making process on that question, Bennett, supra, at 178 (internal quotation marks omitted). Unlike a preliminary JD, which merely indicate that the land may contain jurisdictional waters, an approved JD clearly clearly marks the "consolidation" of the Corps decisionmaker process on the question. Moreover, the definitive nature of approved JDs also gives rise to direct and appreciable legal consequences, thereby satisfying the second Bennett prong of Bennett. Such legal consequences as well as affirmative JDs represent the denial of the safe harbor that negative JDs afford. A negative JD both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for discharging pollutants without a permit. Each of those effects is a legal consequence satisfying the third prong. It follows that affirmativeJDs also have legal consequences. They represent denial of such a safe harbor, since legal consequences flow from such an action. Pp. 467 U. N.L. 556. (b) The argument that an agency action that satisfies only the first of the two prongs of Bennett is not adequate in light of a new rule of APA that is currently pending nationwide resolution of the nationwide question of whether nationwide law is arbitrary and capricious. See, e.g., Fed.Reg. 626, 627,; National Cable & Telecommunications Assn. v. Brand X Internet Services,. P.. (c) Because the memorandum of agreement that respondents were required to submit plainly makes binding final determinations, it is an adequate alternative to APA review for the landowner to apply for a permit and then seek judicial review in the event of an unfavorable decision. On top of the standard permit application, respondents were ordered to undertake, among other things, a hydrogeologic assessment of the rich fen system, including the mineral/nutrient composition and pH of the groundwater; a vegetation survey and identification of native fen plan communities across the site; and an inven-tory of rich-fen plant communities that are within sites of High and Outstanding Biodiversity Significance in the area. These respondents estimate that undertaking these analyses alone alone would cost more than $100,000. And whatever pertinence all of this might have to the issuance of a permit, none of it will alter the finality of the approved JD, or affect its suitability for judicial review. Even if respondents were dissatisfied with the enforcement proceedings, they would still be liable for civil penalties of up to $37,500 for each day they violated the Act, to say nothing of potential criminal liability, since parties need not await enforcement proceedings before challenging "final agency action" where such proceedings carry the risk of serious criminal and civil penalties. Nor is an affirmative JD that satisfies both the first and the second prongs

2015_15-420

https://www.oyez.org/cases/2015/15-420

. In response to the high incidence of domestic violence against Native American women, Congress, in 2005, enacted 18 U. S. C. §117(a), which targets serial offenders. Section 117(a) makes it a federal crime for any person to “commi[t] a domestic assault within . . . Indian country” if the person has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings.” See Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA Reauthorization Act), Pub. L. 109–162, §§901, 909, 119Stat. 3077, 3084.[1] Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. For most of those convictions, he was sentenced to terms of imprisonment, none of them exceeding one year’s duration. His tribal-court convictions do not count for §117(a) purposes, Bryant maintains, because he was uncounseled in those proceedings. The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed. Scott v. Illinois, 440 U. S. 367 –374 (1979). But the Sixth Amendment does not apply to tribal-court proceedings. See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316, 337 (2008) . The Indian Civil Rights Act of 1968 (ICRA), Pub. L. 90–284, 82Stat. 77, 25 U. S. C. §1301 et seq., which governs criminal proceedings in tribal courts, requires appointed counsel only when a sentence of more than one year’s imprisonment is imposed. §1302(c)(2). Bryant’s tribal-court convictions, it is undisputed, were valid when entered. This case presents the question whether those convictions, though uncounseled, rank as predicate offenses within the compass of §117(a). Our answer is yes. Bryant’s tribal-court convictions did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a §117(a) prosecution. That proceeding generates no Sixth Amendment defect where none previously existed. I A “[C]ompared to all other groups in the United States,” Native American women “experience the highest rates of domestic violence.” 151 Cong. Rec. 9061 (2005) (remarks of Sen. McCain). According to the Centers for Disease Control and Prevention, as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, M. Black et al., National Intimate Partner and Sexual Violence Survey 2010 Summary Report 40 (2011) (Table 4.3), online at http://www.cdc.gov/ViolencePrevention/pdf/NISVS_report2010-a.pdf (all Internet materials as last visited June 9, 2016). American Indian and Alaska Native women “are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general.” Dept. of Justice, Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence, Ending Violence So Children Can Thrive 38 (Nov. 2014), online at https:// www.justice.gov /sites /default/files/defendingchildhood/ pages/attachments/2015/03/23/ending_violence_so_children_can_thrive.pdf. American Indian women experience battery “at a rate of 23.2 per 1,000, compared with 8 per 1,000 among Caucasian women,” and they “experience 7 sexual assaults per 1,000, compared with 4 per 1,000 among Black Americans, 3 per 1,000 among Caucasians, 2 per 1,000 among Hispanic women, and 1 per 1,000 among Asian women.” VAWA Reauthorization Act, §901, 119Stat. 3077. As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence “often escalates in severity over time.” United States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2). Nationwide, over 75% of female victims of intimate partner violence have been previously victimized by the same offender, Dept. of Justice, Bureau of Justice Statistics, S. Catalano, Intimate Partner Violence 1993–2010, p. 4 (rev. 2015) (Figure 4), online at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf, often multiple times, Dept. of Justice, National Institute of Justice, P. Tjaden & N. Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence, p. iv (2000), online at https://www.ncjrs.gov/pdffiles1/nij/181867.pdf (“[W]omen who were physically assaulted by an intimate partner averaged 6.9 physical assaults by the same partner.”). Incidents of repeating, escalating abuse more than occasionally culminate in a fatal attack. See VAWA Reauthorization Act, §901, 119Stat. 3077–3078 (“[D]uring the period 1979 through 1992, homicide was the third leading cause of death of Indian females aged 15 to 34, and 75 percent were killed by family members or acquaintances.”). The “complex patchwork of federal, state, and tribal law” governing Indian country, Duro v. Reina, 495 U. S. 676 , n. 1 (1990), has made it difficult to stem the tide of domestic violence experienced by Native American women. Although tribal courts may enforce the tribe’s criminal laws against Indian defendants, Congress has curbed tribal courts’ sentencing authority. At the time of §117(a)’s passage, ICRA limited sentences in tribal court to a maximum of one year’s imprisonment. 25 U. S. C. §1302(a)(7) (2006 ed.).[2] Congress has since expanded tribal courts’ sentencing authority, allowing them to impose up to three years’ imprisonment, contingent on adoption of additional procedural safeguards. 124Stat. 2279–2280 (codified at 25 U. S. C. §1302(a)(7)(C), (c)).[3] To date, however, few tribes have employed this enhanced sentencing authority. See Tribal Law and Policy Inst., Implementation Chart: VAWA Enhanced Jurisdiction and TLOA Enhanced Sentencing, online at http://www.tribal-institute.org/download/VAWA/VAWAImplementationChart.pdf.[4] States are unable or unwilling to fill the enforcement gap. Most States lack jurisdiction over crimes committed in Indian country against Indian victims. See United States v. John, 437 U. S. 634, 651 (1978) . In 1953, Congress increased the potential for state action by giving six States “jurisdiction over specified areas of Indian country within the States and provid[ing] for the [voluntary] assumption of jurisdiction by other States.” California v. Cabazon Band of Mission Indians, 480 U. S. 202, 207 (1987) (footnote omitted). See Act of Aug. 15, 1953, Pub. L. 280, 67Stat. 588 (codified, as amended, at 18 U. S. C. §1162 and 25 U. S. C. §§1321–1328, 1360). States so empowered may apply their own criminal laws to “offenses committed by or against Indians within all Indian country within the State.” Cabazon Band of Mission Indians, 480 U. S., at 207; see 18 U. S. C. §1162(a). Even when capable of exercising jurisdiction, however, States have not de-voted their limited criminal justice resources to crimes committed in Indian country. Jimenez & Song, Concurrent Tribal and State Jurisdiction Under Public Law 280, 47 Am. U. L. Rev. 1627, 1636–1637 (1998); Tribal Law and Policy Inst., S. Deer, C. Goldberg, H. Valdez Singleton, & M. White Eagle, Final Report: Focus Group on Public Law 280 and the Sexual Assault of Native Women 7–8 (2007), online at http://www.tribal-institute.org/download/Final%20280%20FG%20Report.pdf. That leaves the Federal Government. Although federal law generally governs in Indian country, Congress has long excluded from federal-court jurisdiction crimes committed by an Indian against another Indian. 18 U. S. C. §1152; see Ex parte Crow Dog, 109 U. S. 556, 572 (1883) (requiring “a clear expression of the intention of Congress” to confer federal jurisdiction over crimes committed by an Indian against another Indian). In the Major Crimes Act, Congress authorized federal jurisdiction over enumerated grave criminal offenses when both perpetrator and victim are Indians, including murder, manslaughter, and felony assault. §1153. At the time of §117(a)’s enactment, felony assault subject to federal prosecution required “serious bodily injury,” §113(a)(6) (2006 ed.), meaning “a substantial risk of death,” “extreme physical pain,” “protracted and obvious disfigurement,” or “protracted loss or impairment of the function of a bodily member, organ, or mental faculty.” §1365(h)(3) (incorporated through §113(b)(2)).[5] In short, when §117(a) was before Congress, Indian perpetrators of domestic violence “escape[d] felony charges until they seriously injure[d] or kill[ed] someone.” 151 Cong. Rec. 9062 (2005) (remarks of Sen. McCain). As a result of the limitations on tribal, state, and federal jurisdiction in Indian country, serial domestic violence offenders, prior to the enactment of §117(a), faced at most a year’s imprisonment per offense—a sentence insufficient to deter repeated and escalating abuse. To ratchet up the punishment of serial offenders, Congress created the federal felony offense of domestic assault in Indian country by a habitual offender. §117(a) (2012 ed.); see No. 12–30177 (CA9, July 6, 2015), App. to Pet. for Cert. 41a (Owens, J., dissenting from denial of rehearing en banc) (“Tailored to the unique problems . . . that American Indian and Alaska Native Tribes face, §117(a) provides felony-level punishment for serial domestic violence offenders, and it represents the first true effort to remove these recidivists from the communities that they repeatedly terrorize.”). The section provides in pertinent part: “Any person who commits a domestic assault within . . . Indian country and who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction any assault, sex-ual abuse, or serious violent felony against a spouse or intimate partner . . . shall be fined . . . , imprisoned for a term of not more than 5 years, or both . . . .” §117(a)(1).[6] Having two prior convictions for domestic violence crimes—including tribal-court convictions—is thus a predicate of the new offense. B This case requires us to determine whether §117(a)’s inclusion of tribal-court convictions is compatible with the Sixth Amendment’s right to counsel. The Sixth Amendment to the U. S. Constitution guarantees a criminal defendant in state or federal court “the Assistance of Counsel for his defence.” See Gideon v. Wainwright, 372 U. S. 335, 339 (1963) . This right, we have held, requires appointment of counsel for indigent defendants whenever a sentence of imprisonment is imposed. Argersinger v. Hamlin, 407 U. S. 25, 37 (1972) . But an indigent defendant has no constitutional right to appointed counsel if his conviction results in a fine or other noncustodial punishment. Scott, 440 U. S., at 373–374. “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978) . The Bill of Rights, including the Sixth Amendment right to counsel, therefore, does not apply in tribal-court proceedings. See Plains Commerce Bank, 554 U. S., at 337. In ICRA, however, Congress accorded a range of procedural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment.” Martinez, 436 U. S., at 57; see id., at 62–63 (ICRA “modified the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments”). In addition to other enumerated protections, ICRA guarantees “due process of law,” 25 U. S. C. §1302(a)(8), and allows tribal-court defendants to seek habeas corpus review in federal court to test the legality of their imprisonment, §1303. The right to counsel under ICRA is not coextensive with the Sixth Amendment right. If a tribal court imposes a sentence in excess of one year, ICRA requires the court to accord the defendant “the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution,” including appointment of counsel for an indigent defendant at the tribe’s expense. §1302(c)(1), (2). If the sentence imposed is no greater than one year, however, the tribal court must allow a defendant only the opportunity to obtain counsel “at his own expense.” §1302(a)(6). In tribal court, therefore, unlike in federal or state court, a sentence of imprisonment up to one year may be imposed without according indigent defendants the right to appointed counsel. The question here presented: Is it permissible to use uncounseled tribal-court convictions—obtained in full compliance with ICRA—to establish the prior-crimes predicate of §117(a)? It is undisputed that a conviction obtained in violation of a defendant’s Sixth Amendment right to counsel cannot be used in a subsequent proceeding “either to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U. S. 109, 115 (1967) . In Burgett, we held that an uncounseled felony conviction obtained in state court in violation of the right to counsel could not be used in a subsequent proceeding to prove the prior-felony element of a recidivist statute. To permit such use of a constitutionally infirm conviction, we explained, would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid.; see United States v. Tucker, 404 U. S. 443, 448 (1972) (invalid, uncounseled prior convictions could not be relied upon at sentencing to impose a longer term of imprisonment for a subsequent conviction); cf. Loper v. Beto, 405 U. S. 473 –484 (1972) (plurality opinion) (“use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant’s credibility deprives him of due process of law” because the prior convictions “lac[k] reliability”). In Nichols v. United States, 511 U. S. 738 (1994) , we stated an important limitation on the principle recognized in Burgett. In the case under review, Nichols pleaded guilty to a federal felony drug offense. 511 U. S., at 740. Several years earlier, unrepresented by counsel, he had been convicted of driving under the influence (DUI), a state-law misdemeanor, and fined $250 but not imprisoned. Ibid. Nichols’ DUI conviction, under the then-mandatory Sentencing Guidelines, effectively elevated by about two years the sentencing range for Nichols’ federal drug offense. Ibid. We rejected Nichols’ contention that, as his later sentence for the federal drug offense involved imprisonment, use of his uncounseled DUI conviction to elevate that sentence violated the Sixth Amendment. Id., at 746–747. “[C]onsistent with the Sixth and Fourteenth Amendments of the Constitution,” we held, “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” Id., at 748–749. C Respondent Bryant’s conduct is illustrative of the domestic violence problem existing in Indian country. During the period relevant to this case, Bryant, an enrolled member of the Northern Cheyenne Tribe, lived on that Tribe’s reservation in Montana. He has a record of over 100 tribal-court convictions, including several misdemeanor convictions for domestic assault. Specifically, between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. On one occasion, Bryant hit his live-in girlfriend on the head with a beer bottle and attempted to strangle her. On another, Bryant beat a different girlfriend, kneeing her in the face, breaking her nose, and leaving her bruised and bloodied. For most of Bryant’s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of imprisonment, never exceeding one year. When convicted of these offenses, Bryant was indigent and was not appointed counsel. Because of his short prison terms, Bryant acknowledges, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Bryant has never challenged his tribal-court convictions in federal court under ICRA’s habeas corpus provision. In 2011, Bryant was arrested yet again for assaulting women. In February of that year, Bryant attacked his then girlfriend, dragging her off the bed, pulling her hair, and repeatedly punching and kicking her. During an interview with law enforcement officers, Bryant admitted that he had physically assaulted this woman five or six times. Three months later, he assaulted another woman with whom he was then living, waking her by yelling that he could not find his truck keys and then choking her until she almost lost consciousness. Bryant later stated that he had assaulted this victim on three separate occasions during the two months they dated. Based on the 2011 assaults, a federal grand jury in Montana indicted Bryant on two counts of domestic assault by a habitual offender, in violation of §117(a). Bryant was represented in federal court by appointed counsel. Contending that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element, Bryant moved to dismiss the indictment. The District Court denied the motion, App. to Pet. for Cert. 32a, and Bryant entered a conditional guilty plea, reserving the right to appeal that decision. Bryant was sentenced to concurrent terms of 46 months’ imprisonment on each count, to be followed by three years of supervised release. The Court of Appeals for the Ninth Circuit reversed the conviction and directed dismissal of the indictment. 769 F. 3d 671 (2014). Bryant’s tribal-court convictions were not themselves constitutionally infirm, the Ninth Circuit comprehended, because “the Sixth Amendment right to appointed counsel does not apply in tribal court proceedings.” Id., at 675. But, the court continued, had the convictions been obtained in state or federal court, they would have violated the Sixth Amendment because Bryant had received sentences of imprisonment although he lacked the aid of appointed counsel. Adhering to its prior decision in United States v. Ant, 882 F. 2d 1389 (CA9 1989),[7] the Court of Appeals held that, subject to narrow exceptions not relevant here, “tribal court convictions may be used in subsequent [federal] prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right.” 769 F. 3d, at 677. Rejecting the Government’s argument that our decision in Nichols required the opposite result, the Ninth Circuit concluded that Nichols applies only when the prior conviction did comport with the Sixth Amendment, i.e., when no sentence of imprisonment was imposed for the prior conviction. 769 F. 3d, at 677–678. Judge Watford concurred, agreeing that Ant controlled the outcome of this case, but urging reexamination of Ant in light of Nichols. 769 F. 3d, at 679. This Court’s decision in Nichols, Judge Watford wrote, “undermines the notion that uncounseled convictions are, as a categorical matter, too unreliable to be used as a basis for imposing a prison sentence in a subsequent case.” 769 F. 3d, at 679. The Court of Appeals declined to rehear the case en banc over vigorous dissents by Judges Owens and O’Scannlain. In disallowing the use of an uncounseled tribal-court conviction to establish a prior domestic violence conviction within §117(a)’s compass, the Ninth Circuit created a Circuit split. The Eighth and Tenth Circuits have both held that tribal-court “convictions, valid at their inception, and not alleged to be otherwise unreliable, may be used to prove the elements of §117.” United States v. Cavanaugh, 643 F. 3d 592, 594 (CA8 2011); see United States v. Shavanaux, 647 F. 3d 993, 1000 (CA10 2011). To resolve this disagreement, we granted certiorari, 577 U. S. ___ (2016), and now reverse. II Bryant’s tribal-court convictions, he recognizes, infringed no constitutional right because the Sixth Amendment does not apply to tribal-court proceedings. Brief for Respondent 5. Those prior convictions complied with ICRA, he concedes, and therefore were valid when entered. But, had his convictions occurred in state or federal court, Bryant observes, Argersinger and Scott would have rendered them invalid because he was sentenced to incarceration without representation by court-appointed counsel. Essentially, Bryant urges us to treat tribal-court convictions, for §117(a) purposes, as though they had been entered by a federal or state court. We next explain why we decline to do so. As earlier recounted, we held in Nichols that “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” 511 U. S., at 748–749. “Enhancement statutes,” we reasoned, “do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” Id., at 747; see United States v. Rodriquez, 553 U. S. 377, 386 (2008) (“When a defendant is given a higher sentence under a recidivism statute . . . 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s ‘status as a recidivist.’ ”). Nichols thus instructs that convictions valid when entered—that is, those that, when rendered, did not violate the Constitution—retain that status when invoked in a subsequent proceeding. Nichols’ reasoning steers the result here. Bryant’s 46-month sentence for violating §117(a) punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. Bryant was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court, when he was “adjudicated guilty of the felony offense for which he was imprisoned.” Alabama v. Shelton, 535 U. S. 654, 664 (2002) . It would be “odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected.” 769 F. 3d, at 679 (Watford, J., concurring).[8] Bryant acknowledges that had he been punished only by fines in his tribal-court proceedings, Nichols would have allowed reliance on his uncounseled convictions to satisfy §117(a)’s prior-crimes predicate. Brief for Respondent 50. We see no cause to distinguish for §117(a) purposes between valid but uncounseled convictions resulting in a fine and valid but uncounseled convictions resulting in imprisonment not exceeding one year. “Both Nichols’s and Bryant’s uncounseled convictions ‘comport’ with the Sixth Amendment, and for the same reason: the Sixth Amendment right to appointed counsel did not apply to either conviction.” App. to Pet. for Cert. 50a (O’Scannlain, J., dissenting from denial of rehearing en banc). In keeping with Nichols, we resist creating a “hybrid” category of tribal-court convictions, “good for the punishment actually imposed but not available for sentence enhancement in a later prosecution.” 511 U. S., at 744. Nichols indicates that use of Bryant’s uncounseled tribal-court convictions in his §117(a) prosecution did not “transform his prior, valid, tribal court convictions into new, invalid, federal ones.” App. to Pet. for Cert. 50a (opinion of O’Scannlain, J.). Our decision in Burgett, which prohibited the subsequent use of a conviction obtained in violation of the right to counsel, does not aid Bryant. Reliance on an invalid conviction, Burgett reasoned, would cause the accused to “suffe[r] anew from the deprivation of [his] Sixth Amendment right.” 389 U. S., at 115. Because a defendant convicted in tribal court suffers no Sixth Amendment violation in the first instance, “[u]se of tribal convictions in a subsequent prosecution cannot violate [the Sixth Amendment] ‘anew.’ ” Shavanaux, 647 F. 3d, at 998. Bryant observes that reliability concerns underlie our right-to-counsel decisions and urges that those concerns remain even if the Sixth Amendment itself does not shelter him. Scott and Nichols, however, counter the argument that uncounseled misdemeanor convictions are categorically unreliable, either in their own right or for use in a subsequent proceeding. Bryant’s recognition that a tribal-court conviction resulting in a fine would qualify as a §117(a) predicate offense, we further note, diminishes the force of his reliability-based argument. There is no reason to suppose that tribal-court proceedings are less reliable when a sentence of a year’s imprisonment is imposed than when the punishment is merely a fine. No evidentiary or procedural variation turns on the sanction—fine only or a year in prison—ultimately imposed. Bryant also invokes the Due Process Clause of the Fifth Amendment in support of his assertion that tribal-court judgments should not be used as predicate offenses. But, as earlier observed, ICRA itself requires tribes to ensure “due process of law,” §1302(a)(8), and it accords defendants specific procedural safeguards resembling those contained in the Bill of Rights and the Fourteenth Amendment. See supra, at 8. Further, ICRA makes habeas review in federal court available to persons incarcerated pursuant to a tribal-court judgment. §1303. By that means, a prisoner may challenge the fundamental fairness of the proceedings in tribal court. Proceedings in compliance with ICRA, Congress determined, and we agree, sufficiently ensure the reliability of tribal-court convictions. Therefore, the use of those convictions in a federal prosecution does not violate a defendant’s right to due process. See Shavanaux, 647 F. 3d, at 1000; cf. State v. Spotted Eagle, 316 Mont. 370, 378–379, 71 P. 3d 1239, 1245–1246 (2003) (principles of comity support recognizing uncounseled tribal-court convictions that complied with ICRA). * * * Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. We accordingly reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 “Indian country” is defined in 18 U. S. C. §1151 to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished. 2 Until 1986, ICRA permitted sentences of imprisonment up to only six months. See 100Stat. 3207–146. 3 Among the additional safeguards attending longer sentences is the unqualified right of an indigent defendant to appointed counsel. 25 U. S. C. §1302(c)(1), (2). 4 Tribal governments generally lack criminal jurisdiction over non-Indians who commit crimes in Indian country. See Oliphant v. Suquamish Tribe, 435 U. S. 191, 195 (1978) . In the Violence Against Women Reauthorization Act of 2013, Congress amended ICRA to authorize tribal courts to “exercise special domestic violence criminal jurisdiction” over certain domestic violence offenses committed by a non-Indian against an Indian. Pub. L. 113–4, §904, 127Stat. 120–122 (codified at 25 U. S. C. §1304). Tribal courts’ exercise of this jurisdiction requires procedural safeguards similar to those required for imposing on Indian defendants sentences in excess of one year, including the unqualified right of an indigent defendant to appointed counsel. See §1304(d). We express no view on the validity of those provisions. 5 Congress has since expanded the definition of felony assault to include “[a]ssault resulting in substantial bodily injury to a spouse[,] . . . intimate partner, [or] dating partner” and “[a]ssault of a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.” Violence Against Women Reauthorization Act of 2013, §906, 127Stat. 124 (codified at 18 U. S. C. §113(a)(7), (8)). The “substantial bodily injury” requirement remains difficult to satisfy, as it requires “a temporary but substantial disfigurement” or “a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty.” §113(b)(1). 6 Section 117(a) has since been amended to include as qualifying predicate offenses, in addition to intimate-partner crimes, “assault, sexual abuse, [and] serious violent felony” offenses committed “against a child of or in the care of the person committing the domestic assault.” 18 U. S. C. §117(a) (Supp. II 2014). 7 In United States v. Ant, 882 F. 2d 1389 (1989), the Ninth Circuit proscribed the use of an uncounseled tribal-court guilty plea as evidence of guilt in a subsequent federal prosecution arising out of the same incident. Use of the plea was impermissible, the Court of Appeals reasoned, “because the tribal court guilty plea was made under circumstances which would have violated the United States Constitution were it applicable to tribal proceedings.” Id., at 1390. 8 True, as Bryant points out, we based our decision in Nichols v.United States, 511 U. S. 738, 747 (1994) , in part on the “less exact-ing” nature of sentencing, compared with the heightened burden of proof required for determining guilt. But, in describing the rule we adopted, we said that it encompasses both “criminal history provisions,” applicable at sentencing, and “recidivist statutes,” of which §117(a) is one. Ibid. Moreover, Nichols’ two primary rationales—the validity of the prior conviction and the sentence’s punishment of “only the last offense”—do not rely on a distinction between guilt adjudication and sentencing. Indeed, it is the validity of the prior conviction that distinguishes Nichols from United States v. Tucker, 404 U. S. 443, 448 (1972) , in which we found impermissible the use at sentencing of an invalid, uncounseled prior conviction.

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. BRYANT certiorari to the united states court of appeals for the ninth circuit No. 15–420. Argued April 19, 2016—Decided June 13, 2016 In response to the high incidence of domestic violence against Native American women, Congress enacted a felony offense of domestic assault in Indian country by a habitual offender. 18 U. S. C. §117(a). Section 117(a)(1) provides that any person who “commits a domestic assault within . . . Indian country” and who has at least two prior final convictions for domestic violence rendered “in Federal, State, or Indian tribal court proceedings . . . shall be fined . . . , imprisoned for a term of not more than 5 years, or both . . . .” Having two prior tribal-court convictions for domestic violence crimes is thus a predicate of the new offense. This case raises the question whether §117(a)’s inclusion of tribal-court convictions as predicate offenses is compatible with the Sixth Amendment’s right to counsel. The Sixth Amendment guarantees indigent defendants appointed counsel in any state or federal criminal proceeding in which a term of imprisonment is imposed, Scott v. Illinois, 440 U. S. 367 –374, but it does not apply in tribal-court proceedings, see Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U. S. 316 . The Indian Civil Rights Act of 1968 (ICRA), which governs tribal-court proceedings, accords a range of procedural safeguards to tribal-court defendants “similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment,” Santa Clara Pueblo v. Martinez, 436 U. S. 49 . In particular, ICRA provides indigent defendants with a right to appointed counsel only for sentences exceeding one year. 25 U. S. C. §1302(c)(2). ICRA’s right to counsel therefore is not coextensive with the Sixth Amendment right. This Court has held that a conviction obtained in state or federal court in violation of a defendant’s Sixth Amendment right to counsel cannot be used in a subsequent proceeding “to support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U. S. 109 . Use of a constitutionally infirm conviction would cause “the accused in effect [to] suffe[r] anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid. Burgett’s principle was limited by the Court’s holding in Nichols v. United States, 511 U. S. 738 , that “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction,” id., at 748–749. Respondent Michael Bryant, Jr., has multiple tribal-court convictions for domestic assault. When convicted, Bryant was indigent and was not appointed counsel. For most of his convictions, he was sentenced to terms of imprisonment not exceeding one year’s duration. Because of his short prison terms, the prior tribal-court proceedings complied with ICRA, and his convictions were therefore valid when entered. Based on domestic assaults he committed in 2011, Bryant was indicted on two counts of domestic assault by a habitual offender, in violation of §117(a). Represented in federal court by appointed counsel, he contended that the Sixth Amendment precluded use of his prior, uncounseled, tribal-court misdemeanor convictions to satisfy §117(a)’s predicate-offense element and moved to dismiss the indictment. The District Court denied the motion; Bryant pleaded guilty, reserving the right to appeal. The Ninth Circuit reversed the conviction and directed dismissal of the indictment. It comprehended that Bryant’s uncounseled tribal-court convictions were valid when entered because the Sixth Amendment right to counsel does not apply in tribal-court proceedings. It held, however, that Bryant’s tribal-court convictions could not be used as predicate convictions within §117(a)’s compass because they would have violated the Sixth Amendment had they been rendered in state or federal court. Held: Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Nichols instructs that convictions valid when entered retain that status when invoked in a subsequent proceeding. Nichols reasoned that “[e]nhancement statutes . . . do not change the penalty imposed for the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” 511 U. S., at 747. Bryant’s sentence for violating §117(a) punishes his most recent acts of domestic assault, not his prior crimes prosecuted in tribal court. He was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribal-court convictions resulting in fines to satisfy §117(a)’s prior-crimes predicate. But there is no cause to distinguish for §117(a) purposes between fine-only tribal-court convictions and valid but uncounseled tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is not aided by Burgett. A defendant convicted in tribal court suffered no Sixth Amendment violation in the first instance, so he cannot “suffe[r] anew” from a prior deprivation in his federal prosecution. Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments should not be used as predicate offenses under §117(a). ICRA, however, guarantees “due process of law,” accords other procedural safeguards, and permits a prisoner to challenge the fundamental fairness of tribal court proceedings in federal habeas corpus proceedings. Because proceedings in compliance with ICRA sufficiently ensure the reliability of tribal-court convictions, the use of those convictions in a federal prosecution does not violate a defendant’s due process right. . 769 F. 3d 671, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

In response to the high incidence of domestic violence against Native American women, Congress enacted 18 U.S. C. §117(a), which makes it a federal crime for any person tocommi[t] a domestic assault within Indian country if the person has at least two prior final convictions for domestic violence rendered in tribal court proceedings. Respondent Bryant, an enrolled member of the Northern Cheyenne Tribe, has multiple tribal-court convictions, none of them exceeding one year's duration. In addition to other enumerated protections, the Indian Civil Rights Act of 1968 (ICRA) guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed. However, the Sixth Amendment does not apply to tribal courts. The Indian Civil Rations Act of 1967, which was enacted to deal with the problems that tribal courts face in punishing recidivists, limited sentences in tribal courts to a maximum of one year, but expanded tribal court sentencing authority, allowing them to impose up to three years' imprisonment, contingent on adoption of additional procedural safeguards. §1302(c)(2). In this case, respondent Bryant was convicted of domestic assault in a tribal court, and, for most of his acts of violence, was sentenced to terms of imprisonment. He has never challenged his tribal court convictions in federal court under the habeas corpus provision of the ICCRA, but, in a subsequent federal court proceeding, he was indicted for domestic assault. The District Court denied his motion to dismiss the indictment, denying his conditional guilty plea, reserving the right to appeal that decision. The Court of Appeals reversed and directed dismissal of the indictment. Held: 1. Bryant had tribal court conviction convictions, though uncounseled, that were valid when entered. That proceeding generates no Sixth Amendment defect where none previously existed. See United States v. Ant, 882 F. 2d 1389 (CA9 1989). . (a) Although federal law generally governs in Indian country, Congress has long excluded from federal-court crimes committed by an Indian against an Indian by an indigent Indian. While the Bill of Rights and the Fourteenth Amendment do not apply in tribal proceedings, Congress accorded a range of procedural safeguards to tribal court defendants similar, but not identical, to those contained in the Bill and Fourteenth Amendments. There is no reason to suppose that tribal proceedings are less reliable when a sentence of a year or less is imposed than when the punishment is merely a fine. Nor does the Due Process Clause of the Fifth Amendment require tribes to ensure due process of law. Thus, ICRA accords to tribal defendants the procedural safeguards contained in those convictions. And, by allowing indigent persons to obtain federal counsel at the expense of tribal court counsel pursuant to an ICCRA sentence, Congress makes available to a tribal defendant the equal opportunity, at least in excess of the statutory year, to obtain appointed tribal counsel, unlike those who otherwise may be appointed. Because respondent Bryant had two prior Tribal-Court convictions that complied with ICRA, and since his tribal convictions occurred in such proceedings, use of those convictions as predicate offenses does not violate the Constitution. Nichols v. United States, 647 F. 3d 592, reversed and remanded. Reported below: 769 F. 3d 671. BLACKMUN, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, MARSHALL, and STEVENS JJ., concurred in the judgment.

2015_15-7

https://www.oyez.org/cases/2015/15-7

. The False Claims Act, 31 U. S. C. §3729 et seq., imposes significant penalties on those who defraud the Government. This case concerns a theory of False Claims Act liability commonly referred to as “implied false certification.” According to this theory, when a defendant submits a claim, it impliedly certifies compliance with all conditions of payment. But if that claim fails to disclose the defendant’s violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the defendant has made a misrepresentation that renders the claim “false or fraudulent” under §3729(a)(1)(A). This case requires us to consider this theory of liability and to clarify some of the circumstances in which the False Claims Act imposes liability. We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liability. Specifically, liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading. We further hold that False Claims Act liability for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated acondition of payment, not every violation of such a requirement gives rise to liability. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act. We clarify below how that rigorous materiality requirement should be enforced. Because the courts below interpreted §3729(a)(1)(A) differently, we vacate the judgment and remand so that those courts may apply the approach set out in thisopinion. I A Enacted in 1863, the False Claims Act “was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.” United States v. Bornstein, 423 U. S. 303, 309 (1976) . “[A] series of sensational congressional investigations” prompted hearings where witnesses “painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war.” United States v. McNinch, 356 U. S. 595, 599 (1958) . Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subjecting violators to double damages, forfeiture, and up to five years’ imprisonment. Act of Mar. 2, 1863, ch. 67, 12Stat. 696. Since then, Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims. See 31 U. S. C. §3729(a) (imposing civil liability on “any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”). A “claim” now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See §3729(b)(2)(A). The Act’s scienter requirement defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the information.” §3729(b)(1)(A). And the Act defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” §3729(b)(4). Congress also has increased the Act’s civil penalties so that liability is “essentially punitive in nature.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 784 (2000) . Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. §3729(a); 28 CFR §85.3(a)(9) (2015) (adjusting penalties for inflation). B The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal program in which healthcare providers serve poor or disabled patients and submit claims for government reimbursement. See generally 42 U. S. C. §1396 et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services at Arbour Counseling Services, a satellite mental health facility in Lawrence, Massa-chusetts, owned and operated by a subsidiary of peti-tioner Universal Health Services. Beginning in 2004, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 2009, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitalization. In October 2009, she suffered another seizure and died. She was 17 years old. Thereafter, an Arbour counselor revealed to respondents Carmen Correa and Julio Escobar—Yarushka’s mother and stepfather—that few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal. Respondents discovered that, of the five professionals who had treated Yarushka, only one was properly licensed. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D., but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision. Rather than ensuring supervision of unlicensed staff, the clinic’s director helped to misrepresent the staff’s qualifications. And the problem went beyond those who treated Yarushka. Some 23 Arbour employees lacked licenses to provide mental health services, yet—despite regulatory requirements to the contrary—they counseled patients and prescribed drugs without supervision. When submitting reimbursement claims, Arbour used payment codes corresponding to different services that its staff provided to Yaruskha, such as “Individual Therapy” and “family therapy.” 1 App. 19, 20. Staff members also misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. For instance, one Arbour staff member who treated Yaruskha registered for a number associated with “ ‘Social Worker, Clinical,’ ” despite lacking the credentials and licensing required for social workers engaged in mental health counseling. 1 id., at 32. After researching Arbour’s operations, respondents filed complaints with various Massachusetts agencies. Massachusetts investigated and ultimately issued a report detailing Arbour’s violation of over a dozen Massachusetts Medicaid regulations governing the qualifications and supervision required for staff at mental health facili-ties. Arbour agreed to a remedial plan, and two Arbour employees also entered into consent agreements with Massachusetts. In 2011, respondents filed a qui tam suit in federal court, see 31 U. S. C. §3730, alleging that Universal Health had violated the False Claims Act under an implied false certification theory of liability. The operative complaint asserts that Universal Health (acting through Arbour) submitted reimbursement claims that made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifications and licensing requirements for these services.[1] Specifically, the Massachusetts Medicaid program requires satellite facilities to have specific types of clinicians on staff, delineates licensing requirements for particular positions (like psychiatrists, social workers, and nurses), and details supervision requirements for other staff. See 130 Code Mass. Regs. §§429.422–424, 429.439 (2014). Universal Health allegedly flouted these regulations because Arbour employed unqualified, unlicensed, and unsupervised staff. The Massachusetts Medicaid program, unaware of these deficiencies, paid the claims. Universal Health thus allegedly defrauded the program, which would not have reimbursed the claims had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff. The United States declined to intervene. The District Court granted Universal Health’s motion to dismiss the complaint. Circuit precedent had previously embraced the implied false certification theory of liability. See, e.g., United States ex rel. Hutcheson v. Blackstone Medical, Inc., 647 F. 3d 377, 385–387 (CA1 2011). But the District Court held that respondents had failed to state a claim under that theory because, with one exception not relevant here, none of the regulations that Arbour violated was a condition of payment. See 2014 WL 1271757, *1, *6–*12 (D Mass., Mar. 26, 2014). The United States Court of Appeals for the First Circuit reversed in relevant part and remanded. 780 F. 3d 504, 517 (2015). The court observed that each time a billing party submits a claim, it “implicitly communicate[s] that it conformed to the relevant program requirements, such that it was entitled to payment.” Id., at 514, n. 14. To determine whether a claim is “false or fraudulent” based on such implicit communications, the court explained, it “asks simply whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment.” Id., at 512. In the court’s view, a statutory, regulatory, or contractual requirement can be a condition of payment either by expressly identifying itself as such or by implication. Id., at 512–513. The court then held that Universal Health had violated Massachusetts Medicaid regulations that “clearly impose conditions of payment.” Id., at 513. The court further held that the regulations themselves “constitute[d] dispositive evidence of materiality,” because they identified adequate supervision as an “express and absolute” condition of payment and “repeated[ly] reference[d]” supervision. Id., at 514 (internal quotation marks omitted). We granted certiorari to resolve the disagreement among the Courts of Appeals over the validity and scope of the implied false certification theory of liability. 577 U. S. ___ (2015). The Seventh Circuit has rejected this theory, reasoning that only express (or affirmative) falsehoods can render a claim “false or fraudulent” under 31 U. S. C. §3729(a)(1)(A). United States v. Sanford-Brown, Ltd., 788 F. 3d 696, 711–712 (2015). Other courts have accepted the theory, but limit its application to cases where defendants fail to disclose violations of expressly designated conditions of payment. E.g., Mikes v. Straus, 274 F. 3d 687, 700 (CA2 2011). Yet others hold that conditions of payment need not be expressly designated as such to be a basis for False Claims Act liability. E.g., United States v. Science Applications Int’l Corp., 626 F. 3d 1257, 1269 (CADC 2010) (SAIC). II We first hold that the implied false certification theory can, at least in some circumstances, provide a basis for liability. By punishing defendants who submit “false or fraudulent claims,” the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions. When, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided. To reach this conclusion, “[w]e start, as always, with the language of the statute.” Allison Engine Co. v. United States ex rel. Sanders, 553 U. S. 662, 668 (2008) (brackets in original; internal quotation marks omitted). The False Claims Act imposes civil liability on “any person who . . . knowingly presents, or causes to be presented, a falseor fraudulent claim for payment or approval.” §3729(a)(1)(A). Congress did not define what makes a claim “false” or “fraudulent.” But “[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Sekhar v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3) (internal quotation marks omitted). And the term “fraudulent” is a paradigmatic example of a statutory term that incorporates the common-law meaning of fraud. See Neder v. United States, 527 U. S. 1, 22 (1999) (the term “actionable ‘fraud’” is one with “a well-settled meaning at common law”).[2] Because common-law fraud has long encompassed certain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability. Brief for Petitioner 30–31; Brief for Respondents 22–31; Brief for United States as Amicus Curiae 16–20. The parties instead dispute whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constitutes such an actionable misrepresentation. Respondents and the Government invoke the common-law rule that, while nondisclosure alone ordinarily is not actionable, “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter” is actionable. Restatement (Second) of Torts §529, p. 62 (1976). They contend that every submission of a claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim misleading. Universal Health, on the other hand, argues that submitting a claim involves no representations, and that a different common-law rule thus governs: nondisclosure of legal violations is not actionable absent a special “ ‘duty . . . to exercise reasonable care to disclose the matter in question,’ ” which it says is lacking in Government contracting. Brief for Petitioner 31 (quoting Restatement (Second) of Torts §551(1), at 119). We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations.[3] A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)). So too here, by submitting claims for payment using payment codes that corresponded to specific counseling services, Universal Health represented that it had pro-vided individual therapy, family therapy, preventive medica-tion counseling, and other types of treatment. Moreover, Arbour staff members allegedly made further representations in submitting Medicaid reimbursement claims by using National Provider Identification numbers corresponding to specific job titles. And these representations were clearly misleading in context. Anyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably—but wrongly—conclude that the clinic had complied with core Massachusetts Medicaid requirements (1) that a counselor “treating children [is] required to have specialized training and experience in children’s services,” 130 Code Mass. Regs. §429.422, and also (2) that, at a minimum, the social worker possesses the prescribed qualifications for the job, §429.424(C). By using payment and other codes that conveyed this information without disclosing Arbour’s many violations of basic staff and licensing requirements for mental health facilities, Universal Health’s claims constituted misrepresentations. Accordingly, we hold that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.[4] III The second question presented is whether, as Universal Health urges, a defendant should face False Claims Act liability only if it fails to disclose the violation of a contractual, statutory, or regulatory provision that the Government expressly designated a condition of payment. We conclude that the Act does not impose this limit on liability. But we also conclude that not every undisclosed violation of an express condition of payment automatically triggers liability. Whether a provision is labeled a condition of payment is relevant to but not dispositive of the materiality inquiry. A Nothing in the text of the False Claims Act sup-ports Universal Health’s proposed restriction. Section 3729(a)(1)(A) imposes liability on those who present “false or fraudulent claims” but does not limit such claims to misrepresentations about express conditions of payment. See SAIC, 626 F. 3d, at 1268 (rejecting any textual basis for an express-designation rule). Nor does the common-law meaning of fraud tether liability to violating an express condition of payment. A statement that misleadingly omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the importance of the qualifying information. Supra, at 9–11. The False Claims Act’s materiality requirement also does not support Universal Health. Under the Act, the misrepresentation must be material to the other party’s course of action. But, as discussed below, see infra, at 15–17, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Cf. Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 39 (2011) (materiality cannot rest on “a single fact or occurrence as always determinative” (internal quotation marks omitted)). Nor does the Act’s scienter requirement, §3729(b)(1)(A), support Universal Health’s position. A defendant can have “actual knowledge” that a condition is material without the Government expressly calling it a condition of payment. If the Government failed to specify that guns it orders must actually shoot, but the defendant knows that the Government routinely rescinds contracts if the guns do not shoot, the defendant has “actual knowledge.” Likewise, because a reasonable person would realize the imperative of a functioning firearm, a defendant’s failure to appreciate the materiality of that condition would amount to “deliberate ignorance” or “reckless disregard” of the “truth or falsity of the information” even if the Government did not spell this out. Universal Health nonetheless contends that False Claims Act liability should be limited to undisclosed violations of expressly designated conditions of payment to provide defendants with fair notice and to cabin liability. But policy arguments cannot supersede the clear statutory text. Kloeckner v. Solis, 568 U. S. ___, ___–___, n. 4 (2012) (slip op., at 13–14, n. 4). In any event, Universal Health’s approach risks undercutting these policy goals. The Government might respond by designating every legal requirement an express condition of payment. But billing parties are often subject to thousands of complex statutory and regulatory provisions. Facing False Claims Act liability for violating any of them would hardly help would-be defendants anticipate and prioritize compliance obligations. And forcing the Government to expressly designate a provision as a condition of payment would create further arbitrariness. Under Universal Health’s view, misrepresenting compliance with a requirement that the Government expressly identified as a condition of payment could expose a defendant to liability. Yet, under this theory, misrepresenting compliance with a condition of eligibility to even participate in a federal program when submitting a claim would not. Moreover, other parts of the False Claims Act allay Universal Health’s concerns. “[I]nstead of adopting a circumscribed view of what it means for a claim to be false or fraudulent,” concerns about fair notice and open-ended liability “can be effectively addressed through strict enforcement of the Act’s materiality and scienter requirements.” SAIC, supra, at 1270. Those requirements are rigorous. B As noted, a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act. We now clarify how that materiality requirement should be enforced. Section 3729(b)(4) defines materiality using language that we have employed to define materiality in other federal fraud statutes: “[T]he term ‘material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” See Neder, 527 U. S., at 16 (using this definition to interpret the mail, bank, and wire fraud statutes); Kungys v. United States, 485 U. S. 759, 770 (1988) (same for fraudulent statements to immigration officials). This materiality requirement descends from “common-law antecedents.” Id., at 769. Indeed, “the common law could not have conceived of ‘fraud’ without proof of materiality.” Neder, supra, at 22; see also Brief for United States as Amicus Curiae 30 (describing common-law principles and arguing that materiality under the False Claims Act should involve a “similar approach”). We need not decide whether §3729(a)(1)(A)’s materiality requirement is governed by §3729(b)(4) or derived directly from the common law. Under any understanding of the concept, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” 26 R. Lord, Williston on Contracts §69:12, p. 549 (4th ed. 2003) (Williston). In tort law, for instance, a “matter is material” in only two circumstances: (1) “[if ] a reasonable man would attach importance to [it] in determining his choice of action in the transaction”; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter “in determining his choice of action,” even though a reasonable person would not. Restatement (Second) of Torts §538, at 80. Materiality in contract law is substantially similar. See Restatement (Second) of Contracts §162(2), and Comment c, pp. 439, 441 (1979) (“[A] misrepresentation is material” only if it would “likely . . . induce a reasonable person to manifest his assent,” or the defendant “knows that for some special reason [the representation] is likely to induce the particular recipient to manifest his assent” to the transaction).[5] The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute,” Allison Engine, 553 U. S., at 672, or a vehicle for punishing garden-variety breaches of contract or regulatory violations. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. See United States ex rel. Marcus v. Hess, 317 U. S. 537, 543 (1943) (contractors’ misrepresentation that they satisfied a non-collusive bidding requirement for federal program contracts violated the False Claims Act because “[t]he government’s money would never have been placed in the joint fund for payment to respondents had its agents known the bids were collusive”); see also Junius Constr., 257 N. Y., at 400, 178 N. E., at 674 (an undisclosed fact was material because “[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood” of the undisclosed fact). In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly iden-tify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of materiality can include, but is not necessarily limited to, evidence that the defendant knows that the Government consis-tently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.[6] These rules lead us to disagree with the Government’s and First Circuit’s view of materiality: that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation. See Brief for United States as Amicus Curiae 30; Tr. of Oral Arg. 43 (Government’s “test” for materiality “is whether the person knew that the government could lawfully withhold payment”); 780 F. 3d, at 514; see also Tr. of Oral Arg. 26, 29 (statements by respondents’ counsel endorsing this view). At oral argument, the United States explained the implications of its position: If the Government contracts for health services and adds a requirement that contractors buy American-made staplers, anyone who submits a claim for those services but fails to disclose its use of foreign staplers violates the False Claims Act. To the Government, liability would attach if the defendant’s use of foreign staplers would entitle the Government not to pay the claim in whole or part—irrespective of whether the Government routinely pays claims despite knowing that foreign staplers were used. Id., at 39–45. Likewise, if the Government required contractors to aver their compliance with the entire U. S. Code and Code of Federal Regulations, then under this view, failing to mention noncompliance with any of those requirements would always be material. The False Claims Act does not adopt such an extraordinarily expansive view of liability. * * * Because both opinions below assessed respondents’ complaint based on interpretations of §3729(a)(1)(A) that differ from ours, we vacate the First Circuit’s judgment and remand the case for reconsideration of whether respondents have sufficiently pleaded a False Claims Act violation. See Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. ___, ___ (2015) (slip op., at 19). We emphasize, however, that the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations. This case centers on allegations of fraud, not medical malpractice. Respondents have alleged that Universal Health misrepresented its compliance with mental health facility requirements that are so central to the provision of mental health counseling that the Medicaid program would not have paid these claims had it known of these violations. Respondents may well have adequately pleaded a violation of §3729(a)(1)(A). But we leave it to the courts below to resolve this in the first instance. 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 Although Universal Health submitted some of the claims at issue before 2009, we assume—as the parties have done—that the 2009 amendments to the False Claims Act apply here. Universal Health does not argue, and we thus do not consider, whether pre-2009 conduct should be treated differently. 2 The False Claims Act abrogates the common law in certain respects. For instance, the Act’s scienter requirement “require[s] no proof of specific intent to defraud.” 31 U. S. C. §3729(b)(1)(B). But we presume that Congress retained all other elements of common-law fraud that are consistent with the statutory text because there are no textual indicia to the contrary. See Neder, 527 U. S., at 24–25. 3 This rule recurs throughout the common law. In tort law, for example, “if the defendant does speak, he must disclose enough to prevent his words from being misleading.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §106, p. 738 (5th ed. 1984). Contract law also embraces this principle. See, e.g., Restatement (Second) of Contracts §161, Comment a, p. 432 (1979). And we have used this definition in other statutory contexts. See, e.g., Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 44 (2011) (securities law). 4 As an alternative argument, Universal Health asserts that misleading partial disclosures constitute fraudulent misrepresentations only when the initial statement partially disclosed unfavorable information. Not so. “[A] statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.” Restatement (Second) of Torts, §529, Comment a, pp. 62–63 (1976). 5 Accord, Williston §69:12, pp. 549–550 (“most popular” understanding is “that a misrepresentation is material if it concerns a matter to which a reasonable person would attach importance in determining his or her choice of action with respect to the transaction involved: which will induce action by a complaining party[,] knowledge of which would have induced the recipient to act differently” (footnote omitted)); id., at 550 (noting rule that “a misrepresentation is material if, had it not been made, the party complaining of fraud would not have taken the action alleged to have been induced by the misrepresentation”); Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (a misrepresentation is material if it “went to the very essence of the bargain”); cf. Neder v. United States, 527 U. S. 1 , n. 5 (1999) (relying on “ ‘natural tendency to influence’ ” standard and citing Restatement (Second) of Torts §538 definition of materiality). 6 We reject Universal Health’s assertion that materiality is too fact intensive for courts to dismiss False Claims Act cases on a motion to dismiss or at summary judgment. The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particular-ity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, pleading facts to support allegations of materiality.

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 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES et al. ex rel. ESCOBAR et al. certiorari to the united states court of appeals for the first circuit No. 15–7. Argued April 19, 2016—Decided June 16, 2016 Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services for several years at Arbour Counseling Services, a satellite mental health facility owned and operated by a subsidiary of petitioner Universal Health Services, Inc. She had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened, and she eventually died of a seizure. Respondents, her mother and stepfather, later discovered that few Arbour employees were actually licensed to provide mental health counseling or authorized to prescribe medications or offer counseling services without supervision. Respondents filed a qui tam suit, alleging that Universal Health had violated the False Claims Act (FCA). That Act imposes significant penalties on anyone who “knowingly presents . . . a false or fraudulent claim for payment or approval” to the Federal Government, 31 U. S. C. §3729(a)(1)(A). Respondents sought to hold Universal Health liable under what is commonly referred to as an “implied false certification theory of liability,” which treats a payment request as a claimant’s implied certification of compliance with relevant statutes, regulations, or contract requirements that are material conditions of payment and treats a failure to disclose a violation as a misrepresentation that renders the claim “false or fraudulent.” Specifically, respondents alleged, Universal Health (acting through Arbour) defrauded the Medicaid program by submitting reimbursement claims that made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of Massachusetts Medicaid regulations pertaining to staff qualifications and licensing requirements for these services. Universal Health thus allegedly defrauded the program because Universal Health knowingly misrepresented its compliance with mental health facility requirements that are so central to the provision of mental health counseling that the Medicaid program would have refused to pay these claims had it known of these violations. The District Court granted Universal Health’s motion to dismiss. It held that respondents had failed to state a claim under the “implied false certification” theory of liability because none of the regulations violated by Arbour was a condition of payment. The First Circuit reversed in relevant part, holding that every submission of a claim implicitly represents compliance with relevant regulations, and that any undisclosed violation of a precondition of payment (whether or not expressly identified as such) renders a claim “false or fraudulent.” The First Circuit further held that the regulations themselves provided conclusive evidence that compliance was a material condition of payment because the regulations expressly required facilities to adequately supervise staff as a condition of payment. Held: 1. The implied false certification theory can be a basis for FCA liability when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose noncompliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services. . (a) The FCA does not define a “false” or “fraudulent” claim, so the Court turns to the principle that “absent other indication, ‘Congress intends to incorporate the well-settled meaning of the common-law terms it uses,’ ” Sekhar v. United States, 570 U. S. ___, ___. Under the common-law definition of “fraud,” the parties agree, certain misrepresentations by omission can give rise to FCA liability. Respondents and the Government contend that every claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim misleading. Universal Health, on the other hand, argues that submitting a claim involves no representations and that the nondisclosure of legal violations is not actionable absent a special duty of reasonable care to disclose such matters. Today’s decision holds that the claims at issue may be actionable because they do more than merely demand payment; they fall squarely within the rule that representations that state the truth only so far as it goes, while omitting critical qualifying information, can be actionable misrepresentations. . (b) By submitting claims for payment using payment codes corresponding to specific counseling services, Universal Health represented that it had provided specific types of treatment. And Arbour staff allegedly made further representations by using National Provider Identification numbers corresponding to specific job titles. By conveying this information without disclosing Arbour’s many violations of basic staff and licensing requirements for mental health facilities, Universal Health’s claims constituted misrepresentations. . 2. Contrary to Universal Health’s contentions, FCA liability for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. . (a) Section 3729(a)(1)(A), which imposes liability on those presenting “false or fraudulent claim[s],” does not limit claims to misrepresentations about express conditions of payment. Nothing in the text supports such a restriction. And under the Act’s materiality requirement, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Nor is the restriction supported by the Act’s scienter requirement. A defendant can have “actual knowledge” that a condition is material even if the Government does not expressly call it a condition of payment. What matters is not the label that the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. Universal Health’s policy arguments are unavailing, and are amply addressed through strict enforcement of the FCA’s stringent materiality and scienter provisions. . (b) A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the FCA. The FCA’s materiality requirement is demanding. An undisclosed fact is material if, for instance, “[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood” of the undisclosed fact. Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674. When evaluating the FCA’s materiality requirement, the Government’s decision to expressly identify a provision as a condition of payment is relevant, but not automatically dispositive. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular requirement as a condition of payment. Nor is the Government’s option to decline to pay if it knew of the defendant’s noncompliance sufficient for a finding of materiality. Materiality also cannot be found where noncompliance is minor or insubstantial. Moreover, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. The FCA thus does not support the Government’s and First Circuit’s expansive view that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation. . 780 F. 3d 504, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court.

Under the implied false certification theory, when a defendant submits a claim for payment, it impliedly certifies compliance with all conditions of payment, but if that claim fails to disclose the defendant's violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the defendant has made a misrepresentation that renders the claim false or fraudulent under §3729(a)(1)(A) of the False Claims Act, which imposes significant penalties on those who defraud the Government. Respondents filed suit in Federal District Court, alleging that appellee, a mental health facility operated by a subsidiary of peti-tioner Universal Health Services, had violated the Act by submitting reimbursement claims that made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifications and licensing requirements for these services. The District Court granted respondents a motion to intervene, holding that none of the relevant state regulations had been violated, and remanded the case for reconsideration of whether respondents had sufficiently pleaded a false certification claim. Held: The judgment of the Court of Appeals is vacated, and the case is remanded. ;;. 780 F.3d 504 (CA6) (CA5) (revocable) ;;. (a) When a defendant makes representations in submitting a claim, but omits its violations of statutory or regulatory requirements, those omissions can be a basis for liability if they render the defendant representations misleading with respect to the goods or services provided. When, as here, a defendant claims for payment using payment codes that corresponded to specific counseling services, the claim does not merely request payment but also makes specific representations about such services; and the defendant is not required to disclose noncompliance. . (b) Here, by using payment and other codes that conveyed this information without disclosing respondent staff members' many violations of state Medicaid regulations, the claimed claims constituted misrepresentations. Such misrepresentations were clearly misleading in context. Even if the claim is labeled as a condition of payment without disclosing any violations of the state regulations, such misrepresentation is material to the payment decision in order to be actionable under the Act. Pp. 475 U.S. 603-676. (c) When the Government expressly iden-tify a provision of a payment claim, such as the one at issue here, the Government may be liable for violating that provision even if it was not expressly designated as a payment condition. Conversely, even when a requirement is expressly designated acondition of payment not every violation of such a requirement gives rise to liability. See, e.g., United States v. Sanford-Brown, Ltd., 788 F. 3d 696, 711-712 (CA2 2011). P.. (d) When evaluating materiality under the False claims Act, when the Government makes representations as here involving certain misleading omissions, such omissions as misrepresentation about compliance with a statutory, regulation, or contract requirement, those factual or legal requirements must be material to a payment decision. Here, the implied certification theory can be used to justify liability, at least where two conditions are satisfied: (1) the claim requests payment, not merely making specific representations, but also making specific representation about the goods and services provided; and (2) the defendant cannot make misrepresentations that are misleading half-truths. This interpretation of the language of the Act is not supported by its legislative history, which does not define what makes a claim "false" or "fraudulent," but is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses. Cf. Neder v. United States, 527 U. S. 659, 759, 869, 769, 871, 872, 879, 878, 882, 880, 885, 881, 890, 891, 892, 884, 894, 895, 896, 889, 893, 886, 897, 888, 898, 816, 899, 887, 883, 801, 814, 810, 812, 815, 817, 818, 821, 811, 813, 829. In any event, Universal Health submitted some of the claims at issue before the date of the amendments to the Act, and it is assumed that the latter amendments apply here. Universal Health does not argue, and thus does not consider, whether pre-2009 conduct should be treated differently. However, when evaluating the standard of materiality, when it comes to claims that make fraudulent misrepresentations, which include certain misleading misrepresentations and noncompliance with material statutory and regulatory or contractual requirements, it is relevant, but not automatically dispositive. Likewise, proof of material

2015_14-1373

https://www.oyez.org/cases/2015/14-1373

.To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makesan unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.IThis case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence. App. 15. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs.One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence.As part of the stop, Officer Fackrell requested Strieff’s identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.The trial court agreed with the State and admitted the evidence. The court found that the short time between the illegal stop and the search weighed in favor of suppressing the evidence, but that two countervailing considerations made it admissible. First, the court considered the presence of a valid arrest warrant to be an “ ‘extraordinary intervening circumstance.’ ” App. to Pet. for Cert. 102 (quoting United States v. Simpson, 439 F. 3d 490, 496 (CA8 2006). Second, the court stressed the absence of flagrant misconduct by Officer Fackrell, who was conducting a legitimate investigation of a suspected drug house.Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the suppression motion. The Utah Court of Appeals affirmed. 2012 UT App 245, 286 P. 3d 317.The Utah Supreme Court reversed. 2015 UT 2, 357 P. 3d 532. It held that the evidence was inadmissible because only “a voluntary act of a defendant’s free will (as in a confession or consent to search)” sufficiently breaks the connection between an illegal search and the discovery of evidence. Id., at 536. Because Officer Fackrell’s discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed. Ibid.We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. 576 U. S. ___ (2015). Compare, e.g., United States v. Green, 111 F. 3d 515, 522–523 (CA7 1997) (holding that discovery of the warrant is a dispositive intervening circumstance where police misconduct was not flagrant), with, e.g., State v. Moralez, 297 Kan. 397, 415, 300 P. 3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). We now reverse.IIAThe Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures histori-cally enforced their rights through tort suits or self-help. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999). In the 20th century, however, the exclusionary rule—the rule that often requires trial courts to exclude unlawfully seized evidence in a criminal trial—became the principal judicial remedy to deter Fourth Amendment violations. See, e.g., Mapp v. Ohio,367 U. S. 643,655 (1961).Under the Court’s precedents, the exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality,” the so-called “ ‘fruit of the poisonous tree.’ ” Segura v. United States,468 U. S. 796,804 (1984). But the significant costs of this rule have led us to deem it “applicable only . . . where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan,547 U. S. 586,591 (2006) (internal quotation marks omitted). “Suppression of evidence . . . has always been our last resort, not our first impulse.” Ibid.We have accordingly recognized several exceptions to the rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. See Murray v. United States,487 U. S. 533,537 (1988). Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. See Nix v. Williams,467 U. S. 431–444 (1984). Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” Hudson, supra, at 593.BTurning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The Utah Supreme Court declined to apply the attenuation doctrine because it read our precedents as applying the doctrine only “to circumstances involving an independent act of a defendant’s ‘free will’ in confessing to a crime or consenting to a search.” 357 P. 3d, at 544. In this Court, Strieff has not defended this argument, and we disagree with it, as well. The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. And the logic of our prior attenuation cases is not limited to independent acts by the defendant.It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person. The three factors articulated in Brown v. Illinois,422 U. S. 590 (1975), guide our analysis. First, we look to the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Id., at 603. Second, we consider “the presence of intervening circumstances.” Id., at 603–604. Third, and “particularly” significant, we examine “the purpose and flagrancy of the official misconduct.” Id., at 604. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.1The first factor, temporal proximity between the ini-tially unlawful stop and the search, favors suppressing the evidence. Our precedents have declined to find that this factor favors attenuation unless “substantial time” elapses between an unlawful act and when the evidence is obtained. Kaupp v. Texas,538 U. S. 626,633 (2003) (per curiam). Here, however, Officer Fackrell discovered drug contraband on Strieff’s person only minutes after the illegal stop. See App. 18–19. As the Court explained in Brown, such a short time interval counsels in favor of suppression; there, we found that the confession should be suppressed, relying in part on the “less than two hours” that separated the unconstitutional arrest and the confession. 422 U. S., at 604.In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. In Segura,468 U. S. 796, the Court addressed similar facts to those here and found sufficient intervening circumstances to allow the admission of evidence. There, agents had probable cause to believe that apartment occupants were dealing cocaine. Id., at 799–800. They sought a warrant. In the meantime, they entered the apartment, arrested an occupant, and discovered evidence of drug activity during a limited search for security reasons. Id., at 800–801. The next evening, the Magistrate Judge issued the search warrant. Ibid. This Court deemed the evidence admissible notwithstanding the illegal search because the information supporting the warrant was “wholly unconnected with the [arguably illegal] entry and was known to the agents well before the initial entry.” Id., at 814.Segura, of course, applied the independent source doctrine because the unlawful entry “did not contribute in any way to discovery of the evidence seized under the warrant.” Id., at 815. But the Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is “sufficiently attenuated to dissipate the taint.” Ibid. That principle applies here.In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon,468 U. S. 897,920, n.21 (1984) (internal quotation marks omitted). Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety. See Arizona v. Gant,556 U. S. 332,339 (2009) (explaining the permissible scope of searches incident to arrest).Finally, the third factor, “the purpose and flagrancy of the official misconduct,” Brown, supra, at 604, also strongly favors the State. The exclusionary rule exists to deter police misconduct. Davis v. United States,564 U. S. 229–237 (2011). The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” App. 17. Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick,501 U. S. 429,434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety. Rodriguez v. United States, 575 U. S. ___, ___ (2015) (slip op., at 7). And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest. See Gant, supra, at 339.Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations.Applying these factors, we hold that the evidence discovered on Strieff’s person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff’s arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.2We find Strieff’s counterarguments unpersuasive.First, he argues that the attenuation doctrine should not apply because the officer’s stop was purposeful and flagrant. He asserts that Officer Fackrell stopped him solely to fish for evidence of suspected wrongdoing. But Officer Fackrell sought information from Strieff to find out what was happening inside a house whose occupants were legitimately suspected of dealing drugs. This was not a suspicionless fishing expedition “in the hope that something would turn up.” Taylor v. Alabama,457 U. S. 687,691 (1982).Strieff argues, moreover, that Officer Fackrell’s conduct was flagrant because he detained Strieff without the necessary level of cause (here, reasonable suspicion). But that conflates the standard for an illegal stop with the standard for flagrancy. For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure. See, e.g., Kaupp, 538 U. S., at 628, 633 (finding flagrant violation where a warrantless arrest was made in the arrestee’s home after police were denied a warrant and at least some officers knew they lacked probable cause). Neither the officer’s alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression.Second, Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. See42 U. S. C. §1983; Monell v. New York City Dept. of Social Servs.,436 U. S. 658,690 (1978); see also Segura, 468 U. S., at 812. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.* * *We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest. The judgment of the Utah Supreme Court, accordingly, 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 UTAH v. STRIEFF certiorari to the supreme court of utah No. 14–1373. Argued February 22, 2016—Decided June 20, 2016 Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed. Held: The evidence Officer Fackrell seized incident to Strieff’s arrest is admissible based on an application of the attenuation factors from Brown v. Illinois, 422 U. S. 590 . In this case, there was no flagrant police misconduct. Therefore, Officer Fackrell’s discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest. . (a) As the primary judicial remedy for deterring Fourth Amendment violations, the exclusionary rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796 . But to ensure that those deterrence benefits are not outweighed by the rule’s substantial social costs, there are several exceptions to the rule. One exception is the attenuation doctrine, which provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586 . . (b) As a threshold matter, the attenuation doctrine is not limited to the defendant’s independent acts. The doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant. Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest. . (1) Three factors articulated in Brown v. Illinois, 422 U. S. 590 , lead to this conclusion. The first, “temporal proximity” between the initially unlawful stop and the search, id., at 603, favors suppressing the evidence. Officer Fackrell discovered drug contraband on Strieff only minutes after the illegal stop. In contrast, the second factor, “the presence of intervening circumstances, id., at 603–604, strongly favors the State. The existence of a valid warrant, predating the investigation and entirely unconnected with the stop, favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence. That warrant authorized Officer Fackrell to arrest Strieff, and once the arrest was authorized, his search of Strieff incident to that arrest was undisputedly lawful. The third factor, “the purpose and flagrancy of the official misconduct,” id., at 604, also strongly favors the State. Officer Fackrell was at most negligent, but his errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights. After the unlawful stop, his conduct was lawful, and there is no indication that the stop was part of any systemic or recurrent police misconduct. . (2) Strieff’s counterarguments are unpersuasive. First, neither Officer Fackrell’s purpose nor the flagrancy of the violation rises to a level of misconduct warranting suppression. Officer Fackrell’s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs. Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police. Such misconduct would expose police to civil liability and, in any event, is already accounted for by Brown’s “purpose and flagrancy” factor. . 2015 UT 2, 357 P. 3d 532, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Parts I, II, and III. Kagan, J., filed a dissenting opinion, in which Ginsburg, J., joined.

After someone called the South Salt Lake City police drug-tip line to report narcotics activity at a particular residence, Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, he conducted intermittent surveillance of the home, observing visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs. One of those visitors was respondent Strieff, who was observed exit the house and walk toward a nearby convenience store. In the parking lot, he detained him, identified himself, and asked him what he was doing at the residence. As part of the stop, he requested his identification and produced his Utah identification card. When he searched Strief incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.Held: The evidence the officer seized as part of his search incident to arrest is admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. . (a) The attenuation doctrine applies when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. Brown v. Illinois,422 U. S. 590. P.. (b) Here, the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the illegal stop and the discovery of drug-related evidence. The warrant was valid, predated the investigation, and it was entirely unconnected with the stop. And once Officer Fackll discovered the warrant, he had an obligation to arrest Stieff. He made two good-faith mistakes: he had not observed what time he entered the suspected drug house, so he did not know how long he had been there, and he lacked a sufficient basis to conclude that he was a short-term visitor who may have been consummating a drug transaction. Moreover, he lacked the necessary level of cause to investigate the house, and his conduct was flagrantly unlawful. Neither the officer's alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression. Furthermore, the presence of intervening circumstances strongly favors the State, since the exclusionary rule exists to deter police misconduct, which often has nothing to do with a defendant's actions, and since the logic of this Court's prior attenuation cases is not limited to independent acts by the defendant. (c) The discovery of the warrant did not apply to a case like this, where the intervening circumstance that the State relies on is the issuance of an untainted arrest warrant, since it was undisputedly lawful to search the person as an incident of his arrest to protect the officer, and because the warrant was based on an anonymous tip and his personal observations. Thus, the evidence discovered on the person in question was admissible. Although the illegal stop was close in time to Stueff's arrest, that consideration is outweighed by two factors supporting the State: the outstanding arrest warrant for his arrest was wholly unrelated to the stop; (1) the warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions; and (2) the officer was at most negligent in making two bad-faith misstatements in failing to observe the time of the person who entered the drug house so that he could not know whether he would speak with him, instead of demanding that he do so. See, e.g., Florida v. Bostriev,; Segura v. United States, 547 U.S. 586,591. Applying these factors to this case, it is shown that, although the illegal stopped was close to the arrest, it was not part of any systemic or recurrent police misconduct. It is especially significant that there is no evidence that the unlawful stop reflected flagrant unlawful police misconduct here. Segura, supra, at 604. However, the fact that the outstanding warrant for the arrest is a critical intervening circumstance in a case such as this is wholly independent of the unconstitutional stop does not render it invalid on the ground that the connection is attenuated to dissipate the taint, since, in this instance, the arrest was purposeful and flagrant, since neither the officer nor the warrant itself required more severe police misconduct than the mere absence of proper cause for the seizure. Nor is there any evidence that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches in any event if the exclusion-ary rule is not applied, and that this outcome is unlikely, since such wanton conduct would expose police to civil liability. In any event, the Brown factors take account of the purpose and flagranscy of police misconduct

2015_14-10154

https://www.oyez.org/cases/2015/14-10154

. Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U. S. C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.” §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do. I Congress enacted §922(g)(9) some 20 years ago to “close [a] dangerous loophole” in the gun control laws. United States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2) (quoting United States v. Hayes, 555 U. S. 415, 426 (2009) ). An existing provision already barred convicted felons from possessing firearms. See §922(g)(1) (1994 ed.). But many perpetrators of domestic violence are charged with misdemeanors rather than felonies, notwithstanding the harmfulness of their conduct. See Castleman, 572 U. S., at ___ (slip op., at 2). And “[f]irearms and domestic strife are a potentially deadly combination.” Hayes, 555 U. S., at 427. Accordingly, Congress added §922(g)(9) to prohibit any person convicted of a “misdemeanor crime of domestic violence” from possessing any gun or ammunition with a connection to interstate commerce. And it defined that phrase, in §921(a)(33)(A), to include a misdemeanor under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim, that “has, as an element, the use or attempted use of physical force.” Two Terms ago, this Court considered the scope of that definition in a case involving a conviction for a knowing or intentional assault. See Castleman, 572 U. S., at ___–___ (slip op., at 4–13). In Castleman, we initially held that the word “force” in §921(a)(33)(A) bears its common-law meaning, and so is broad enough to include offensive touching. See id., at ___ (slip op., at 4). We then determined that “the knowing or intentional application of [such] force is a ‘use’ of force.” Id., at ___ (slip op., at 13). But we expressly left open whether a reckless assault also qualifies as a “use” of force—so that a misdemeanor conviction for such conduct would trigger §922(g)(9)’s firearms ban. See id., at ___, n. 8 (slip op., at 11, n. 8). The two cases before us now raise that issue. Petitioner Stephen Voisine pleaded guilty in 2004 to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A). Several years later, Voisine again found himself in legal trouble, this time for killing a bald eagle. See 16 U. S. C. §668(a). While investigating that crime, law enforcement officers learned that Voisine owned a rifle. When a background check turned up his prior misdemeanor conviction, the Government charged him with violating 18 U. S. C. §922(g)(9).[1] Petitioner William Armstrong pleaded guilty in 2008 to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 (the general statute under which Voisine was convicted) against a family or household member. See Me. Rev. Stat. Ann., Tit. 17–A, §207–A(1)(A). A few years later, law enforcement officers searched Armstrong’s home as part of a narcotics investigation. They discovered six guns, plus a large quantity of ammunition. Like Voisine, Armstrong was charged under §922(g)(9) for unlawfully possessing firearms. Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior convictions (as the Government conceded) could have been based on reckless, rather than knowing or intentional, conduct. The District Court rejected those claims. Each petitioner then entered a guilty plea conditioned on the right to appeal the District Court’s ruling. The Court of Appeals for the First Circuit affirmed the two convictions, holding that “an offense with a mens rea of recklessness may qualify as a ‘misdemeanor crime of violence’ under §922(g)(9).” United States v. Armstrong, 706 F. 3d 1, 4 (2013); see United States v. Voisine, 495 Fed. Appx. 101, 102 (2013) (per curiam). Voisine and Armstrong filed a joint petition for certiorari, and shortly after issuing Castleman, this Court (without opinion) vacated the First Circuit’s judgments and remanded the cases for further consideration in light of that decision. See Armstrong v. United States, 572 U. S. ___ (2014). On remand, the Court of Appeals again upheld the convictions, on the same ground. See 778 F. 3d 176, 177 (2015). We granted certiorari, 577 U. S. ___ (2015), to resolve a Circuit split over whether a misdemeanor conviction for recklessly assaulting a domestic relation disqualifies an individual from possessing a gun under §922(g)(9).[2] We now affirm. II The issue before us is whether §922(g)(9) applies to reckless assaults, as it does to knowing or intentional ones. To commit an assault recklessly is to take that action with a certain state of mind (or mens rea)—in the dominant formulation, to “consciously disregard[ ]” a substantial risk that the conduct will cause harm to another. ALI, Model Penal Code §2.02(2)(c) (1962); Me. Rev. Stat. Ann., Tit. 17–A, §35(3) (Supp. 2015) (adopting that definition); see Farmer v. Brennan, 511 U. S. 825 –837 (1994) (noting that a person acts recklessly only when he disregards a substantial risk of harm “of which he is aware”). For purposes of comparison, to commit an assault knowingly or intentionally (the latter, to add yet another adverb, sometimes called “purposefully”) is to act with another state of mind respecting that act’s consequences—in the first case, to be “aware that [harm] is practically certain” and, in the second, to have that result as a “conscious object.” Model Penal Code §§2.02 (2)(a)–(b); Me. Rev. Stat. Ann., Tit. 17–A, §§35(1)–(2). Statutory text and background alike lead us to conclude that a reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9). Congress defined that phrase to include crimes that necessarily involve the “use . . . of physical force.” §921(a)(33)(A). Reckless assaults, no less than the knowing or intentional ones we addressed in Castleman, satisfy that definition. Further, Congress enacted §922(g)(9) in order to prohibit domestic abusers convicted under run-of-the-mill misdemeanor assault and battery laws from possessing guns. Because fully two-thirds of such state laws extend to recklessness, construing §922(g)(9) to exclude crimes committed with that state of mind would substantially undermine the provision’s design. A Nothing in the word “use”—which is the only statutory language either party thinks relevant—indicates that §922(g)(9) applies exclusively to knowing or intentional domestic assaults. Recall that under §921(a)(33)(A), an offense counts as a “misdemeanor crime of domestic violence” only if it has, as an element, the “use” of force. Dictionaries consistently define the noun “use” to mean the “act of employing” something. Webster’s New International Dictionary 2806 (2d ed. 1954) (“[a]ct of employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987) (“act of employing, using, or putting into service”); Black’s Law Dictionary 1541 (6th ed. 1990) (“[a]ct of employing,” “application”).[3] On that common understanding, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at ___ (slip op., at 13) (“[T]he word ‘use’ conveys the idea that the thing used (here, ‘physical force’) has been made the user’s instrument” (some internal quotation marks omitted)). But the word “use” does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Or, otherwise said, that word is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct. Consider a couple of examples to see the ordinary meaning of the word “use” in this context. If a person with soapy hands loses his grip on a plate, which then shatters and cuts his wife, the person has not “use[d]” physical force in common parlance. But now suppose a person throws a plate in anger against the wall near where his wife is standing. That hurl counts as a “use” of force even if the husband did not know for certain (or have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife. Similarly, to spin out a scenario discussed at oral argument, if a person lets slip a door that he is trying to hold open for his girlfriend, he has not actively employed (“used”) force even though the result is to hurt her. But if he slams the door shut with his girlfriend following close behind, then he has done so—regardless of whether he thinks it absolutely sure or only quite likely that he will catch her fingers in the jamb. See Tr. of Oral Arg. 10–11 (counsel for petitioners acknowledging that this example involves “the use of physical force”). Once again, the word “use” does not exclude from §922(g)(9)’s compass an act of force carried out in conscious disregard of its substantial risk of causing harm. And contrary to petitioners’ view, nothing in Leocal v. Ashcroft, 543 U. S. 1 (2004) , suggests a different conclusion—i.e., that “use” marks a dividing line between reckless and knowing conduct. See Brief for Petitioners 18–22. In that decision, this Court addressed a statutory definition similar to §921(a)(33)(A): there, “the use . . . of physical force against the person or property of another.” 18 U. S. C. §16. That provision excludes “merely accidental” conduct, Leocal held, because “it is [not] natural to say that a person actively employs physical force against another person by accident.” 543 U. S., at 9. For example, the Court stated, one “would not ordinarily say a person ‘use[s] . . . physical force against’ another by stumbling and falling into him.” Ibid. That reasoning fully accords with our analysis here. Conduct like stumbling (or in our hypothetical, dropping a plate) is a true accident, and so too the injury arising from it; hence the difficulty of describing that conduct as the “active employment” of force. Ibid. But the same is not true of reckless behavior—acts undertaken with awareness of their substantial risk of causing injury (in our contrasting hypo, hurling the plate). The harm such conduct causes is the result of a deliberate decision to endanger another—no more an “accident” than if the “substantial risk” were “practically certain.” See supra, at 4 (comparing reckless and knowing acts). And indeed, Leocal itself recognized the distinction between accidents and recklessness, specifically reserving the issue whether the definition in §16 embraces reckless conduct, see 543 U. S., at 13—as we now hold §921(a)(33)(A) does.[4] In sum, Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms. B So too does the relevant history. As explained earlier, Congress enacted §922(g)(9) in 1996 to bar those domestic abusers convicted of garden-variety assault or battery misdemeanors—just like those convicted of felonies—from owning guns. See supra, at 1–2; Castleman, 572 U. S., at ___, ___ (slip op., at 2, 6); Hayes, 555 U. S., at 426–427. Then, as now, a significant majority of jurisdictions—34 States plus the District of Columbia—defined such misdemeanor offenses to include the reckless infliction of bodily harm. See Brief for United States 7a–19a (collecting statutes). That agreement was no coincidence. Sev-eral decades earlier, the Model Penal Code had taken the position that a mens rea of recklessness should generally suffice to establish criminal liability, including for assault. See §2.02(3), Comments 4–5, at 243–244 (“purpose, knowledge, and recklessness are properly the basis for” such liability); §211.1 (defining assault to include “purposely, knowingly, or recklessly caus[ing] bodily injury”). States quickly incorporated that view into their misdemeanor assault and battery statutes. So in linking §922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256 (1835) (Story, J.) (“Congress must be presumed to have legislated under this known state of the laws”). And indeed, that was part of the point: to apply firearms restrictions to those abusers, along with all others, whom the States’ ordinary misdemeanor assault laws covered. What is more, petitioners’ reading risks rendering §922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness—that is, inapplicable even to persons who commit that crime knowingly or intentionally. Consider Maine’s statute, which (in typical fashion) makes it a misdemeanor to “intentionally, knowingly or recklessly” injure another. Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A). Assuming that provision defines a single crime (which happens to list alternative mental states)—and accepting petitioners’ view that §921(a)(33)(A) requires at least a knowing mens rea—then, under Descamps v. United States, 570 U. S. ___ (2013), no conviction obtained under Maine’s statute could qualify as a “misdemeanor crime of domestic violence.” See id., at ___ (slip op., at 5) (If a state crime “sweeps more broadly” than the federally defined one, a conviction for the state offense “cannot count” as a predicate, no matter what mens rea the defendant actually had). So in the 35 jurisdictions like Maine, petitioners’ reading risks allowing domestic abusers of all mental states to evade §922(g)(9)’s firearms ban. In Castleman, we declined to construe §921(a)(33)(A) so as to render §922(g)(9) ineffective in 10 States. See 572 U. S., at ___ (slip op., at 9). All the more so here, where petitioners’ view would jeopardize §922(g)(9)’s force in several times that many. Petitioners respond that we should ignore the assault and battery laws actually on the books when Congress enacted §922(g)(9). In construing the statute, they urge, we should look instead to how the common law defined those crimes in an earlier age. See Brief for Petitioners 13–15. And that approach, petitioners claim, would necessitate reversing their convictions because the common law “required a mens rea greater than recklessness.” Id., at 17. But we see no reason to wind the clock back so far. Once again: Congress passed §922(g)(9) to take guns out of the hands of abusers convicted under the misdemeanor assault laws then in general use in the States. See supra, at 1–2, 8. And by that time, a substantial majority of jurisdictions, following the Model Penal Code’s lead, had abandoned the common law’s approach to mens rea in drafting and interpreting their assault and battery statutes. Indeed, most had gone down that road decades before. That was the backdrop against which Congress was legislating. Nothing suggests that, in enacting §922(g)(9), Congress wished to look beyond that real world to a common-law precursor that had largely expired. To the contrary, such an approach would have undermined Congress’s aim by tying the ban on firearms possession not to the laws under which abusers are prosecuted but instead to a legal anachronism.[5] And anyway, we would not know how to resolve whether recklessness sufficed for a battery conviction at common law. Recklessness was not a word in the common law’s standard lexicon, nor an idea in its conceptual framework; only in the mid- to late-1800’s did courts begin to address reckless behavior in those terms. See Hall, Assault and Battery by the Reckless Motorist, 31 J. Crim. L. & C. 133, 138–139 (1940). The common law traditionally used a variety of overlapping and, frankly, confusing phrases to describe culpable mental states—among them, specific intent, general intent, presumed intent, willfulness, and malice. See, e.g., Morissette v. United States, 342 U. S. 246, 252 (1952) ; Model Penal Code §2.02, Comment 1, at 230. Whether and where conduct that we would today describe as reckless fits into that obscure scheme is anyone’s guess: Neither petitioners’ citations, nor the Government’s competing ones, have succeeded in resolving that counterfactual question. And that indeterminacy confirms our conclusion that Congress had no thought of incorporating the common law’s treatment of mens rea into §921(a)(33)(A). That provision instead corresponds to the ordinary misdemeanor assault and battery laws used to prosecute domestic abuse, regardless of how their mental state requirements might—or, then again, might not—conform to the common law’s.[6] III The federal ban on firearms possession applies to any person with a prior misdemeanor conviction for the “use . . . of physical force” against a domestic relation. §921(a)(33)(A). That language, naturally read, encompasses acts of force undertaken recklessly—i.e., with conscious disregard of a substantial risk of harm. And the state-law backdrop to that provision, which included misdemeanor assault statutes covering reckless conduct in a significant majority of jurisdictions, indicates that Congress meant just what it said. Each petitioner’s possession of a gun, following a conviction under Maine law for abusing a domestic partner, therefore violates §922(g)(9). We accordingly affirm the judgment of the Court of Appeals. It is so ordered.Notes 1 In United States v. Hayes, 555 U. S. 415, 418 (2009) , this Court held that a conviction under a general assault statute like §207 (no less than one under a law targeting only domestic assault) can serve as the predicate offense for a §922(g)(9) prosecution. When that is so, the Government must prove in the later, gun possession case that the perpetrator and the victim of the assault had one of the domestic relationships specified in §921(a)(33)(A). See id., at 426. 2 Compare 778 F. 3d 176 (CA1 2015) (case below) with United States v. Nobriga, 474 F. 3d 561 (CA9 2006) (per curiam) (holding that a conviction for a reckless domestic assault does not trigger §922(g)(9)’s ban). 3 In cases stretching back over a century, this Court has followed suit, although usually discussing the verb form of the word. See, e.g., Bailey v. United States, 516 U. S. 137, 145 (1995) (to use means “ ‘[t]o convert to one’s service,’ ‘to employ,’ [or] ‘to avail oneself of’ ”); Smith v. United States, 508 U. S. 223, 229 (1993) (to use means “ ‘[t]o convert to one’s service’ or ‘to employ’ ”); Astor v. Merritt, 111 U. S. 202, 213 (1884) (to use means “to employ [or] to derive service from”). 4 Like Leocal, our decision today concerning §921(a)(33)(A)’s scope does not resolve whether §16 includes reckless behavior. Courts have sometimes given those two statutory definitions divergent readings in light of differences in their contexts and purposes, and we do not foreclose that possibility with respect to their required mental states. Cf. United States v. Castleman, 572 U. S. ___, ___, n. 4 (2014) (slip op., at 6, n. 4) (interpreting “force” in §921(a)(33)(A) to encompass any offensive touching, while acknowledging that federal appeals courts have usually read the same term in §16 to reach only “violent force”). All we say here is that Leocal’s exclusion of accidental conduct from a definition hinging on the “use” of force is in no way inconsistent with our inclusion of reckless conduct in a similarly worded provision. 5 As petitioners observe, this Court looked to the common law in Castleman to define the term “force” in §921(a)(33)(A). See 572 U. S., at ___–___ (slip op., at 4–5); Brief for Petitioners 13–15. But we did so for reasons not present here. “Force,” we explained, was “a common-law term of art” with an “established common-law meaning.” 572 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). And we thought that Congress meant to adhere to that meaning given its “perfect[ ]” fit with §922(g)(9)’s goal. Ibid. By contrast, neither party pretends that the statutory term “use”—the only one identified as potentially relevant here—has any particular common-law definition. And as explained above, the watershed change in how state legislatures thought of mens rea after the Model Penal Code makes the common law a bad match for the ordinary misdemeanor assault and battery statutes in Congress’s sightline. 6 Petitioners make two last arguments for reading §921(a)(33)(A) their way, but they do not persuade us. First, petitioners contend that we should adopt their construction to avoid creating a question about whether the Second Amendment permits imposing a lifetime firearms ban on a person convicted of a misdemeanor involving reckless conduct. See Brief for Petitioners 32–36. And second, petitioners assert that the rule of lenity requires accepting their view. See id., at 31–32. But neither of those arguments can succeed if the statute is clear. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (noting that “the doctrine of constitutional doubt . . . enters in only where a statute is susceptible of two constructions” (internal quotation marks omitted)); Abramski v. United States, 573 U. S. ___, ___, n. 10 (2014) (slip op., at 18, n. 10) (stating that the rule of lenity applies only in cases of genuine ambiguity). And as we have shown, §921(a)(33)(A) plainly encompasses reckless assaults.

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 VOISINE et al. v. UNITED STATES certiorari to the united states court of appeals for the first circuit No. 14–10154. Argued February 29, 2016—Decided June 27, 2016 In an effort to “close [a] dangerous loophole” in the gun control laws, United States v. Castleman, 572 U. S. ___, ___, Congress extended the federal prohibition on firearms possession by convicted felons to persons convicted of a “misdemeanor crime of domestic violence,” 18 U. S. C. §922(g)(9). Section 921(a)(33)(A) defines that phrase to include a misdemeanor under federal, state, or tribal law, committed against a domestic relation that necessarily involves the “use . . . of physical force.” In Castleman, this Court held that a knowing or intentional assault qualifies as such a crime, but left open whether the same was true of a reckless assault. Petitioner Stephen Voisine pleaded guilty to assaulting his girlfriend in violation of §207 of the Maine Criminal Code, which makes it a misdemeanor to “intentionally, knowingly or recklessly cause[ ] bodily injury” to another. When law enforcement officials later investigated Voisine for killing a bald eagle, they learned that he owned a rifle. After a background check turned up Voisine’s prior conviction under §207, the Government charged him with violating §922(g)(9). Petitioner William Armstrong pleaded guilty to assaulting his wife in violation of a Maine domestic violence law making it a misdemeanor to commit an assault prohibited by §207 against a family or household member. While searching Armstrong’s home as part of a narcotics investigation a few years later, law enforcement officers discovered six guns and a large quantity of ammunition. Armstrong was also charged under §922(g)(9). Both men argued that they were not subject to §922(g)(9)’s prohibition because their prior convictions could have been based on reckless, rather than knowing or intentional, conduct and thus did not quality as misdemeanor crimes of domestic violence. The District Court rejected those claims, and each petitioner pleaded guilty. The First Circuit affirmed, holding that “an offense with a mens rea of recklessness may qualify as a ‘misdemeanor crime of violence’ under §922(g)(9).” Voisine and Armstrong filed a joint petition for certiorari, and their case was remanded for further consideration in light of Castleman. The First Circuit again upheld the convictions on the same ground. Held: A reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under §922(g)(9). . (a) That conclusion follows from the statutory text. Nothing in the phrase “use. . . of physical force” indicates that §922(g)(9) distinguishes between domestic assaults committed knowingly or intentionally and those committed recklessly. Dictionaries consistently define the word “use” to mean the “act of employing” something. Accordingly, the force involved in a qualifying assault must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force. See Castleman, 572 U. S., at ___. But nothing about the definition of “use” demands that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Nor does Leocal v. Ashcroft, 543 U. S. 1 , which held that the “use” of force excludes accidents. Reckless conduct, which requires the conscious disregard of a known risk, is not an accident: It involves a deliberate decision to endanger another. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms. . (b) So too does the relevant history. Congress enacted §922(g)(9) in 1996 to bar those domestic abusers convicted of garden-variety assault or battery misdemeanors—just like those convicted of felonies—from owning guns. Then, as now, a significant majority of jurisdictions—34 States plus the District of Columbia—defined such misdemeanor offenses to include the reckless infliction of bodily harm. In targeting those laws, Congress thus must have known it was sweeping in some persons who had engaged in reckless conduct. See, e.g., United States v. Bailey, 9 Pet. 238, 256. Indeed, that was part of the point: to apply the federal firearms restriction to those abusers, along with all others, covered by the States’ ordinary misdemeanor assault laws. Petitioners’ reading risks rendering §922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness. Consider Maine’s law, which criminalizes “intentionally, knowingly or recklessly” injuring another. Assuming that statute defines a single crime, petitioners’ view that §921(a)(33)(A) requires at least a knowing mens rea would mean that no conviction obtained under that law could qualify as a “misdemeanor crime of domestic violence.” Descamps v. United States, 570 U. S. ___, ___. In Castleman, the Court declined to construe §921(a)(33)(A) so as to render §922(g)(9) ineffective in 10 States. All the more so here, where petitioners’ view would jeopardize §922(g)(9)’s force in several times that many. . 778 F. 3d 176, 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 a dissenting opinion, in which Sotomayor, J., joined as to Parts I and II.

Title 18 U.S. C. §922(g)(9) prohibits any person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm. That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the use or attempted use of physical force. Section921(a)(33)(A) defines that phrase to include a misdemeanor under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim, that has, as an element, the "use... of.. [physical force]." Petitioner Stephen Voisine pleaded guilty in 2004 to assaulting his girlfriend in violation of a Maine criminal law making it a misdemeanor to intentionally, knowingly or recklessly cause bodily injury or offensive physical contact to another person. Several years later, he again found himself in legal trouble, this time for killing a bald eagle. When a background check turned up his prior misdemeanor conviction, the Government charged him with violating 18 U S. C.'s firearms ban. The District Court entered a ruling based on the prior conduct conditioned on the mens rea right of reckless conduct. The Court of Appeals affirmed the convictions on the same ground. Held: Each petitioner's possession of a gun, following a conviction under Maine law for abusing a domestic partner, therefore violates the firearms ban, and each petitioner is therefore disqualified. . (a) The word "use" -- which is the only statutory language either party thinks relevant to determine whether a reckless assault also qualifies as a a "use� of force" under §921 (a)(34)(A), which includes crimes that necessarily involve the use of the physical force, including the knowing or intentional assault. Nothing in the word is shown in the legislative history of the statute to indicate that it applies exclusively to knowing and intentional domestic assaults. Thus, Congress defined the phrase as including crimes involving the act of using physical force to avoid a substantial risk of harm, i.e., to commit an assault knowingly or intentionally (the latter, to add yet another adverb, sometimes called purposefully), to include acts of force carried out in conscious disregard of its substantial risk that the conduct will cause harm to another. And nothing in Leocal v. Ashcroft, 543 U. S. 1 (2004), which held that an assault is a misdemeanor when it is committed with a person who acts recklessly only when he disregards such a risk, suggests a different conclusion. Rather, Congress meant to incorporate the common law treatment of mens- rea into the statute, which corresponds to the ordinary misdemeanor assault and battery laws used to prosecute domestic abuse, regardless of how their mental state requirements might, or, then again, might not,conform to that law. Moreover, petitioners' reading risks rendering the ban broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness, such as Maine, where petitioners contend that the rule of lenity requires accepting their view. Such view would jeopardize the ban's force in several times that many. In addition, the ban risks allowing domestic abusers of all mental states to evade the ban, since it would necessitate reversing their convictions, and since the ban plainly encompasses reckless assaults.. 758 F. 3d 176, affirmed. WHITE FLEASTER, J., affirmed.

2015_15-6418

https://www.oyez.org/cases/2015/15-6418

. Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review. I Federal law prohibits any felon—meaning a person who has been convicted of a crime punishable by more than a year in prison—from possessing a firearm. 18 U. S. C. §922(g). A person who violates that restriction can be sentenced to prison for up to 10 years. §924(a)(2). For some felons, however, the Armed Career Criminal Act imposes a much more severe penalty. Under the Act, a person who possesses a firearm after three or more convictions for a “serious drug offense” or a “violent felony” is subject to a minimum sentence of 15 years and a maximum sentence of life in prison. §924(e)(1). Because the ordinary maximum sentence for a felon in possession of a firearm is 10 years, while the minimum sentence under the Armed Career Criminal Act is 15 years, a person sentenced under the Act will receive a prison term at least five years longer than the law otherwise would allow. The Act defines “violent felony” as “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). Subsection (i) of this definition is known as the elements clause. The end of subsection (ii)—“or otherwise involves conduct that presents a serious potential risk of physical injury to another”—is known as the residual clause. See Johnson, supra, at ___ (slip op., at 2). It is the residual clause that Johnson held to be vague and invalid. The text of the residual clause provides little guidance on how to determine whether a given offense “involves conduct that presents a serious potential risk of physical injury.” This Court sought for a number of years to de-velop the boundaries of the residual clause in a more pre-cise fashion by applying the statute to particular cases. See James v. United States, 550 U. S. 192 (2007) (residual clause covers Florida offense of attempted burglary); Begay v. United States, 553 U. S. 137 (2008) (residual clause does not cover New Mexico offense of driving under the influence of alcohol); Chambers v. United States, 555 U. S. 122 (2009) (residual clause does not cover Illinois offense of failure to report to a penal institution); Sykes v. United States, 564 U. S. 1 (2011) (residual clause covers Indiana offense of vehicular flight from a law-enforcement officer). In Johnson, a majority of this Court concluded that those decisions did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in “pervasive disagreement” over how the clause should be interpreted. Johnson, 576 U. S., at ___ (slip op., at 9). The Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine, a doctrine that is mandated by the Due Process Clauses of the Fifth Amendment (with respect to the Federal Government) and the Fourteenth Amendment (with respect to the States). The void-for-vagueness doctrine prohibits the government from imposing sanctions “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.” Id., at ___ (slip op., at 3). Johnson determined that the residual clause could not be reconciled with that prohibition. The vagueness of the residual clause rests in large part on its operation under the categorical approach. The categorical approach is the framework the Court has applied in deciding whether an offense qualifies as a violent felony under the Armed Career Criminal Act. See id., at ___ (slip op., at 4). Under the categorical approach, “a court assesses whether a crime qualifies as a violent fel-ony ‘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.’ ” Ibid. (quoting Begay, supra, at 141). For purposes of the residual clause, then, courts were to determine whether a crime involved a “serious potential risk of physical injury” by considering not the defendant’s actual conduct but an “idealized ordinary case of the crime.” 576 U. S., at ___ (slip op., at 12). The Court’s analysis in Johnson thus cast no doubt on the many laws that “require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.” Ibid. The residual clause failed not because it adopted a “serious potential risk” standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. In the Johnson Court’s view, the “indeterminacy of the wide-ranging inquiry” made the residual clause more unpredictable and arbitrary in its application than the Consti-tution allows. Id., at ___ (slip op., at 5). “Invoking so shapeless a provision to condemn someone to prison for 15 years to life,” the Court held, “does not comport with the Constitution’s guarantee of due process.” Id., at ___ (slip op., at 10). II Petitioner Gregory Welch is one of the many offenders sentenced under the Armed Career Criminal Act before Johnson was decided. Welch pleaded guilty in 2010 to one count of being a felon in possession of a firearm. The Probation Office prepared a presentence report finding that Welch had three prior violent felony convictions, including a Florida conviction for a February 1996 “strong-arm robbery.” The relevant Florida statute prohibits taking property from the person or custody of another with “the use of force, violence, assault, or putting in fear.” Fla. Stat. §812.13(1) (1994). The charging document from the 1996 Florida case tracked that statutory language. App. 187a. The 2010 federal presentence report provides more detail. It states that, according to the robbery victim, Welch punched the victim in the mouth and grabbed a gold bracelet from his wrist while another attacker grabbed a gold chain from his neck. Welch objected to the presentence report, arguing (as relevant here) that this conviction was not a violent felony conviction under the Armed Career Criminal Act. The District Court overruled the objection. It concluded that the Florida offense of strong-arm robbery qualified as a violent felony both under the elements clause, 18 U. S. C. §924(e)(2)(B)(i), and the residual clause, §924(e)(2)(B)(ii). The District Court proceeded to sentence Welch to the Act’s mandatory minimum sentence of 15 years in prison. The Court of Appeals for the Eleventh Circuit affirmed. That court did not decide whether the conviction at issue could qualify as a violent felony under the elements clause. Instead, it held only that the conviction qualified under the residual clause. This Court denied certiorari, see Welch v. United States, 568 U. S. ___ (2013), and Welch’s conviction became final. In December 2013, Welch appeared pro se before the District Court and filed a collateral challenge to his conviction and sentence through a motion under 28 U. S. C. §2255. He argued, among other points, that his strong-arm robbery conviction itself was “vague” and that his counsel was ineffective for allowing him to be sentenced as an armed career criminal. The District Court denied the motion and denied a certificate of appealability. Still proceeding pro se, Welch applied to the Court of Appeals for a certificate of appealability. His application noted that Johnson was pending before this Court. Welch argued, in part, that his “armed career offender status is unconstitutional and violate[s] [his] Fifth Amendment right to notice of the state priors.” App. 20a. Two months later, Welch filed a motion asking the Court of Appeals to hold his case in abeyance until Johnson could be decided, “based on the fact he was sentenced under the [residual clause].” App. 15a. In June 2015, the Court of Appeals entered a brief single-judge order denying the motion for a certificate of appealability. Less than three weeks later, this Court issued its decision in Johnson holding, as already noted, that the residual clause is void for vagueness. Welch filed a motion asking the Court of Appeals for additional time to seek reconsideration of its decision in light of Johnson, but the court returned that motion unfiled because Welch’s time to seek reconsideration already had expired. Welch then filed a pro se petition for certiorari. His petition presented two questions: whether the District Court erred in denying his §2255 motion because his Florida robbery conviction does not qualify as a violent felony conviction under the Armed Career Criminal Act; and whether Johnson announced a substantive rule that has retroactive effect in cases on collateral review. Pet. for Cert. i. This Court granted the petition. 577 U. S. ___ (2016). Because the United States, as respondent, agrees with Welch that Johnson is retroactive, the Court appointed Helgi C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a §2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U. S. C. §2253(c)(1). A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” §2253(c)(2). That standard is met when “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.” Slack v. McDaniel, 529 U. S. 473, 484 (2000) . Obtaining a certificate of appealability “does not require a showing that the appeal will succeed,” and “a court of appeals should not decline the application . . . merely because it believes the applicant will not demonstrate an entitlement to relief.” Miller-El v. Cockrell, 537 U. S. 322, 337 (2003) . The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch’s) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from the plurality opinion in Teague v. Lane, 489 U. S. 288 (1989) . That opinion in turn drew on the approach outlined by the second Justice Harlan in his separate opinions in Mackey v. United States, 401 U. S. 667 (1971) , and Desist v. United States, 394 U. S. 244 (1969) . The parties here assume that the Teague framework applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction, and we proceed on that assumption. See Chaidez v. United States, 568 U. S. ___, ___, n. 16 (2013); Danforth v. Minnesota, 552 U. S. 264 , n. 4 (2008). Under Teague, as a general matter, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310. Teague and its progeny recognize two categories of decisions that fall outside this general bar on retroactivity for procedural rules. First, “[n]ew substantive rules generally apply retroactively.” Schriro v. Summerlin, 542 U. S. 348, 351 (2004) ; see Montgomery v. Louisiana, 577 U. S. ___, ___ (2016) (slip op., at 6); Teague, supra, at 307, 311. Second, new “ ‘watershed rules of criminal procedure,’ ” which are proce-dural rules “implicating the fundamental fairness and accu-racy of the criminal proceeding,” will also have retroactive effect. Saffle v. Parks, 494 U. S. 484, 495 (1990) ; see Teague, supra, at 311–313. It is undisputed that Johnson announced a new rule. See Teague, supra, at 301 (“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final”). The question here is whether that new rule falls within one of the two categories that have retroactive effect under Teague. The parties agree that Johnson does not fall into the limited second category for watershed procedural rules. Welch and the United States contend instead that Johnson falls into the first category because it announced a substantive rule. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U. S., at 353. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish.” Id., at 351–352 (citation omitted); see Montgomery, supra, at ___ (slip op., at 6). Procedural rules, by contrast, “regulate only the manner of determining the defendant’s culpability.” Schriro, 542 U. S., at 353. Such rules alter “the range of permissible methods for determining whether a defendant’s conduct is punishable.” Ibid. “They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id., at 352. Under this framework, the rule announced in Johnson is substantive. By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353. Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause. United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971) . It follows that Johnson is a substantive decision. By the same logic, Johnson is not a procedural decision. Johnson had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act. See Schriro, 542 U. S., at 353. It did not, for example, “allocate decisionmaking authority” between judge and jury, ibid., or regulate the evidence that the court could consider in making its decision, see Whorton v. Bockting, 549 U. S. 406 –414, 417 (2007); Mackey, supra, at 700–701 (opinion of Harlan, J.). Unlike those cases, Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review. C Amicus urges the Court to adopt a different understanding of the Teague framework. She contends courts should apply that framework by asking whether the constitu-tional right underlying the new rule is substantive or procedural. Under that approach, amicus concludes that Johnson is a procedural decision because the void-for-vagueness doctrine that Johnson applied is based, she asserts, on procedural due process. Neither Teague nor its progeny support that approach. As described above, this Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source. See, e.g., Schriro, supra, at 351–353. That is for good reason. The Teague framework creates a balance between, first, the need for finality in criminal cases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law. That balance turns on the function of the rule at issue, not the constitutional guarantee from which the rule derives. If a new rule regulates only the procedures for determining culpability, the Teague balance generally tips in favor of finality. The chance of a more accurate outcome under the new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures “conformed to then-existing constitutional standards.” Teague, supra, at 310. On the other hand, if a new rule changes the scope of the underlying criminal proscription, the balance is different. A change of that character will “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal.’ ” Bousley v. United States, 523 U. S. 614, 620 (1998) (quoting Davis v. United States, 417 U. S. 333, 346 (1974) ). By extension, where the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.). The Teague balance thus does not depend on whether the underlying constitutional guarantee is characterized as procedural or substantive. It depends instead on whether the new rule itself has a procedural function or a substantive function—that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes. See Schriro, supra, at 353; Montgomery, 577 U. S., at ___ (slip op., at 14). The emphasis by amicus on the constitutional guarantee behind the new rule, then, would untether the Teague framework from its basic purpose. The approach amicus suggests also would lead to results that cannot be squared with prior precedent. Decisions from this Court show that a rule that is procedural for Teague purposes still can be grounded in a substantive constitutional guarantee. For instance, the Court has adopted certain rules that regulate capital sentencing procedures in order to enforce the substantive guarantees of the Eighth Amendment. The consistent position has been that those rules are procedural, even though their ultimate source is substantive. See, e.g., Beard v. Banks, 542 U. S. 406 –417 (2004); Sawyer v. Smith, 497 U. S. 227 –242 (1990). From the converse perspective, there also can be substantive rules based on constitutional protections that, on the theory amicus advances, likely would be described as procedural. For instance, a decision that invalidates as void for vagueness a statute prohibiting “conduct annoying to persons passing by,” cf. Coates v. Cincinnati, 402 U. S. 611, 612, 614 (1971) , would doubtless alter the range of conduct that the law prohibits. That would make it a substantive decision under our precedent, see Schriro, 542 U. S., at 353, even if the reasons for holding that statute invalid could be characterized as procedural. Amicus next relies on language from this Court’s cases describing substantive decisions as those that “place particular conduct or persons . . . beyond the State’s power to punish,” id., at 352, or that “prohibi[t] a certain category of punishment for a class of defendants because of their status or offense,” Saffle, 494 U. S., at 494 (internal quotation marks omitted). Cases such as these, in which the Constitution deprives the Government of the power to impose the challenged punishment, “represen[t] the clearest instance” of substantive rules for which retroactive application is appropriate. Mackey, supra, at 693 (opinion of Harlan, J.). Drawing on those decisions, amicus argues that Johnson is not substantive because it does not limit Congress’ power: Congress is free to enact a new version of the residual clause that imposes the same punishment on the same persons for the same conduct, provided the new statute is precise enough to satisfy due process. Although this Court has put great emphasis on substantive decisions that place certain conduct, classes of persons, or punishments beyond the legislative power of Congress, the Court has also recognized that some substantive decisions do not impose such restrictions. The clearest example comes from Bousley, supra. In Bousley, the Court was asked to determine what retroactive effect should be given to its decision in Bailey v. United States, 516 U. S. 137 (1995) . Bailey considered the “use” prong of 18 U. S. C. §924(c)(1), which imposes increased penalties on the use of a firearm in relation to certain crimes. The Court held as a matter of statutory interpretation that the “use” prong punishes only “active employment of the firearm” and not mere possession. 516 U. S., at 144. The Court in Bousley had no difficulty concluding that Bailey was substantive, as it was a decision “holding that a substantive federal criminal statute does not reach certain conduct.” Bousley, supra, at 620; see Schriro, supra, at 354 (“A decision that modifies the elements of an offense is normally substantive rather than procedural”). The Court reached that conclusion even though Congress could (and later did) reverse Bailey by amending the statute to cover possession as well as use. See United States v. O’Brien, 560 U. S. 218 –233 (2010) (discussing statutory amendment known as the “Bailey fix”). Bousley thus contradicts the contention that the Teague inquiry turns only on whether the decision at issue holds that Congress lacks some substantive power. Amicus recognizes that Bousley does not fit the theory that, in her view, should control this case. She instead proposes an ad hoc exception, contending that Bousley “recognized a separate subcategory of substantive rules” for decisions that interpret statutes (but not those, like Johnson, that invalidate statutes). Brief for Court-Appointed Amicus Curiae in Support of Judgment Below 40. For support, amicus looks to the separation-of-powers doctrine. Her argument is that statutory construction cases are substantive because they define what Congress always intended the law to mean—unlike Johnson, which struck down the residual clause regardless of Congress’ intent. That argument is not persuasive. Neither Bousley nor any other case from this Court treats statutory interpretation cases as a special class of decisions that are substantive because they implement the intent of Congress. Instead, decisions that interpret a statute are substantive if and when they meet the normal criteria for a substantive rule: when they “alte[r] the range of conduct or the class of persons that the law punishes.” Schriro, supra, at 353. The separation-of-powers argument that amicus raises is also misplaced. Bousley noted that the separation of powers prohibits a court from imposing criminal punishment beyond what Congress meant to enact. 523 U. S., at 620–621 (“[I]t is only Congress, and not the courts, which can make conduct criminal”). But a court likewise is prohibited from imposing criminal punishment beyond what Congress in fact has enacted by a valid law. In either case a court lacks the power to exact a penalty that has not been authorized by any valid criminal statute. Treating decisions as substantive if they involve statutory interpretation, but not if they involve statutory invalidation, would produce unusual outcomes. “It has long been our practice . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.” Skilling v. United States, 561 U. S. 358 –406 (2010). Amicus acknowledges that a decision that saves a vague statute by adopting a limiting construction is substantive, so anyone who falls outside the limiting construction can use that decision to seek relief on collateral review. But amicus also contends that, if a court takes the further step of striking down the whole statute as vague, that decision is procedural, so no one can use it to seek relief on collateral review. That arbitrary distinction has no place in the Teague framework. It should be noted, of course, that not every decision striking down a statute is ipso facto a substantive decision. A decision that strikes down a procedural statute—for example, a statute regulating the types of evidence that can be presented at trial—would itself be a proce-dural decision. It would affect only the “manner of determining the defendant’s culpability,” not the conduct or persons to be punished. Schriro, 542 U. S., at 353 (emphasis deleted). A decision of this kind would have no retroactive effect under Teague unless it could be considered a “watershed” procedural rule. See Teague, 489 U. S., at 311–313. Johnson, however, struck down part of a criminal statute that regulates conduct and prescribes punishment. It thereby altered “the range of conduct or the class of persons that the law punishes.” Schriro, supra, at 353. It follows that Johnson announced a substantive rule that has retroactive effect in cases on collateral review. * * * It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch’s motion to amend his sentence. For instance, the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson. On the present record, however, and in light of today’s holding that Johnson is retroactive in cases on collateral review, reasonable jurists at least could debate whether Welch is entitled to relief. For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

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 WELCH v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 15–6418. Argued March 30, 2016—Decided April 18, 2016 Federal law makes the possession of a firearm by a felon a crime punishable by a prison term of up to 10 years, 18 U. S. C. §§922(g), 924(a)(2), but the Armed Career Criminal Act of 1984 increases that sentence to a mandatory 15 years to life if the offender has three or more prior convictions for a “serious drug offense” or a “violent felony,” §924(e)(1). The definition of “violent felony” includes the so-called residual clause, covering any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). In Johnson v. United States, 576 U. S. ___, this Court held that clause unconstitutional under the void-for-vagueness doctrine. Petitioner Welch was sentenced under the Armed Career Criminal Act before Johnson was decided. On direct review, the Eleventh Circuit affirmed his sentence, holding that Welch’s prior Florida conviction for robbery qualified as a “violent felony” under the residual clause. After his conviction became final, Welch sought collateral relief under 28 U. S. C. §2255, which the District Court denied. The Eleventh Circuit then denied Welch a certificate of appealability. Three weeks later, this Court decided Johnson. Welch now seeks the retroactive application of Johnson to his case. Held: Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. . (a) An applicant seeking a certificate of appealability in a §2255 proceeding must make “a substantial showing of the denial of a constitutional right.” §2253(c)(2). That standard is met when “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner.” Slack v. McDaniel, 529 U. S. 473 . The question whether Welch met that standard implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. . (b) New constitutional rules of criminal procedure generally do not apply retroactively to cases on collateral review, but new substantive rules do apply retroactively. Teague v. Lane, 489 U. S. 288 ; Schriro v. Summerlin, 542 U. S. 348 . Substantive rules alter “the range of conduct or the class of persons that the law punishes,” id., at 353. Procedural rules, by contrast, “regulate only the manner of determining the defendant’s culpability.” Ibid. Under this framework, Johnson is substantive. Before Johnson, the residual clause could cause an offender to face a prison sentence of at least 15 years instead of at most 10. Since Johnson made the clause invalid, it can no longer mandate or authorize any sentence. By the same logic, Johnson is not procedural, since it had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Act, see Schriro, supra, at 353. . (c) The counterarguments made by Court-appointed amicus are unpersuasive. She contends that Johnson is a procedural decision because the void-for-vagueness doctrine is based on procedural due process. But the Teague framework turns on whether the function of the rule is substantive or procedural, not on the rule’s underlying constitutional source. Amicus’ approach would lead to results that cannot be squared with prior precedent. Precedent also does not support amicus’ claim that a rule must limit Congress’ power to be substantive, see, e.g., Bousley v. United States, 523 U. S. 614 , or her claim that statutory construction cases are an ad hoc exception to that principle and are substantive only because they implement the intent of Congress. The separation-of-powers argument raised by amicus is also misplaced, for regardless of whether a decision involves statutory interpretation or statutory invalidation, a court lacks the power to exact a penalty that has not been authorized by any valid criminal statute. . Vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion.

The Armed Career Criminal Act of 1984, 18 U.S. C. §924(e)(2)(B)(ii), prohibits a person who has been convicted of a specified crime punishable by more than a year in prison from possessing a firearm. The Act defines a felony as any crime that has as an element the use, attempted use, or threatened use of physical force against the person of another with the use of force, violence, assault, or putting in fear. Subsection (i) defines the term "conduct that presents a serious potential risk of physical injury to another," which is known as the residual clause. After petitioner was sentenced under the Act, he filed a collateral challenge to his conviction and sentence through a motion under §2255, arguing, inter alia, that his strong-arm robbery conviction was vague and that his counsel was ineffective for allowing him to be sentenced as an armed career criminal. The District Court denied the motion and denied a certificate of appealability. Still proceeding pro se, petitioner applied to the Court of Appeals for a certiorari, which noted that Johnson v. United States, 576 U. S. ___ (2015), held that his armed career offender status was unconstitutional and violated his Fifth Amendment right to notice of the state priors. In June, the Court entered a single-judge order denying the motion for reconsideration because petitioner had already filed a petition for collateral review in light of the intervening decision in the District Court. That court then announced that its decision did not qualify as a substantive rule on collateral review. Less than three weeks later, this Court announced that it had announced a decision in favor of petitioner. Although the Court then announced the decision in question, it also announced that petitioner had filed an additional petition under the armed career Criminal Act. Because the United States agreed with petitioner that Johnson is retroactive, the court appointed Helgi C. Walker as amicus curiae in support of the court's judgment. Held: Johnson is a substantive decision with retroactive effect in cases (like petitioner's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether petitioner should obtain relief in his collateral challenge to his sentence. . (a) The normal framework for determining whether a new rule is substantive or procedural for procedural rules is the Teague framework, which creates a balance between the need for finality in criminal cases and the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law. That balance turns on the function of the rule at issue, not the constitutional guarantee from which the rule derives. See, e.g., Schriro v. Summerlin, 542 U. s. 348, 351 (slip op., at 6); Teague, supra, at 307, 311. A new rule announced by Teague at the time it announced the new rule does not have a substantive function or substantive function. It alters only the procedures used to obtain the conviction, or alters instead the range of conduct or the class of persons that the law punishes. Here, the rule announced in Johnson is substantive if and when it meets the normal criteria for a substantive constitutional rule: when they alter the range of conduct that the statute inflicts. However, the doctrine of the separation-of-powers doctrine that the void-for-vagueness doctrine that Johnson applied is based on procedural due process does not support that approach. Neither Teague nor its progeny support an ad hoc exception for decisions that interpret statutes (but not those, like Johnson, that invalidate statutes). Treating decisions as substantive if they involve statutory interpretation, but not if they do not involve statutory invalidation, would produce unusual outcomes. Amicus Curiae, who has ably discharged her responsibilities, looks to the doctrine that statutory construction cases are substantive because they define what Congress always intended the law to mean, rather than because the underlying constitutional guarantee is characterized as procedural or substantive. That doctrine is also misplaced, since the separation of powers prohibits a court from imposing criminal punishment beyond what Congress meant to enact. From the converse perspective, there also can be substantive rules based on constitutional protections that, on the theory amicus advances, likely would be described as procedural. Treating a rule that is procedural under Teague would produce anomalous results, since a decision that saves a vague statute by adopting a limiting construction is substantive, whereas anyone who falls outside the limiting construction can use that decision to seek relief on collateral. Johnson struck down part of a criminal statute that regulates conduct and prescribes punishment. Thus, the judgment in question is reversed, and petitioner is eligible for a 15-year sentence regardless of Johnson. On remand, the parties will determine on other grounds that the District Court was correct to deny Welch his motion to amend his sentence, which would make his sentence mandatory regardless of his Johnson conviction. Pp.

2015_15-274

https://www.oyez.org/cases/2015/15-274

. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992) , a plurality of the Court con-cluded that there “exists” an “undue burden” on a woman’s right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the “purpose or effect” of the provision “is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” (Emphasis added.) The plurality added that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Ibid. We must here decide whether two provisions of Texas’ House Bill 2 violate the Federal Constitution as inter-preted in Casey. The first provision, which we shall call the “admitting-privileges requirement,” says that “[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015). This provision amended Texas law that had previously required an abortion facility to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.” 38 Tex. Reg. 6546 (2013). The second provision, which we shall call the “surgical-center requirement,” says that “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Tex. Health & Safety Code Ann. §245.010(a). We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1. I A In July 2013, the Texas Legislature enacted House Bill 2 (H. B. 2 or Act). In September (before the new law took effect), a group of Texas abortion providers filed an action in Federal District Court seeking facial invalidation ofthe law’s admitting-privileges provision. In late October, the District Court granted the injunction. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 901 (WD Tex. 2013). But three days later, the Fifth Circuit vacated the injunction,thereby permitting the provision to take effect. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F. 3d 406, 419 (2013). The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previous October. It noted that Texas had offered evidence designed to show that the admitting-privileges requirement “will reduce the delay in treatment and decrease health risk for abortion patients with critical complications,” and that it would “ ‘screen out’ untrained or incompetent abortion providers.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F. 3d 583, 592 (2014) (Abbott). The opinion also explained that the plaintiffs had not provided sufficient evidence “that abortion practitioners will likely be unable to comply with the privileges requirement.” Id., at 598. The court said that all “of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio,” would “continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges.” Ibid. The Abbott plaintiffs did not file a petition for certiorari in this Court. B On April 6, one week after the Fifth Circuit’s decision, petitioners, a group of abortion providers (many of whom were plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities, one operated by Whole Woman’s Health in McAllen and the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas. They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution’s Fourteenth Amendment, as interpreted in Casey. The District Court subsequently received stipulations from the parties and depositions from the parties’ experts. The court conducted a 4-day bench trial. It heard, among other testimony, the opinions from expert witnesses for both sides. On the basis of the stipulations, deposi-tions, and testimony, that court reached the following conclusions: 1. Of Texas’ population of more than 25 million people, “approximately 5.4 million” are “women” of “reproductive age,” living within a geographical area of “nearly 280,000 square miles.” Whole Woman’s Health v. Lakey, 46 F. Supp. 3d 673, 681 (2014); see App. 244. 2. “In recent years, the number of abortions reported in Texas has stayed fairly consistent at approximately 15–16% of the reported pregnancy rate, for a total number of approximately 60,000–72,000 legal abortions performed annually.” 46 F. Supp. 3d, at 681; see App. 238. 3. Prior to the enactment of H. B. 2, there were more than 40 licensed abortion facilities in Texas, which “number dropped by almost half leading up to and in thewake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013.” 46 F. Supp. 3d, at 681; App. 228–231. 4. If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that “only seven fa-cilities and a potential eighth will exist in Texas.” 46 F. Supp. 3d, at 680; App. 182–183. 5. Abortion facilities “will remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region.” 46 F. Supp. 3d, at 681; App. 229–230. These include “one facility in Austin, two in Dallas, one in Fort Worth, two in Houston, and either one or two in San Antonio.” 46 F. Supp. 3d, at 680; App. 229–230. 6. “Based on historical data pertaining to Texas’s average number of abortions, and assuming perfectly equal distribution among the remaining seven or eight providers, this would result in each facility serving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in pregnancy rates and a slightly unequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of these facilities.” 46 F. Supp. 3d, at 682; cf. App. 238. 7. The suggestion “that these seven or eight providers could meet the demand of the entire state stretches credulity.” 46 F. Supp. 3d, at 682; see App. 238. 8. “Between November 1, 2012 and May 1, 2014,” that is, before and after enforcement of the admitting-privileges requirement, “the decrease in geographical distribution of abortion facilities” has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubled (from 800,000 to over 1.6 million); those living more than 100 miles has increased by 150% (from 400,000 to 1 million); those living more than 150 miles has increased by more than 350% (from 86,000 to 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to 290,000). After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider. 46 F. Supp. 3d, at 681–682; App. 238–242. 9. The “two requirements erect a particularly high barrier for poor, rural, or disadvantaged women.” 46 F. Supp. 3d, at 683; cf. App. 363–370. 10. “The great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684; see, e.g., App. 257–259, 538; see also id., at 200–202, 253–257. 11. “Abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny.” 46 F. Supp. 3d, at 684; see, e.g., App. 223–224 (describing risks in colonoscopies), 254 (discussing risks in vasectomy and endometrial biopsy, among others), 275–277 (discussing complication rate in plastic surgery). 12. “Additionally, risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” 46 F. Supp. 3d, at 684; App. 202–206, 257–259. 13. “[W]omen will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.” 46 F. Supp. 3d, at 684; App. 202–206. 14. “[T]here are 433 licensed ambulatory surgical centers in Texas,” of which “336 . . . are apparently either ‘grandfathered’ or enjo[y] the benefit of a waiver of some or all” of the surgical-center “requirements.” 46 F. Supp. 3d, at 680–681; App. 184. 15. The “cost of coming into compliance” with thesurgical-center requirement “for existing clinics is significant,” “undisputedly approach[ing] 1 million dollars,” and “most likely exceed[ing] 1.5 million dollars,” with “[s]ome . . . clinics” unable to “comply due to physical size limitations of their sites.” 46 F. Supp. 3d, at 682. The “cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars.” Ibid. On the basis of these and other related findings, the District Court determined that the surgical-center requirement “imposes an undue burden on the right of women throughout Texas to seek a previability abortion,” and that the “admitting-privileges requirement, . . . in conjunction with the ambulatory-surgical-center requirement, imposes an undue burden on the right of women in the Rio Grande Valley, El Paso, and West Texas to seek a previability abortion.” Id., at 687. The District Court concluded that the “two provisions” would cause “the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013,” and thereby create a constitutionally “impermissible obstacle as applied to all women seeking a previability abortion” by “restricting access to previously available legal facilities.” Id., at 687–688. On August 29, 2014, the court enjoined the enforcement of the two provisions. Ibid. C On October 2, 2014, at Texas’ request, the Court of Appeals stayed the District Court’s injunction. Whole Woman’s Health v. Lakey, 769 F. 3d 285, 305. Within the next two weeks, this Court vacated the Court of Appeals’ stay (in substantial part) thereby leaving in effect the District Court’s injunction against enforcement of the surgical-center provision and its injunction against enforcement of the admitting-privileges requirement as applied to the McAllen and El Paso clinics. Whole Woman’s Health v. Lakey, 574 U. S. ___ (2014). The Court of Appeals then heard Texas’ appeal. On June 9, 2015, the Court of Appeals reversed the District Court on the merits. With minor exceptions, it found both provisions constitutional and allowed them to take effect. Whole Women’s Health v. Cole, 790 F. 3d 563, 567 (per curiam), modified, 790 F. 3d 598 (CA5 2015). Because the Court of Appeals’ decision rests upon alternative grounds and fact-related considerations, we set forth its basic reasoning in some detail. The Court of Appeals concluded: • The District Court was wrong to hold the admitting-privileges requirement unconstitutional because (except for the clinics in McAllen and El Paso) the providers had not asked them to do so, and principles of res judicata barred relief. Id., at 580–583. • Because the providers could have brought their constitutional challenge to the surgical-center provision in their earlier lawsuit, principles of res judicata also barred that claim. Id., at 581–583. • In any event, a state law “regulating previability abortion is constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” Id., at 572. • “[B]oth the admitting privileges requirement and” the surgical-center requirement “were rationally related to a legitimate state interest,” namely, “rais[ing] the standard and quality of care for women seeking abortions and . . . protect[ing] the health and welfare of women seeking abortions.” Id., at 584. • The “[p]laintiffs” failed “to proffer competent evidence contradicting the legislature’s statement of a legitimate purpose.” Id., at 585. • “[T]he district court erred by substituting its own judgment [as to the provisions’ effects] for that of the legislature, albeit . . . in the name of the undue burden inquiry.” Id., at 587. • Holding the provisions unconstitutional on their face is improper because the plaintiffs had failed to show that either of the provisions “imposes an undue burden on a large fraction of women.” Id., at 590. • The District Court erred in finding that, if the surgical-center requirement takes effect, there will be too few abortion providers in Texas to meet the demand. That factual determination was based upon the finding of one of plaintiffs’ expert witnesses (Dr. Grossman) that abortion providers in Texas “ ‘will not be able to go from providing approximately 14,000 abortions annually, as they currently are, to providing the 60,000 to 70,000 abortions that are done each year in Texas once all’ ” of the clinics failing to meet the surgical-center requirement “ ‘are forced to close.’ ” Id., at 589–590. But Dr. Grossman’s opinion is (in the Court of Appeals’ view) “ ‘ipse dixit’ ”; the “ ‘record lacks any actual evidence regarding the current or future capacity of the eight clinics’ ”; and there is no “evidence in the record that” the providers that currently meet the surgical-center requirement “are operating at full capacity or that they cannot increase capacity.” Ibid. For these and related reasons, the Court of Appeals reversed the District Court’s holding that the admitting-privileges requirement is unconstitutional and its holding that the surgical-center requirement is unconstitutional. The Court of Appeals upheld in part the District Court’s more specific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr. Lynn (a doctor at that facility), but it reversed the District Court’s holding that the surgical-center requirement is unconstitutional as applied to the facility in El Paso. In respect to this last claim, the Court of Appeals said that women in El Paso wishing to have an abortion could use abortion providers in nearby New Mexico. II Before turning to the constitutional question, we must consider the Court of Appeals’ procedural grounds for holding that (but for the challenge to the provisions of H. B. 2 as applied to McAllen and El Paso) petitioners were barred from bringing their constitutional challenges. A Claim Preclusion—Admitting-Privileges Requirement The Court of Appeals held that there could be no facial challenge to the admitting-privileges requirement. Because several of the petitioners here had previously brought an unsuccessful facial challenge to that requirement (namely, Abbott, 748 F. 3d, at 605; see supra, at 2–3), the Court of Appeals thought that “the principle of res judicata” applied. 790 F. 3d, at 581. The Court of Appeals also held that res judicata prevented the District Court from granting facial relief to petitioners, concluding that it was improper to “facially invalidat[e] the admitting privileges requirement,” because to do so would “gran[t] more relief than anyone requested or briefed.” Id., at 580. We hold that res judicata neither bars petitioners’ challenges to the admitting-privileges requirement nor prevents us from awarding facial relief. For one thing, to the extent that the Court of Appeals concluded that the principle of res judicata bars any facial challenge to the admitting-privileges requirement, see ibid., the court misconstrued petitioners’ claims. Petitioners did not bring a facial challenge to the admitting-privileges requirement in this case but instead challenged that requirement as applied to the clinics in McAllen and El Paso. The question is whether res judicata bars petitioners’ particular as-applied claims. On this point, the Court of Appeals concluded that res judicata was no bar, see 790 F. 3d, at 592, and we agree. The doctrine of claim preclusion (the here-relevant aspect of res judicata) prohibits “successive litigation of the very same claim” by the same parties. New Hampshire v. Maine, 532 U. S. 742, 748 (2001) . Petitioners’ postenforcement as-applied challenge is not “the very same claim” as their preenforcement facial challenge. The Restatement of Judgments notes that development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim. See Restatement (Second) of Judgments §24, Comment f (1980) (“Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first”); cf. id., §20(2) (“A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiff’s failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied”); id., §20, Comment k (discussing relationship of this rule with §24, Comment f ). The Courts of Appeals have used similar rules to determine the contours of a new claim for purposes of preclusion. See, e.g., Morgan v. Covington, 648 F. 3d 172, 178 (CA3 2011) (“[R]es judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint”); Ellis v. CCA of Tenn. LLC, 650 F. 3d 640, 652 (CA7 2011); Bank of N. Y. v. First Millennium, Inc., 607 F. 3d 905, 919 (CA2 2010); Smith v. Potter, 513 F. 3d 781, 783 (CA7 2008); Rawe v. Liberty Mut. Fire Ins. Co., 462 F. 3d 521, 529 (CA6 2006); Manning v. Auburn, 953 F. 2d 1355, 1360 (CA11 1992). The Restatement adds that, where “important human values—such as the lawfulness of continuing personal disability or restraint—are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought.” §24, Comment f; see Bucklew v. Lombardi, 783 F. 3d 1120, 1127 (CA8 2015) (allowing as-applied challenge to exe-cution method to proceed notwithstanding prior facial challenge). We find this approach persuasive. Imagine a group of prisoners who claim that they are being forced to drink contaminated water. These prisoners file suit against the facility where they are incarcerated. If at first their suit is dismissed because a court does not believe that the harm would be severe enough to be unconstitutional, it would make no sense to prevent the same prisoners from bringing a later suit if time and experience eventually showed that prisoners were dying from contaminated water. Such circumstances would give rise to a new claim that the prisoners’ treatment violates the Constitution. Factual developments may show that constitutional harm, which seemed too remote or speculative to afford relief at the time of an earlier suit, was in fact indisputable. In our view, such changed circumstances will give rise to a new constitutional claim. This approach is sensible, and it is consistent with our precedent. See Abie State Bank v. Bryan, 282 U. S. 765, 772 (1931) (where “suit was brought immediately upon the enactment of the law,” “decision sustaining the law cannot be regarded as precluding a subsequent suit for the purpose of testing [its] validity . . . in the lights of the later actual experience”); cf. Lawlor v. National Screen Service Corp., 349 U. S. 322, 328 (1955) (judgment that “precludes recovery on claims arising prior to its entry” nonetheless “cannot be given the effect of extinguishing claims which did not even then exist”); United States v. Carolene Products Co., 304 U. S. 144, 153 (1938) (“[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist”); Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415 (1935) (“A statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it is applied” (footnote omitted)); Third Nat. Bank of Louisville v. Stone 174 U. S. 432, 434 (1899) (“A question cannot be held to have been adjudged before an issue on the subject could possibly have arisen”). Justice Alito’s dissenting opinion is simply wrong that changed circumstances showing that a challenged law has an unconstitutional effect can never give rise to a new claim. See post, at 14–15 (hereinafter the dissent). Changed circumstances of this kind are why the claim presented in Abbott is not the same claim as petitioners’ claim here. The claims in both Abbott and the present case involve “important human values.” Restatement (Second) of Judgments §24, Comment f. We are concerned with H. B. 2’s “effect . . . on women seeking abortions.” Post, at 30 (Alito, J., dissenting). And that effect has changed dramatically since petitioners filed their first lawsuit. Abbott rested on facts and evidence presented to the District Court in October 2013. 748 F. 3d, at 599, n. 14 (declining to “consider any arguments” based on “developments since the conclusion of the bench trial”). Petitioners’ claim in this case rests in significant part upon later, concrete factual developments. Those developments matter. The Abbott plaintiffs brought their facial challenge to the admitting-privileges requirement prior to its enforcement—before many abortion clinics had closed and while it was still unclear how many clinics would be affected. Here, petitioners bring an as-applied challenge to the requirement after its enforcement—and after a large number of clinics have in fact closed. The postenforcement consequences of H. B. 2 were unknowable before it went into effect. The Abbott court itself recognized that “[l]ater as-applied challenges can always deal with subsequent, concrete constitutional issues.” Id., at 589. And the Court of Appeals in this case properly decided that new evidence presented by petitioners had given rise to a new claim and that petitioners’ as-applied challenges are not precluded. See 790 F. 3d, at 591 (“We now know with certainty that the non-[surgical-center] abortion facilities have actually closed and physicians have been unable to obtain admitting privileges after diligent effort”). When individuals claim that a particular statute will produce serious constitutionally relevant adverse consequences before they have occurred—and when the courts doubt their likely occurrence—the factual difference that those adverse consequences have in fact occurred can make all the difference. Compare the Fifth Circuit’s opinion in the earlier case, Abbott, supra, at 598 (“All of the major Texas cities . . . continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges”), with the facts found in this case, 46 F. Supp. 3d, at 680 (the two provisions will leave Texas with seven or eight clinics). The challenge brought in this case and the one in Abbott are not the “very same claim,” and the doctrine of claim preclusion consequently doesnot bar a new challenge to the constitutionality of the admitting-privileges requirement. New Hampshire v. Maine, 532 U. S., at 748. That the litigants in Abbott did not seek review in this Court, as the dissent suggests they should have done, see post, at 10, does not prevent them from seeking review of new claims that have arisen after Abbott was decided. In sum, the Restatement, cases from the Courts of Appeals, our own precedent, and simple logic combine to convince us that res judicata does not bar this claim. The Court of Appeals also concluded that the award of facial relief was precluded by principles of res judicata. 790 F. 3d, at 581. The court concluded that the District Court should not have “granted more relief than anyone requested or briefed.” Id., at 580. But in addition to asking for as-applied relief, petitioners asked for “such other and further relief as the Court may deem just, proper, and equitable.” App. 167. Their evidence and argu-ments convinced the District Court that the provision was unconstitutional across the board. The Federal Rules of Civil Procedure state that (with an exception not relevant here) a “final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” Rule 54(c). And we have held that, if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 333 (2010) ; see ibid. (in “the exercise of its judicial responsibility” it may be “necessary . . . for the Court to consider the facial validity” of a statute, even though a facial challenge was not brought); cf. Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases”). Nothing prevents this Court from awarding facial relief as the appropriate rem-edy for petitioners’ as-applied claims. B Claim Preclusion—Surgical-Center Requirement The Court of Appeals also held that claim preclusion barred petitioners from contending that the surgical-center requirement is unconstitutional. 790 F. 3d, at 583. Although it recognized that petitioners did not bring this claim in Abbott, it believed that they should have done so. The court explained that petitioners’ constitutional challenge to the surgical-center requirement and the chal-lenge to the admitting-privileges requirement mounted in Abbott “arise from the same ‘transactio[n] or series of connected transactions.’ . . . The challenges involve the same parties and abortion facilities; the challenges are governed by the same legal standards; the provisions at issue were enacted at the same time as part of the same act; the provisions were motivated by a common purpose; the provisions are administered by the same state officials; and the challenges form a convenient trial unit because they rely on a common nucleus of operative facts.” 790 F. 3d, at 581. For all these reasons, the Court of Appeals held petitioners’ challenge to H. B. 2’s surgical-center requirement was precluded. The Court of Appeals failed, however, to take account of meaningful differences. The surgical-center provision and the admitting-privileges provision are separate, distinct provisions of H. B. 2. They set forth two different, independent requirements with different enforcement dates. This Court has never suggested that challenges to two different statutory provisions that serve two different functions must be brought in a single suit. And lower courts normally treat challenges to distinct regulatory requirements as “separate claims,” even when they are part of one overarching “[g]overnment regulatory scheme.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4408, p. 52 (2d ed. 2002, Supp. 2015); see Hamilton’s Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 (CA6 2007). That approach makes sense. The opposite approach adopted by the Court of Appeals would require treating every statutory enactment as a single transaction which a given party would only be able to challenge one time, in one lawsuit, in order to avoid the effects of claim preclusion. Such a rule would encourage a kitchen-sink approach to any litigation challenging the validity of statutes. That outcome is less than optimal—not only for litigants, but for courts. There are other good reasons why petitioners should not have had to bring their challenge to the surgical-center provision at the same time they brought their first suit. The statute gave the Texas Department of State Health Services authority to make rules implementing the surgical-center requirement. H. B. 2, §11(a), App. to Pet. forCert. 201a. At the time petitioners filed Abbott, that state agency had not yet issued any such rules. Cf. EPA v. Brown, 431 U. S. 99, 104 (1977) (per curiam); 13B Wright, supra, §3532.6, at 629 (3d ed. 2008) (most courts will not “undertake review before rules have been adopted”); Natural Resources Defense Council, Inc. v. EPA, 859 F. 2d 156, 204 (CADC 1988). Further, petitioners might well have expected that those rules when issued would contain provisions grandfathering some then-existing abortion facilities and granting full or partial waivers to others. After all, more than three quarters of non-abortion-related surgical centers had benefited from that kind of provision. See 46 F. Supp. 3d, at 680–681 (336 of 433 existing Texas surgical centers have been grandfathered or otherwise enjoy a waiver of some of the surgical-center requirements); see also App. 299–302, 443–447, 468–469. Finally, the relevant factual circumstances changed between Abbott and the present lawsuit, as we previously described. See supra, at 14–15. The dissent musters only one counterargument. According to the dissent, if statutory provisions “impos[e] the same kind of burden . . . on the same kind of right” and have mutually reinforcing effects, “it is evident that” they are “part of the same transaction” and must be challenged together. Post, at 20, 22. But for the word “evident,” the dissent points to no support for this conclusion, and we find it unconvincing. Statutes are often voluminous, with many related, yet distinct, provisions. Plaintiffs, in order to preserve their claims, need not challenge each such provision of, say, the USA PATRIOT Act, the Bipartisan Campaign Reform Act of 2002, the National Labor Relations Act, the Clean Water Act, the Antiterrorism and Effective Death Penalty Act of 1996, or the Patient Protection and Affordable Care Act in their first lawsuit. For all of these reasons, we hold that the petitioners did not have to bring their challenge to the surgical-center provision when they challenged the admitting-privileges provision in Abbott. We accordingly hold that the doctrine of claim preclusion does not prevent them from bringing that challenge now. * * * None of petitioners’ claims are barred by res judicata. Five experts in civil procedure argued, in a brief supporting petitioners’ request for certiorari, that “the panel’s procedural ruling is so clearly incorrect” that there was no reason to decline review. Brief for Professor Michael Dorf et al. as Amici Curiae 22. For all of the reasons described above, we agree that the Court of Appeals’ procedural ruling was incorrect. We consequently proceed to consider the merits of petitioners’ claims. III Undue Burden—Legal Standard We begin with the standard, as described in Casey. We recognize that the “State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113, 150 (1973) . But, we added, “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Casey, 505 U. S., at 877 (plurality opinion). Moreover, “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Id., at 878. The Court of Appeals wrote that a state law is “constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.” 790 F. 3d, at 572. The Court of Appeals went on to hold that “the district court erred by substituting its own judgment for that of the legislature” when it conducted its “undue burden inquiry,” in part because “medical uncertainty underlying a statute is for resolution by legislatures, not the courts.” Id., at 587 (citing Gonzales v.Carhart, 550 U. S. 124, 163 (2007) ). The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. See 505 U. S., at 887–898 (opinion of the Court) (performing this balancing with respect to a spousal notification provision); id., at 899–901 (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (same balancing with respect to a parental notification provision). And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955) . The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.” The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court’s factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional. 505 U. S., at 888–894 (opinion of the Court) (discussing evidence related to the prevalence of spousal abuse in determining that a spousal notification provision erected an undue burden to abortion access). And, in Gonzales the Court, while pointing out that we must review legislative “factfinding under a deferential standard,” added that we must not “place dispositive weight” on those “findings.” 550 U. S., at 165. Gonzales went on to point out that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.” Ibid. (emphasis added). Although there we upheld a statute regulating abortion, we did not do so solely on the basis of legislative findings explicitly set forth in the statute, noting that “evidence presented in the District Courts contradicts” some of the legislative findings. Id., at 166. In these circumstances, we said, “[u]ncritical deference to Congress’ factual findings . . . is inappropriate.” Ibid. Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women’s health). Id., at 149–150. For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court’s case law. As we shall describe, the District Court did so here. It did not simply substitute its own judgment for that of the legislature. It considered the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens. We hold that, in so doing, the District Court applied the correct legal standard. IV Undue Burden—Admitting-Privileges Requirement Turning to the lower courts’ evaluation of the evidence, we first consider the admitting-privileges requirement. Before the enactment of H. B. 2, doctors who provided abortions were required to “have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back up for medical complications.” Tex. Admin. Code, tit. 25, §139.56 (2009) (emphasis added). The new law changed this requirement by requiring that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” Tex. Health & Safety Code Ann. §171.0031(a). The District Court held that the legislative change imposed an “undue burden” on a woman’s right to have an abortion. We conclude that there is adequate legal and factual support for the District Court’s conclusion. The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure. Brief for Respondents 32–37. But the District Court found that it brought about no such health-related benefit. The court found that “[t]he great weight of evidence demonstrates that, before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.” 46 F. Supp. 3d, at 684. Thus, there was no significant health-related problem that the new law helped to cure. The evidence upon which the court based this conclusion included, among other things: • A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications—including those complications requiring hospital admission—was less than one-quarter of 1%. See App. 269–270. • Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200). Id., at 270. • Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266–267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion). • Expert testimony stating that “it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization” and “in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital.” Id., at 381. • Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of these complications occur in the days after the abortion, not on the spot. See id., at 382; see also id., at 267. • Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as “abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility.” Id., at 278. • Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home. See, e.g., id., at 153. We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health. We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. See Tr. of Oral Arg. 47. This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States’ similar admitting-privileges laws. See Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 953 (WD Wis. 2015), aff’d sub nom. Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908 (CA7 2015); Planned Parenthood Southeast, Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (MD Ala. 2014). At the same time, the record evidence indicates that the admitting-privileges requirement places a “substantial obstacle in the path of a woman’s choice.” Casey, 505 U. S., at 877 (plurality opinion). The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. 46 F. Supp. 3d, at 681. Eight abortion clinics closed in the months leading up to the requirement’s effective date. See App. 229–230; cf. Brief for Planned Parenthood Federation of America et al. as Amici Curiae 14 (noting that abortion facilities in Waco, San Angelo, and Midland no longer operate because Planned Parenthood is “unable to find local physicians in those communities with privileges who are willing to provide abortions due to the size of those communities and the hostility that abortion providers face”). Eleven more closed on the day the admitting-privileges requirement took effect. See App. 229–230; Tr. of Oral Arg. 58. Other evidence helps to explain why the new requirement led to the closure of clinics. We read that other evidence in light of a brief filed in this Court by the Soci-ety of Hospital Medicine. That brief describes the undisputed general fact that “hospitals often condition admitting privileges on reaching a certain number of admissions per year.” Brief for Society of Hospital Medicine et al. as Amici Curiae 11. Returning to the District Court record, we note that, in direct testimony, the president of Nova Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because “[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital.” App. 730. In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit. Other amicus briefs filed here set forth without dispute other common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures. See Brief for Medical Staff Professionals as Amici Curiae 20–25 (listing, for example, requirements that an applicant has treated a high number of patients in the hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors); see also Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 16 (ACOG Brief) (“[S]ome academic hospitals will only allow medical staff membership for clinicians who also . . . accept faculty appointments”). Again, returning to the District Court record, we note that Dr. Lynn of the McAllen clinic, a veteran obstetrics and gynecology doctor who estimates that he has delivered over 15,000 babies in his 38 years in practice was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic. App. 390–394. He was refused admitting privileges at a nearby hospital for reasons, as the hospital wrote, “not based on clinical competence considerations.” Id., at 393–394 (emphasis deleted). The admitting-privileges requirement does not serve any relevant credentialing function. In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the “number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.” 46 F. Supp. 3d, at 681. We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, Kennedy, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion. Cf. id., at 895 (opinion of the Court) (finding burden “undue” when requirement places “substantial obstacle to a woman’s choice” in “a large fraction of the cases in which” it “is relevant”). The dissent’s only argument why these clinic closures, as well as the ones discussed in Part V, infra, may not have imposed an undue burden is this: Although “H. B. 2 caused the closure of some clinics,” post, at 26 (emphasis added), other clinics may have closed for other reasons (so we should not “actually count” the burdens resulting from those closures against H. B. 2), post, at 30–31. But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures. App. 182–183, 228–231. The District Court credited that evidence and concluded from it that H. B. 2 in factled to the clinic closures. 46 F. Supp. 3d, at 680–681. The dissent’s speculation that perhaps other evidence, not presented at trial or credited by the District Court, might have shown that some clinics closed for unrelated reasons does not provide sufficient ground to disturb the District Court’s factual finding on that issue. In the same breath, the dissent suggests that one benefit of H. B. 2’s requirements would be that they might “force unsafe facilities to shut down.” Post, at 26. To support that assertion, the dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He “staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised” and had “[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong.” Report of Grand Juryin No. 0009901–2008 (1st Jud. Dist. Pa., Jan. 14,2011), p. 24, online at http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf (as last visited June 24, 2016). Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layerof regulation would have affected that behavior. Deter-mined wrongdoers, already ignoring existing stat-utes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Id., at 20. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. See infra, at 28 (describing those regulations). The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior. V Undue Burden—Surgical-Center Requirement The second challenged provision of Texas’ new law sets forth the surgical-center requirement. Prior to enactment of the new requirement, Texas law required abortion facilities to meet a host of health and safety requirements. Under those pre-existing laws, facilities were subject to annual reporting and recordkeeping requirements, see Tex. Admin. Code, tit. 25, §§139.4, 139.5, 139.55, 139.58; a quality assurance program, see §139.8; personnel policies and staffing requirements, see §§139.43, 139.46; physical and environmental requirements, see §139.48; infection control standards, see §139.49; disclosure requirements, see §139.50; patient-rights standards, see §139.51; and medical- and clinical-services standards, see §139.53, including anesthesia standards, see §139.59. These requirements are policed by random and announced inspections, at least annually, see §§139.23, 139.31; Tex. Health & Safety Code Ann. §245.006(a) (West 2010), as well as administrative penalties, injunctions, civil penalties,and criminal penalties for certain violations, see Tex. Admin. Code, tit. 25, §139.33; Tex. Health & Safety Code Ann. §245.011 (criminal penalties for certain reporting violations). H. B. 2 added the requirement that an “abortion facility” meet the “minimum standards . . . for ambulatory surgical centers” under Texas law. §245.010(a) (West Cum. Supp. 2015). The surgical-center regulations include, among other things, detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements. The nursing staff must comprise at least “an adequate number of [registered nurses] on duty to meet the following minimum staff requirements: director of the department (or designee), and supervisory and staff personnel for each service area to assure the immediate availability of [a registered nurse] for emergency care or for any patient when needed,” Tex. Admin. Code, tit. 25, §135.15(a)(3) (2016), as well as “a second individual on duty on the premises who is trained and currently certified in basic cardiac life support until all patients have been discharged from the facility” for facilities that provide moderate sedation, such as most abortion facilities, §135.15(b)(2)(A). Facilities must include a full surgical suite with an operating room that has “a clear floor area of at least 240 square feet” in which “[t]he minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet.” §135.52(d)(15)(A). There must be a preoperative patient holding room and a postoperative recovery suite. The former “shall be provided and arranged in a one-way traffic pattern so that patients entering from outside the surgical suite can change, gown, and move directly into the restricted corridor of the surgical suite,” §135.52(d)(10)(A), and the latter “shall be arranged to provide a one-way traffic pattern from the restricted surgical corridor to the postoperative recovery suite, and then to the extended observation rooms or discharge,” §135.52(d)(9)(A). Surgical centers must meet numerous other spatial requirements, see generally §135.52, including specific corridor widths, §135.52(e)(1)(B)(iii). Surgical centers must also have an advanced heating, ventilation, and air conditioning system, §135.52(g)(5), and must satisfy particular piping system and plumbing requirements, §135.52(h). Dozens of other sections list additional requirements that apply to surgical centers. See generally §§135.1–135.56. There is considerable evidence in the record supporting the District Court’s findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary. The District Court found that “risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities.” 46 F. Supp. 3d, at 684. The court added that women “will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility.” Ibid. And these findings are well supported. The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facil-ity. See supra, at 23; App. 278. The record also contains evidence indicating that abortions taking place in an abortion facility are safe—indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements. See, e.g., id., at 223–224, 254, 275–279. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Id., at 272. Nationwide, childbirth is 14 times more likely than abortion to result in death, ibid., but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Id., at 276–277; see ACOG Brief 15 (the mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortal-ity rate for abortion). Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. App. 254; see ACOG Brief 14 (same). And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions. 46 F. Supp. 3d, at 680–681; see App. 184. These facts indicate that the surgical-center provision imposes “a requirement that simply is not based on differences” between abortion and other surgical procedures “that are reasonably related to” preserving women’s health, the asserted “purpos[e] of the Act in which it is found.” Doe, 410 U. S., at 194 (quoting Morey v. Doud, 354 U. S. 457, 465 (1957) ; internal quotation marks omitted). Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor fin-ishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. App. 304. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile. See id., at 302–303. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, see Tex. Admin. Code, tit. 25, §135.41; App. 304, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation, id., at 304–305. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, id., at 255–256, surgical-center standards will not help in those instances either. The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court’s conclusion that “[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary.” 46 F. Supp. 3d, at 684. That conclusion, along with the supporting evidence, provides sufficient support for the more general conclusion that the surgical-center requirement “will not [provide] better care or . . . more frequent positive outcomes.” Ibid. The record evidence thus supports the ultimate legal conclusion that thesurgical-center requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth. See App. 182–183. In the District Court’s view, the proposition that these “seven or eight providers could meet the demand of the entire State stretches credulity.” 46 F. Supp. 3d, at 682. We take this statement as a finding that these few facilities could not “meet” that “demand.” The Court of Appeals held that this finding was “clearly erroneous.” 790 F. 3d, at 590. It wrote that the finding rested upon the “ ‘ipse dixit’ ” of one expert, Dr. Grossman, and that there was no evidence that the current surgical centers (i.e., the seven or eight) are operating at full capacity or could not increase capacity. Ibid. Unlike the Court of Appeals, however, we hold that the record provides adequate support for the District Court’s finding. For one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as a result of the surgical-center requirement, the number of abortions that the clinics would have to provide would rise from “ ‘14,000 abortions annually’ ” to “ ‘60,000 to 70,000’ ”—an increase by a factor of about five. Id., at 589–590. The District Court credited Dr. Grossman as an expert witness. See 46 F. Supp. 3d, at 678–679, n. 1; id., at 681, n. 4 (finding “indicia of reliability” in Dr. Grossman’s conclusions). The Federal Rules of Evidence state that an expert may testify in the “form of an opinion” as long as that opinion rests upon “sufficient facts or data” and “reliable principles and methods.” Rule 702. In this case Dr. Grossman’s opinion rested upon his participation, along with other university researchers, in research that tracked “the number of open facilities providing abortion care in the state by . . . requesting information from the Texas Department of State Health Services . . . [, t]hrough interviews with clinic staff[,] and review of publicly available information.” App. 227. The District Court acted within its legal authority in determining that Dr. Grossman’s testimony was admissible. See Fed. Rule Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993) (“[U]nder the Rules the trial judge must ensure that any and all [expert] evidence admitted is not only relevant, but reliable”); 29 C. Wright & V. Gold, Federal Practice and Procedure: Evidence §6266, p. 302 (2016) (“Rule 702 impose[s] on the trial judge additional responsibility to determine whether that [expert] testimony is likely to promote accurate factfinding”). For another thing, common sense suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs. Suppose that we know only that a certain grocery store serves 200 customers per week, that a certain apartment building provides apartments for 200 families, that a certain train station welcomes 200 trains per day. While it is conceivable that the store, the apartment building, or the train station could just as easily provide for 1,000 customers, families, or trains at no significant additional cost, crowding, or delay, most of us would find this possibility highly improbable. The dissent takes issue with this general, intuitive point by arguing that many places operate below capacity and that in any event, facilities could simply hire additional providers. See post, at 32. We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting-privileges requirement means that hiring more physi-cians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsense inferences drawn from the evidence. And that is what the District Court did here. The dissent now seeks to discredit Dr. Grossman by pointing out that a preliminary prediction he made in his testimony in Abbott about the effect of the admitting-privileges requirement on capacity was not borne out after that provision went into effect. See post, at 31, n. 22. If every expert who overestimated or underestimated any figure could not be credited, courts would struggle to find expert assistance. Moreover, making a hypothesis—and then attempting to verify that hypothesis with further studies, as Dr. Grossman did—is not irresponsible. It is an essential element of the scientific method. The District Court’s decision to credit Dr. Grossman’s testimony was sound, particularly given that Texas provided no credible experts to rebut it. See 46 F. Supp. 3d, at 680, n. 3 (declining to credit Texas’ expert witnesses, in part because Vincent Rue, a nonphysician consultant for Texas, had exercised “considerable editorial and discretionary control over the contents of the experts’ reports”). Texas suggests that the seven or eight remaining clinics could expand sufficiently to provide abortions for the 60,000 to 72,000 Texas women who sought them each year. Because petitioners had satisfied their burden, the obligation was on Texas, if it could, to present evidence rebutting that issue to the District Court. Texas admitted that it presented no such evidence. Tr. of Oral Arg. 46. Instead, Texas argued before this Court that one new clinic now serves 9,000 women annually. Ibid. In addition to being outside the record, that example is not representative. The clinic to which Texas referred apparently cost $26 million to construct—a fact that even more clearly demonstrates that requiring seven or eight clinics to serve five times their usual number of patients does indeed represent an undue burden on abortion access. See Planned Parenthood Debuts New Building: Its $26 Million Center in Houston is Largest of Its Kind in U. S., Houston Chronicle, May 21, 2010, p. B1. Attempting to provide the evidence that Texas did not, the dissent points to an exhibit submitted in Abbott showing that three Texas surgical centers, two in Dallas as well as the $26-million facility in Houston, are each capable of serving an average of 7,000 patients per year. See post, at 33–35. That “average” is misleading. In addition to including the Houston clinic, which does not represent most facilities, it is underinclusive. It ignores the evidence as to the Whole Woman’s Health surgical-center facility in San Antonio, the capacity of which is described as “severely limited.” The exhibit does nothing to rebut the commonsense inference that the dramatic decline in the number of available facilities will cause a shortfall in capacity should H. B. 2 go into effect. And facilities that were still operating after the effective date of the admitting-privileges provision were not able to accommodate increased demand. See App. 238; Tr. of Oral Arg. 30–31; Brief for National Abortion Federation et al. as Amici Curiae 17–20 (citing clinics’ experiences since theadmitting-privileges requirement went into effect of 3-week wait times, staff burnout, and waiting rooms so full, patients had to sit on the floor or wait outside). More fundamentally, in the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand, see 46 F. Supp. 3d, at 682, may find that quality of care declines. Another commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women’s health. See id., at 682–683. Finally, the District Court found that the costs that a currently licensed abortion facility would have to incur to meet the surgical-center requirements were considerable, ranging from $1 million per facility (for facilities with adequate space) to $3 million per facility (where additional land must be purchased). Id., at 682. This evidence supports the conclusion that more surgical centers will not soon fill the gap when licensed facilities are forced to close. We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so. VI We consider three additional arguments that Texas makes and deem none persuasive. First, Texas argues that facial invalidation of both challenged provisions is precluded by H. B. 2’s severability clause. See Brief for Respondents 50–52. The severability clause says that “every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provision in this Act, are severable from each other.” H. B. 2, §10(b), App. to Pet. for Cert. 200a. It further provides that if “any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected.” Ibid. That language, Texas argues, means that facial invalidation of parts of the statute is not an option; instead, it says, the severability clause mandates a more narrowly tailored judicial remedy. But the challenged provisions of H. B. 2 close most of the abortion facilities in Texas and place added stress on those facilities able to remain open. They vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny. The provisions are unconstitutional on their face: Including a severability provision in the law does not change that conclusion. Severability clauses, it is true, do express the enacting legislature’s preference for a narrow judicial remedy. As a general matter, we attempt to honor that preference. But our cases have never required us to proceed application by conceivable application when confronted with a facially unconstitutional statutory provision. “We have held that a severability clause is an aid merely; not an inexorable command.” Reno v. American Civil Liberties Union, 521 U. S. 844 –885, n. 49 (1997) (internal quotation marks omitted). Indeed, if a severability clause could impose such a requirement on courts, legislatures would easily be able to insulate unconstitutional statutes from most facial review. See ibid. (“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government” (internal quotation marks omitted)). A severability clause is not grounds for a court to “devise a judicial remedy that . . . entail[s] quintessentially legislative work.” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) . Such an approach would inflict enormous costs on both courts and litigants, who would be required to proceed in this manner whenever a single application of a law might be valid. We reject Texas’ invitation to pave the way for legislatures to immunize their statutes from facial review. Texas similarly argues that instead of finding the entire surgical-center provision unconstitutional, we should invalidate (as applied to abortion clinics) only those spe-cific surgical-center regulations that unduly burden the pro-vision of abortions, while leaving in place other surgical-center regulations (for example, the reader could pickany of the various examples provided by the dissent, see post, at 42–43). See Brief for Respondents 52–53. As we have explained, Texas’ attempt to broadly draft a requirement to sever “applications” does not require us to proceed in piecemeal fashion when we have found the statutory provisions at issue facially unconstitutional. Nor is that approach to the regulations even required by H. B. 2 itself. The statute was meant to require abortion facilities to meet the integrated surgical-center standards—not some subset thereof. The severability clause refers to severing applications of words and phrases in the Act, such as the surgical-center requirement as a whole. See H. B. 2, §4, App. to Pet. for Cert. 194a. It does not say that courts should go through the individual components of the different, surgical-center statute, let alone the individual regulations governing surgical centers to see whether those requirements are severable from each other as applied to abortion facilities. Facilities subject to some subset of those regulations do not qualify as surgical centers. And the risk of harm caused by inconsistent application of only a fraction of interconnected regulations counsels against doing so. Second, Texas claims that the provisions at issue here do not impose a substantial obstacle because the women affected by those laws are not a “large fraction” of Texan women “of reproductive age,” which Texas reads Casey to have required. See Brief for Respondents 45, 48. But Casey used the language “large fraction” to refer to “a large fraction of cases in which [the provision at issue] is relevant,” a class narrower than “all women,” “pregnant women,” or even “the class of women seeking abortions identified by the State.” 505 U. S., at 894–895 (opinion of the Court) (emphasis added). Here, as in Casey, the relevant denominator is “those [women] for whom [the provision] is an actual rather than an irrelevant restriction.” Id., at 895. Third, Texas looks for support to Simopoulos v. Virginia, 462 U. S. 506 (1983) , a case in which this Court uphelda surgical-center requirement as applied to second-trimester abortions. This case, however, unlike Simopoulos, involves restrictions applicable to all abortions, not simply to those that take place during the second trimester. Most abortions in Texas occur in the first trimester, not the second. App. 236. More importantly, in Casey we discarded the trimester framework, and we now use “viability” as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health. 505 U. S., at 878 (plurality opinion). Because the second trimester includes time that is both previability and postviability, Simopoulos cannot provide clear guidance. Further, the Court in Simopoulos found that the petitioner in that case, unlike petitioners here, had waived any argument that the regulation did not significantly help protect women’s health. 462 U. S., at 517. * * * For these reasons the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus WHOLE WOMAN’S HEALTH et al. v. HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al. certiorari to the united states court of appeals for the fifth circuit No. 15–274. Argued March 2, 2016—Decided June 27, 2016 A “State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient.” Roe v. Wade, 410 U. S. 113 . But “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends,” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (plurality opinion), and “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” id., at 878. In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2), which contains the two provisions challenged here. The “admitting-privileges requirement” provides that a “physician performing or inducing an abortion . . . must, on the date [of service], have active admitting privileges at a hospital . . . located not further than 30 miles from the” abortion facility. The “surgical-center requirement” requires an “abortion facility” to meet the “minimum standards . . . for ambulatory surgical centers” under Texas law. Before the law took effect, a group of Texas abortion providers filed the Abbott case, in which they lost a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, petitioners, another group of abortion providers (including some Abbott plaintiffs), filed this suit, claiming that both the admitting-privileges and the surgical-center provisions violated the Fourteenth Amendment, as interpreted in Casey. They sought injunctions preventing enforcement of the admitting-privileges provision as applied to physicians at one abortion facility in McAllen and one in El Paso and prohibiting enforcement of the surgical-center provision throughout Texas. Based on the parties’ stipulations, expert depositions, and expert and other trial testimony, the District Court made extensive findings, including, but not limited to: as the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2’s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of the provisions, holding that the surgical-center requirement imposed an undue burden on the right of women in Texas to seek previability abortions; that, together with that requirement, the admitting-privileges requirement imposed an undue burden in the Rio Grande Valley, El Paso, and West Texas; and that the provisions together created an “impermissible obstacle as applied to all women seeking a previability abortion.” The Fifth Circuit reversed in significant part. It concluded that res judicata barred the District Court from holding the admitting-privileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is “constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and (2) it is reasonably related to . . . a legitimate state interest,” the court found that both requirements were rationally related to a compelling state interest in protecting women’s health. Held: 1. Petitioners’ constitutional claims are not barred by res judicata. . (a) Res judicata neither bars petitioners’ challenges to the admitting-privileges requirement nor prevents the Court from awarding facial relief. The fact that several petitioners had previously brought the unsuccessful facial challenge in Abbott does not mean that claim preclusion, the relevant aspect of res judicata, applies. Claim preclusion prohibits “successive litigation of the very same claim,” New Hampshire v. Maine, 532 U. S. 742 , but petitioners’ as-applied postenforcement challenge and the Abbott plaintiffs’ facial preenforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed. Res judicata also does not preclude facial relief here. In addition to requesting as-applied relief, petitioners asked for other appropriate relief, and their evidence and arguments convinced the District Court of the provision’s unconstitutionality across the board. Federal Rule of Civil Procedure 54(c) provides that a “final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings,” and this Court has held that if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is “proper,” Citizens United v. Federal Election Comm’n, 558 U. S. 310 . . (b) Claim preclusion also does not bar petitioners’ challenge to the surgical-center requirement. In concluding that petitioners should have raised this claim in Abbott, the Fifth Circuit did not take account of the fact that the surgical-center provision and the admitting-privileges provision are separate provisions with two different and independent regulatory requirements. Challenges to distinct regulatory requirements are ordinarily treated as distinct claims. Moreover, the surgical-center provision’s implementing regulations had not even been promulgated at the time Abbott was filed, and the relevant factual circumstances changed between the two suits. . 2. Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution. . (a) The Fifth Circuit’s standard of review may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when deciding the undue burden question, but Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer, see 505 U. S., at 887–898. The Fifth Circuit’s test also mistakenly equates the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable to, e.g., economic legislation. And the court’s requirement that legislatures resolve questions of medical uncertainty is inconsistent with this Court’s case law, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures. See id., at 888–894. Explicit legislative findings must be considered, but there were no such findings in H. B. 2. The District Court applied the correct legal standard here, considering the evidence in the record—including expert evidence—and then weighing the asserted benefits against the burdens. . (b) The record contains adequate legal and factual support for the District Court’s conclusion that the admitting-privileges requirement imposes an “undue burden” on a woman’s right to choose. The requirement’s purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2’s passage, found no significant health-related problem for the new law to cure. The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges. At the same time, the record evidence indicates that the requirement places a “substantial obstacle” in a woman’s path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an “undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion. . (c) The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas’ surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities. This evidence, along with the absence of any contrary evidence, supports the District Court’s conclusions, including its ultimate legal conclusion that requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court’s conclusion that the requirement places a substantial obstacle in the path of women seeking an abortion. The court found that it “strained credulity” to think that the seven or eight abortion facilities would be able to meet the demand. The Fifth Circuit discounted expert witness Dr. Grossman’s testimony that the surgical-center requirement would cause the number of abortions performed by each remaining clinic to increase by a factor of about 5. But an expert may testify in the “form of an opinion” as long as that opinion rests upon “sufficient facts or data” and “reliable principles and methods.” Fed. Rule Evid. 702. Here, Dr. Grossman’s opinion rested upon his participation, together with other university researchers, in research tracking the number of facilities providing abortion services, using information from, among other things, the state health services department and other public sources. The District Court acted within its legal authority in finding his testimony admissible. Common sense also suggests that a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs. And Texas presented no evidence at trial suggesting that expansion was possible. Finally, the District Court’s finding that a currently licensed abortion facility would have to incur considerable costs to meet the surgical-center requirements supports the conclusion that more surgical centers will not soon fill the gap left by closed facilities. . (d) Texas’ three additional arguments are unpersuasive. . 790 F. 3d 563 and 598, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined.

The admitting-privileges provision of Texas law requires that a physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital located not further than 30 miles from the location of the abortion, and that the minimum standards for an abortion facility must be equivalent to those for ambulatory surgical centers. After enactment of the Texas statute, a group of Texas abortion providers filed an action in Federal District Court, seeking facial invalidation of the provision. The District Court granted the injunction, but the Court of Appeals vacated the injunction and permitted the provision to take effect. The court set forth its reasons in an opinion in its opinion in the next two weeks, noting that Texas had offered evidence to show that the admitting privileges requirement would reduce the delay in treatment and decrease health risk for abortion patients with critical complications; that it would screen out untrained or incompetent abortion providers; and that it had not provided sufficient evidence that abortion practitioners would likely be unable to comply with the admitting-Privileges requirement. It also held that res judicata prevented the District Court from granting facial relief to the abortion providers. Held: 1. Neither of the challenged provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878 (plurality opinion), con-cluded that there is an "undue burden" on a woman's right to decide to have an abortion and consequently a provision of law is constitutionally invalid if the purpose or effect of such provision is to place a substantial impediment in a woman seeking an abortion before the fetus attains viability. See, e.g., §24, Comment f. . 2. Neither the admitting privilege requirement nor the admitting procedures requirement is unconstitutional on their face. There is adequate legal and factual support for the lower courts' holding that petitioners were barred from bringing their constitutional challenges.. (a) In view of the fact that Texas has made numerous detailed surgical-center requirements covering abortion facilities, including a requirement that facilities be inspected at least annually, the record contains sufficient evidence to support their conclusion that, compared to prior law (which required a working arrangement with a doctor with admitting privileges), the new law advanced Texas' legitimate interest in protecting women's health. Moreover, petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures. In so doing, the court properly decided that new evidence presented by petitioners had given rise to a new claim, and petitioners' as-applied challenges are not precluded. P.. (b) The fact that some of the petitioners here had previously brought an unsuccessful facial challenge to that requirement does not prevent them from seeking review of new claims that have arisen after Abbott was decided. This Court has never suggested that challenges to two different statutory provisions that serve two different functions must be brought in a single suit. And lower courts normally treat challenges to distinct regulatory requirements as separate claims, even when they are part of one overarching regulatory scheme. Here, the challenged regulations even required by H. B. 2, §4, §6266, are separate, distinct provisions of H.B. 2. They set forth two different, independent requirements with different enforcement dates. However, the state statute gave the State Department of State Health Services authority to make rules implementing the surgical procedures, and the record evidence supports the conclusion that such rules will not help in the few instances in which serious complications do arise following an abortion procedure. Thus, there was no significant health-related problem that Abbott helped to cure. Furthermore, the Texas Supreme Court, in awarding facial relief, held that the admission privileges requirement bars any facial challenges to the requirement, even if it does not bar a facial challenge. On remand, this Court will consider the merits of petitioners claims. (c) Changed circumstances of this kind are why the claim presented in Abbott is not the same claim as petitioners claim here. Although petitioners did not bring their claim in Abbott, they should have done so, since it appears that the record supports the finding that, under the circumstances of the case, the admitting procedure leads to the closure of half of Texas clinics, or thereabouts, and thus to the increase in the number of abortions that the clinics would have to provide. Such changed circumstances are also consistent with this Court's precedent, which has not required this Court to proceed in piecemeal fashion when the statutory provisions at issue are facially unconstitutional. Nor is that approach to the regulations required by §7, §8, §9, or §10, which requires that courts consider the burdens a law imposes

2015_15-5040

https://www.oyez.org/cases/2015/15-5040

. In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death. One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case. The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief. The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “ ‘is too high to be constitutionally tolerable.’ ” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U. S. 35, 47 (1975) ). Applying this standard, the Court concludes that due process compelled the justice’s recusal. I Petitioner is Terrance Williams. In 1984, soon after Williams turned 18, he murdered 56-year-old Amos Norwood in Philadelphia. At trial, the Commonwealth presented evidence that Williams and a friend, Marc Draper, had been standing on a street corner when Norwood drove by. Williams and Draper requested a ride home from Norwood, who agreed. Draper then gave Norwood false directions that led him to drive toward a cemetery. Williams and Draper ordered Norwood out of the car and into the cemetery. There, the two men tied Norwood in his own clothes and beat him to death. Testifying for the Commonwealth, Draper suggested that robbery was the motive for the crime. Williams took the stand in his own defense, stating that he was not involved in the crime and did not know the victim. During the trial, the prosecutor requested permission from her supervisors in the district attorney’s office to seek the death penalty against Williams. To support the request, she prepared a memorandum setting forth the details of the crime, information supporting two statutory aggravating factors, and facts in mitigation. After reviewing the memorandum, the then-district attorney of Philadelphia, Ronald Castille, wrote this note at the bottom of the document: “Approved to proceed on the death penalty.” App. 426a. During the penalty phase of the trial, the prosecutor argued that Williams deserved a death sentence because he killed Norwood “ ‘for no other reason but that a kind man offered him a ride home.’ ” Brief for Petitioner 7. The jurors found two aggravating circumstances: that the murder was committed during the course of a robbery and that Williams had a significant history of violent felony convictions. That criminal history included a previous conviction for a murder he had committed at age 17. The jury found no mitigating circumstances and sentenced Williams to death. Over a period of 26 years, Williams’s conviction and sentence were upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §9541 et seq. (2007). The petition was based on new information from Draper, who until then had refused to speak with Williams’s attorneys. Draper told Williams’s counsel that he had informed the Commonwealth before trial that Williams had been in a sexual relationship with Norwood and that the relationship was the real motive for Norwood’s murder. According to Draper, the Commonwealth had instructed him to give false testimony that Williams killed Norwood to rob him. Draper also admitted he had received an undisclosed benefit in exchange for his testimony: the trial prosecutor had promised to write a letter to the state parole board on his behalf. At trial, the prosecutor had elicited testimony from Draper indicating that his only agreement with the prosecution was to plead guilty in exchange for truthful testimony. No mention was made of the additional promise to write the parole board. The Philadelphia Court of Common Pleas, identified in the proceedings below as the PCRA court, held an evidentiary hearing on Williams’s claims. Williams alleged in his petition that the prosecutor had procured false testimony from Draper and suppressed evidence regarding Norwood’s sexual relationship with Williams. At the hearing, both Draper and the trial prosecutor testified regarding these allegations. The PCRA court ordered the district attorney’s office to produce the previously undisclosed files of the prosecutor and police. These documents included the trial prosecutor’s sentencing memorandum, bearing then-District Attorney Castille’s authorization to pursue the death penalty. Based on the Commonwealth’s files and the evidentiary hearing, the PCRA court found that the trial prosecutor had suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 (1963) , and engaged in “prosecutorial gamesmanship.” App. 168a. The court stayed Williams’s execution and ordered a new sentencing hearing. Seeking to vacate the stay of execution, the Commonwealth submitted an emergency application to the Pennsylvania Supreme Court. By this time, almost three decades had passed since Williams’s prosecution. Castille had been elected to a seat on the State Supreme Court and was serving as its chief justice. Williams filed a response to the Commonwealth’s application. The disclosure of the trial prosecutor’s sentencing memorandum in the PCRA proceedings had alerted Williams to Chief Justice Castille’s involvement in the decision to seek a death sentence in his case. For this reason, Williams also filed a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the recusal motion to the full court for decision. The Commonwealth opposed Williams’s recusal motion. Without explanation, Chief Justice Castille denied the motion for recusal and the request for its referral. Two days later, the Pennsylvania Supreme Court denied the application to vacate the stay and ordered full briefing on the issues raised in the appeal. The State Supreme Court then vacated the PCRA court’s order granting penalty-phase relief and reinstated Williams’s death sentence. Chief Justice Castille and Justices Baer and Stevens joined the majority opinion written by Justice Eakin. Justices Saylor and Todd concurred in the result without issuing a separate opinion. See ___ Pa. ___, ___, 105 A. 3d 1234, 1245 (2014). Chief Justice Castille authored a concurrence. He lamented that the PCRA court had “lost sight of its role as a neutral judicial officer” and had stayed Williams’s execution “for no valid reason.” Id., at ___, 105 A. 3d, at 1245. “[B]efore condemning officers of the court,” the chief justice stated, “the tribunal should be aware of the substantive status of Brady law,” which he believed the PCRA court had misapplied. Id., at ___, 105 A. 3d, at 1246. In addition, Chief Justice Castille denounced what he perceived as the “obstructionist anti-death penalty agenda” of Williams’s attorneys from the Federal Community Defender Office. Ibid. PCRA courts “throughout Pennsylvania need to be vigilant and circumspect when it comes to the activities of this particular advocacy group,” he wrote, lest Defender Office lawyers turn postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” Id., at ___, 105 A. 3d, at 1247. Two weeks after the Pennsylvania Supreme Court decided Williams’s case, Chief Justice Castille retired from the bench. This Court granted Williams’s petition for certiorari. 576 U. S. ___ (2015). II A Williams contends that Chief Justice Castille’s decision as district attorney to seek a death sentence against him barred the chief justice from later adjudicating Williams’s petition to overturn that sentence. Chief Justice Castille, Williams argues, violated the Due Process Clause of the Fourteenth Amendment by acting as both accuser and judge in his case. The Court’s due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor. For the reasons explained below, however, the principles on which these precedents rest dictate the rule that must control in the circumstances here. The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. Due process guarantees “an absence of actual bias” on the part of a judge. In re Murchison, 349 U. S. 133, 136 (1955) . Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and work-able framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caperton, 556 U. S., at 881. Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case. See Murchison, 349 U. S., at 136–137. This objective risk of bias is reflected in the due process maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Id., at 136. The due process guarantee that “no man can be a judge in his own case” would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision. This conclusion follows from the Court’s analysis in In re Murchison. That case involved a “one-man judge-grand jury” proceeding, conducted pursuant to state law, in which the judge called witnesses to testify about suspected crimes. Id., at 134. During the course of the examinations, the judge became convinced that two witnesses were obstructing the proceeding. He charged one witness with perjury and then, a few weeks later, tried and convicted him in open court. The judge charged the other witness with contempt and, a few days later, tried and convicted him as well. This Court overturned the convictions on the ground that the judge’s dual position as accuser and decisionmaker in the contempt trials violated due process: “Having been a part of [the accusatory] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.” Id., at 137. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome. There is, furthermore, a risk that the judge “would be so psychologically wedded” to his or her previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.” Withrow, 421 U. S., at 57. In addition, the judge’s “own personal knowledge and impression” of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties’ arguments to the court. Murchison, supra, at 138; see also Caperton, supra, at 881. Pennsylvania argues that Murchison does not lead to the rule that due process requires disqualification of a judge who, in an earlier role as a prosecutor, had significant involvement in making a critical decision in the case. The facts of Murchison, it should be acknowledged, differ in many respects from a case like this one. In Murchison, over the course of several weeks, a single official (the so-called judge-grand jury) conducted an investigation into suspected crimes; made the decision to charge witnesses for obstruction of that investigation; heard evidence on the charges he had lodged; issued judgments of conviction; and imposed sentence. See 349 U. S., at 135 (petitioners objected to “trial before the judge who was at the same time the complainant, indicter and prosecutor”). By contrast, a judge who had an earlier involvement in a prosecution might have been just one of several prosecutors working on the case at each stage of the proceedings; the prosecutor’s immediate role might have been limited to a particular aspect of the prosecution; and decades might have passed before the former prosecutor, now a judge, is called upon to adjudicate a claim in the case. These factual differences notwithstanding, the constitutional principles explained in Murchison are fully applicable where a judge had a direct, personal role in the defendant’s prosecution. The involvement of other actors and the passage of time are consequences of a complex criminal justice system, in which a single case may be litigated through multiple proceedings taking place over a period of years. This context only heightens the need for objective rules preventing the operation of bias that otherwise might be obscured. Within a large, impersonal system, an individual prosecutor might still have an influence that, while not so visible as the one-man grand jury in Murchison, is nevertheless significant. A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutral-ity of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion. B This leads to the question whether Chief Justice Castille’s authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision. The Court now concludes that it was a significant, personal involvement; and, as a result, Chief Justice Castille’s failure to recuse from Williams’s case presented an unconstitutional risk of bias. As an initial matter, there can be no doubt that the decision to pursue the death penalty is a critical choice in the adversary process. Indeed, after a defendant is charged with a death-eligible crime, whether to ask a jury to end the defendant’s life is one of the most serious discretionary decisions a prosecutor can be called upon to make. Nor is there any doubt that Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. The importance of this decision and the profound consequences it carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment. Pennsylvania nonetheless contends that Chief Justice Castille in fact did not have significant involvement in the decision to seek a death sentence against Williams. The chief justice, the Commonwealth points out, was the head of a large district attorney’s office in a city that saw many capital murder trials. Tr. of Oral Arg. 36. According to Pennsylvania, his approval of the trial prosecutor’s request to pursue capital punishment in Williams’s case amounted to a brief administrative act limited to “the time it takes to read a one-and-a-half-page memo.” Ibid. In this Court’s view, that characterization cannot be credited. The Court will not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part. Chief Justice Castille’s own comments while running for judicial office refute the Commonwealth’s claim that he played a mere ministerial role in capital sentencing decisions. During the chief justice’s election campaign, multiple news outlets reported his statement that he “sent 45 people to death rows” as district attorney. Seelye, Castille Keeps His Cool in Court Run, Philadelphia Inquirer, Apr. 30, 1993, p. B1; see also, e.g., Brennan, State Voters Must Choose Next Supreme Court Member, Legal Intelligencer, Oct. 28, 1993, pp. 1, 12. Chief Justice Castille’s willingness to take personal responsibility for the death sentences obtained during his tenure as district attorney indicate that, in his own view, he played a meaningful role in those sentencing decisions and considered his involvement to be an important duty of his office. Although not necessary to the disposition of this case, the PCRA court’s ruling underscores the risk of permitting a former prosecutor to be a judge in what had been his or her own case. The PCRA court determined that the trial prosecutor—Chief Justice Castille’s former subordinate in the district attorney’s office—had engaged in multiple, intentional Brady violations during Williams’s prosecution. App. 131–145, 150–154. While there is no indication that Chief Justice Castille was aware of the alleged prosecutorial misconduct, it would be difficult for a judge in his position not to view the PCRA court’s findings as a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney. The potential conflict of interest posed by the PCRA court’s findings illustrates the utility of statutes and professional codes of conduct that “provide more protection than due process requires.” Caperton, 556 U. S., at 890. It is important to note that due process “demarks only the outer boundaries of judicial disqualifications.” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 , 828 (1986). Most questions of recusal are addressed by more stringent and detailed ethical rules, which in many jurisdictions already require disqualification under the circumstances of this case. See Brief for American Bar Association as Amicus Curiae 5, 11–14; see also ABA Model Code of Judicial Conduct Rules 2.11(A)(1), (A)(6)(b) (2011) (no judge may participate “in any proceeding in which the judge’s impartiality might reasonably be questioned,” including where the judge “served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding”); ABA Center for Professional Responsibility Policy Implementation Comm., Comparison of ABA Model Judicial Code and State Variations (Dec. 14, 2015), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2_11.authcheckdam.pdf (as last visited June 7, 2016) (28 States have adopted language similar to ABA Model Judicial Code Rule 2.11); 28 U. S. C. §455(b)(3) (recusal required where judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding”). At the time Williams filed his recusal motion with the Pennsylvania Supreme Court, for example, Pennsylvania’s Code of Judicial Conduct disqualified judges from any proceeding in which “they served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter. . . .” Pa. Code of Judicial Conduct, Canon 3C (1974, as amended). The fact that most jurisdictions have these rules in place suggests that today’s decision will not occasion a significant change in recusal practice. Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation in the case “must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. III Having determined that Chief Justice Castille’s participation violated due process, the Court must resolve whether Williams is entitled to relief. In past cases, the Court has not had to decide the question whether a due process violation arising from a jurist’s failure to recuse amounts to harmless error if the jurist is on a multimember court and the jurist’s vote was not decisive. See Lavoie, supra, at 827–828 (addressing “the question whether a decision of a multimember tribunal must be vacated because of the participation of one member who had an interest in the outcome of the case,” where that member’s vote was outcome determinative). For the reasons discussed below, the Court holds that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote. The Court has little trouble concluding that a due process violation arising from the participation of an inter-ested judge is a defect “not amenable” to harmless-error review, regardless of whether the judge’s vote was dispositive. Puckett v. United States, 556 U. S. 129, 141 (2009) (emphasis deleted). The deliberations of an appellate panel, as a general rule, are confidential. As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to assure jurists that they can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. As Justice Brennan wrote in his Lavoie concurrence, “The description of an opinion as being ‘for the court’ connotes more than merely that the opinion has been joined by a majority of the participating judges. It reflects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court’s perceptions of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant in this process can never be measured with precision, experience teaches us that each member’s involvement plays a part in shaping the court’s ultimate disposition.” 475 U. S., at 831. These considerations illustrate, moreover, that it does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position. That outcome does not lessen the unfairness to the affected party. See id., at 831–832 (Blackmun, J., concurring in judgment). A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless. The Commonwealth points out that ordering a rehearing before the Pennsylvania Supreme Court may not provide complete relief to Williams because judges who were exposed to a disqualified judge may still be influenced by their colleague’s views when they rehear the case. Brief for Respondent 51, 62. An inability to guarantee complete relief for a constitutional violation, however, does not justify withholding a remedy altogether. Allowing an appellate panel to reconsider a case without the participation of the interested member will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first deliberations. Chief Justice Castille’s participation in Williams’s case was an error that affected the State Supreme Court’s whole adjudicatory framework below. Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused.” Tumey v. Ohio, 273 U. S. 510, 532 (1927) . * * * Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level. Due process entitles Terrance Williams to “a proceeding in which he may present his case with assurance” that no member of the court is “predisposed to find against him.” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980) . The judgment of the Supreme Court of Pennsylvania is vacated, 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 WILLIAMS v. PENNSYLVANIA certiorari to the supreme court of pennsylvania No. 15–5040. Argued February 29, 2016—Decided June 9, 2016 Petitioner Williams was convicted of the 1984 murder of Amos Norwood and sentenced to death. During the trial, the then-district attorney of Philadelphia, Ronald Castille, approved the trial prosecutor’s request to seek the death penalty against Williams. Over the next 26 years, Williams’s conviction and sentence were upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA), arguing that the prosecutor had obtained false testimony from his codefendant and suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 . Finding that the trial prosecutor had committed Brady violations, the PCRA court stayed Williams’s execution and ordered a new sentencing hearing. The Commonwealth asked the Pennsylvania Supreme Court, whose chief justice was former District Attorney Castille, to vacate the stay. Williams filed a response, along with a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the motion to the full court for decision. Without explanation, the chief justice denied Williams’s motion for recusal and the request for its referral. He then joined the State Supreme Court opinion vacating the PCRA court’s grant of penalty-phase relief and reinstating Williams’s death sentence. Two weeks later, Chief Justice Castille retired from the bench. Held: 1. Chief Justice Castille’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. . (a) The Court’s due process precedents do not set forth a specific test governing recusal when a judge had prior involvement in a case as a prosecutor; but the principles on which these precedents rest dictate the rule that must control in the circumstances here: Under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. The Court applies an objective standard that requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868 . A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133 –137. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. As a result, a serious question arises as to whether a judge who has served as an advocate for the State in the very case the court is now asked to adjudicate would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. In these circumstances, neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decision may have set in motion. . (b) Because Chief Justice Castille’s authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision, his failure to recuse from Williams’s case presented an unconstitutional risk of bias. The decision to pursue the death penalty is a critical choice in the adversary process, and Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. Given the importance of this decision and the profound consequences it carries, a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion. The fact that many jurisdictions, including Pennsylvania, have statutes and professional codes of conduct that already require recusal under the circumstances of this case suggests that today’s decision will not occasion a significant change in recusal practice. . 2. An unconstitutional failure to recuse constitutes structural error that is “not amenable” to harmless-error review, regardless of whether the judge’s vote was dispositive, Puckett v. United States, 556 U. S. 129 . Because an appellate panel’s deliberations are generally confidential, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to ensure that jurists can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position—an outcome that does not lessen the unfairness to the affected party. A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. Because Chief Justice Castille’s participation in Williams’s case was an error that affected the State Supreme Court’s whole adjudicatory framework below, Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused,” Tumey v. Ohio, 273 U. S. 510 . . __ Pa. __, 105 A. 3d 1234, vacated and remanded. 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 Alito, J., joined. Thomas, J., filed a dissenting opinion.

Petitioner Williams was convicted in a Pennsylvania state court of first-degree murder and sentenced to death. During the penalty phase of the trial, the jury found two aggravating circumstances: that the murder was committed during the course of a robbery and that Williams had a significant history of violent felony convictions, including a previous conviction for a murder he had committed at age 17. The jury found no mitigating circumstances and sentenced Williams to death, and over a period of 26 years he was upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), based on new information from Draper, who until then had refused to speak with Williams and his attorneys. Draper told Williams that the Commonwealth had instructed him to give false testimony that Williams killed Norwood to rob him, and also that the prosecutor had promised to write a letter to the state parole board on his behalf. The Pennsylvania Supreme Court denied the application to vacate the stay of execution and ordered full briefing on the issues raised in the appeal. Thereafter, Chief Justice Castille retired from the bench, and Williams was granted his petition for certiorari. Held: 1. Under the Due Process Clause of the Fourteenth Amendment, there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case. The involvement of other actors and the passage of time are consequences of a complex criminal justice system, in which a single case may be litigated through multiple proceedings taking place over several years. This context only heightens the need for objective rules preventing the operation of bias that otherwise might be obscured... 2. However, the constitutional principles explained in Murchison, 349 U. S. 133, do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecution. The due process guarantee that no man can be a judge in his own case would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision. This conclusion is reflected in the due process maxim that,no man can be a... prosecutor and no man is permitted to try cases where he has an interest in the outcome. Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872. . 3. The Chief Justice did not have significant involvement in the decision to seek a death sentence against Williams. The chief justice was the head of a large district attorney's office in a city that saw many capital murder trials, and his approval of the prosecutor's request to pursue capital punishment amounted to a brief administrative act limited to the time it takes to read a one-and-a-half-page memo. In addition, the judge's own knowledge and impression of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties' arguments to the court. Thus, a due process violation arising from the participation of an inter-ested judge is a defect not amenable to harmless-error review, regardless of whether the judge’s vote was dispositive. Puckett v. United States,,. Although not necessary to the disposition of this case, the PCRA court's ruling underscores the risk of permitting a former prosecution to be the judge in Williams' own case. A multimember tribunal is not an impartial court, but a court of neutral reality. Even if a multimember court is an imperfect part of the judicial process, a failure to guarantee a fair adjudication rises to an unconstitutional level.. ___ Pa. ___, ___, 105 A. 3d 1234, vacated and remanded. Certiorari dismissed. Reported below: ___. ___: ___.___. ___. (CA5) ___. 576 U. s. ___ (C.A. 556, 446 U. N.E.L.C. 578, 576 F.2d 856, vacated. Justice Castille, who was the chief justice of a district attorney district office in Pennsylvania at the time Williams was charged with a death-eligible crime, was an error that affected the State Supreme Court's whole adjudicatory framework below, and who must be granted an opportunity to present his claims to a court unburdened by any possible temptation not to hold the balance nice, clear and true between the State and the accused. See, e.g., Tumey v. Ohio, 273 U. S. 510, 532. P.. Justice KENNEDY, who took no part in the consideration or decision of Williams v. Pennsylvania, held that: (a) Where a judge has had an earlier significant, but

2015_14-1504

https://www.oyez.org/cases/2015/14-1504

. Ten Members of Congress from Virginia, intervenors in the District Court below, have appealed a judgment from a three-judge panel striking down a congressional redistricting plan applicable to the November 2016 election. We conclude that the intervenors now lack standing to pursue the appeal. And we consequently order the appeal dismissed. I This lawsuit began in October 2013, after the then-Governor of Virginia signed into law a new congressional redistricting plan (which we shall call the “Enacted Plan”) designed to reflect the results of the 2010 census. Three voters from Congressional District 3 brought this lawsuit against the Commonwealth. They challenged the Enacted Plan on the ground that its redrawing of their district’s lines was an unconstitutional racial gerrymander. The Members of Congress now before us intervened to help defend the Enacted Plan. After a bench trial, a divided three-judge District Court agreed with the voters. It concluded that the Commonwealth had used race as the predominant basis for modifying the boundaries of District 3. Page v. Virginia State Bd. of Elections, 58 F. Supp. 3d 533, 550 (ED Va. 2014). And it found that the Commonwealth’s use of race, when scrutinized strictly, was not narrowly tailored to serve a compelling governmental interest. Id., at 553. The Commonwealth of Virginia did not appeal. Instead, the intervenor Members of Congress appealed the District Court’s judgment to this Court. See 28 U. S. C. §1253 (granting the right to directly appeal certain three-judge district court orders to the Supreme Court). Having just decided a racial gerrymandering case, Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___ (2015), we vacated the District Court’s judgment and remanded for reconsideration in light of that recent decision. Cantor v. Personhuballah, 575 U. S. ___ (2015). On remand the District Court again decided that District 3, as modified by the Enacted Plan, was an unconstitutional racial gerrymander. Page v. Virginia State Bd. of Elections, 2015 WL 3604029, *19 (ED Va., June 5, 2015). The court’s order set forth a deadline of September 1, 2015, for the Virginia Legislature to adopt a new redistricting plan. Again, the Commonwealth of Virginia decided not to appeal. And again, the intervenor Members of Congress appealed to this Court. On September 28, 2015, we asked the parties to file supplemental briefs addressing whether the intervenors had standing to appeal the District Court’s decision. 576 U. S. ___. As relevant here, the intervenors argued in their supplemental brief that they had standing because the District Court’s order, if allowed to stand, would necessarily result in a redrawing of their districts that would harm some of the intervenors’ reelection prospects. On November 13, 2015, we issued an order explaining that the Court was “postpon[ing]” “consideration of the question of jurisdiction” until “the hearing of the case on the merits.” In addition, our order instructed the parties to dedicate a portion of their briefs and their oral argument time to the issue of standing—specifically, “[w]hether [the intervenors] lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.” 577 U. S. ___. In the meantime, the Virginia Legislature failed to meet the September 1 deadline imposed by the District Court. The District Court thus appointed a Special Master to develop a new districting plan. The Special Master did so, and on January 7, 2016, the District Court approved that plan (which we shall call the “Remedial Plan”). The intervenor Members of Congress asked this Court to stay implementation of the Remedial Plan pending resolution of their direct appeal to this Court. We declined to do so. 577 U. S. ___ (2016). On March 21, we heard oral argument. That argument focused both on (1) the merits of intervenors’ claims denying any racial gerrymander and (2) the question of standing. In respect to standing, the Court focused on whether the District Court’s approval of the Remedial Plan on January 7 supported, or undermined, the intervenors’ standing argument that, in the absence of the original Enacted Plan, they would suffer harm. Tr. of Oral Arg. 9–23. II As our request for supplemental briefing, our order postponing consideration of jurisdiction, and our questions at oral argument suggested, we cannot decide the merits of this case unless the intervenor Members of Congress challenging the District Court’s racial-gerrymandering decision have standing. We conclude that the intervenors now lack standing. We must therefore dismiss the appeal for lack of jurisdiction. Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of an actual “Cas[e]” or “Controvers[y].” This restriction requires a party invoking a federal court’s jurisdiction to demonstrate standing. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) . A party has standing only if he shows that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the conduct being challenged, and that the injury will likely be “redressed” by a favorable decision. Lujan v. Defenders of Wildlife, 504 U. S. 555 –561 (1992) (internal quotation marks and ellipsis omitted). The need to satisfy these three requirements persists throughout the life of the lawsuit. Arizonans for Official English, 520 U. S., at 67. The relevant parties here are the intervenor Members of Congress. Since the Commonwealth of Virginia has not pursued an appeal, only the intervenors currently attack the District Court’s decision striking down the Enacted Plan. And an “intervenor cannot step into the shoes of the original party” (here, the Commonwealth) “unless the intervenor independently ‘fulfills the requirements of Article III.’ ” Id., at 65 (quoting Diamond v. Charles, 476 U. S. 54, 68 (1986) ). Although 10 current and former Members of Congress are technically intervenors, only 3 of the 10 now claim before this Court that they have standing. Those three Members are Representative Randy Forbes, Representative Robert Wittman, and Representative David Brat. Representative Forbes, the Republican incumbent in Congressional District 4, told us in his brief that, unless the Enacted Plan is upheld, District 4 will be “completely transform[ed] from a 48% Democratic district into a safe 60% Democratic district.” Brief for Appellants 58. According to Forbes, the threat of that kind of transformation compelled him to run in a different district, namely, Congressional District 2. At oral argument, Forbes’ counsel told the Court that, if the Enacted Plan were reinstated, Representative Forbes would abandon his election effort in Congressional District 2 and run in his old district, namely, Congressional District 4. Tr. of Oral Arg. 10. Soon after oral argument, however, the Court received a letter from counsel stating that Representative Forbes would “continue to seek election in District 2 regardless of whether the Enacted Plan is reinstated.” Letter from Counsel for Appellants to Scott S. Harris, Clerk of Court (Mar. 25, 2016), p. 2. Given this letter, we do not see how any injury that Forbes might have suffered “is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U. S. ___, ___–___ (2013) (slip op., at 5–6). Consequently, we need not decide whether, at the time he first intervened, Representative Forbes possessed standing. Regardless, he does not possess standing now. See Arizonans for Official English, supra, at 65; Lewis v. Continental Bank Corp., 494 U. S. 472 –478 (1990). Representative Wittman and Representative Brat are Republicans representing Congressional District 1 and Congressional District 7, respectively. In their opening brief they argue that they have standing to challenge the District Court’s order because, unless the Enacted Plan is reinstated, “a portion of the[ir] ‘base electorate’ ” will necessarily be replaced with “unfavorable Democratic voters,” thereby reducing the likelihood of the Representatives’ reelection. Brief for Appellants 58; see also Application for Stay of Remedial Plan Pending Resolution of Direct Appeal of Liability Judgment 25. Even assuming, without deciding, that this kind of injury is legally cognizable, Representatives Wittman and Brat have not identified record evidence establishing their alleged harm. We have made clear that the “party invoking federal jurisdiction bears the burden of establishing” that he has suffered an injury by submitting “affidavit[s] or other evidence.” Lujan, 504 U. S., at 561. When challenged by a court (or by an opposing party) concerned about standing, the party invoking the court’s jurisdiction cannot simply allege a nonobvious harm, without more. Ibid. Here, there is no “more.” Representatives Wittman and Brat claim that unless the Enacted Plan is reinstated, their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced. But we have examined the briefs, looking for any evidence that an alternative to the Enacted Plan (including the Remedial Plan) will reduce the relevant intervenors’ chances of reelection, and have found none. The briefs focus on Congressional District 3 and Congressional District 4, districts with which Representatives Wittman and Brat are not associated. We need go no further. Given the lack of evidence that any of the three Representatives has standing, we need not decide when, or whether, evidence of the kind of injury they allege would prove sufficient for purposes of Article III’s requirements. In light of the letter we have received about Representative Forbes, and the absence of any evidence in the briefs supporting any harm to the other two Representatives, we conclude that none of the intervenors has standing to bring an appeal in this case. We consequently lack jurisdiction and therefore dismiss this appeal. 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 WITTMAN et al. v. PERSONHUBALLAH et al. on appeal from the united states district court for the eastern district of virginia No. 14–1504. Argued March 21, 2016—Decided May 23, 2016 Appellee voters from Virginia’s Congressional District 3 filed suit challenging the Commonwealth’s 2013 congressional redistricting plan on the ground that the legislature’s redrawing of their district was an unconstitutional racial gerrymander. Appellant Members of Congress from Virginia, including, as relevant here, Representatives Randy Forbes, Robert Wittman, and David Brat, intervened to help defend the Commonwealth’s plan. The District Court struck down the plan, and the intervenors appealed to this Court, which vacated the judgment below and remanded the case in light of one of the Court’s recent decisions. Again, the District Court held that the redistricting plan was unconstitutional, and again, the intervenors appealed. This time, the Court directed the parties to address whether appellants lack standing, since none reside in or represent Congressional District 3. Held: Appellants lack standing to pursue this appeal. . (a) A party invoking a federal court’s jurisdiction can establish Article III standing only by showing that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the challenged conduct, and that the injury is likely to be “redressed” by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561. The need to satisfy these requirements persists throughout the life of the suit. Arizonans for Official English v. Arizona, 520 U.S. 43, 67. . (b) In light of the District Court’s decision striking down the redistricting plan, Representative Forbes, the Republican incumbent in District 4, decided to run in District 2. Originally, Representative Forbes argued that he would abandon his campaign in District 2 and run in District 4 if this Court ruled in his favor. Now, however, he has informed the Court that he will continue to seek election in District 2 regardless of this appeal’s outcome. Given this change, this Court does not see how any injury that Forbes might have suffered is “likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U. S. ___, ___. Regardless of whether Forbes had standing at the time he first intervened, he does not have standing now. Representatives Wittman and Brat, the incumbents in Congressional Districts 1 and 7, respectively, have not identified any record evidence to support their allegation that the redistricting plan has harmed their prospects of reelection. The allegation of an injury, without more, is not sufficient to satisfy Article III. See Lujan, supra, at 561. Given the complete lack of evidence of any injury in this case, the Court need not decide when, or whether, evidence of the kind of injury the Representatives allege would prove sufficient for Article III purposes. . Appeal dismissed. Breyer, J., delivered the opinion for a unanimous Court.

In October 2013, after the then-Governor of Virginia signed into law a new congressional redistricting plan (which we shall call the "Enacted Plan") designed to reflect the results of the 2010 census, three voters from Congressional District 3 brought this lawsuit against the Commonwealth on the ground that its redrawing of their district's lines was an unconstitutional racial gerrymander. After a bench trial, a three-judge District Court agreed with the voters, concluding that the Commonwealth had used race as the predominant basis for modifying the boundaries of District 3, and that the use of race, when scrutinized strictly, was not narrowly tailored to serve a compelling governmental interest. The Commonwealth of Virginia did not appeal, but intervenor Members of Congress from Virginia appealed the judgment to this Court. In the meantime, the Virginia Legislature failed to meet the September 1 deadline imposed by the District Court. The District Court then appointed a Special Master to develop a new districting plan, which the Special Master ultimately approved. On March 21, this Court heard oral argument on both claims on the merits of the original plan and on the supplemental briefs presented by the intervenors. Arguing that they lacked standing to appeal the judgment because none of them reside in or represent the only congressional district whose constitutionality is at issue, the intervenor members of Congress asked this Court to stay implementation of the Remedial Plan pending resolution of their direct appeal to this court. However, the Court declined to do so, and instead ordered the case postponed to the hearing of the merits until this Court determined the merits. Held: The intervenors lack standing to bring an appeal in this case. . (a) Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of an actualCas[e] or controversy, and this restriction requires a party invoking a federal court's jurisdiction to demonstrate standing. Arizonans for Official English v. Arizona, 575 U. S. 43, 64. A party has standing only if he shows that he has suffered an injury in fact, that the injury is fairly traceable to the conduct challenged, and the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555-561. Anintervenor cannot step into the shoes of an original party unless he independently defers Article III requirements. Alabama Legislative Black Caucus v. Alabama,,. Here, only 3 of the 10 intervenors who are technically intervenors claim that they have standing. Although 10 current and former Members are entitled to an appeal, only three of them have standing, and only 3 have any standing now. Respondent Members Wittman, Brat, and Representative Forbes have not identified record evidence establishing their alleged harm. Even assuming, without deciding, that this kind of injury is legally cognizable, Representatives Wittman and Brat have no evidence establishing harm to the other two Representatives. This Court has made clear that the federal jurisdiction bears the burden of establishing the injury for which they have suffered. In light of the letter this Court has received about Representative Forbes, the letter from his counsel stating that Representative Brat would continue to seek election in District 2 regardless of whether the Enacted Plan is reinstated, and to the absence of any evidence in the briefs supporting any harm to other Representatives, none of these intervenors has standing to make an appeal. P.. (b) Given the lack of evidence that any of the three Representatives has standing, the appeal need not be decided when, or whether, evidence of the kind of alleged injury they allege would prove sufficient for purposes of Article III.. 623 F. Supp. 3d 533, dismissed. Reported below: 623. (c) The letter to the parties in the form of an oral argument to the extent that it was about Representative Wittman of Virginia, and in light of this letter, and of any other evidence supporting harm to any of these Representatives, is insufficient to show that, at the time he first intervened, Representative Forbes possessed standing. Regardless, he does not possess standing now, and, in any event, he has not identified evidence establishing his alleged injury. Moreover, the briefs on other congressional districts with which he is not associated have no relevant evidence, and none of his intervenors have found relevant briefs that reduce his chances of reelection. Furthermore, since the letter to him and the briefs to the effect that he cannot invoke his federal court jurisdiction bear any burden of proving an injury he suffered by invoking federal jurisdiction, the case is remanded for consideration by this Court on March 21 and March 22. However, when the Court hears arguments about the other intervenors, it will be flooded with briefs and briefs looking for evidence that will reduce the chances of his reelection chances. There is no more evidence that he will be able to allege harm to his reelection, or that his chances will be reduced by an alternative reelection.

2016_16-74

https://www.oyez.org/cases/2016/16-74

. The Employee Retirement Income Security Act of 1974 (ERISA) exempts “church plan[s]” from its otherwise-comprehensive regulation of employee benefit plans. 88Stat. 840, as amended, 29 U. S. C. §1003(b)(2). Under the statute, certain plans for the employees of churches or church-affiliated nonprofits count as “church plans” even though not actually administered by a church. See §1002(33)(C)(i). The question presented here is whether a church must have originally established such a plan for it to so qualify. ERISA, we hold, does not impose that requirement. I Petitioners identify themselves as three church-affiliated nonprofits that run hospitals and other healthcare facilities (collectively, hospitals).[1] They offer defined-benefit pension plans to their employees. Those plans were established by the hospitals themselves—not by a church—and are managed by internal employee-benefits committees. ERISA generally obligates private employers offering pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan participants. See generally New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 651 (1995) (cataloguing ERISA’s “reporting and disclosure mandates,” “participation and vesting requirements,” and “funding standards”). But in enacting the statute, Congress made an important exception. “[C]hurch plan[s]” have never had to comply with ERISA’s requirements. §1003(b)(2). The statutory definition of “church plan” came in two distinct phases. From the beginning, ERISA provided that “[t]he term ‘church plan’ means a plan established and maintained . . . for its employees . . . by a church or by a convention or association of churches.” §1002(33)(A). Then, in 1980, Congress amended the statute to expand that definition by deeming additional plans to fall within it. The amendment specified that for purposes of the church-plan definition, an “employee of a church” would include an employee of a church-affiliated organization (like the hospitals here). §1002(33)(C)(ii)(II). And it added the provision whose effect is at issue in these cases: “A plan established and maintained for its employees . . . by a church or by a convention or association of churches includes a plan maintained by an organization . . . the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organi-zation is controlled by or associated with a church or a convention or association of churches.” §1002(33)(C)(i). That is a mouthful, for lawyers and non-lawyers alike; to digest it more easily, note that everything after the word “organization” in the third line is just a (long-winded) description of a particular kind of church-associated en-tity—which this opinion will call a “principal-purpose organization.” The main job of such an entity, as the statute explains, is to fund or manage a benefit plan for the employees of churches or (per the 1980 amendment’s other part) of church affiliates. The three federal agencies responsible for administering ERISA have long read those provisions, when taken together, to exempt plans like the hospitals’ from the statute’s mandates. (The relevant agencies are the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation.) The original definitional provision—§1002(33)(A), or paragraph (A) for short—defines a “church plan” as one “established and maintained . . . by a church”—not by a church-affiliated nonprofit. But according to the agencies, the later (block-quoted) provision—§1002(33)(C)(i), or just subparagraph (C)(i)—expands that definition to include any plan maintained by a principal-purpose organization, regardless of whether a church initially established the plan. And, the agencies believe, the internal benefits committee of a church-affiliated nonprofit counts as such an organization. See, e.g., IRS General Counsel Memorandum No. 39007 (Nov. 2, 1982), App. 636–637. That interpretation has appeared in hundreds of private letter rulings and opinion letters issued since 1982, including several provided to the hospitals here. See App. 57–69, 379–386, 668–715. The three cases before us are part of a recent wave of litigation challenging the agencies’ view. Respondents, current and former employees of the hospitals, filed class actions alleging that their employers’ pension plans do not fall within ERISA’s church-plan exemption (and thus must satisfy the statute’s requirements). That is so, the employees claim, because those plans were not established by a church—and ERISA, even as amended, demands that all “church plans” have such an origin. According to the employees, the addition of subparagraph (C)(i) allowed principal-purpose organizations to maintain such plans in lieu of churches; but that provision kept as-is paragraph (A)’s insistence that churches themselves establish “church plans.” See id., at 265–268, 435–437, 783–785. The District Courts handling the cases agreed with the employees’ position, and therefore held that the hospitals’ plans must comply with ERISA.[2] The Courts of Appeals for the Third, Seventh, and Ninth Circuits affirmed those decisions. The Third Circuit ruled first, concluding that ERISA’s “plain text” requires that a pension plan be established by a church to qualify for the church-plan exemption. Kaplan v. Saint Peter’s Healthcare System, 810 F. 3d 175, 177 (2015). In the court’s view, paragraph (A) set out “two requirements” for the exemption—“establishment and maintenance”—and “only the latter is expanded by the use of ‘includes’ ” in subparagraph (C)(i). Id., at 181. The Seventh and Ninth Circuits relied on similar reasoning to decide in the employees’ favor. See Stapleton v. Advocate Health Care Network, 817 F. 3d 517, 523 (CA7 2016); Rollins v. Dignity Health, 830 F. 3d 900, 906 (CA9 2016). In light of the importance of the issue, this Court granted certiorari. 579 U. S. ___ (2016). II The dispute in these cases about what counts as a “church plan” hinges on the combined meaning of paragraph (A) and subparagraph (C)(i). Interpretive purists may refer back as needed to the provisions as quoted above. See supra, at 3. But for those who prefer their statutes in (comparatively) user-friendly form, those provisions go as follows: Under paragraph (A), a “ ‘church plan’ means a plan established and maintained . . . by a church.” Under subparagraph (C)(i), “[a] plan established and maintained . . . by a church . . . includes a plan maintained by [a principal-purpose] organization.”[3] The parties agree that under those provisions, a “church plan” need not be maintained by a church; it may instead be maintained by a principal-purpose organization. But the parties differ as to whether a plan maintained by that kind of organization must still have been established by a church to qualify for the church-plan exemption. The hospitals say no: The effect of subparagraph (C)(i) was to bring within the church-plan definition all pension plans maintained by a principal-purpose organization, regardless of who first established them. The employees say yes: Subparagraph (C)(i) altered only the requirement that a pension plan be maintained by a church, while leaving intact the church-establishment condition. We conclude that the hospitals have the better of the argument. Start, as we always do, with the statutory language—here, a new definitional phrase piggy-backing on the one already existing. The term “church plan,” as just stated, initially “mean[t]” only “a plan established and maintained . . . by a church.” But subparagraph (C)(i) provides that the original definitional phrase will now “include” another—“a plan maintained by [a principal-purpose] organization.” That use of the word “include” is not literal—any more than when Congress says something like “a State ‘includes’ Puerto Rico and the District of Columbia.” See, e.g., 29 U. S. C. §1002(10).[4] Rather, it tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. And those newly favored plans, once again, are simply those “maintained by a principal-purpose organization”—irrespective of their origins. In effect, Congress provided that the new phrase can stand in for the old one as follows: “The term ‘church plan’ means a plan established and maintained by a church [a plan maintained by a principal-purpose organization].” The church-establishment condition thus drops out of the picture. Consider the same point in the form of a simple logic problem, with paragraph (A) and subparagraph (C)(i) as its first two steps: Premise 1: A plan established and maintained by a church is an exempt church plan. Premise 2: A plan established and maintained by a church includes a plan maintained by a principal-purpose organization. Deduction: A plan maintained by a principal-purpose organization is an exempt church plan. Or, as one court put the point without any of the ERISA terminology: “[I]f A is exempt, and A includes C, then C is exempt.” Overall v. Ascension, 23 F. Supp. 3d 816, 828 (ED Mich. 2014). Just so. Because Congress deemed the category of plans “established and maintained by a church” to “include” plans “maintained by” principal-purpose organizations, those plans—and all those plans—are exempt from ERISA’s requirements. Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it had an easy way to do so—differing by only two words from the language it chose, but with an altogether different meaning. Suppose Congress had provided that “a plan maintained by a church includes a plan maintained by” a principal-purpose organization, leaving out the words “established and” from the first part of the sentence. That amendment would have accomplished exactly what the employees argue Congress intended: The language, that is, would have enabled a principal-purpose organization to take on the maintenance of a “church plan,” but left untouched the requirement that a church establish the plan in the first place. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan “maintained” by a principal-purpose organization to substitute for a plan both “established” and “maintained” by a church. That drafting decision indicates that Congress did not in fact want what the employees claim. See, e.g., Lozano v. Montoya Alvarez, 572 U. S. 1 , ___–___ (2014) (slip op., at 13–14) (When legislators did not adopt “obvious alternative” language, “the natural implication is that they did not intend” the alternative). A corollary to this point is that the employees’ construction runs aground on the so-called surplusage canon—the presumption that each word Congress uses is there for a reason. See generally A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174–179 (2012). As just explained, the employees urge us to read subparagraph (C)(i) as if it were missing the two words “established and.” The employees themselves do not contest that point: They offer no account of what function that language would serve on their proposed interpretation. See Brief for Respondents 34–35. In essence, the employees ask us to treat those words as stray marks on a page—notations that Congress regrettably made but did not really intend. Our practice, however, is to “give effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U. S. 362, 404 (2000) (internal quotation marks omitted). And here, that means construing the words “established and” in subparagraph (C)(i) as removing, for plans run by principal-purpose organizations, paragraph (A)’s church-establishment condition. The employees’ primary argument to the contrary takes the form of a supposed interpretive principle: “[I]f a definition or rule has two criteria, and a further provision expressly modifies only one of them, that provision is understood to affect only the criterion it expands or modifies.” Brief for Respondents 22. Applied here, the employees explain, that principle requires us to read subparagraph (C)(i) as “modify[ing] only the criterion” in paragraph (A) that “it expressly expands (‘maintained’), while leaving the other criterion (‘established’) unchanged.” Id., at 14. The employees cite no precedent or other authority to back up their proposed rule of construction, but they offer a thought-provoking hypothetical to demonstrate its good sense. Id., at 22. Imagine, they say, that a statute provides free insurance to a “person who is disabled and a veteran,” and an amendment then states that “a person who is disabled and a veteran includes a person who served in the National Guard.” Ibid. (quoting 810 F. 3d, at 181). Would a non-disabled member of the National Guard be entitled to the insurance benefit? Surely not, the employees answer: All of us would understand the “includes” provision to expand (or clarify) only the meaning of “veteran”—leaving unchanged the requirement of a disability. And the same goes here, the employees claim. But one good example does not a general rule make. Consider a variant of the employees’ hypothetical: A statute offers free insurance to a “person who enlisted and served in the active Armed Forces,” with a later amendment providing that “a person who enlisted and served in the active Armed Forces includes a person who served in the National Guard.” Would a person who served in the National Guard be ineligible for benefits unless she had also enlisted in the active Armed Forces—say, the regular Army or Navy? Of course not.[5] Two hypotheticals with similar grammatical constructions, two different results. In the employees’ example, the mind rebels against reading the statute literally, in line with the logical and canonical principles described above. In the variant, by contrast, the statute’s literal meaning and its most natural meaning cohere: Satisfaction of the amendment’s single eligibility criterion—service in the National Guard—is indeed enough. What might account for that divergence? And what does such an explanation suggest for ERISA? Two features of the employees’ hypothetical, when taken in combination, make it effective. First, the criteria there—veteran-status and disability—are relatively distinct from one another. (Compare enlistment and service, which address similar matters and tend to travel in tandem, the one preceding the other.) The more independent the specified variables, the more likely that they were designed to have standalone relevance. Second and yet more crucial, the employees’ example trades on our background understanding that a given interpretation is simply implausible—that it could not possibly have been what Congress wanted. Congress, we feel sure, would not have intended all National Guardsmen to get a benefit that is otherwise reserved for disabled veterans. (Compare that to our sense of whether Congress would have meant to hinge benefits to Guardsmen on their enlistment in a different service.) That sense of inconceivability does most of the work in the employees’ example, urging readers to discard usual rules of interpreting text because they will lead to a “must be wrong” outcome. But subparagraph (C)(i) possesses neither of those characteristics. For starters, the criteria at issue—establishment and maintenance—are not unrelated. The former serves as a necessary precondition of the latter, and both describe an aspect of an entity’s involvement with a benefit plan. Indeed, for various purposes, ERISA treats the terms “establish” and “maintain” interchange-ably. See, e.g., §1002(16)(B) (defining the “sponsor” of a plan as the organization that “establishe[s] or maintain[s]” the plan). So an amendment altering the one requirement could naturally alter the other too. What’s more, nothing we know about the way ERISA is designed to operate makes that an utterly untenable result. Whereas the disability condition is central to the statutory scheme in the employees’ hypothetical, the church-establishment condition, taken on its own, has limited functional significance. Establishment of a plan, after all, is a one-time, historical event; it is the entity maintaining the plan that has the primary ongoing responsibility (and potential liability) to plan participants. See Brief for United States as Amicus Curiae 31; Rose v. Long Island R. R. Pension Plan, 828 F. 2d 910, 920 (CA2 1987), cert. denied, 485 U. S. 936 (1988) (“[T]he status of the entity which currently maintains a particular pension plan bears more relation to Congress’ goals in enacting ERISA and its various exemptions[ ] than does the status of the entity which established the plan”). So removing the establishment condition for plans run by principal-purpose organizations has none of the contextual implausibility—the “Congress could not possibly have meant that” quality—on which the employees’ example principally rides. To the contrary, everything we can tell from extra-statutory sources about Congress’s purpose in enacting subparagraph (C)(i) supports our reading of its text. We say “everything we can tell” because in fact we cannot tell all that much. The legislative materials in these cases consist almost wholly of excerpts from committee hearings and scattered floor statements by individual lawmakers—the sort of stuff we have called “among the least illuminating forms of legislative history.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 16). And even those lowly sources speak at best indirectly to the precise question here: None, that is, comments in so many words on whether subparagraph (C)(i) altered paragraph (A)’s church-establishment condition. Still, both the hospitals and the employees have constructed narratives from those bits and pieces about Congress’s goals in amending paragraph (A). And our review of their accounts—the employees’ nearly as much as the hospitals’—tends to confirm our conviction that plans maintained by principal-purpose organizations are eligible for ERISA’s “church plan” exemption, whatever their origins. According to the hospitals, Congress wanted to eliminate any distinction between churches and church-affiliated organizations under ERISA. See Brief for Petition-ers 18, 33–35. The impetus behind the 1980 amend-ment, they claim, was an IRS decision holding that pension plans established by orders of Catholic Sisters (to benefit their hospitals’ employees) did not qualify as “church plans” because the orders were not “carrying out [the Church’s] religious functions.” IRS General Counsel Memorandum No. 37266, 1977 WL 46200, *5 (Sept. 22, 1977). Many religious groups protested that ruling, criticizing the IRS for “attempting to define what is and what is not [a] ‘church’ and how the mission of the church is to be carried out.” 125 Cong. Rec. 10054 (1979) (letter to Sen. Talmadge from the Lutheran Church–Missouri Synod); see id., at 10054–10058 (similar letters). And that anger, the hospitals maintain, was what prompted ERISA’s amendment: Congress, they say, designed the new provision to ensure that, however categorized, all groups associated with church activities would receive comparable treatment. See Brief for Petitioners 35. If that is so, our construction of the text fits Congress’s objective to a T. A church-establishment requirement necessarily puts the IRS in the business of deciding just what a church is and is not—for example (as in the IRS’s ruling about the Sisters), whether a particular Catholic religious order should count as one. And that requirement, by definition, disfavors plans created by church affiliates, as compared to those established by (whatever the IRS has decided are) churches. It thus makes key to the “church plan” exemption the very line that, on the hospitals’ account, Congress intended to erase. The employees tell a different story about the origins of subparagraph (C)(i)—focusing on the pension boards that congregational denominations often used. See Brief for Respondents 14, 38–42; see also Brief for United States as Amicus Curiae 19–22. In line with their non-hierarchical nature, those denominations typically relied on separately incorporated local boards—rather than entities integrated into a national church structure—to administer benefits for their ministers and lay workers. According to the employees, subparagraph (C)(i)’s main goal was to bring those local pension boards within the church-plan exemption, so as to ensure that congregational and hierarchical churches would receive the same treatment. In support of their view, the employees cite several floor statements in which the amendment’s sponsors addressed that objective. See Brief for Respondents 38. Senator Talmadge, for example, stated that under the amendment, a “plan or program funded or administered through a pension board . . . will be considered a church plan.” 124 Cong. Rec. 16523; see also 124 Cong. Rec. 12107 (remarks of Rep. Conable). But that account of subparagraph (C)(i)’s primary purpose cuts against, not in favor of, the employees’ position. See Brief for United States as Amicus Curiae 21 (accepting the employees’ narrative, but arguing that it buttresses the opposite conclusion). That is because, as hearing testimony disclosed, plans run by church-affiliated pension boards came in different varieties: Some were created by church congregations, but others were established by the boards themselves. See, e.g., Hearings on S. 1090 et al. before the Subcommittee on Private Pension Plans and Employee Fringe Benefits of the Senate Committee on Finance, 96th Cong., 1st Sess., 400–401, 415–417 (1979). And still others were sufficiently old that their provenance could have become the subject of dispute. See id., at 411; 125 Cong. Rec. 10052 (remarks of Sen. Talmadge) (“The average age of a church plan is at least 40 years”). So keeping the church-establishment requirement would have prevented some plans run by pension boards—the very entities the employees say Congress most wanted to benefit—from qualifying as “church plans” under ERISA. No argument the employees have offered here supports that goal-defying (much less that text-defying) statutory construction. III ERISA provides (1) that a “church plan” means a “plan established and maintained . . . by a church” and (2) that a “plan established and maintained . . . by a church” is to “include[ ] a plan maintained by” a principal-purpose organization. Under the best reading of the statute, a plan maintained by a principal-purpose organization therefore qualifies as a “church plan,” regardless of who established it. We accordingly reverse the judgments of the Courts of Appeals. It is so ordered. Justice Gorsuch took no part in the consideration or decision of these cases.Notes 1 The parties disputed the hospitals’ church ties in the courts below, see n. 2, infra, but we assume for purposes of this decision that the facts are as the hospitals describe them. On those facts: Advocate Health Care Network operates 12 hospitals and some 250 other healthcare facilities in Illinois, and is associated with the Evangelical Lutheran Church in America and the United Church of Christ. Saint Peter’s Healthcare System runs a teaching hospital and several other medical facilities in New Jersey, and is both owned and controlled by a Roman Catholic diocese there. And Dignity Health runs an extensive network of community hospitals throughout the country, and maintains ties to the Catholic religious orders that initially sponsored some of its facilities. 2 The employees alternatively argued in the District Courts that the hospitals’ pension plans are not “church plans” because the hospitals do not have the needed association with a church and because, even if they do, their internal benefits committees do not count as principal-purpose organizations. See App. 267–269, 437–438, 785–786. Those issues are not before us, and nothing we say in this opinion expresses a view of how they should be resolved. 3 Again, we use the term “principal-purpose organization” as shorthand for the entity described in subparagraph (C)(i): a church-associated organization whose chief purpose or function is to fund or administer a benefits plan for the employees of either a church or a church-affiliated nonprofit. See supra, at 3. And again, the scope of that term—and whether it comprehends the hospitals’ internal benefits committees—is not at issue here. See n. 2, supra. 4 Or any more than when Congress, in the same 1980 amendment to ERISA, provided that an “employee of a church” was to “include[ ]” an employee of a church-affiliated organization. §1002(33)(C)(ii); see supra, at 3. 5 You might ask yourself, on reading this hypothetical statute, why Congress would not have made the removal of both original conditions clearer still by stating that the original provision “includes a person who enlisted and served in the National Guard.” We won’t go down the rabbit hole of further expounding on a fictional statute, but we can answer a parallel question for subparagraph (C)(i). Suppose Congress had stated that “[a] plan established and maintained . . . by a church . . . includes a plan established and maintained by [a principal-purpose] organization.” That language would have left out of the “church plan” definition pension plans originally established by churches, but subsequently maintained by principal-purpose organizations. And everyone agrees—the employees no less than the hospitals—that Congress wanted to treat those plans as “church plans.” (The dispute is only as to plans that principal-purpose organizations both establish and maintain.) See supra, at 6; Brief for Petitioners 25–26; Brief for Respondents 14, 35; Brief for United States as Amicus Curiae 24. So Congress could not have taken such a drafting tack to eliminate the necessity of church establishment.

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 ADVOCATE HEALTH CARE NETWORK et al. v. STAPLETON et al. certiorari to the united states court of appeals for the seventh circuit No. 16–74. Argued March 27, 2017—Decided June 5, 2017[1] The Employee Retirement Income Security Act of 1974 (ERISA) generally obligates private employers offering pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan participants. “[C]hurch plan[s],” however, are exempt from those regulations. 29 U. S. C. §1003(b)(2). From the beginning, ERISA has defined a “church plan” as “a plan established and maintained . . . for its employees . . . by a church.” §1002(33)(A). Congress then amended the statute to expand that definition, adding the provision whose effect is at issue here: “A plan established and maintained for its employees . . . by a church . . . includes a plan maintained by an organization . . . the principal purpose . . . of which is the administration or funding of [such] plan . . . for the employees of a church . . . , if such organization is controlled by or associated with a church.” §1002(33)(C)(i). (This opinion refers to the organizations described in that provision as “principal-purpose organizations.”) Petitioners, who identify themselves as three church-affiliated nonprofits that run hospitals and other healthcare facilities (collectively, hospitals), offer their employees defined-benefit pension plans. Those plans were established by the hospitals themselves, and are managed by internal employee-benefits committees. Respondents, current and former hospital employees, filed class actions alleging that the hospitals’ pension plans do not fall within ERISA’s church-plan exemption because they were not established by a church. The District Courts, agreeing with the employees, held that a plan must be established by a church to qualify as a church plan. The Courts of Appeals affirmed. Held: A plan maintained by a principal-purpose organization qualifies as a “church plan,” regardless of who established it. . (a) The term “church plan” initially “mean[t]” only “a plan established and maintained . . . by a church.” But subparagraph (C)(i) provides that the original definitional phrase will now “include” another—“a plan maintained by [a principal-purpose] organization.” That use of the word “include” is not literal, but tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. In other words, because Congress deemed the category of plans “established and maintained by a church” to “include” plans “maintained by” principal-purpose organizations, those plans—and all those plans—are exempt from ERISA’s requirements. Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it could have provided in subparagraph (C)(i) that “a plan maintained by a church includes a plan maintained by” a principal-purpose organization—removing “established and” from the first part of the sentence. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan “maintained” by a principal-purpose organization to substitute for a plan both “established” and “maintained” by a church. And as a corollary to that point, the employees’ construction runs aground on the so-called surplusage canon—the presumption that each word Congress uses is there for a reason. The employees read subparagraph (C)(i) as if it were missing the two words “established and.” This Court, however, “give[s] effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U. S. 362 . . (b) Both parties’ accounts of Congress’s purpose in enacting subparagraph (C)(i) tend to confirm this Court’s reading that plans maintained by principal-purpose organizations are eligible for the church-plan exemption, whatever their origins. According to the hospitals, Congress wanted to ensure that churches and church-affiliated organizations received comparable treatment under ERISA. If that is so, this Court’s construction of the text fits Congress’s objective to a T, as a church-establishment requirement would necessarily disfavor plans created by church affiliates. The employees, by contrast, claim that subparagraph (C)(i)’s main goal was to bring within the church-plan exemption plans managed by local pension boards—organizations often used by congregational denominations—so as to ensure parity between congregational and hierarchical churches. But that account cuts against, not in favor of, their position. Keeping the church-establishment requirement would have prevented some plans run by pension boards—the very entities the employees say Congress most wanted to benefit—from qualifying as “church plans” under ERISA. . No. 16–74, 817 F. 3d 517; No. 16–86, 810 F. 3d 175; and No. 16–258, 830 F. 3d 900, reversed. Kagan, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the cases. Sotomayor, J., filed a concurring opinion.Notes 1 Together with No. 16–86, Saint Peter’s Healthcare System et al. v. Kaplan, on certiorari to the United States Court of Appeals for the Third Circuit, and No. 16–258, Dignity Health et al. v. Rollins, on certiorari to the United States Court of Appeals for the Ninth Circuit.

Under the Employee Retirement Income Security Act of 1974 (ERISA), certain plans for the employees of churches or church-affiliated nonprofits count as "church plans" even though not actually administered by a church. ERISA generally obligates private employers offering pension plans to their employees to adhere to an array of rules designed to ensure plan solvency and protect plan participants. But in 1980, Congress amended ERISA to expand the definition of a church-plan definition by deeming additional plans to fall within it, and it added a provision whose effect is at issue here: "A plan established and maintained for its employees... by [a] church or by a convention or association of churches includes a plan maintained by an organization...." The Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation (the agencies responsible for administering ERISA) have long read those provisions, when taken together, to exempt plans like ERISA plans from the statute's mandates. The original definitional provision (§1002(33)(A), or paragraph (A) for short), defined a church plan as one "established and maintained.., by.. a church..," regardless of whether the church is a nonprofit organization. But later, the IRS, Counselor General Counsel, and several private agencies, all of whom believe that a church has established or maintained such a plan, have interpreted subparagraph (C)(i) to include any organization that is controlled by or associated with a church or a convention of churches. Respondents, current and former employees of ERISA hospitals, filed class actions in Federal District Courts alleging that their employers' pension plans do not fall within ERISA, and thus must satisfy the statute requirements. The District Courts agreed with respondents, and therefore held that the hospitals' plans must comply with ERISA. The Courts of Appeals for the Third, Seventh, and Ninth Circuits affirmed. Held: ERISA does not impose the church-establishment requirement. . (a) Under the statutory language, a plan "church plan" means a plan established by a church; it may instead be maintained by a principal-purpose organization. That term is a mouthful, for lawyers and nonlawyers alike, because everything after the word "organization" in the third line is just a (long-winded) description of a particular kind of church-associated en-tity. Here, the main job of such an entity is to fund or manage a benefit plan for employees or (per the 1980 amendment's other part) of church affiliates. In addition, the term, as just stated, initially, "mean[t] only [a plan] established and a plan established and [t]he principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the [Employee of a] church. [A] plan maintained and a [convention or association] of churches, if such organi-zation is controlled [a church or a] convention or [Maintained by] a church." The term, however, is a new definitional phrase piggy-backing on the one already existing. Under the best reading of the statute, such a provision therefore qualifies as a church plan, regardless of who established it. Pp. 456 U.S. 615. (b) The hospitals and the employees have constructed narratives from those bits and pieces about Congress' goals in amending subparagraph (A). And their review of their accounts --the employees, nearly as much as the hospitals, has confirmed their conviction that plans maintained by principal purpose organizations are eligible for ERISA's church-plan exemption. See, e.g., Williams v. Taylor, 529 U. S. 362, 404 (2000) (internal quotation marks omitted). P.. (c) The employees have also constructed a narrative from the facts that, because Congress deemed the category of plans to include a plan that is not a church, it deemed it exempt from ERISA requirements, and that therefore ERISA exempts such plans from its otherwise-comprehensive regulation of employee benefit plans. Although the hospitals contend that the employees do not have the needed association with church and that their internal benefits committees do not count as such organizations, those issues are not before this Court, and nothing in this opinion expresses a view of how they should be resolved. Furthermore, the scope of the term "principal-purpose organizations," which disfavors plans created by church affiliates, as compared to those established by (whatever the IRS has decided are) churches, is not at issue in this case. See n. 2, supra. 4 Or any more than when Congress in the same 1980 amendment to ERISA provided that the original provision included a person who enlisted and served in the

2016_15-1111

https://www.oyez.org/cases/2016/15-1111

. The Fair Housing Act (FHA or Act) forbids “discriminat[ing] against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . . .” 42 U. S. C. §3604(b). It further makes it unlawful for “any person or other entity whose business includes engaging in residential 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 . . . .” §3605(a). The statute allows any “aggrieved person” to file a civil action seeking damages for a violation of the statute. §§3613(a)(1)(A), 3613(c)(1). And it defines an “aggrieved person” to include “any person who . . . claims to have been injured by a discriminatory housing practice.” §3602(i). The City of Miami claims that two banks, Bank of America and Wells Fargo, intentionally issued riskier mortgages on less favorable terms to African-American and Latino customers than they issued to similarly situated white, non-Latino customers, in violation of §§3604(b) and 3605(a). App. 185–197, 244–245, 350–362, 428. The City, in amended complaints, alleges that these discriminatory practices have (1) “adversely impacted the racial composition of the City,” id., at 232, 416; (2) “impaired the City’s goals to assure racial integration and desegregation,” ibid.; (3) “frustrate[d] the City’s longstanding and active interest in promoting fair housing and securing the benefits of an integrated community,” id., at 232–233, 416–417; and (4) disproportionately “cause[d] foreclosures and vacancies in minority communities in Miami,” id., at 229, 413. Those foreclosures and vacancies have harmed the City by decreasing “the property value of the foreclosed home as well as the values of other homes in the neighborhood,” thereby (a) “reduc[ing] property tax revenues to the City,” id., at 234, 418, and (b) forcing the City to spend more on “municipal services that it provided and still must provide to remedy blight and unsafe and dangerous conditions which exist at properties that were foreclosed as a result of [the Banks’] illegal lending practices,” id., at 233–234, 417. The City claims that those practices violate the FHA and that it is entitled to damages for the listed injuries. The Banks respond that the complaints do not set forth a cause of action for two basic reasons. First, they contend that the City’s claimed harms do not “arguably” fall within the “zone of interests” that the statute seeks to protect, Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970) ; hence, the City is not an “aggrieved person” entitled to sue under the Act, §3602(i). Second, they say that the complaint fails to draw a “proximate-cause” connection between the violation claimed and the harm allegedly suffered. In their view, even if the City proves the violations it charges, the distance between those violations and the harms the City claims to have suffered is simply too great to entitle the City to collect damages. We hold that the City’s claimed injuries fall within the zone of interests that the FHA arguably protects. Hence, the City is an “aggrieved person” able to bring suit under the statute. We also hold that, to establish proximate cause under the FHA, a plaintiff must do more than show that its injuries foreseeably flowed from the alleged statutory violation. The lower court decided these cases on the theory that foreseeability is all that the statute requires, so we vacate and remand for further proceedings. I In 2013, the City of Miami brought lawsuits in federal court against two banks, Bank of America and Wells Fargo. The City’s complaints charge that the Banks discriminatorily imposed more onerous, and indeed “preda-tory,” conditions on loans made to minority borrowers than to similarly situated nonminority borrowers. App. 185–197, 350–362. Those “predatory” practices included, among others, excessively high interest rates, unjustified fees, teaser low-rate loans that overstated refinancing opportunities, large prepayment penalties, and—when default loomed—unjustified refusals to refinance or modify the loans. Id., at 225, 402. Due to the discriminatory nature of the Banks’ practices, default and foreclosure rates among minority borrowers were higher than among otherwise similar white borrowers and were concentrated in minority neighborhoods. Id., at 225–232, 408–415. Higher foreclosure rates lowered property values and diminished property-tax revenue. Id., at 234, 418. Higher foreclosure rates—especially when accompanied by vacancies—also increased demand for municipal services, such as police, fire, and building and code enforcement services, all needed “to remedy blight and unsafe and dangerous conditions” that the foreclosures and vacancies generate. Id., at 238–240, 421–423. The complaints describe statistical analyses that trace the City’s financial losses to the Banks’ discriminatory practices. Id., at 235–237; 419–420. The District Court dismissed the complaints on the grounds that (1) the harms alleged, being economic and not discriminatory, fell outside the zone of interests the FHA protects; (2) the complaints fail to show a sufficient causal connection between the City’s injuries and the Banks’ discriminatory conduct; and (3) the complaints fail to allege unlawful activity occurring within the Act’s 2-year statute of limitations. The City then filed amended complaints (the complaints now before us) and sought reconsideration. The District Court held that the amended complaints could solve only the statute of limitations problem. It consequently declined to reconsider the dismissals. The Court of Appeals reversed the District Court. 800 F. 3d 1262 (CA11 2015); 801 F. 3d 1258 (CA11 2015). It held that the City’s injuries fall within the “zone of interests,” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___ (2014) (slip op., at 10), that the FHA protects. 800 F. 3d, at 1274–1275, 1277 (relying on Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972) ; Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (1979) ; and Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982) ); 801 F. 3d, at 1266–1267 (similar). It added that the complaints adequately allege proximate cause. 800 F. 3d, at 1278; 801 F. 3d, at 1267. And it remanded the cases while ordering the District Court to accept the City’s complaints as amended. 800 F. 3d, at 1286; 801 F. 3d, at 1267. The Banks filed petitions for certiorari, asking us to decide whether, as the Court of Appeals had in effect held, the amended complaints satisfied the FHA’s zone-of-interests and proximate-cause requirements. We agreed to do so. II To satisfy the Constitution’s restriction of this Court’s jurisdiction to “Cases” and “Controversies,” Art. III, §2, a plaintiff must demonstrate constitutional standing. To do so, the plaintiff must show an “injury in fact” that is “fairly traceable” to the defendant’s conduct and “that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6) (citing Lujan v. Defenders of Wildlife, 504 U. S. 555 –561 (1992)). This Court has also referred to a plaintiff’s need to satisfy “prudential” or “statutory” standing requirements. See Lexmark, 572 U. S., at ___–___, and n. 4 (slip op., at 6–9, and n. 4). In Lexmark, we said that the label “ ‘prudential standing’ ” was misleading, for the requirement at issue is in reality tied to a particular statute. Ibid. The question is whether the statute grants the plaintiff the cause of action that he asserts. In answering that question, we presume that a statute ordinarily provides a cause of action “only to plaintiffs whose interests fall within the zone of interests protected by the law invoked.” Id., at ___ (slip op., at 10) (internal quotation marks omitted). We have added that “[w]hether a plaintiff comes within ‘the zone of interests’ is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Id., at ___ (slip op., at 8) (some internal quotation marks omitted). Here, we conclude that the City’s claims of financial injury in their amended complaints—specifically, lost tax revenue and extra municipal expenses—satisfy the “cause-of-action” (or “prudential standing”) requirement. To use the language of Data Processing, the City’s claims of in-jury it suffered as a result of the statutory violations are, at the least, “arguably within the zone of interests” that the FHA protects. 397 U. S., at 153 (emphasis added). The FHA permits any “aggrieved person” to bring a housing-discrimination lawsuit. 42 U. S. C. §3613(a). The statute defines “aggrieved person” as “any person who” either “claims to have been injured by a discriminatory housing practice” or believes that such an injury “is about to occur.” §3602(i). This Court has repeatedly written that the FHA’s definition of person “aggrieved” reflects a congressional intent to confer standing broadly. We have said that the definition of “person aggrieved” in the original version of the FHA, §810(a), 82Stat. 85, “showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Trafficante, supra, at 209 (quoting Hackett v. McGuire Brothers, Inc., 445 F. 2d 442, 446 (CA3 1971)); see Gladstone, supra, at 109 (similar); Havens Realty, supra, at 372, 375–376 (similar); see also Thompson v. North American Stainless, LP, 562 U. S. 170, 176 (2011) (“Later opinions, we must acknowledge, reiterate that the term ‘aggrieved’ [in the FHA] reaches as far as Article III permits”); Bennett v. Spear, 520 U. S. 154 –166 (1997) (“[Trafficante] held that standing was expanded to the full extent permitted under Article III by §810(a) of the Civil Rights Act of 1968”). Thus, we have held that the Act allows suits by white tenants claiming that they were deprived benefits from interracial associations when discriminatory rental practices kept minorities out of their apartment complex, Trafficante, 409 U. S., at 209–212; a village alleging that it lost tax revenue and had the racial balance of its community undermined by racial-steering practices, Gladstone, 441 U. S., at 110–111; and a nonprofit organization that spent money to combat housing discrimination, Havens Realty, 455 U. S., at 379. Contrary to the dissent’s view, those cases did more than “sugges[t]” that plaintiffs similarly situated to the City have a cause of action under the FHA. Post, at 5. They held as much. And the dissent is wrong to say that we characterized those cases as resting on “ill-considered dictum.” Post, at 4 (quoting Thompson, supra, at 176). The “dictum” we cast doubt on in Thompson addressed who may sue under Title VII, the employment discrimination statute, not under the FHA. Finally, in 1988, when Congress amended the FHA, it retained without significant change the definition of “person aggrieved” that this Court had broadly construed. Compare §810(a), 82Stat. 85, with §5(b), 102Stat. 1619–1620 (codified at 42 U. S. C. §3602(i)) (changing “person aggrieved” to “aggrieved person” and making other minor changes to the definition). Indeed, Congress “was aware of” our precedent and “made a considered judgment to retain the relevant statutory text,” Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U. S. ___, ___ (2015) (slip op., at 13). See H. R. Rep. No. 100–711, p. 23 (1988) (stating that the “bill adopts as its definition language similar to that contained in Section 810 of existing law, as modified to reaffirm the broad holdings of these cases” and discussing Gladstone and Havens Realty); cf. Lorillard v. Pons, 434 U. S. 575, 580 (1978) (Congress normally adopts our interpretations of statutes when it reenacts those statute without change). The Banks do not deny the broad reach of the words “aggrieved person” as defined in the FHA. But they do contend that those words nonetheless set boundaries that fall short of those the Constitution sets. Brief for Petitioners in No. 15–1112, p. 12 (Brief for Wells Fargo); Brief for Petitioners in No. 15–1111, pp. 19–20 (Brief for Bank of America). The Court’s language in Trafficante, Gladstone, and Havens Realty, they argue, was exaggerated and unnecessary to decide the cases then before the Court. See Brief for Wells Fargo 19–23; Brief for Bank of America 27–33. Moreover, they warn that taking the Court’s words literally—providing everyone with constitutional standing a cause of action under the FHA—would produce a legal anomaly. After all, in Thompson, 562 U. S., at 175–177, we held that the words “ ‘person claiming to be aggrieved’ ” in Title VII of the Civil Rights Act of 1964, the employment discrimination statute, did not stretch that statute’s zone of interest to the limits of Article III. We reasoned that such an interpretation would produce farfetched results, for example, a shareholder in a company could bring a Title VII suit against the company for discriminatorily firing an employee. Ibid. The Banks say it would be similarly farfetched if restaurants, plumbers, utility companies, or any other participant in the local economy could sue the Banks to recover business they lost when people had to give up their homes and leave the neighborhood as a result of the Banks’ discriminatory lending practices. Brief for Wells Fargo 18–19; Brief for Bank of America 22, 24–25. That, they believe, cannot have been the intent of the Congress that enacted or amended the FHA. We need not discuss the Banks’ argument at length, for even if we assume for argument’s sake that some form of it is valid, we nonetheless conclude that the City’s financial injuries fall within the zone of interests that the FHA protects. Our case law with respect to the FHA drives that conclusion. The City’s complaints allege that the Banks “intentionally targeted predatory practices at African-American and Latino neighborhoods and residents,” App. 225; id., at 409 (similar). That unlawful conduct led to a “concentration” of “foreclosures and vacancies” in those neighborhoods. Id., at 226, 229, 410, 413. Those concentrated “foreclosures and vacancies” caused “stagnation and decline in African-American and Latino neighborhoods.” Id., at 225, 409. They hindered the City’s efforts to create integrated, stable neighborhoods. Id., at 186, 351. And, highly relevant here, they reduced prop-erty values, diminishing the City’s property-tax revenue and increasing demand for municipal services. Id., at 233–234, 417. Those claims are similar in kind to the claims the Village of Bellwood raised in Gladstone. There, the plaintiff village had alleged that it was “ ‘injured by having [its] housing market . . . wrongfully and illegally manipulated to the economic and social detriment of the citizens of [the] village.’ ” 441 U. S., at 95 (quoting the complaint; alterations in original). We held that the village could bring suit. We wrote that the complaint in effect alleged that the defendant-realtors’ racial steering “affect[ed] the village’s racial composition,” “reduce[d] the total number of buyers in the Bellwood housing market,” “precipitate[d] an exodus of white residents,” and caused “prices [to] be deflected downward.” Id., at 110. Those circumstances adversely affected the village by, among other things, producing a “significant reduction in property values [that] directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services.” Id., at 110–111 (emphasis added). The upshot is that the City alleges economic injuries that arguably fall within the FHA’s zone of interests, as we have previously interpreted that statute. Principles of stare decisis compel our adherence to those precedents in this context. And principles of statutory interpretation require us to respect Congress’ decision to ratify those precedents when it reenacted the relevant statutory text. See supra, at 7. III The remaining question is one of causation: Did the Banks’ allegedly discriminatory lending practices proximately cause the City to lose property-tax revenue and spend more on municipal services? The Eleventh Circuit concluded that the answer is “yes” because the City plausibly alleged that its financial injuries were foreseeable results of the Banks’ misconduct. We conclude that foreseeability alone is not sufficient to establish proximate cause under the FHA, and therefore vacate the judgment below. It is a “ ‘well established principle of [the common] law that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause.’ ” Lexmark, 572 U. S., at ___ (slip op., at 13). We assume Congress “is familiar with the common-law rule and does not mean to displace it sub silentio” in federal causes of action. Ibid. A claim for damages under the FHA—which is akin to a “tort action,” Meyer v. Holley, 537 U. S. 280, 285 (2003) —is no exception to this traditional requirement. “Proximate-cause analysis is controlled by the nature of the statutory cause of action. The question it presents is whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits.” Lexmark, supra, at ___ (slip op., at 14). In these cases, the “conduct the statute prohibits” consists of intentionally lending to minority borrowers on worse terms than equally creditworthy nonminority borrowers and inducing defaults by failing to extend refinancing and loan modifications to minority borrowers on fair terms. The City alleges that the Banks’ misconduct led to a disproportionate number of foreclosures and vacancies in specific Miami neighborhoods. These foreclosures and vacancies purportedly harmed the City, which lost property-tax revenue when the value of the properties in those neighborhoods fell and was forced to spend more on municipal services in the affected areas. The Eleventh Circuit concluded that the City adequately pleaded that the Banks’ misconduct proximately caused these financial injuries. 800 F. 3d, at 1282. The court held that in the context of the FHA “the proper standard” for proximate cause “is based on foreseeability.” Id., at 1279, 1282. The City, it continued, satisfied that element: Although there are “several links in the causal chain” between the charged discriminatory lending practices and the claimed losses, the City plausibly alleged that “none are unforeseeable.” Id., at 1282. We conclude that the Eleventh Circuit erred in holding that foreseeability is sufficient to establish proximate cause under the FHA. As we have explained, proximate cause “generally bars suits for alleged harm that is ‘too remote’ from the defendant’s unlawful conduct.” Lexmark, supra, at ___ (slip op., at 14). In the context of the FHA, foreseeability alone does not ensure the close connection that proximate cause requires. The housing market is interconnected with economic and social life. A violation of the FHA may, therefore, “ ‘be expected to cause ripples of harm to flow’ ” far beyond the defendant’s misconduct. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 534 (1983) . Nothing in the statute suggests that Congress intended to provide a remedy wherever those ripples travel. And entertaining suits to recover damages for any foreseeable result of an FHA violation would risk “massive and complex damages litigation.” Id., at 545. Rather, proximate cause under the FHA requires “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Securities Investors Protection Corporation, 503 U. S. 258, 268 (1992) . A damages claim under the statute “is analogous to a number of tort actions recognized at common law,” Curtis v. Loether, 415 U. S. 189, 195 (1974) , and we have repeatedly applied directness principles to statutes with “common-law foundations,” Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 457 (2006) . “ ‘The general tendency’ ” in these cases, “ ‘in regard to damages at least, is not to go beyond the first step.’ ” Hemi Group, LLC v. City of New York, 559 U. S. 1, 10 (2010) . What falls within that “first step” depends in part on the “nature of the statutory cause of action,” Lexmark, supra, at ___ (slip op., at 14), and an assessment “ ‘of what is administratively possible and convenient,’ ” Holmes, supra, at 268. The parties have asked us to draw the precise boundaries of proximate cause under the FHA and to determine on which side of the line the City’s financial injuries fall. We decline to do so. The Eleventh Circuit grounded its decision on the theory that proximate cause under the FHA is “based on foreseeability” alone. 800 F. 3d, at 1282. We therefore lack the benefit of its judgment on how the contrary principles we have just stated apply to the FHA. Nor has any other court of appeals weighed in on the issue. The lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide how that standard applies to the City’s claims for lost property-tax revenue and increased municipal expenses. IV The judgments of the Court of Appeals for the Eleventh Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of these 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 BANK OF AMERICA CORP. et al. v. CITY OF MIAMI, FLORIDA certiorari to the united states court of appeals for the eleventh circuit No. 15–1111. Argued November 8, 2016—Decided May 1, 2017[1] The City of Miami filed suit against Bank of America and Wells Fargo (Banks), alleging violations of the Fair Housing Act (FHA or Act). The FHA prohibits, among other things, racial discrimination in connection with real-estate transactions, 42 U. S. C. §§3604(b), 3605(a), and permits any “aggrieved person” to file a civil damages action for a violation of the Act, §§3613(a)(1)(A), (c)(1). The City’s complaints charge that the Banks intentionally targeted predatory practices at African-American and Latino neighborhoods and residents, lending to minority borrowers on worse terms than equally creditworthy nonminority borrowers and inducing defaults by failing to extend refinancing and loan modifications to minority borrowers on fair terms. The City alleges that the Banks’ discriminatory conduct led to a disproportionate number of foreclosures and vacancies in majority-minority neighborhoods, which impaired the City’s effort to assure racial integration, diminished the City’s property-tax revenue, and increased demand for police, fire, and other municipal services. The District Court dismissed the complaints on the grounds that (1) the harms alleged fell outside the zone of interests the FHA protects and (2) the complaints failed to show a sufficient causal connection between the City’s injuries and the Banks’ discriminatory conduct. The Eleventh Circuit reversed. Held: 1. The City is an “aggrieved person” authorized to bring suit under the FHA. In addition to satisfying constitutional standing requirements, see Spokeo, Inc. v. Robins, 578 U. S. ___, ___, a plaintiff must show that the statute grants the plaintiff the cause of action he or she asserts. It is presumed that a statute ordinarily provides a cause of action “only to plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’ ” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___. The City’s claims of financial injury are, at the least, “arguably within the zone of interests” the FHA protects. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 . The FHA defines an “aggrieved person” as “any person who” either “claims to have been injured by a discriminatory housing practice” or believes that such an injury “is about to occur,” 8 U. S. C. §3602(i). This Court has said that the definition of “person aggrieved” in the original version of the FHA “showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution,’ ” Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 ; and has held that the Act permits suit by parties similarly situated to the City, see, e.g., Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (village alleging that it lost tax revenue and had the racial balance of its community undermined by racial-steering practices). Against the backdrop of those decisions, Congress did not materially alter the definition of person “aggrieved” when it reenacted the current version of the Act. The Banks nonetheless contend that the definition sets boundaries that fall short of those the Constitution sets. Even assuming that some form of their argument is valid, this Court concludes that the City’s financial injuries fall within the zone of interests that the FHA protects. The City’s claims are similar in kind to those of the Village of Bellwood, which the Court held in Gladstone, supra, could bring suit under the FHA. The Court explained that the defendants’ discriminatory conduct adversely affected the village by, among other things, producing a “significant reduction in property values [that] directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services.” Id., at 110–111. The City’s alleged economic injuries thus arguably fall within the FHA’s zone of interests, as this Court has previously interpreted that statute. Stare decisis principles compel the Court’s adherence to those precedents, and principles of statutory interpretation demand that the Court respect Congress’ decision to ratify those precedents when it reenacted the relevant statutory text. . 2. The Eleventh Circuit erred in concluding that the complaints met the FHA’s proximate-cause requirement based solely on the finding that the City’s alleged financial injuries were foreseeable results of the Banks’ misconduct. A claim for damages under the FHA is akin to a “tort action,” Meyer v. Holley, 537 U. S. 280 , and is thus subject to the common-law requirement that loss is attributable “ ‘to the proximate cause, and not to any remote cause,’ ” Lexmark, 572 U. S., at ___. The proximate-cause analysis asks “whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits.” Id., at ___. With respect to the FHA, foreseeability alone does not ensure the required close connection. Nothing in the statute suggests that Congress intended to provide a remedy for any foreseeable result of an FHA violation, which may “ ‘cause ripples of harm to flow’ ” far beyond the defendant’s misconduct, Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 ; and doing so would risk “massive and complex damages litigation,” id., at 545. Rather, proximate cause under the FHA requires “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Securities Investors Protection Corporation, 503 U. S. 258 . The Court has repeatedly applied directness principles to statutes with “common-law foundations.” Anza v. Ideal Steel Supply Corp., 547 U. S. 451 . “ ‘The general tendency’ ” in these cases, “ ‘in regard to damages at least, is not to go beyond the first step.’ ” Hemi Group, LLC v. City of New York, 559 U. S. 1 . What falls within that step depends in part on the “nature of the statutory cause of action,” Lexmark, supra, at ___, and an assessment “ ‘of what is administratively possible and convenient,’ ” Holmes, supra, at 268. The Court declines to draw the precise boundaries of proximate cause under the FHA, particularly where neither the Eleventh Circuit nor other courts of appeals have weighed in on the issue. Instead, the lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide how that standard applies to the City’s claims for lost property-tax revenue and increased municipal expenses. . No. 15–1111, 800 F. 3d 1262, and No. 15–1112, 801 F. 3d 1258, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Kennedy and Alito, JJ., joined. Gorsuch, J., took no part in the consideration or decision of the cases.Notes 1 Together with No. 15–1112, Wells Fargo & Co. et al. v. City of Miami, Florida, also on certiorari to the same court.

The City of Miami filed complaints with the Federal Housing Administration (FHA) alleging that two banks intentionally issued riskier mortgages on less favorable terms to African-American and Latino customers than they issued to similarly situated white, non-Latino customers, in violation of 42 U.S. C. §3604(b). The complaints describe statistical analyses that trace the City's financial losses to the banks' discriminatory practices. The District Court dismissed the complaints on the grounds that (1) the harms alleged, being economic and not discriminatory, fell outside the zone of interests that the FHA protects; (2) the complaints fail to show a sufficient causal connection between the city's injuries and the Banks' discriminatory conduct; and (3) they fail to allege unlawful activity occurring within the Act's 2-year statute of limitations. The Court of Appeals reversed, holding that the injuries fell within the "zone of interests," and remanded the cases while ordering the District Court to accept the complaints as amended. Held: The amended complaints satisfied the requirements of Art. III, §2, that a plaintiff must show an injury in fact that is fairly traceable to the defendant's conduct and that is likely to be redressed by a favorable judicial decision. Hence, the City is an aggrieved person able to bring suit under the statute. . (a) To satisfy the Constitution's restriction of this Court's jurisdiction to actions under the Fair Housing Act, a plaintiff has to demonstrate constitutional standing. To do so, the plaintiff need show an injury in fact that is fairly traceable to the defendants' conduct, and that, in view of the distance between the violations and the harms the City claims to have suffered, is too great to entitle the City to collect damages. P.. (b) The City claims of financial injury in their amended complaints satisfy the "cause-of-action" (or "prudential standing") requirement. Such claims of in-jury it suffered as a result of the statutory violations are, at the least, "arguably within the zone of interests" that the statute protects. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972) ; Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (1979) ; Havens Realty Corp. v. Coleman,,. Moreover, foreseeability alone does not ensure the close connection that proximate cause requires. The housing market is interconnected with economic and social life, and a violation of the Act may therefore be expected to cause ripples of harm to flow far beyond the defendant, and nothing in the statute suggests that Congress intended to provide a remedy wherever those ripples travel. And entertaining suits to recover damages for any foreseeable result of an FHA violation would risk massive and complex damages litigation. Holmes v. Securities Investors Protection Corporation, 503 U. s. 258, 268 (1992).. 800 F. 3d 1262, 801 F.3d 1258, vacated, and causes remanded. Justice Gorsuch took no part in the consideration or decision of these cases. Reported below: 800 F. 469. (c) The judgment below is vacated and the cases are remanded for further proceedings consistent with this opinion. ;;. 800. 469 (CA 11 2015) (CA11 2015) ;;. 800, 3d 1358, 800, and 801, 1370, 871, 1380, 891, and 1380. (d) The financial injuries that the City alleges fall within the area of interests protected by the Constitution. Although the City contends that the banks intentionally and illegally discriminated against minority borrowers on worse terms than equally creditworthy nonminority borrowers and induced defaults by failing to extend refinancing and loan modifications to minority borrowers, such foreclosures and vacancies purportedly harmed the City, which lost property-tax revenue when the value of the properties in those neighborhoods fell and was forced to spend more on municipal services in the affected areas. In the context of the housing market, though there areseveral links in the causal chain between the charged discriminatory lending practices and the claimed losses, the city plausibly alleged that none are unforeseeable. On the other hand, the Eleventh Circuit erred in holding that foreseeability is sufficient to establish proximate causes under the Act. It found that, although the City adequately pleaded that the Banks misconduct proximately caused the financial injuries, it failed to satisfy its foreseeability standard, which requires some direct relation between the injury asserted and the injurious conduct alleged. This Court has repeatedly written that the definition of person aggrieved reflects a congressional intent to confer standing broadly. Thompson v. North American Stainless, LP, 562 U. N. 170, 176, and in 1988, when Congress amended the Federal HOA, it retained without

2016_15-8544

https://www.oyez.org/cases/2016/15-8544

. At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U. S. C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument. I Petitioner Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon, §922(g)(1). According to the presentence investigation report, the firearm was a sawed-off shotgun, and petitioner was therefore eligible for a sentencing enhancement as a “career of-fender” under the Sentencing Guidelines. The 2006 version of the Guidelines, which were in effect when petitioner was sentenced,[1] provided that “[a] defendant is a career offender if “(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG §4B1.1(a). The Guidelines defined “crime of violence” as “any offense under federal or state law, 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 of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §4B1.2(a) (emphasis added). The clause beginning with “or otherwise” in this definition is known as the residual clause. The commentary to the career-offender Guideline provided that possession of a sawed-off shotgun was a crime of violence. See §4B1.2, comment., n. 1 (“Unlawfully possessing a firearm described in 26 U. S. C. §5845(a) (e.g., a sawed-off shotgun . . . ) is a ‘crime of violence’ ”); §5845(a) (“The term ‘firearm’ means (1) a shotgun having a barrel or barrels of less than 18 inches in length”). The District Court agreed that petitioner qualified as a career offender under the Guidelines. Petitioner was over 18 years of age at the time of his offense, and his criminal history included multiple prior felony convictions for controlled substance offenses. Furthermore, in the District Court’s view, petitioner’s §922(g)(1) conviction qualified as a “crime of violence.” Because he qualified as a career offender, petitioner’s Guidelines range was 360 months to life imprisonment. The District Court sentenced petitioner to 360 months. The Court of Appeals affirmed petitioner’s conviction and sentence, and this Court denied certiorari. United States v. Beckles, 565 F. 3d 832, 846 (CA11), cert denied, 558 U. S. 906 (2009) . In September 2010, petitioner filed a motion to vacate his sentence under 28 U. S. C. §2255, arguing that his conviction for unlawful possession of a firearm was not a “crime of violence,” and therefore that he did not qualify as a career offender under the Guidelines. The District Court denied the motion, and the Court of Appeals affirmed. Petitioner then filed a second petition for certiorari in this Court. While his petition was pending, the Court decided Johnson, holding that “imposing an increased sentence under the residual clause of the [ACCA]”—which contained the same language as the Guidelines’ residual clause—“violate[d] the Constitution’s guarantee of due process” because the clause was unconstitutionally vague. 576 U. S., at ___ (slip op., at 15). We subsequently granted his petition, vacated the judgment of the Court of Ap-peals, and remanded for further consideration in light of Johnson. Beckles v. United States, 576 U. S. ___ (2015). On remand, petitioner argued that his enhanced sentence was based on §4B1.2(a)’s residual clause, which he contended was unconstitutionally vague under Johnson. The Court of Appeals again affirmed. It noted that petitioner “was sentenced as a career offender based not on the ACCA’s residual clause, but based on express language in the Sentencing Guidelines classifying [his] offense as a ‘crime of violence.’ ” 616 Fed. Appx. 415, 416 (2015) ( per curiam). “Johnson,” the Court of Appeals reasoned, “says and decided nothing about career-offender enhancements under the Sentencing Guidelines or about the Guidelines commentary underlying [petitioner]’s sta-tus as a career-offender.” Ibid. The Court of Appeals denied rehearing en banc. Petitioner filed another petition for certiorari in this Court, again contending that §4B1.2(a)’s residual clause is void for vagueness. To resolve a conflict among the Courts of Appeals on the question whether Johnson’s vagueness holding applies to the residual clause in §4B1.2(a) of the Guidelines,[2] we granted certiorari. 579 U. S. ___ (2016). Because the United States, as respondent, agrees with petitioner that the Guidelines are subject to vagueness challenges, the Court appointed Adam K. Mortara as amicus curiae to argue the contrary position. 579 U. S. ___ (2016). He has ably discharged his responsibilities. II This Court has held that the Due Process Clause prohibits the Government from “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.” Johnson, 576 U. S., at ___–___ (slip op., at 3–4) (citing Kolender v. Lawson, 461 U. S. 352 –358 (1983)). Applying this standard, the Court has invalidated two kinds of criminal laws as “void for vagueness”: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses. For the former, the Court has explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id., at 357. For the latter, the Court has explained that “statutes fixing sentences,” Johnson, supra, at ___ (slip op., at 4) (citing United States v. Batchelder, 442 U. S. 114, 123 (1979) ), must specify the range of available sentences with “sufficient clarity,” id., at 123; see also United States v. Evans, 333 U. S. 483 (1948) ; cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966) . In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA’s residual clause, where applicable, required sentencing courts to increase a defendant’s prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed—in an impermissibly vague way—a higher range of sentences for certain defendants. See Alleyne v. United States, 570 U. S. ___, ___ (2013) (describing the legally prescribed range of available sentences as the penalty fixed to a crime). Unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in §4B1.2(a)(2) therefore is not void for vagueness. A The limited scope of the void-for-vagueness doctrine in this context is rooted in the history of federal sentencing. Instead of enacting specific sentences for particular fed-eral crimes, Congress historically permitted district courts “wide discretion to decide whether the offender should be incarcerated and for how long.” Mistretta v. United States, 488 U. S. 361, 363 (1989) . For most crimes, Congress set forth a range of sentences, and sentencing courts had “almost unfettered discretion” to select the actual length of a defendant’s sentence “within the customarily wide range” Congress had enacted. Id., at 364; see also, e.g., Apprendi v. New Jersey, 530 U. S. 466 –482 (2000); Williams v. New York, 337 U. S. 241 –248 (1949). That discretion allowed district courts to craft individualized sentences, taking into account the facts of the crime and the history of the defendant. As a result, “[s]erious disparities in sentences . . . were common.” Mistretta, supra, at 365. Yet in the long history of discretionary sentencing, this Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” United States v. Booker, 543 U. S. 220, 233 (2005) ; see also, e.g., Apprendi, supra, at 481 (“[N]othing in this history suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute”); Giaccio, supra, at 405, n. 8 (“[W]e intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits”). More specifically, our cases have never suggested that a defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that discretion is unfettered. In fact, our reasoning in Batchelder suggests the opposite. This Court considered in that case the constitutionality of two overlapping criminal provisions that authorized different maximum penalties for the same conduct. 442 U. S., at 115–116. The Court held that the sentencing provisions were not void for vagueness because they specified the “penalties available” and defined the “punishment authorized” upon conviction for each crime. Id., at 123. “Although the statutes create[d] uncertainty as to which crime may be charged and therefore what penalties may be imposed, they d[id] so to no greater extent than would a single statute authorizing various alternative punishments.” Ibid. (emphasis added). By specifying “the range of penalties that prosecutors and judges may seek and impose,” Congress had “fulfilled its duty.” Id., at 126 (citing Evans, supra, at 483; emphasis added). Indeed, no party to this case suggests that a system of purely discretionary sentencing could be subject to a vagueness challenge. B The Sentencing Reform Act of 1984 departed from this regime by establishing several factors to guide district courts in exercising their traditional sentencing discretion. 18 U. S. C. §3553. Congress in the same Act created the United States Sentencing Commission and charged it with establishing guidelines to be used for sentencing. Mis-tretta, supra, at 367. The result of the Commission’s work is the Federal Sentencing Guidelines, which are one of the sentencing factors that the Act requires courts to consider. §3553(a)(4). The Guidelines were initially binding on district courts, Booker, 543 U. S., at 233, but this Court in Booker rendered them “effectively advisory,” id., at 245. Although the Guidelines remain “the starting point and the initial benchmark” for sentencing, a sentencing court may no longer rely exclusively on the Guidelines range; rather, the court “must make an individualized assessment based on the facts presented” and the other statutory factors. Gall v. United States, 552 U. S. 38, 49, 50 (2007) . The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U. S. ___, ___ (2013) (slip op., at 11), but they “do not constrain th[at] discretion,” id., at ___ (Thomas, J., dissenting) (slip op., at 2). Because they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge. As discussed above, the system of purely discretionary sentencing that predated the Guidelines was constitutionally permissible. If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be. The advisory Guidelines also do not implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement. As to notice, even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range. See, e.g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972) . That is because even if a person behaves so as to avoid an enhanced sentence under the career-offender guideline, the sentencing court retains discretion to impose the enhanced sentence. See, e.g., Pepper v. United States, 562 U. S. 476, 501 (2011) (“[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views”). As we held in Irizarry v. United States, 555 U. S. 708 (2008) , “[t]he due process concerns that . . . require notice in a world of mandatory Guidelines no longer” apply. Id., at 714; see id., at 713 (“Any expectation subject to due process protection . . . that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in [Booker], which invalidated the mandatory features of the Guidelines”). All of the notice required is provided by the applicable statutory range, which establishes the permissible bounds of the court’s sentencing discretion. The advisory Guidelines also do not implicate the vagueness doctrine’s concern with arbitrary enforcement. Laws that “regulate persons or entities,” we have explained, must be sufficiently clear “that those enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television Stations, Inc., 567 U. S. 239, 253 (2012) ; see also Grayned, supra, at 108–109 (“A vague law impermissibly delegates basic policy matters” to judges “for resolution on an ad hoc and subjective basis”). An unconstitutionally vague law invites arbitrary enforcement in this sense if it “leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case,” Giaccio, 382 U. S., at 402–403, or permits them to prescribe the sentences or sentencing range available, cf. Alleyne, 570 U. S., at ___ (slip op., at 11) (“[T]he legally prescribed range is the penalty affixed to the crime”). The Guidelines, however, do not regulate the public by prohibiting any conduct or by “establishing minimum and maximum penalties for [any] crime.” Mistretta, 488 U. S., at 396 (Sentencing Guidelines “do not bind or regulate the primary conduct of the public”). Rather, the Guidelines advise sentencing courts how to exercise their discretion within the bounds established by Congress. In this case, for example, the District Court did not “enforce” the career-offender Guideline against petitioner. It enforced 18 U. S. C. §922(g)(1)’s prohibition on possession of a firearm by a felon—which prohibited petitioner’s conduct—and §924(e)(1)’s mandate of a sentence of 15 years to life imprisonment—which fixed the permissible range of petitioner’s sentence. The court relied on the career-offender Guideline merely for advice in exercising its discretion to choose a sentence within those statutory limits. Justice Sotomayor’s concurrence suggests that judges interpreting a vague sentencing Guideline might rely on “statistical analysis,” “gut instinct,” or the judge’s “own feelings” to decide whether a defendant’s conviction is a crime of violence. Post, at 6 (opinion concurring in judgment) (internal quotation marks omitted). A judge granted unfettered discretion could use those same approaches in determining a defendant’s sentence. Indeed, the concurrence notes that federal judges before the Guidelines considered their own “view[s] of proper sentencing policy,” among other considerations. Post, at 11. Yet we have never suggested that unfettered discretion can be void for vagueness. Accordingly, we hold that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that §4B1.2(a)’s residual clause is not void for vagueness. III Our holding today does not render the advisory Guidelines immune from constitutional scrutiny. This Court held in Peugh, for example, that a “retrospective increase in the Guidelines range applicable to a defendant” violates the Ex Post Facto Clause. 569 U. S., at ___ (slip op., at 13). But the void-for-vagueness and ex post facto inquiries are “analytically distinct.” See id., at ___ (slip op., at 19) (distinguishing an ex post facto inquiry from a Sixth Amendment inquiry). Our ex post facto cases “have focused on whether a change in law creates a ‘significant risk’ of a higher sentence.” Ibid. A retroactive change in the Guidelines creates such a risk because “sentencing decisions are anchored by the Guidelines,” which establish “the framework for sentencing.” Id., at ___, ___ (slip op., at 10, 11). In contrast, the void-for-vagueness doctrine requires a different inquiry. The question is whether a law regulating private conduct by fixing permissible sentences provides notice and avoids arbitrary enforcement by clearly specifying the range of penalties available. The Government’s rebuttal that both doctrines are concerned with “ ‘fundamental justice,’ ” Reply Brief for United States 7, ignores the contours of our precedents. The Court has also recognized “in the Eighth Amendment context” that a district court’s reliance on a vague sentencing factor in a capital case, even indirectly, “can taint the sentence.” Brief for United States 43 (citing Espinosa v. Florida, 505 U. S. 1079, 1082 (1992) ( per curiam); emphasis added). But our approach to vagueness under the Due Process Clause is not interchangeable with “the rationale of our cases construing and applying the Eighth Amendment.” Maynard v. Cartwright, 486 U. S. 356, 361 (1988) . Our decision in Espinosa is thus inapposite, as it did not involve advisory Sentencing Guidelines or the Due Process Clause. Finally, our holding today also does not render “sentencing procedure[s]” entirely “immune from scrutiny under the due process clause.” Williams, 337 U. S., at 252, n. 18; see, e.g., Townsend v. Burke, 334 U. S. 736, 741 (1948) (holding that due process is violated when a court relies on “extensively and materially false” evidence to impose a sentence on an uncounseled defendant). We hold only that the advisory Sentencing Guidelines, including §4B1.2(a)’s residual clause, are not subject to a challenge under the void-for-vagueness doctrine. IV In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors—like the Guidelines—do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity. Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals—such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement. The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional. The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines—but not §3553(a)’s other sentencing factors—are amenable to vagueness review. * * * Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, §4B1.2(a)’s residual clause is not void for vagueness. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. Justice Kagan took no part in the consideration or decision of this case.Notes 1 With one exception not relevant here, 18 U. S. C. §3553(a)(4)(A) instructs sentencing courts to consider the Guidelines ranges that “are in effect on the date the defendant is sentenced.” Accordingly, references in this opinion to the Guidelines are to the 2006 version. 2 Compare United States v. Matchett, 802 F. 3d 1185, 1193–1196 (CA11 2015) (holding that the Guidelines are not subject to due process vagueness challenges), with, e.g., United States v. Townsend, 638 Fed. Appx. 172, 178, n. 14 (CA3 2015) (declining to follow Matchett); United States v. Pawlak, 822 F. 3d 902, 905–911 (CA6 2016) (holding that the Guidelines are subject to due process vagueness challenges); United States v. Hurlburt, 835 F. 3d 715, 721–725 (CA7 2016) (en banc) (same); United States v. Madrid, 805 F. 3d 1204, 1210–1211 (CA10 2015) (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 STATES Syllabus BECKLES v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 15–8544. Argued November 28, 2016—Decided March 6, 2017 Petitioner Beckles was convicted of possession of a firearm by a convicted felon, 18 U. S. C. §922(g)(1). His presentence investigation report concluded that he was eligible for a sentencing enhancement as a “career offender” under United States Sentencing Guideline §4B1.1(a) because his offense qualified as a “crime of violence” under §4B1.2(a)’s residual clause. The District Court sentenced petitioner as a career offender, and the Eleventh Circuit affirmed. Petitioner then filed a postconviction motion to vacate his sentence, arguing that his offense was not a “crime of violence.” The District Court denied the motion, and the Eleventh Circuit affirmed. Petitioner next filed a petition for a writ of certiorari from this Court. While his petition was pending, this Court held that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), §924(e)(2)(b), was unconstitutionally vague, Johnson v. United States, 576 U. S. ___. The Court vacated and remanded petitioner’s case in light of Johnson. On remand, the Eleventh Circuit affirmed again, distinguishing the ACCA’s unconstitutionally vague residual clause from the residual clause in the Sentencing Guidelines. Held: The Federal Sentencing Guidelines, including §4B1.2(a)’s residual clause, are not subject to vagueness challenges under the Due Process Clause. . (a) The Due Process Clause prohibits the Government from “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.” Johnson, supra, at ___–___. Under the void-for-vagueness doctrine, laws that fix the permissible sentences for criminal offenses must specify the range of available sentences with “sufficient clarity.” United States v. Batchelder, 442 U. S. 114 . In Johnson, this Court held that the ACCA’s residual clause fixed—in an impermissibly vague way—a higher range of sentences for certain defendants. But the advisory Guidelines do not fix the permissible range of sentences. They merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. . (1) The limited scope of the void-for-vagueness doctrine in this context is rooted in the history of federal sentencing. Congress has long permitted district courts “wide discretion to decide whether the offender should be incarcerated and for how long.” Mistretta v. United States, 488 U. S. 361 . Yet this Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U. S. 220 , nor suggested that a defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that discretion is unfettered, see Batchelder, supra, at 123, 126. . (2) The Sentencing Reform Act of 1984 departed from this regime by establishing several factors to guide district courts in exercising their sentencing discretion. It also created the United States Sentencing Commission and charged it with establishing the Federal Sentencing Guidelines. Because the Guidelines have been rendered “effectively advisory” by this Court, Booker, supra, at 245, they guide district courts in exercising their discretion, but do not constrain that discretion. Accordingly, they are not amenable to vagueness challenges: If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be. Neither do they implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement. The applicable statutory range, which establishes the permissible bounds of the court’s sentencing discretion, provides all the notice that is required. Similarly, the Guidelines do not invite arbitrary enforcement within the meaning of this Court’s case law, because they do not permit the sentencing court to prohibit behavior or to prescribe the sentencing ranges available. Rather, they advise sentencing courts how to exercise their discretion within the bounds established by Congress. . (b) The holding in this case does not render the advisory Guidelines immune from constitutional scrutiny, see, e.g., Peugh v. United States, 569 U. S. ___, or render “sentencing procedure[s]” entirely “immune from scrutiny under the due process clause,” Williams v. New York, 337 U. S. 241 , n. 18. This Court holds only that the Sentencing Guidelines are not subject to a challenge under the void-for-vagueness doctrine. . (c) Nor does this holding cast doubt on the validity of the other factors that sentencing courts must consider in exercising their sentencing discretion. See §§3553(a)(1)–(3), (5)–(7). A contrary holding, however, would cast serious doubt on those other factors because many of them appear at least as unclear as §4B1.2(a)’s residual clause. This Court rejects the Government’s argument that the individualized sentencing required by those other factors is distinguishable from that required by the Guidelines. It is far from obvious that §4B1.2(a)’s residual clause implicates the twin concerns of vagueness more than the other factors do, and neither the Guidelines nor the other factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional. . 616 Fed. Appx. 415, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Ginsburg, J., and Sotomayor, J., filed opinions concurring in the judgment. Kagan, J., took no part in the consideration or decision of the case.

The Armed Career Criminal Act of 1984 (ACA), 18 U. S. C. §924(e)(2)(B), provided that a defendant is eligible for a sentencing enhancement as a "career of-fender" under the United States Sentencing Commission Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). The Guidelines defined a crime of violence as any offense under federal or state law punishable by imprisonment for a term exceeding one year that has as an element the use, attempted use, or threatened use of physical force against the person of another, or that involves use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another. At the time of petitioner Beckles' offense, the firearm was a sawed-off shotgun, and he was therefore eligible for the enhancement under the Guidelines. The District Court agreed that Beckles qualified as a career offender, and accordingly his Guidelines range was 360 months to life imprisonment. The Court of Appeals affirmed the conviction and sentence, but petitioner filed a motion to vacate his sentence under 28 U.S.C. §2255, arguing that his conviction for possession of a firearm by a convicted felon (which was not a firearm) did not qualify. While this motion was pending, Beckles, supra, decided that the residual clause in the Guidelines contained an unconstitutionally vague guarantee of due process. On remand, petitioner argued that his enhanced sentence was based on §4b1. 2(a) (Johnson v. United States, 576 S. ___), which held that the identically worded residual clause of the ACA, 18 U S. c. § 924 (e)( 2)(B) (ACCA) was unconstitutional under Johnson, and vacated the judgment for due process in light of further consideration in this Court. Petitioner then filed another petition for certiorari in the Court, again contending that the Guidelines are void for vagueness. Held: The advisory Sentencing Guidelines are not subject to a due process challenge under the Due Process Clause of the Fourteenth Amendment. Johnson, supra. Pp. 469 U. s. ___. (1) The advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a district court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, they are subject to the due process Clause. . (2) Because the advisory Guidelines, including the clause in question, do not mandate any specific sentences, but rather guide the trial court's exercise of its discretion within the applicable statutory range, their holding today casts no doubt on their validity. Many of these other factors appear at least as unclear as the clause. A judge granted unfettered discretion could use those same approaches in determining a defendant's sentence. See, e.g., ibid., at ___, ___ (slip op., at 11). But even if the advisory Guidelines are merely guide to guide a court to exercise its discretion under the range of available sentences with sufficient clarity, a residual clause is not immune from due process scrutiny under the Clause because they are not "guided by a traditional system of sentencing, i.e., an arbitrariness of the sentencing process, or an unguided command to exercise discretion in a system of law that implicates the constitutional law.... In contrast, the void-for-vagueness doctrine requires a different inquiry, since a law regulating private conduct by fixing permissible sentences provides notice and avoids arbitrary enforcement by clearly specifying the range of penalties available. There is no sound reason to conclude that the Advisory Guidelines, but not §3553 (a)(4)(A) sentencing factors), are amenable to review under the due process clause.. 565 F. 3d 832, affirmed. Mortara, J., took no part in the consideration or decision of this case. Reported below: 565 F.3d 864 (CA 11), affirmed. ;;. Vacated and remanded.

2016_15-680

https://www.oyez.org/cases/2016/15-680

.This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment. After the 2010 census, some redistricting was required to ensure proper numerical apportionment for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%.Certain voters challenged the new districts as unconstitutional racial gerrymanders. The United States District Court for the Eastern District of Virginia, constituted as a three-judge district court, rejected the challenges as to each of the 12 districts. As to 11 of the districts, the District Court concluded that the voters had not shown, as this Court’s precedent requires, “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 v. Johnson,515 U. S. 900 (1995). The District Court held that race predominates only where there is an “ ‘actual conflict between traditional redistricting criteria and race,’ ” 141 F. Supp. 3d 505, 524 (ED Va. 2015), so it confined the predominance analysis to the portions of the new lines that appeared to deviate from traditional criteria, and found no violation. As to the remaining district, District 75, the District Court found that race did predominate. It concluded, however, that the lines were constitutional because the legislature’s use of race was narrowly tailored to a compelling state interest. In particular, the District Court determined that the legislature had “good reasons to believe” that a 55% racial target was necessary in District 75 to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 22) (internal quotation marks omitted and emphasis deleted).On appeal to this Court, the challengers contend that the District Court employed an incorrect legal standard for racial predominance and that the legislature lacked good reasons for its use of race in District 75. This Court now affirms as to District 75 and vacates and remands as to the remaining 11 districts.IAfter the 2010 census, the Virginia General Assembly set out to redraw the legislative districts for the State Senate and House of Delegates in time for the 2011 elections. In February 2011, the House Committee on Privileges and Elections adopted a resolution establishing criteria to guide the redistricting process. Among those criteria were traditional redistricting factors such as compactness, contiguity of territory, and respect for communities of interest. But above those traditional objectives, the committee gave priority to two other goals. First, in accordance with the principle of one person, one vote, the committee resolved that “[t]he population of each district shall be as nearly equal to the population of every other district as practicable,” with any deviations falling “within plus-or-minus one percent.” 141 F. Supp. 3d, at 518. Second, the committee resolved that the new map must comply with the “protections against . . . unwarranted retrogression” contained in §5 of the Voting Rights Act. Ibid. At the time, §5 required covered jurisdictions, including Virginia, to preclear any change to a voting standard, practice, or procedure by showing federal authorities that the change would not have the purpose or effect of “diminishing the ability of [members of a minority group] to elect their preferred candidates of choice.” §5,120Stat.580–581,52 U. S. C. §10304(b). After the redistricting process here was completed, this Court held that the coverage formula in §4(b) of the Voting Rights Act no longer may be used to require preclearance under §5. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 24).The committee’s criteria presented potential problems for 12 House districts. Under §5 as Congress amended it in 2005, “[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).” Harris v. Arizona Independent Redistricting Comm’n, 578 U. S. ___, ___–___ (2016) (slip op., at 5–6) (quoting52 U. S. C. §10304(b)). The parties agree that the 12 districts at issue here, where minorities had constituted a majority of the voting-age population for many past elections, qualified as “ability-to-elect” districts. Most of the districts were underpopulated, however, so any new plan required moving significant numbers of new voters into these districts in order to comply with the principle of one person, one vote. Under the benchmark plan, the districts had BVAPs ranging from 62.7% down to 46.3%. Three districts had BVAPs below 55%.Seeking to maintain minority voters’ ability to elect their preferred candidates in these districts while complying with the one-person, one-vote criterion, legislators concluded that each of the 12 districts “needed to contain a BVAP of at least 55%.” 141 F. Supp. 3d, at 519. At trial, the parties disputed whether the 55% figure “was an aspiration or a target or a rule.” Ibid. But they did not dispute “the most important question—whether [the 55%] figure was used in drawing the Challenged Districts.” Ibid. The parties agreed, and the District Court found, “that the 55% BVAP figure was used in structuring the districts.” Ibid. In the enacted plan all 12 districts contained a BVAP greater than 55%.Who first suggested the 55% BVAP criterion and how the legislators agreed upon it was less clear from the evidence. See id., at 521 (describing the “[t]estimony on this question” as “a muddle”). In the end, the District Court found that the 55% criterion emerged from discussions among certain members of the House Black Caucus and the leader of the redistricting effort in the House, Delegate Chris Jones, “based largely on concerns pertaining to the re-election of Delegate Tyler in [District] 75.” Id., at 522. The 55% figure “was then applied across the board to all twelve” districts. Ibid.In April 2011, the General Assembly passed Delegate Jones’ plan with broad support from both parties and members of the Black Caucus. One of only two dissenting members of the Black Caucus was Delegate Tyler of District 75, who objected solely on the ground that the 55.4% BVAP in her district was too low. In June 2011, the U. S. Department of Justice precleared the plan.Three years later, before this suit was filed, a separate District Court struck down Virginia’s third federal congressional district (not at issue here), based in part on the legislature’s use of a 55% BVAP threshold. See Page v. Virginia State Bd. of Elections, 58 F. Supp. 3d 533, 553 (ED Va. 2014), vacated and remanded sub nom. Cantor v. Personhuballah, 575 U. S. ___ (2015), judgt. entered sub nom. Page v. Virginia State Bd. of Elections, 2015 WL 3604029 (June 5, 2015), appeal dism’d sub nom. Wittman v. Personhuballah, 578 U. S. ___ (2016). After that decision, 12 voters registered in the 12 districts here at issue filed this action challenging the district lines under the Equal Protection Clause. Because the claims “challeng[ed] the constitutionality of . . . the apportionment of [a] statewide legislative body,” the case was heard by a three-judge District Court.28 U. S. C. §2284(a). The Virginia House of Delegates and its Speaker, William Howell (together referred to hereinafter as the State), intervened and assumed responsibility for defending the plan, both before the District Court and now before this Court.After a 4-day bench trial, a divided District Court ruled for the State. With respect to each challenged district, the court first assessed whether “racial considerations predominated over—or ‘subordinated’—traditional redistricting criteria.” 141 F. Supp. 3d, at 523. An essential premise of the majority opinion was that race does not predominate unless there is an “actual conflict between traditional redistricting criteria and race that leads to the subordination of the former.” Id., at 524. To implement that standard, moreover, the court limited its inquiry into racial motive to those portions of the district lines that appeared to deviate from traditional criteria. The court thus “examine[d] those aspects of the [district] that appear[ed] to constitute ‘deviations’ from neutral criteria” to ascertain whether the deviations were attributable to race or to other considerations, “such as protection of incumbents.” Id., at 533–534. Only if the court found a deviation attributable to race did it proceed to “determine whether racial considerations qualitatively subordinated all other non-racial districting criteria.” Ibid. Under that analysis, the court found that race did not predominate in 11 of the 12 districts.When it turned to District 75, the District Court found that race did predominate. The court reasoned that “[a]chieving a 55% BVAP floor required ‘drastic maneuvering’ that is reflected on the face of the district.” Id., at 557. Applying strict scrutiny, the court held that compliance with §5 was a compelling state interest and that the legislature’s consideration of race in District 75 was narrowly tailored. As to narrow tailoring, the court explained that the State had “a strong basis in evidence” to believe that its actions were “reasonably necessary” to avoid retrogression. Id., at 548. In particular, the court found that Delegate Jones had considered “precisely the kinds of evidence that legislators are encouraged to use” in achieving compliance with §5, including turnout rates, the district’s large disenfranchised prison population, and voting patterns in the contested 2005 primary and general elections. Id., at 558.Judge Keenan dissented as to all 12 districts. She concluded that the majority applied an incorrect understanding of racial predominance and that Delegate Jones’ analysis of District 75 was too “general and conclusory.” Id., at 578. This appeal followed, and probable jurisdiction was noted. 578 U. S. ___ (2016); see28 U. S. C. §1253.IIAgainst the factual and procedural background set out above, it is now appropriate to consider the controlling legal principles in this case. The Equal Protection Clause prohibits a State, without sufficient justification, from “separat[ing] its citizens into different voting districts on the basis of race.” Miller, 515 U. S., at 911. The harms that flow from racial sorting “include being personally subjected to a racial classification as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group.” Alabama, 575 U. S., at ___ (slip op., at 6) (alterations, citation, and internal quotation marks omitted). At the same time, courts must “exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the basis of race.” Miller, 515 U. S., at 916. “Electoral districting is a most difficult subject for legislatures,” requiring a delicate balancing of competing considerations. Id., at 915. And “redistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of . . . a variety of other demographic factors.” Shaw v. Reno,509 U. S. 630,646 (1993) (Shaw I).In light of these considerations, this Court has held that a plaintiff alleging racial gerrymandering bears the burden “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. To satisfy this burden, the plaintiff “must prove that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Ibid. The challengers contend that, in finding that race did not predominate in 11 of the 12 districts, the District Court misapplied controlling law in two principal ways. This Court considers them in turn.AThe challengers first argue that the District Court misunderstood the relevant precedents when it required the challengers to establish, as a prerequisite to showing racial predominance, an actual conflict between the enacted plan and traditional redistricting principles. The Court agrees with the challengers on this point.A threshold requirement that the enacted plan must conflict with traditional principles might have been reconcilable with this Court’s case law at an earlier time. In Shaw I, the Court recognized a claim of racial gerrymandering for the first time. See 509 U. S., at 652. Certain language in Shaw I can be read to support requiring a challenger who alleges racial gerrymandering to show an actual conflict with traditional principles. The opinion stated, for example, that strict scrutiny applies to “redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race.” Id., at 644 (internal quotation marks omitted). The opinion also stated that “reapportionment is one area in which appearances do matter.” Id., at 647.The Court’s opinion in Miller, however, clarified the racial predominance inquiry. In particular, it rejected the argument that, “regardless of the legislature’s purposes, a plaintiff must demonstrate that a district’s shape is so bizarre that it is unexplainable other than on the basis of race.” 515 U. S., at 910–911. The Court held to the contrary in language central to the instant case: “Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale.” Id., at 913. Parties therefore “may rely on evidence other than bizarreness to establish race-based districting,” and may show predominance “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose.” Id., at 913, 916.The Court addressed racial gerrymandering and traditional redistricting factors again in Shaw v. Hunt,517 U. S. 899 (1996) (Shaw II). The Court there rejected the view of one of the dissents that “strict scrutiny does not apply where a State ‘respects’ or ‘complies with traditional districting principles.’ ” Id., at 906 (quoting id., at 931–932 (Stevens, J., dissenting); alteration omitted). Race may predominate even when a reapportionment plan respects traditional principles, the Court explained, if “[r]ace was the criterion that, in the State’s view, could not be compromised,” and race-neutral considerations “came into play only after the race-based decision had been made.” Id., at 907.The State’s theory in this case is irreconcilable with Miller and Shaw II. The State insists, for example, that the harm from racial gerrymandering lies not in racial line-drawing per se but in grouping voters of the same race together when they otherwise lack shared interests. But “the constitutional violation” in racial gerrymandering cases stems from the “racial purpose of state action, not its stark manifestation.” Miller, supra, at 913. The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.The State contends further that race does not have a prohibited effect on a district’s lines if the legislature could have drawn the same lines in accordance with traditional criteria. That argument parallels the District Court’s reasoning that a reapportionment plan is not an express racial classification unless a racial purpose is apparent from the face of the plan based on the irregular nature of the lines themselves. See 141 F. Supp. 3d, at 524–526. This is incorrect. The racial predominance inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications the legislature in theory could have used but in reality did not.Traditional redistricting principles, moreover, are numerous and malleable. The District Court here identified no fewer than 11 race-neutral redistricting factors a legislature could consider, some of which are “surprisingly ethereal” and “admi[t] of degrees.” Id., at 535, 537. By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.For these reasons, a conflict or inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering. Of course, a conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but there is no rule requiring challengers to present this kind of evidence in every case.As a practical matter, in many cases, perhaps most cases, challengers will be unable to prove an unconstitutional racial gerrymander without evidence that the enacted plan conflicts with traditional redistricting criteria. In general, legislatures that engage in impermissible race-based redistricting will find it necessary to depart from traditional principles in order to do so. And, in the absence of a conflict with traditional principles, it may be difficult for challengers to find other evidence sufficient to show that race was the overriding factor causing neutral considerations to be cast aside. In fact, this Court to date has not affirmed a predominance finding, or remanded a case for a determination of predominance, without evidence that some district lines deviated from traditional principles. See Alabama, 575 U. S., at ___ (slip op., at 17); Hunt v. Cromartie,526 U. S. 541,547 (1999); Bush v. Vera,517 U. S. 952,962,966,974 (1996) (plurality opinion); Shaw II, supra, at 905–906; Miller, supra, at 917; Shaw I, supra, at 635–636. Yet the law responds to proper evidence and valid inferences in ever-changing circumstances, as it learns more about ways in which its commands are circumvented. So there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence.BThe challengers submit that the District Court erred further when it considered the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria that were attributable to race and not to some other factor. In the challengers’ view, this approach foreclosed a holistic analysis of each district and led the District Court to give insufficient weight to the 55% BVAP target and other relevant evidence that race predominated. Again, this Court agrees.As explained, showing a deviation from, or conflict with, traditional redistricting principles is not a necessary prerequisite to establishing racial predominance. Supra, at 10. But even where a challenger alleges a conflict, or succeeds in showing one, the court should not confine its analysis to the conflicting portions of the lines. That is because the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance inquiry in particular, is the district. Racial gerrymandering claims proceed “district-by-district.” Alabama, 575 U. S., at ___ (slip op., at 6). “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.” Ibid. And Miller’s basic predominance test scrutinizes the legislature’s motivation for placing “a significant number of voters within or without a particular district.” 515 U. S., at 916. Courts evaluating racial predominance therefore should not divorce any portion of the lines—whatever their relationship to traditional principles—from the rest of the district.This is not to suggest that courts evaluating racial gerrymandering claims may not consider evidence pertaining to an area that is larger or smaller than the district at issue. The Court has recognized that “[v]oters, of course, can present statewide evidence in order to prove racial gerrymandering in a particular district.” Alabama, supra, at ___ (slip op., at 7) (emphasis deleted). Districts share borders, after all, and a legislature may pursue a common redistricting policy toward multiple districts. Likewise, a legislature’s race-based decisionmaking may be evident in a notable way in a particular part of a district. It follows that a court may consider evidence regarding certain portions of a district’s lines, including portions that conflict with traditional redistricting principles.The ultimate object of the inquiry, however, is the legislature’s predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the districtwide context. Concentrating on particular portions in isolation may obscure the significance of relevant districtwide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.CThe challengers ask this Court not only to correct the District Court’s racial predominance standard but also to apply that standard and conclude that race in fact did predominate in the 11 districts where the District Court held that it did not. For its part, the State asks the Court to hold that, even if race did predominate in these districts, the State’s predominant use of race was narrowly tailored to the compelling interest in complying with §5.The Court declines these requests. “[O]urs is a court of final review and not first view.” Department of Transportation v. Association of American Railroads, 575 U. S. ___, ___ (2015) (slip op., at 12) (internal quotation marks omitted). The District Court is best positioned to determine in the first instance the extent to which, under the proper standard, race directed the shape of these 11 districts. And if race did predominate, it is proper for the District Court to determine in the first instance whether strict scrutiny is satisfied. These matters are left for the District Court on remand.IIIThe Court now turns to the arguments regarding District 75. Where a challenger succeeds in establishing racial predominance, the burden shifts to the State to “demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest.” Miller, supra, at 920. The District Court here determined that the State’s predominant use of race in District 75 was narrowly tailored to achieve compliance with §5. The challengers contest the finding of narrow tailoring, but they do not dispute that compliance with §5 was a compelling interest at the relevant time. As in previous cases, therefore, the Court assumes, without deciding, that the State’s interest in complying with the Voting Rights Act was compelling. E.g., Alabama, supra, at ___–___ (slip op., at 19–23); Shaw II, 517 U. S., at 915.Turning to narrow tailoring, the Court explained the contours of that requirement in Alabama. When a State justifies the predominant use of race in redistricting on the basis of the need to comply with the Voting Rights Act, “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.” 575 U. S., at ___ (slip op., at 22) (internal quotation marks omitted). That standard does not require the State to show that its action was “actually . . . necessary” to avoid a statutory violation, so that, but for its use of race, the State would have lost in court. Ibid. (internal quotation marks omitted). Rather, the requisite strong basis in evidence exists when the legislature has “good reasons to believe” it must use race in order to satisfy the Voting Rights Act, “even if a court does not find that the actions were necessary for statutory compliance.” Ibid. (internal quotation marks omitted).The Court now finds no error in the District Court’s conclusion that the State had sufficient grounds to determine that the race-based calculus it employed in District 75 was necessary to avoid violating §5. As explained, §5 at the time barred Virginia from adopting any districting change that would “have the effect of diminishing the ability of [members of a minority group] to elect their preferred candidates of choice.”52 U. S. C. §10304(b). Determining what minority population percentage will satisfy that standard is a difficult task requiring, in the view of the Department of Justice, a “functional analysis of the electoral behavior within the particular . . . election district.” Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (2011).Under the facts found by the District Court, the legislature performed that kind of functional analysis of District 75 when deciding upon the 55% BVAP target. Redrawing this district presented a difficult task, and the result reflected the good-faith efforts of Delegate Jones and his colleagues to achieve an informed bipartisan consensus. Delegate Jones met with Delegate Tyler “probably half a dozen times to configure her district” in order to avoid retrogression. 141 F. Supp. 3d, at 558 (internal quotation marks omitted). He discussed the district with incumbents from other majority-minority districts. He also considered turnout rates, the results of the recent contested primary and general elections in 2005, and the dis-trict’s large population of disenfranchised black prisoners. The challengers, moreover, do not dispute that District 75 was an ability-to-elect district, or that white and black voters in the area tend to vote as blocs. See id., at 557–559. In light of Delegate Jones’ careful assessment of local conditions and structures, the State had a strong basis in evidence to believe a 55% BVAP floor was required to avoid retrogression.The challengers’ responses ask too much from state officials charged with the sensitive duty of reapportioning legislative districts. First, the challengers contest the sufficiency of the evidence showing that Delegate Jones in fact performed a functional analysis, in part because that analysis was not memorialized in writing. But the District Court’s factual findings are reviewed only for clear error. See Easley v. Cromartie,532 U. S. 234,242 (2001). The findings regarding how the legislature arrived at the 55% BVAP target are well supported, and “we do not . . . require States engaged in redistricting to compile a comprehensive administrative record.” Vera, 517 U. S., at 966 (internal quotation marks omitted).The challengers argue further that the drafters of the plan had insufficient evidence to justify a 55% BVAP floor. The 2005 elections were idiosyncratic, the challengers contend; moreover, demographic information about the prison in the district is absent from the record, and Delegate Tyler’s perspective was influenced by a personal interest in reelection. That may have been so, and for those reasons, it is possible that, if the State had drawn District 75 with a BVAP below 55% and had sought judicial preclearance, a court would have found no §5 violation. But that is not the question here. “The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands.” Alabama, 575 U. S., at ___ (slip op., at 22). The question is whether the State had “good reasons” to believe a 55% BVAP floor was necessary to avoid liability under §5. Ibid. (internal quotation marks omitted). The State did have good reasons under these circumstances. Holding otherwise would afford state legislatures too little breathing room, leaving them “trapped between the competing hazards of liability” under the Voting Rights Act and the Equal Protection Clause. Vera, supra, at 977 (internal quotation marks omitted).As a final point, the challengers liken the 55% BVAP floor here to the “mechanically numerical view” of §5 this Court rejected in Alabama. 575 U. S., at ___ (slip op., at 21). But Alabama did not condemn the use of BVAP targets to comply with §5 in every instance. Rather, this Court corrected the “misperception” that §5 required a State to “maintai[n] the same population percentages in majority-minority districts as in the prior plan.” Id., at ___–___ (slip op., at 19–20). “[I]t would seem highly unlikely,” the Court explained, that reducing a district’s BVAP “from, say, 70% to 65% would have a significant impact on the black voters’ ability to elect their preferred candidate.” Id., at ___ (slip op., at 21). Yet reducing the BVAP below 55% well might have that effect in some cases. The record here supports the legislature’s conclusion that this was one instance where a 55% BVAP was necessary for black voters to have a functional working majority.IVThe Court’s holding in this case is controlled by precedent. The Court reaffirms the basic racial predominance analysis explained in Miller and Shaw II, and the basic narrow tailoring analysis explained in Alabama. The District Court’s judgment as to District 75 is consistent with these principles. Applying these principles to the remaining 11 districts is entrusted to the District Court in the first instance.The judgment of the District Court is affirmed in part and vacated in part. 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 BETHUNE-HILL et al. v. VIRGINIA STATE BOARD OF ELECTIONS et al. on appeal from the united states district court for the eastern district of virgina No. 15–680. Argued December 5, 2016—Decided March 1, 2017 After the 2010 census, the Virginia State Legislature drew new lines for 12 state legislative districts, with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. Certain voters filed suit, claiming that the new districts violated the Fourteenth Amendment’s Equal Protection Clause. State legislative officials (State) intervened to defend the plan. A three-judge District Court rejected the challenges. As to 11 of the districts, the court concluded that the voters had not shown, as this Court’s precedent requires, “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 v. Johnson, 515 U. S. 900 . In so doing, the court held that race predominates only where there is an “ ‘actual conflict between traditional redistricting criteria and race.’ ” 141 F. Supp. 3d 505, 524. It thus confined the predominance analysis to the portions of the new lines that appeared to deviate from traditional criteria. As to the remaining district, District 75, the court found that race did predominate, but that the lines were constitutional because the legislature’s use of race was narrowly tailored to a compelling state interest. In particular, the court found the legislature had good reasons to believe that a 55% racial target was necessary in District 75 to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965, see Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. Held: 1. The District Court employed an incorrect legal standard in determining that race did not predominate in 11 of the 12 districts. . (a) The Equal Protection Clause prohibits a State, without sufficient justification, from “separat[ing] its citizens into different voting districts on the basis of race.” Miller, 515 U. S., at 911. Courts must “exercise extraordinary caution in adjudicating claims” of racial gerrymandering, id., at 916, since a legislature is always “aware of race when it draws district lines, just as it is aware of . . . other demographic factors,” Shaw v. Reno, 509 U. S. 630 (Shaw I). A plaintiff alleging racial gerrymandering thus bears the burden “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 [districting] decision,” which requires proving “that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations.” Miller, supra, at 916. Here, the District Court misapplied controlling law in two principal ways. . (b) First, the District Court misunderstood relevant precedents when it required the challengers to establish, as a prerequisite to showing racial predominance, an actual conflict between the enacted plan and traditional redistricting principles. This Court has made clear that parties may show predominance “either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose,” Miller, supra, at 916, and that race may predominate even when a plan respects traditional principles, Shaw v. Hunt, 517 U. S. 899 (Shaw II). The State’s theory in this case is irreconcilable with Miller and Shaw II. The State insists, e.g., that the harm from racial gerrymandering lies not in racial line-drawing per se but in grouping voters of the same race together when they otherwise lack shared interests. But “the constitutional violation” in racial gerrymandering cases stems from the “racial purpose of state action, not its stark manifestation.” Miller, supra, at 913. The State also contends that race does not have a prohibited effect on a district’s lines if the legislature could have drawn the same lines in accordance with traditional criteria. The proper inquiry, however, concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing one map over others, race still may predominate. A conflict or inconsistency may be persuasive circumstantial evidence tending to show racial predomination, but no rule requires challengers to present this kind of evidence in every case. As a practical matter, this kind of evidence may be necessary in many or even most cases. But there may be cases where challengers can establish racial predominance without evidence of an actual conflict. . (c) The District Court also erred in considering the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria attributable to race and not to some other factor. Racial gerrymandering claims proceed “district-by-district,” Alabama, supra, at ___, and courts should not divorce any portion of a district’s lines—whatever their relationship to traditional principles—from the rest of the district. Courts may consider evidence pertaining to an area that is larger or smaller than the district at issue. But the ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations moved into and out of a district, or the use of a racial target. . (d) The District Court is best positioned to determine on remand the extent to which, under the proper standard, race directed the shape of these 11 districts, and if race did predominate, whether strict scrutiny is satisfied. . 2. The District Court’s judgment regarding District 75 is consistent with the basic narrow tailoring analysis explained in Alabama. Where a challenger succeeds in establishing racial predominance, the burden shifts to the State to “demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest.” Miller, supra, at 920. Here, it is assumed that the State’s interest in complying with the Voting Rights Act was a compelling interest. When a State justifies the predominant use of race in redistricting on the basis of the need to comply with the Voting Rights Act, “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.” Alabama, 575 U. S., at ___–___. The State must show not that its action was actually necessary to avoid a statutory violation, but only that the legislature had “ ‘good reasons to believe’ ” its use of race was needed in order to satisfy the Voting Rights Act. Ibid. There was no error in the District Court’s conclusion that the legislature had sufficient grounds to determine that the race-based calculus it employed in District 75 was necessary to avoid violating §5. Under the facts found by that court, the legislature performed the kind of functional analysis of District 75 necessary under §5, and the result reflected the good-faith efforts of legislators to achieve an informed bipartisan consensus. In contesting the sufficiency of that evidence and the evidence justifying the 55% BVAP floor, the challengers ask too much from state officials charged with the sensitive duty of reapportioning legislative districts. As to the claim that the BVAP floor is akin to the “mechanically numerical view” of §5 rejected in Alabama, supra, at ___, the record here supports the State’s conclusion that this was an instance where a 55% BVAP was necessary for black voters to have a functional working majority. . 141 F. Supp. 3d 505, affirmed in part, vacated in part, 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. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part.

After the 2010 census, some redistricting was required to ensure proper numerical apportionment for the Virginia House of Delegates. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. Certain voters challenged the new districts as unconstitutional racial gerrymanders. The District Court rejected the challenges as to 11 of the districts, holding that the voters had not shown, as this Court's precedent requires, that race was the predominant factor motivating the legislature to place a significant number of voters within or without a particular district. As to District 75, the court held that race predominate only where there is anactual conflict between traditional redistricting criteria and race, and that the legislature had good reasons to believe that a 55% racial target was necessary in District 75 to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965. The court also held that the lines were constitutional because the legislature used race narrowly tailored to a compelling state interest. Held: 1. The Equal Protection Clause of the Fourteenth Amendment prohibits a State, without sufficient justification, fromseparat[ing] its citizens into different voting districts on the basis of race. The harms that flow from racial sorting include being personally subjected to a racial classification as well as being represented by a legislator who believes his primary obligation is to represent only the members of a particular racial group. At the same time, courts must exercise extraordinary caution in adjudicating claims that a State has drawn district lines on the ground that race for its own sake is the overriding reason for choosing one map over others. See Shaw v. Reno,509 U. S. 630,646. In light of these considerations, this Court has held that a plaintiff alleging racial gerrymandering bears the burden of showing, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that the race motions are the predominant factors that drive the legislature's decision. To satisfy this burden, the plaintiff must prove that a legislature subordinated traditional race-neutral districting principles to racial considerations. Here, the District Court determined that the State had sufficient grounds to determine that the racially motivated calculus employed in District 75 was necessary to avoid violating §5. . 2. Applying the principles of racial predominance to the remaining 11 districts is consistent with the principles set forth in Miller and Shaw, supra, at 911 (slip op., at 524). Although showing a deviation from, or conflict with, traditional redistricting principles is not a necessary prerequisite to establishing racial predominance, courts should not confine their analysis to the conflicting portions of the lines. That is, the ultimate object of the inquiry is the legislature, which has the predominant motive for the design of the district as a whole. A court faced with a racial-griering claim therefore must consider all of its lines, whatever their relationship to traditional principles, from the district at issue. Concentrating on particular portions in isolation may obscure the significance of relevant districtwide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight. Thus, a conflict or inconsistency between the enacted plan and traditional criteria does not require a threshold requirement or a mandatory precondition in order for a challenger to establish a racial claim of racial predomination or abomination. Although challengers will be unable to show that the state legislature did not intend to use race in order to comply with §5, they will be able to demonstrate that its districting legislation was narrowly tailored in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent. These matters are left for the District Court to determine in the first instance whether strict scrutiny is satisfied. P.. 3. The Court of Appeals, in its opinion, correctly held that there was no error in the conclusion that the California legislature had sufficient grounds to make the race-based calculus it employed in the District 75 case, since the California Legislature performed a functional functional analysis of District 75 when deciding on the 55% BVAP target, and the California Supreme Court did not err in concluding that Congress did not abuse its traditional race neutral districting focus in enacting the plan. However, the Court finds no error here in the finding of narrow tailoring when it considered the legislature racial motive only to the extent that the challengers identified deviations from traditional districting criteria that were attributable to race and not to some other factor. Rather, the requisite strong basis in evidence exists when the legislature has reason to believe it must use race to satisfy the Act, even if a court does not find that the actions were necessary for statutory

2016_16-405

https://www.oyez.org/cases/2016/16-405

. The two cases we decide today arise under the Federal Employers’ Liability Act (FELA), 35Stat. 65, as amended, 45 U. S. C. §51 et seq., which makes railroads liable in money damages to their employees for on-the-job injuries. Both suits were pursued in Montana state courts although the injured workers did not reside in Montana, nor were they injured there. The defendant railroad, BNSF Railway Company (BNSF), although “doing business” in Montana when the litigation commenced, was not incorporated in Montana, nor did it maintain its principal place of business in that State. To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on §56, which provides in relevant part: “Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” We hold that §56 does not address personal jurisdiction over railroads. Its first relevant sentence is a venue prescription governing proper locations for FELA suits filed in federal court. The provision’s second relevant sentence, using the term “concurrent” jurisdiction, refers to subject-matter jurisdiction, not personal jurisdiction. It simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too. Montana’s Supreme Court, in the alternative, relied on state law, under which personal jurisdiction could be asserted over “persons found within . . . Montana.” Mont. Rule Civ. Proc. 4(b)(1) (2015). BNSF fit that bill, the court stated, because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana. Our precedent, however, explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not “at home” in the State and theepisode-in-suit occurred elsewhere. Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 8) (internal quotation marks omitted). We therefore reverse the judgment of the Montana Supreme Court. I In March 2011, respondent Robert Nelson, a North Dakota resident, brought a FELA suit against BNSF in a Montana state court to recover damages for knee injuries Nelson allegedly sustained while working for BNSF as a fuel-truck driver. 383 Mont. 417, 419, 373 P. 3d 1, 3 (2016). In May 2014, respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, similarly sued BNSF under FELA in a Montana state court. Id., at 419–420, 373 P. 3d, at 3. Brent Tyrrell, his widow alleged, had developed a fatal kidney cancer from his exposure to carcinogenic chemicals while working for BNSF. Id., at 420, 373 P. 3d, at 3. Neither plaintiff alleged injuries arising from or related to work performed in Montana; indeed, neither Nelson nor Brent Tyrrell appears ever to have worked for BNSF in Montana. Id., at 419–420, 373 P. 3d, at 3. BNSF is incorporated in Delaware and has its principal place of business in Texas. Id., at 419, 373 P. 3d, at 3. It operates railroad lines in 28 States. No. DV 14–699 (13th Jud. Dist., Yellowstone Cty., Mont., Oct. 7, 2014), App. to Pet. for Cert. 63a. BNSF has 2,061 miles of railroad track in Montana (about 6% of its total track mileage of 32,500), employs some 2,100 workers there (less than 5% of its total work force of 43,000), generates less than 10% of its total revenue in the State, and maintains only one of its 24 automotive facilities in Montana (4%). Ibid. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 8) (internal quotation marks omitted), BNSF moved to dismiss both suits for lack of personal jurisdiction. Its motion was granted in Nelson’s case and denied in Tyrrell’s. 383 Mont., at 419, 373 P. 3d, at 2. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF. Id., at 429, 373 P. 3d, at 9. Section 56, the court determined, authorizes state courts to exercise personal jurisdiction over railroads “doing business” in the State. Id., at 426, 373 P. 3d, at 7 (internal quotation marks omitted). In addition, the court observed, Montana law provides for the exercise of general jurisdiction over “[a]ll persons found within” the State. Id., at 427, 373 P. 3d, at 8 (quoting Mont. Rule Civ. Proc. 4(b)(1) (2015)). In view of the railroad’s many employees and miles of track in Montana, the court concluded, BNSF is both “doing business” and “found within” the State, such that both FELA and Montana law authorized the exercise of personal jurisdiction. 383 Mont., at 426, 428, 373 P. 3d, at 7–8 (internal quotation marks omitted). The due process limits articulated in Daimler, the court added, did not control, because Daimler did not involve a FELA claim or a railroad defendant. 383 Mont., at 424, 373 P. 3d, at 6. Justice McKinnon dissented. Section 56, she wrote, is a federal-court venue prescription, and also confers subject-matter jurisdiction on state courts in FELA cases, concurrent with federal courts. Id., at 435–437, 373 P. 3d, at 13. But §56, she maintained, does not touch or concern personal jurisdiction. Ibid. Furthermore, she concluded, Daimler controls, rendering the Montana courts’ exercise of personal jurisdiction impermissible because BNSF is not “at home” in Montana. 383 Mont., at 433–434, 373 P. 3d, at 11–12. We granted certiorari, 580 U. S. ___ (2017), to resolve whether §56 authorizes state courts to exercise personal jurisdiction over railroads doing business in their States but not incorporated or headquartered there, and whether the Montana courts’ exercise of personal jurisdiction in these cases comports with due process. II Nelson and Tyrrell contend that §56’s first relevant sentence confers personal jurisdiction on federal courts, and that the section’s second relevant sentence extends that grant of jurisdiction to state courts. Neither contention is tenable. Section 56’s first relevant sentence concerns venue; its next sentence speaks to subject-matter jurisdiction.[1] A The first sentence of §56 states that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” In Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 (1941) , we comprehended this clause as “establish[ing] venue” for a federal-court action. Id., at 52. Congress, we explained, designed §56 to expand venue beyond the limits of the 1888 Judiciary Act’s general venue provision, which allowed suit only “in districts of which the defendant was an inhabitant.” Id., at 49; see Act of Aug. 13, 1888, §1, 25Stat. 434. Nowhere in Kepner or in any other decision did we intimate that §56 might affect personal jurisdiction. Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper. See, e.g., 28 U. S. C. §1391(b) (general venue statute specifying where “[a] civil action may be brought”); J. Oakley, ALI, Fed. Judicial Code Rev. Project 253–290 (2004) (listing special venue statutes, many with similar language). See also Kepner, 314 U. S., at 56 (Frankfurter, J., dissenting) (“The phrasing of [§56] follows the familiar pattern generally employed by Congress in framing venue provisions.”). In contrast, Congress’ typical mode of providing for the exercise of personal jurisdiction has been to authorize service of process. See, e.g., 15 U. S. C. §22 (Clayton Act provision stating that “all process in [cases against a corporation arising under federal antitrust laws] may be served in the district of which [the defendant] is an inhabitant, or wherever [the defendant] may be found”); §53(a) (under Federal Trade Commission Act, “process may be served on any person, partnership, or corporation wherever it may be found”). See also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97 –107 (1987) (discussing statutes that authorize (or fail to authorize) nationwide service of process). But cf. Schlanger v. Seamans, 401 U. S. 487 , n. 4 (1971) (though “Congress has provided for nationwide service of process” in 28 U. S. C. §1391(e) (1964 ed., Supp. V), that statute was meant to expand venue, not personal jurisdiction). Congress uses this terminology because, absent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction. See Omni Capital, 484 U. S., at 104. Nelson and Tyrrell, however, argue that §56 relates to personal jurisdiction. In their view, the 1888 Judiciary Act provision that prompted §56’s enactment, 25Stat. 434, concerned both personal jurisdiction and venue. According to House and Senate Reports, they contend, two cases had brought to Congress’ attention the problem with the prior provision—namely, that in federal-question cases it authorized suit only in the district of the defendant’s residence. Brief for Respondents 16–18. See H. R. Rep. No. 513, 61st Cong., 2d Sess., 6 (1910) (citing Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501 (1910) ; Cound v. Atchison, T. & S. F. R. Co., 173 F. 527 (WD Tex. 1909)); S. Rep. No. 432, 61st Cong., 2d Sess., 4 (1910) (same). In both cases, the courts had dismissed FELA suits for “want of jurisdiction.” Macon Grocery, 215 U. S., at 510; Cound, 173 F., at 534. To avert such jurisdictional dismissals, they urge, Congress enacted §56. Legislative history “throws little light” here. Kepner, 314 U. S., at 50.[2] Driving today’s decision, we have long read the 1888 Judiciary Act provision to concern venue only. See Green v. Chicago, B. & Q. R. Co., 205 U. S. 530 –533 (1907) (analyzing personal jurisdiction separately, after concluding that venue was proper under 1888 Judiciary Act provision). See also Lee v. Chesapeake & Ohio R. Co., 260 U. S. 653, 655 (1923) (noting that materially identical successor to 1888 Judiciary Act provision, Act of Mar. 3, 1911, §51, 36Stat. 1101, “relates to the venue of suits”). Indeed, reading the 1888 Judiciary Act provision to authorize the exercise of personal jurisdiction would have yielded an anomalous result: In diversity cases, the provision allowed for suit “in the district of the residence of either the plaintiff or the defendant.” 25Stat. 434. Interpreting that clause to provide for jurisdiction would have allowed a plaintiff to hale a defendant into court in the plaintiff’s home district, even if the district was one with which the defendant had no affiliation, and the episode-in-suit, no connection. B The second §56 sentence in point provides that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” Nelson and Tyrrell argue that this sentence extends to state courts the first sentence’s alleged conferral of personal jurisdiction on federal courts. But, as just discussed, the first sentence concerns federal-court venue and confers no personal jurisdiction on any court. We have understood §56’s second sentence to provide for the concurrent subject-matter jurisdiction of state and federal courts over actions under FELA. See Second Employers’ Liability Cases, 223 U. S. 1 –56 (1912). As Nelson and Tyrrell acknowledge, Congress added the provision to confirm concurrent subject-matter jurisdiction after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. See Brief for Respondents 23 (citing Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 73 A. 754 (1909)). As Justice McKinnon recognized in her dissent from the Montana Supreme Court’s decision in Nelson’s and Tyrrell’s cases, “[t]he phrase ‘concurrent jurisdiction’ is a well-known term of art long employed by Congress and courts to refer to subject-matter jurisdiction, not personal jurisdiction.” 383 Mont., at 436, 373 P. 3d, at 13. See, e.g., Mims v. Arrow Financial Services, LLC, 565 U. S. 368, 372 (2012) (“federal and state courts have concurrent jurisdiction over private suits arising under the [Telephone Consumer Protection Act of 1991, 47 U. S. C. §227]”); Claflin v. Houseman, 93 U. S. 130 –134 (1876) (State courts retain “concurrent jurisdiction” over “suits in which a bankrupt” party is involved, notwithstanding exclusive federal jurisdiction over bankruptcy matters). C Pointing to a quartet of cases, the Montana Supreme Court observed that this Court “consistently has interpreted [§]56 to allow state courts to hear cases brought under FELA even where the only basis for jurisdiction is the railroad doing business in the forum [S]tate.” 383 Mont., at 421–423, 425–426, 373 P. 3d, at 4–7 (citing Pope v. Atlantic Coast Line R. Co., 345 U. S. 379 (1953) ; Miles v. Illinois Central R. Co., 315 U. S. 698 (1942) ; Kepner, 314 U. S. 44 ; Denver & Rio Grande Western R. Co. v. Terte, 284 U. S. 284 (1932) ). None of the decisions featured by the Montana Supreme Court resolved a question of personal jurisdiction. Terte held that a FELA plaintiff, injured in Colorado, could bring suit in Missouri state court against a railroad incorporated elsewhere. 284 U. S., at 286–287. The dispute, however, was over the Dormant Commerce Clause, not personal jurisdiction; the railroad defendants argued that the suit would unduly burden interstate commerce, and the decision rested on two Commerce Clause decisions, Michigan Central R. Co. v. Mix, 278 U. S. 492 (1929) , and Hoffman v. Missouri ex rel. Foraker, 274 U. S. 21 (1927) , not on an interpretation of §56. See Terte, 284 U. S., at 285, 287. In Kepner and Miles, this Court held that a state court may not, based on inconvenience to a railroad defendant, enjoin its residents from bringing a FELA suit in another State’s federal (Kepner) or state (Miles) courts. Kepner, 314 U. S., at 54; Miles, 315 U. S., at 699–700, 704. Pope held that 28 U. S. C. §1404(a)’s provision for transfer from one federal court to another did not bear on the question decided in Miles: A state court still could not enjoin a FELA action brought in another State’s courts. 345 U. S., at 383–384. Moreover, all these cases, save Pope, were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U. S. 310 (1945) . See Daimler, 571 U. S., at ___, n. 18 (slip op., at 20, n. 18) (cautioning against reliance on cases “decided in the era dominated by” the “territorial thinking” of Pennoyer v. Neff, 95 U. S. 714 (1878) ). III Because FELA does not authorize state courts to exercise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, the Montana courts’ assertion of personal jurisdiction over BNSF here must rest on Mont. Rule Civ. Proc. 4(b)(1), the State’s provision for the exercise of personal jurisdiction over “persons found” in Montana. See supra, at 2–3. BNSF does not contest that it is “found within” Montana as the State’s courts comprehend that rule. We therefore inquire whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment. In International Shoe, this Court explained that a state court may exercise personal jurisdiction over an out-of-state defendant who has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U. S., at 316. Elaborating on this guide, we have distinguished between specific or case-linked jurisdiction and general or all-purpose jurisdiction. See, e.g., Daimler, 571 U. S., at ___ (slip op., at 8); Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 919 (2011) ; Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 , nn. 8, 9 (1984). Because neither Nelson nor Tyrrell alleges any injury from work in or related to Montana, only the propriety of general jurisdiction is at issue here. Goodyear and Daimler clarified that “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler, 571 U. S., at ___ (slip op., at 8) (quoting Goodyear, 564 U. S., at 919). The “paradigm” forums in which a corporate defendant is “at home,” we explained, are the corporation’s place of incorporation and its principal place of business. Daimler, 571 U. S., at ___ (slip op., at 18–19); Goodyear, 564 U. S., at 924. The exercise of general jurisdiction is not limited to these forums; in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). We suggested that Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 (1952) , exemplified such a case. Daimler, 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). In Perkins, war had forced the defendant corporation’s owner to temporarily relocate the enterprise from the Philippines to Ohio. 342 U. S., at 447–448. Because Ohio then became “the center of the corporation’s wartime activities,” Daimler, 571 U. S., at ___, n. 8 (slip op., at 12, n. 8), suit was proper there, Perkins, 342 U. S., at 448. The Montana Supreme Court distinguished Daimler on the ground that we did not there confront “a FELA claim or a railroad defendant.” 383 Mont., at 424, 373 P. 3d, at 6. The Fourteenth Amendment due process constraint described in Daimler, however, applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.[3] BNSF, we repeat, is not incorporated in Montana and does not maintain its principal place of business there. Nor is BNSF so heavily engaged in activity in Montana “as to render [it] essentially at home” in that State. See Daimler, 571 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). As earlier noted, BNSF has over 2,000 miles of railroad track and more than 2,000 employees in Montana. But, as we observed in Daimler, “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.” Id., at ___, n. 20 (slip op., at 21, n. 20) (internal quotation marks and alterations omitted). Rather, the inquiry “calls for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Ibid. In short, the business BNSF does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in Montana. But in-state business, we clarified in Daimler and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims like Nelson’s and Tyrrell’s that are unrelated to any activity occurring in Montana.[4] IV Nelson and Tyrrell present a further argument—that BNSF has consented to personal jurisdiction in Montana. See Brief for Respondents 50–51. The Montana Supreme Court did not address this contention, see 383 Mont., at 429, n. 3, 373 P. 3d, at 9, n. 3, so we do not reach it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005) (“[W]e are a court of review, not of first view.”). * * * For the reasons stated, the judgment of the Montana Supreme Court is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 Section 56’s first sentence, which provides a time bar for FELA claims, is not relevant to the issue at hand. For ease of reference, we hereinafter refer to the first relevant sentence, describing where suit “may be brought,” as the provision’s “first” sentence, and the sentence that immediately follows, referring to “concurrent” jurisdiction, as the “second.” 2 We note, moreover, that Nelson and Tyrrell overlooked the Senate Report’s explicit reference to the first sentence of §56 as a venue provision, with no mention of personal jurisdiction. S. Rep. No. 432, 61st Cong., 2d Sess., 3 (1910). 3 The Montana Supreme Court also erred in asserting that “Congress drafted the FELA to make a railroad ‘at home’ for jurisdictional purposes wherever it is ‘doing business.’ ” 383 Mont. 417, 425, 373 P. 3d 1, 6 (2016). As discussed, supra, at 5–7, in §56’s first sentence, Congress dealt with venue only, not personal jurisdiction. 4 Justice Sotomayor, dissenting in part, renews a debate comprehensively aired in Daimler AG v. Bauman, 571 U. S. ___ (2014). There, as again here, Justice Sotomayor treats the assertion of jurisdiction by the State of Washington courts in International Shoe Co. v. Washington, 326 U. S. 310 (1945) , as an exercise of general, dispute-blind, jurisdiction, post, at 3, thereby overlooking the fundamental difference between International Shoe and these cases. In International Shoe, the defendant corporation’s in-state activities had “not only been continuous and systematic, but also g[a]ve rise to the liabilities sued on.” 326 U. S., at 317. The state courts there asserted jurisdiction not over claims that had nothing to do with the State; instead, they exercised adjudicatory authority to hold the defendant corporation accountable for activity pursued within the State of Washington. Daimler, 571 U. S., at ___, ___, n. 10 (slip op., at 7, 14, n. 10). This Court, therefore, had no occasion in International Shoe to “engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.” Post, at 3. In marked contrast to International Shoe, Nelson’s and Tyrrell’s claims have no relationship to anything that occurred or had its principal impact in Montana. SUPREME COURT OF THE UNITED STATES _________________ No. 16–405 _________________ BNSF RAILWAY CO., PETITIONER v. KELLI TYRRELL, special administrator for the ESTATE OF BRENT T. TYRRELL, DECEASED, et al. on writ of certiorari to the supreme court of montana [May 30, 2017] Justice Sotomayor, concurring in part and dissenting in part. I concur in the Court’s conclusion that the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq., does not confer personal jurisdiction over railroads on state courts. I also agree that the Montana Supreme Court erred when it concluded that the nature of the claim here—a FELA claim against a railroad—answers the question whether the Due Process Clause allows the exercise of personal jurisdiction over BNSF. But my agreement with the majority ends there. I continue to disagree with the path the Court struck in Daimler AG v. Bauman, 571 U. S. ___ (2014), which limits general jurisdiction over a corporate defendant only to those States where it is “ ‘essentially at home,’ ” id., at ___ (slip op., at 8). And even if the Court insists on adhering to that standard, I dissent from its decision to apply it here in the first instance rather than remanding to the Montana Supreme Court for it to conduct what should be a fact-intensive analysis under the proper legal framework. Accordingly, I join Parts I and II of the Court’s opinion, but dissent from Part III and the judgment. The Court would do well to adhere more faithfully to the direction from International Shoe Co. v. Washington, 326 U. S. 310 (1945), which instructed that general jurisdiction is proper when a corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Id., at 318. Under International Shoe, in other words, courts were to ask whether the benefits a defendant attained in the forum State warranted the burdens associated with general personal jurisdiction. See id., at 317–318. The majority itself acknowledges that International Shoe should govern, describing the question as whether a defendant’s affiliations with a State are sufficiently “ ‘continuous and systematic’ ” to warrant the exercise of general jurisdiction there. Ante, at 10. If only its analysis today reflected that directive. Instead, the majority opinion goes on to reaffirm the restrictive “at home” test set out in Daimler—a test that, as I have explained, has no home in our precedents and creates serious inequities. See 571 U. S., at ___–___ (Sotomayor, J., concurring in judgment) (slip op., at 8–19). The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. See id., at ___–___ (slip op., at 17–18). What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.[1] The result? It is individual plaintiffs, harmed by the actionsof a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in dis-tant jurisdictions with which they have no contacts or connection. Moreover, the comparative contacts analysis invented in Daimler resurfaces here and proves all but dispositive. The majority makes much of the fact that BNSF’s contacts in Montana are only a percentage of its contacts with other jurisdictions. Ante, at 3, 11. But International Shoe, which the majority agrees is the springboard for our modern personal jurisdiction jurisprudence, ante, at 9, applied no comparative contacts test. There the Court analyzed whether the Delaware corporation had “by its activities in the State of Washington rendered itself amenable to proceedings” in the State. 326 U. S., at 311. The Court evaluated whether the corporation had offices in the forum State, made contracts there, delivered goods there, or employed salesmen there. See id., at 313. Despite acknowledging that the corporation maintained places of business in several States, ibid., the Court did not engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.[2] The Court noted that the corporation employed 11 to 13 salesmen in Washington but did not query how that number compared to the number of salesmen in other States. Ibid. As well it should not have; the relative percentage of contacts is irrelevant. The focus should be on the quality and quantity of the defendant’s contacts in the forum State.[3] The majority does even Daimler itself a disservice, paying only lipservice to the question the Court purported to reserve there—the possibility of an “exceptional case” in which general jurisdiction would be proper in a forum State that is neither a corporate defendant’s place of incorporation nor its principal place of business. See 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). Its opinion here could be understood to limit that exception to the exact facts of Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 (1952) . See ante, at 10–11. That reading is so narrow as to read the exception out of existence entirely; certainly a defendant with significant contacts with more than one State falls outside its ambit. And so it is inevitable under its own reasoning that the majority would conclude that BNSF’s contacts with Montana are insufficient to justify the exercise of personal jurisdiction here. This result is perverse. Despite having reserved the possibility of an “exceptional case” in Daimler, the majority here has re-jected that possibility out of hand. Worse, the majority reaches its conclusion only by departing from the Court’s normal practice.[4] Had it remanded to the Montana Supreme Court to reevaluate the due process question under the correct legal standard, that court could have examined whether this is such an “exceptional case.” Instead, with its ruling today, the Court unnecessarily sends a signal to the lower courtsthat the exceptional-circumstances inquiry is all form, no substance. I respectfully concur in part and dissent in part.Notes 1 As many commentators have observed, lower courts adhered to the continuous-and-systematic standard for decades before Daimler, and its predecessor Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915 (2011) , wrought the present sea change. See, e.g., Cornett & Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdiction after Daimler AG v. Bauman, 76 Ohio St. L. J. 101 (2015); Parry, Rethinking Personal Jurisdiction after Bauman and Walden, 19 Lewis & Clark L. Rev. 607 (2015); Doernberg, Resoling International Shoe, 2 Tex. A&M L. Rev. 247 (2014); Feder, Goodyear, “Home,” and the Uncertain Future of Doing Business Jurisdiction, 63 S. C. L. Rev. 671 (2012). 2 The majority responds that the language from International Shoe informs only a specific jurisdiction case. Ante, at 12, n. 4. But the majority’s view of International Shoe is overly restrictive. The terms “specific jurisdiction” and “general jurisdiction” are nowhere to be found in that opinion. And I continue to believe, as I noted in Daimler, that there is no material difference between the “continuous and systematic” terminology International Shoe used for what we now call specific jurisdiction and the “continuous” and “substantial” terminology it used for what we now call general jurisdiction. See Daimler, 571 U. S., at ___, n. 6 (Sotomayor, J., concurring in judgment) (slip op., at 8, n. 6). 3 Indeed, in neither Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 (1952) , nor Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408 (1984) , did the Court engage in a comparative-contacts analysis. 4 The Montana Supreme Court reached this question only by wrongly assuming that 45 U. S. C. §56 is a jurisdictional statute and that a defendant’s unique status as a railroad company is dispositive of the jurisdictional question. A remand rather than an outright reversal is this Court’s traditional practice where a lower court applies the incorrect legal standard; we have done it repeatedly just this Term. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___ (2017); Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., ante, p. ___; McLane Co. v. EEOC, ante, p. ___; Moore v. Texas, ante, p. ___.

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 BNSF RAILWAY CO. v. TYRRELL, special administrator for the ESTATE OF TYRRELL, DECEASED, et al. certiorari to the supreme court of montana No. 16–405. Argued April 25, 2017—Decided May 30, 2017 The Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq., makes railroads liable in money damages to their employees for on-the-job injuries. Respondent Robert Nelson, a North Dakota resident, brought a FELA suit against petitioner BNSF Railway Company (BNSF) in a Montana state court, alleging that he had sustained injuries while working for BNSF. Respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, also sued BNSF under FELA in a Montana state court, alleging that Brent had developed a fatal cancer from his exposure to carcinogenic chemicals while working for BNSF. Neither worker was injured in Montana. Neither incorporated nor headquartered there, BNSF maintains less than 5% of its work force and about 6% of its total track mileage in the State. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. ___, ___, BNSF moved to dismiss both suits. Its motion was granted in Nelson’s case and denied in Tyrrell’s. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF because the railroad both “d[id] business” in the State within the meaning of 45 U. S. C. §56 and was “found within” the State within the compass of Mont. Rule Civ. Proc. 4(b)(1). The due process limits articulated in Daimler, the court added, did not control because Daimler did not involve a FELA claim or a railroad defendant. Held: 1. Section 56 does not address personal jurisdiction over railroads. . (a) Section 56’s first relevant sentence provides that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” This Court has comprehended that sentence as a venue prescription, not as one governing personal jurisdiction. Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44 . Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper, see, e.g., 28 U. S. C. §1391(b), while it typically provides for the exercise of personal jurisdiction by authorizing service of process, see, e.g., 15 U. S. C. §22. Nelson and Tyrrell contend that the 1888 Judiciary Act provision that prompted §56’s enactment concerned both personal jurisdiction and venue, but this Court has long read that Judiciary Act provision to concern venue only, see, e.g., Green v. Chicago, B. & Q. R. Co., 205 U. S. 530 –533. . (b) The second relevant sentence of §56—that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States”—refers to concurrent subject-matter jurisdiction of state and federal courts over FELA actions. See Second Employers’ Liability Cases, 223 U. S. 1 –56. Congress added this clarification after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. . (c) None of the cases featured by the Montana Supreme Court in reaching its contrary conclusion resolved a question of personal jurisdiction. Pope v. Atlantic Coast Line R. Co., 345 U. S. 379 ; Miles v. Illinois Central R. Co., 315 U. S. 698 ; Kepner, 314 U. S. 44 ; and Denver & Rio Grande Western R. Co. v. Terte, 284 U. S. 284 , distinguished. Moreover, all these cases, save Pope, were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U. S. 310 . . 2. The Montana courts’ exercise of personal jurisdiction under Montana law does not comport with the Fourteenth Amendment’s Due Process Clause. Only the propriety of general personal jurisdiction is at issue here because neither Nelson nor Tyrrell alleges injury from work in or related to Montana. A state court may exercise general jurisdiction over out-of-state corporations when their “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler, 571 U. S., at ___. The “paradigm” forums in which a corporate defendant is “at home” are the corporation’s place of incorporation and its principal place of business, e.g., id., at ___, but in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State,” id., at ___, n. 19. Daimler involved no FELA claim or railroad defendant, but the due process constraint described there applies to all state-court assertions of general jurisdiction over nonresident defendants; that constraint does not vary with the type of claim asserted or business enterprise sued. Here, BNSF is not incorporated or headquartered in Montana and its activity there is not “so substantial and of such a nature as to render the corporation at home in that State.” Ibid. . 383 Mont. 417, 373 P. 3d 1, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed an opinion concurring in part and dissenting in part.

The Federal Employers' Liability Act (FELA) makes railroads liable in money damages to their employees for on-the-job injuries. Both suits were pursued in Montana state courts, although the injured workers did not reside in Montana, nor were they injured there. The defendant railroad, BNSF Railway Co., although doing business in Montana when the litigation commenced, was not incorporated in Montana nor did it maintain its principal place of business in that State. Respondents, a North Dakota resident and administrator of her husband's estate, brought suits under FELA in a Montana state court, alleging that they had developed a fatal kidney cancer from exposure to carcinogenic chemicals while working for the railroad. Neither plaintiff alleged injuries arising from or related to work performed in Montana; indeed, neither plaintiff appears ever to have worked for the railroads in Montana. After consolidating the cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over the railroad under §56 of the Act, which provides that an action may be brought in a federal district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose. In view of the railroad's many employees and miles of track in Montana and the fact that the railroad is both doing business and "found within" the State, such that both state and federal law authorized the exercise of personal jurisdiction. Held: Section56 does not authorize a State to hale an out-of-state corporation before its courts when the corporation is not at home in the State and the suit-in-suit occurred elsewhere. . (a) The first sentence of §56, which states that an plaintiff may bring an action in federal court in a district where the defendant shall be doing business at the time of commencing such action, refers to subject-matter jurisdiction, not personal jurisdiction, and simply clarifies that the federal courts do not have exclusive subject matter jurisdiction. However, Montana has long read the 1888 Judiciary Act provision to concern venue only, and has relied on state law, under which personal jurisdiction could be asserted over a corporation found within Montana. Pp. 383 Mont. 417, 419, 373 P. 3d 1, reversed and remanded. (b) The second sentence in point provides that jurisdiction of federal courts under the Act shall be concurrent with that of the courts of the several States. Although the first sentence concerns federal-court venue and confers no personal jurisdiction on any court, the second sentence refers to the first relevant sentence, describing where suit "may be brought," and the sentence that immediately follows, referring to, inter alia, the nexus of jurisdiction, as the second. See, e.g., Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44,; Daimler AG v. Bauman, 571 U.S. ___, ___, n. 10. This Court has understood §56 to provide for the concurrent jurisdiction of state and federal courts over actions under the Federal Employer-Liability Act. It is a proper exercise of the Due Process Clause of the Fourteenth Amendment to inquire whether the Montana courts have jurisdiction under the Montana Constitution. Id., at ___, n. 18. P.. (c) Because neither Nelson nor Tyrrell allege any injury from work in Montana or that they are injured there, only the propriety of general jurisdiction is at issue here. That the railroad does in Montana is sufficient to subject the railroad to specific personal jurisdiction in Montana on claims related to the business it does there, and in-state business does not suffice to permit Montana to hold the railroad subjecting it to such jurisdiction over Montana.. 383 Montana 417, 373 373 P.3d 1 (Cir. ___) (internal quotation marks omitted). P. 350 U. s. 434. 383 Mont., 424, 373. 3d 521 (Montana Supreme Court remanded) 383 Mont., at 424, 919 (Sotomayor, J., concurring in judgment) (slip op., at 8), and (inter alia), at 8. Also remanded is whether Montana has jurisdiction under International Shoe, which applies no comparative contacts test, since the Montana court erred in wrongly assuming that the District of Columbia is a jurisdictional statute and that a defendant's unique status as a railroad company is dispositive of the jurisdictional question. A remand rather than an outright reversal is this Court's traditional practice where a lower court applies the incorrect legal standard; this Court has done it repeatedly just this Term. Cf. 468 F.2d 651, 383 Montana St. P. and 383 Montana st. P., n. 651. Since neither of the respondents alleges any injury, or related thereto, claims have no relationship to anything that occurred or had

2016_15-537

https://www.oyez.org/cases/2016/15-537

. This case concerns the issue-preclusion component of the Double Jeopardy Clause.[1] In criminal prosecutions, as in civil litigation, the issue-preclusion principle means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U. S. 436, 443 (1970) . Does issue preclusion apply when a jury returns inconsistent verdicts, convicting on one count and acquitting on another count, where both counts turn on the very same issue of ultimate fact? In such a case, this Court has held, both verdicts stand. The Government is barred by the Double Jeopardy Clause from challenging the acquittal, see Green v. United States, 355 U. S. 184, 188 (1957) , but because the verdicts are rationally irreconcilable, the acquittal gains no preclusive effect, United States v. Powell, 469 U. S. 57, 68 (1984) . Does issue preclusion attend a jury’s acquittal verdict if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same critical issue? This Court has answered yes, in those circumstances, the acquittal has preclusive force. Yeager v. United States, 557 U. S. 110 –122 (2009). As “there is no way to decipher what a hung count represents,” we reasoned, a jury’s failure to decide “has no place in the issue-preclusion analysis.” Ibid.; see id., at 125 (“[T]he fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything.”). In the case before us, the jury returned irreconcilably inconsistent verdicts of conviction and acquittal. Without more, Powell would control. There could be no retrial of charges that yielded acquittals but, in view of the inconsistent verdicts, the acquittals would have no issue-preclusive effect on charges that yielded convictions. In this case, however, unlike Powell, the guilty verdicts were vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. Petitioners urge that, just as a jury’s failure to decide has no place in issue-preclusion analysis, so vacated guilty verdicts should not figure in that analysis. We hold otherwise. One cannot know from the jury’s report why it returned no verdict. “A host of reasons” could account for a jury’s failure to decide—“sharp dis-agreement, confusion about the issues, exhaustion after a long trial, to name but a few.” Yeager, 557 U. S., at 121. But actual inconsistency in a jury’s verdicts is a reality; vacatur of a conviction for unrelated legal error does not reconcile the jury’s inconsistent returns. We therefore bracket this case with Powell, not Yeager, and affirm the judgment of the Court of Appeals, which held that issue preclusion does not apply when verdict inconsistency renders unanswerable “what the jury necessarily decided.” 790 F. 3d 41, 47 (CA1 2015). I A The doctrine of claim preclusion instructs that a final judgment on the merits “foreclos[es] successive litigation of the very same claim.” New Hampshire v. Maine, 532 U. S. 742, 748 (2001) ; see Restatement (Second) of Judgments §19, p. 161 (1980) (hereinafter Restatement). So instructing, the doctrine serves to “avoid multiple suits on identical entitlements or obligations between the same parties.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4402, p. 9 (2d ed. 2002) (herein-after Wright & Miller). Long operative in civil litigation, Restatement, at 2, claim preclusion is also essential to the Constitution’s prohibition against successive criminal prosecutions. No person, the Double Jeopardy Clause states, shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Amdt. 5. The Clause “protects against a second prosecution for the same offense after conviction”; as well, “[i]t protects against a second prosecution for the same offense after acquittal.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) . “[A] verdict of acquittal [in our justice system] is final,” the last word on a criminal charge, and therefore operates as “a bar to a subsequent prosecution for the same offense.” Green v. United States, 355 U. S. 184, 188 (1957) . The allied doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment. See Restatement §§17, 27, at 148, 250; Wright & Miller §4416, at 386. It applies in both civil and criminal proceedings, with an important distinction. In civil litigation, where issue preclusion and its ramifications first developed, the availability of appellate review is a key factor. Restatement §28, Comment a, at 274; see id., §28, Reporter’s Note, at 284 (noting “the pervasive importance of reviewability in the application of preclusion doctrine”). In significant part, preclusion doctrine is premised on “an underlying confidence that the result achieved in the initial litigation was substantially correct.” Standefer v. United States, 447 U. S. 10 , n. 18 (1980); see Restatement §29, Comment f, at 295. “In the absence of appellate review,” we have observed, “such confidence is often unwarranted.” Standefer, 447 U. S., at 23, n. 18. In civil suits, inability to obtain review is exceptional; it occurs typically when the controversy has become moot. In criminal cases, however, only one side (the defendant) has recourse to an appeal from an adverse judgment on the merits. The Government “cannot secure appellate review” of an acquittal, id., at 22, even one “based upon an egregiously erroneous foundation,” Arizona v. Washington, 434 U. S. 497, 503 (1978) . Juries enjoy an “unreviewable power . . . to return a verdict of not guilty for impermissible reasons,” for “the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.” United States v. Powell, 469 U. S. 57, 63, 65 (1984) . The absence of appellate review of acquittals, we have cautioned, calls for guarded application of preclusion doctrine in criminal cases. See Standefer, 447 U. S., at 22–23, and n. 18. Particularly where it appears that a jury’s verdict is the result of compromise, compassion, lenity, or misunderstanding of the governing law, the Government’s inability to gain review “strongly militates against giving an acquittal [issue] preclusive effect.” Id., at 23. See also Restatement §29, Comment g, at 295 (Where circumstances suggest that an issue was resolved on erroneous considerations, “taking the prior determination at face value for purposes of the second action would [impermissibly] extend the . . . imperfections in the adjudicative process.”); id., §28, Comment j, at 283 (Issue preclusion may be denied where it is “evident from the jury’s verdict that the verdict was the result of compromise.”); Wright & Miller §4423, at 617 (same). B This case requires us to determine whether an appellate court’s vacatur of a conviction alters issue-preclusion analysis under the Double Jeopardy Clause. Three prior decisions guide our disposition. This Court first interpreted the Double Jeopardy Clause to incorporate the principle of issue preclusion in Ashe v. Swenson, 397 U. S. 436 (1970) .[2] Ashe involved a robbery of six poker players by a group of masked men. Ashe was charged with robbing one of the players, but a jury acquitted him “due to insufficient evidence.” Id., at 439. The State then tried Ashe again, this time for robbing another of the poker players. Aided by “substantially stronger” testimony from “witnesses [who] were for the most part the same,” id., at 439–440, the State secured a conviction. We held that the second prosecution violated the Double Jeopardy Clause. Because the sole issue in dispute in the first trial was whether Ashe had been one of the robbers, the jury’s acquittal verdict precluded the State from trying to convince a different jury of that very same fact in a second trial. Id., at 445. Our decision in Ashe explained that issue preclusion in criminal cases must be applied with “realism and rationality.” Id., at 444. To identify what a jury in a previous trial necessarily decided, we instructed, a court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter.” Ibid. (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38 (1960)). This inquiry, we explained, “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” 397 U. S., at 444 (quoting Sealfon v. United States, 332 U. S. 575, 579 (1948) ). We have also made clear that “[t]he burden is on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided” by a prior jury’s verdict of acquittal. Schiro v. Farley, 510 U. S. 222, 233 (1994) (internal quotation marks omitted); accord Dowling v. United States, 493 U. S. 342, 350 (1990) . In United States v. Powell, 469 U. S. 57 , we held that a defendant cannot meet this burden when the same jury returns irreconcilably inconsistent verdicts on the question she seeks to shield from reconsideration. Powell’s starting point was our holding in Dunn v. United States, 284 U. S. 390 (1932) , that a criminal defendant may not attack a jury’s finding of guilt on one count as inconsistent with the jury’s verdict of acquittal on another count. Powell, 469 U. S., at 58–59. The Court’s opinion in Dunn stated no exceptions to this rule, and after Dunn the Court had several times “alluded to [the] rule as an established principle,” 469 U. S., at 63. Nevertheless, several Courts of Appeals had “recogniz[ed] exceptions to the rule,” id., at 62, and Powell sought an exception for the verdicts of guilt she faced. At trial, a jury had acquitted Powell of various substantive drug charges but convicted her of using a telephone in “causing and facilitating” those same offenses. Id., at 59–60. She appealed, arguing that “the verdicts were inconsistent, and that she therefore was entitled to reversal of the telephone facilitation convictions.” Id., at 60. Issue preclusion, she maintained, barred “acceptance of [the] guilty verdict[s]” on the auxiliary offenses because the same jury had acquitted her of the predicate felonies. Id., at 64. Rejecting Powell’s argument, we noted that issue preclusion is “predicated on the assumption that the jury acted rationally.” Id., at 68. When a jury returns irreconcilably inconsistent verdicts, we said, one can glean no more than that “either in the acquittal or the conviction the jury did not speak their real conclusions.” Id., at 64 (quoting Dunn, 284 U. S., at 393). Although it is impos-sible to discern which verdict the jurors arrived at rationally, we observed, “that does not show that they were not convinced of the defendant’s guilt.” Powell, 469 U. S., at 64–65 (quoting Dunn, 284 U. S., at 393). In the event of inconsistent verdicts, we pointed out, it is just as likely that “the jury, convinced of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [related] offense.” Powell, 469 U. S., at 65. Because a court would be at a loss to know which verdict the jury “really meant,” we reasoned, principles of issue preclusion are not useful, for they are “predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict.” Id., at 68. Holding that the acquittals had no preclusive effect on the counts of conviction, we reaffirmed Dunn’s rule, under which both Powell’s convictions and her acquittals, albeit inconsistent, remained undisturbed. 469 U. S., at 69. Finally, in Yeager v. United States, 557 U. S. 110 (2009) , we clarified that Powell’s holding on inconsistent verdicts does not extend to an apparent inconsistency between a jury’s verdict of acquittal on one count and its inability to reach a verdict on another count. See 557 U. S., at 124 (“[I]nconsistent verdicts” present an “entirely different context” than one involving “both verdicts and seemingly inconsistent hung counts.”). Yeager was tried on charges of fraud and insider trading. Id., at 114. The jury acquitted him of the fraud offenses, which the Court of Appeals concluded must have reflected a finding that he “did not have any insider information that contradicted what was presented to the public.” Id., at 116. Yet the jury failed to reach a verdict on the insider-trading charges, as to which “the possession of insider information was [likewise] a critical issue of ultimate fact.” Id., at 123. Arguing that the jury had therefore acted inconsistently, the Government sought to retry Yeager on the hung counts. We ruled that retrial was barred by the Double Jeopardy Clause. A jury “speaks only through its verdict,” we noted. Id., at 121. Any number of reasons—including confusion about the issues and sheer exhaustion, we observed—could cause a jury to hang. Ibid. Accordingly, we said, only “a jury’s decisions, not its failures to decide,” identify “what a jury necessarily determined at trial.” Id., at 122. Because a hung count reveals nothing more than a jury’s failure to reach a decision, we further reasoned, it supplies no evidence of the jury’s irrationality. Id., at 124–125. Hung counts, we therefore held, “ha[ve] no place in the issue-preclusion analysis,” id., at 122: When a jury acquits on one count while failing to reach a verdict on another count concerning the same issue of ultimate fact, the acquittal, and only the acquittal, counts for preclusion purposes. Given the preclusive effect of the acquittal, the Court concluded, Yeager could not be retried on the hung count. Id., at 122–125. C With our controlling precedent in view, we turn to the inconsistent verdicts rendered in this case. The prosecution stemmed from an alleged bribe paid by petitioner Juan Bravo-Fernandez (Bravo), an entrepreneur, to petitioner Hector Martínez-Maldonado (Martínez), then a senator serving the Commonwealth of Puerto Rico. The alleged bribe took the form of an all-expenses-paid trip to Las Vegas, including a $1,000 seat at a professional boxing match featuring a popular Puerto Rican contender. United States v. Fernandez, 722 F. 3d 1, 6 (CA1 2013). According to the Government, Bravo intended the bribe to secure Martínez’ help in shepherding legislation through the Puerto Rico Senate that, if enacted, would “provid[e] substantial financial benefits” to Bravo’s enterprise. Ibid. In the leadup to the Las Vegas trip, Martínez submitted the legislation for the Senate’s consideration and issued a committee report supporting it; within a week of returning from Las Vegas, Martínez issued another favorable report and voted to enact the legislation. Id., at 6–7. Based on these events, a federal grand jury in Puerto Rico indicted petitioners for, inter alia, federal-program bribery, in violation of 18 U. S. C. §666; conspiracy to violate §666, in violation of §371; and traveling in interstate commerce to further violations of §666, in violation of the Travel Act, §1952(a)(3)(A).[3] Following a three-week trial, a jury convicted Bravo and Martínez of the standalone §666 bribery offense, but acquitted them of the related conspiracy and Travel Act charges. Fernandez, 722 F. 3d, at 7. Each received a sentence of 48 months in prison. Id., at 8. The Court of Appeals for the First Circuit vacated the §666 convictions for instructional error. Id., at 27. In the First Circuit’s view, the jury had been erroneously charged on what constitutes criminal conduct under that statute. Id., at 22–27. The charge permitted the jury to find Bravo and Martínez “guilty of offering and receiving a gratuity,” id., at 16, but, the appeals court held, §666 proscribes only quid pro quo bribes, and not gratuities, id., at 6, 22.[4] True, the court acknowledged, the jury was instructed on both theories of bribery, and the evidence at trial sufficed to support a guilty verdict on either theory. Id., at 19–20. But the Court of Appeals could not say with confidence that the erroneous charge was harmless, so it vacated the §666 convictions and remanded for further proceedings. Id., at 27, 39. On remand, relying on the issue-preclusion component of the Double Jeopardy Clause, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charges. 988 F. Supp. 2d 191 (PR 2013). They could not be retried on the bribery offense, they insisted, because the jury necessarily determined that they were not guilty of violating §666 when it acquitted them of conspiring to violate §666 and traveling in interstate commerce to further violations of §666. Id., at 193. That was so, petitioners maintained, because the only contested issue at trial was whether Bravo had offered, and Martínez had accepted, a bribe within the meaning of §666. Id., at 196; see Tr.of Oral Arg. 4 (“There was no dispute that they agreed to go to a boxing match together”; nor was there any dispute “that to get to Las Vegas from Puerto Rico, you have to travel” across state lines.). The District Court denied the motions for acquittal. 988 F. Supp. 2d, at 196–198. If the sole issue disputed at trial was whether Bravo and Martínez had violated §666, the court explained, then “the jury [had] acted irrationally.” Id., at 196. Because the same jury had simultaneously convicted Bravo and Martínez on the standalone §666 charges, “the verdict simply was inconsistent.” Ibid. The First Circuit affirmed the denial of petitioners’ motions for acquittal, agreeing that the jury’s inconsistent returns were fatal to petitioners’ issue-preclusion plea. 790 F. 3d 41. The jury received the same bribery instructions for each count involving §666, the court noted, so the §666-based verdicts—convicting on the standalone bribery charges but acquitting on the related Travel Act and conspiracy counts—could not be reconciled. Id., at 54–55.[5] The Court of Appeals rejected petitioners’ argument that the eventual invalidation of the bribery convictions rendered Powell’s inconsistent-verdicts rule inapplicable. Ashe, the court reminded, calls for a practical appraisal based on the complete record of the prior proceeding; the §666 bribery convictions, like the §666-based acquittals, were part of that record. See 790 F. 3d, at 50. Nor are vacated convictions like hung counts for issue-preclusion purposes, the court continued. Informed by our decision in Yeager, the First Circuit recognized that a hung count reveals only a jury’s failure to decide, and therefore cannot evidence actual inconsistency with a jury’s decision. 790 F. 3d, at 50–51. In contrast, the court said, vacated convictions “are jury decisions, through which the jury has spoken.” Id., at 51. The later upset of a conviction on an unrelated ground, the court reasoned, does not undermine Powell’s recognition that “inconsistent verdicts make it impossible to determine what a jury necessarily decided.” 790 F. 3d, at 51. The First Circuit therefore concluded that “vacated convictions, unlike hung counts, are relevant to the Ashe [issue-preclusion] inquiry.” Ibid. We granted certiorari to resolve a conflict among courts on this question: Does the issue-preclusion component of the Double Jeopardy Clause bar the Government from retrying defendants, like Bravo and Martínez, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal, and the convictions are later vacated for legal error unrelated to the inconsistency?[6] 557 U. S. ___ (2016). Holding that the Double Jeopardy Clause does not bar retrial in these circumstances, we affirm the First Circuit’s judgment. II When a conviction is overturned on appeal, “[t]he general rule is that the [Double Jeopardy] Clause does not bar reprosecution.” Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 308 (1984) . The ordinary consequence of vacatur, if the Government so elects, is a new trial shorn of the error that infected the first trial. This “continuing jeopardy” rule neither gives effect to the vacated judgment nor offends double jeopardy principles. Rather, it reflects the reality that the “criminal proceedings against an accused have not run their full course.” Ibid. And by permitting a new trial post vacatur, the continuing-jeopardy rule serves both society’s and criminal defendants’ interests in the fair administration of justice. “It would be a high price indeed for society to pay,” we have recognized, “were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U. S. 463, 466 (1964) . And the rights of criminal defendants would suffer too, for “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.” Ibid. Bravo and Martínez ask us to deviate from the general rule that, post vacatur of a conviction, a new trial is in order. When a conviction is vacated on appeal, they maintain, an acquittal verdict simultaneously returned should preclude the Government from retrying the defendant on the vacated count. Our precedent, harmonious with issue-preclusion doctrine, opposes the foreclosure petitioners seek. A Bravo and Martínez bear the burden of demonstrating that the jury necessarily resolved in their favor the question whether they violated §666. Schiro, 510 U. S., at 233. But, as we have explained, see supra, at 7, a defendant cannot meet that burden where the trial yielded incompatible jury verdicts on the issue the defendant seeks to insulate from relitigation. Here, the jury convicted Bravo and Martínez of violating §666 but acquitted them of conspiring, and traveling with the intent, to violate §666. The convictions and acquittals are irreconcilable because other elements of the Travel Act and conspiracy counts were not disputed. See supra, at 10–11, and n. 5. It is unknowable “which of the inconsistent verdicts—the acquittal[s] or the conviction[s]—‘the jury really meant.’ ” 790 F. 3d, at 47 (quoting Powell, 469 U. S., at 68); see Restatement §29, Comment f, at 295 (“Where a determination relied on as preclusive is itself inconsistent with some other adjudication of the same issue, . . . confidence [in that determination] is generally unwarranted.”). In view of the Government’s inability to obtain review of the acquittals, Powell, 469 U. S., at 68, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. See Standefer, 447 U. S., at 23, n. 17. That petitioners’ bribery convictions were later vacated for trial error does not alter our analysis. The critical inquiry is whether the jury actually decided that Bravo and Martínez did not violate §666. Ashe counsels us to approach that task with “realism and rationality,” 397 U. S., at 444, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” ibid. As the Court of Appeals explained, “the fact [that] the jury . . . convicted [Bravo and Martínez] of violating §666 would seem to be of quite obvious relevance” to this practical inquiry, “even though the convictions were later vacated.” 790 F. 3d, at 50. Because issue preclusion “depends on the jury’s assessment of the facts in light of the charges as presented at trial,” a conviction overturned on appeal is “appropriately considered in our assessment of [an acquittal] verdict’s preclusive effect.” United States v. Citron, 853 F. 2d 1055, 1061 (CA2 1988). Indeed, the jurors in this case might not have acquitted on the Travel Act and conspiracy counts absent their belief that the §666 bribery convictions would stand. See ibid. Bravo and Martínez could not be retried on the bribery counts, of course, if the Court of Appeals had vacated their §666 convictions because there was insufficient evidence to support those convictions. For double jeopardy purposes, a court’s evaluation of the evidence as insufficient to convict is equivalent to an acquittal and therefore bars a second prosecution for the same offense. See Burks v. United States, 437 U. S. 1 –11 (1978); cf. Powell, 469 U. S., at 67 (noting that defendants are “afforded protection against jury irrationality or error by [courts’] independent review of the sufficiency of the evidence”). But this is scarcely a case in which the prosecution “failed to muster” sufficient evidence in the first proceeding. Burks, 437 U. S., at 11. Quite the opposite. The evidence presented at petitioners’ trial, the Court of Appeals determined, supported a guilty verdict on the gratuity theory (which the First Circuit ruled impermissible) as well as the quid pro quo theory (which the First Circuit approved). 790 F. 3d, at 44. Vacatur was compelled for the sole reason that the First Circuit found the jury charge erroneous to the extent that it encompassed gratuities. See supra, at 9–10, and n. 4. Therefore, the general rule of “allowing a new trial to rectify trial error” applied. Burks, 437 U. S., at 14 (emphasis deleted). Nor, as the Government acknowledges, would retrial be tolerable if the trial error could resolve the apparent inconsistency in the jury’s verdicts. See Brief for United States 30 (If, for example, “a jury receives an erroneous instruction on the count of conviction but the correct instruction on the charge on which it acquits, the instructional error may reconcile the verdicts.”). But the instructional error here cannot account for the jury’s contradictory determinations because the error applied equally to every §666-related count. See supra, at 11. As in Powell, so in this case, “[t]he problem is that the same jury reached inconsistent results.” 469 U. S., at 68. The convictions’ later invalidation on an unrelated ground does not erase or reconcile that inconsistency: It does not bear on “the factual determinations actually and necessarily made by the jury,” nor does it “serv[e] to turn the jury’s otherwise inconsistent and irrational verdict into a consistent and rational verdict.” People v. Wilson, 496 Mich. 91, 125, 852 N. W. 2d 134, 151 (2014) (Markman, J., dissenting). Bravo and Martínez, therefore, cannot establish the factual predicate necessary to preclude the Government from retrying them on the standalone §666 charges—namely, that the jury in the first proceeding actually decided that they did not violate the federal bribery statute. B To support their argument for issue preclusion, Bravo and Martínez highlight our decision in Yeager. In Yeager, they point out, we recognized that hung counts “have never been accorded respect as a matter of law or history.” 557 U. S., at 124. That is also true of vacated convictions, they urge, so vacated convictions, like hung counts, should be excluded from the Ashe inquiry into what the jury necessarily determined. Brief for Petitioners 20–24. Asserting that we have “never held an invalid conviction . . . relevant to or evidence of anything,” Tr. of Oral Arg. 5, Bravo and Martínez argue that taking account of a vacated conviction in our issue-preclusion analysis would im-permissibly give effect to “a legal nullity,” Brief for Petitioners 39; see Wilson, 496 Mich., at 107, 852 N. W. 2d, at 142 (majority opinion) (considering a vacated count would impermissibly “bring that legally vacated conviction back to life”). This argument misapprehends the Ashe inquiry. It is undisputed that petitioners’ convictions are invalid judgments that may not be used to establish their guilt. The question is whether issue preclusion stops the Government from prosecuting them anew. On that question, Bravo and Martínez bear the burden of showing that the issue whether they violated §666 has been “determined by a valid and final judgment of acquittal.” Yeager, 557 U. S., at 119 (internal quotation marks omitted). To judge whether they carried that burden, a court must realisti-cally examine the record to identify the ground for the §666-based acquittals. Ashe, 397 U. S., at 444. A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later overturned on appeal for unrelated legal error: The split verdict—finding §666 violated on the standalone counts, but not violated on the related Travel Act and conspiracy counts—tells us that, on one count or the other, “the jury [did] not follo[w] the court’s instructions,” whether because of “mistake, compromise, or lenity.” Powell, 469 U. S., at 65; see supra, at 7. Petitioners’ acquittals therefore do not support the application of issue preclusion here.[7] Further relying on Yeager, Bravo and Martínez contend that their vacated convictions should be ignored because, as with hung counts, “there is no way to decipher” what they represent. Brief for Petitioners 28 (quoting Yeager, 557 U. S., at 121). The §666 convictions are meaningless, they maintain, because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit—payment of a gratuity. Brief for Petitioners 24. This argument trips on Yeager’s reasoning. Yeager did not rest on a court’s inability to detect the basis for a jury’s decision. Rather, this Court reasoned that, when a jury hangs, there is no decision, hence no evidence of irrationality. 557 U. S., at 124–125. A verdict of guilt, by contrast, is a jury decision, even if subsequently vacated on appeal. It therefore can evince irrationality. That is the case here. Petitioners do not dispute that the Government’s evidence at trial supported a guilty verdict on the quid pro quo theory, or that the gratuity instruction held erroneous by the Court of Appeals applied to every §666-based offense. Because no rational jury could have reached conflicting verdicts on those counts, petitioners’ §666 convictions “reveal the jury’s inconsis-tency—which is the relevant issue here—even if they do not reveal which theory of liability jurors relied upon in reaching those inconsistent verdicts.” Brief for United States 31. In other words, because we do not know what the jury would have concluded had there been no instructional error, Brief for Petitioners 28–29, a new trial on the counts of conviction is in order. Bravo and Martínez have succeeded on appeal to that extent, but they are entitled to no more. The split verdict does not impede the Government from renewing the prosecution.[8] The Double Jeopardy Clause, as the First Circuit explained, forever bars the Government from again prosecuting Bravo and Martínez on the §666-based conspiracy and Travel Act offenses; “the acquittals themselves remain inviolate.” 790 F. 3d, at 51, n. 6. Bravo and Martínez have also gained “the benefit of their appellate victory,” ibid.: a second trial on the standalone bribery charges, in which the Government may not invoke a gratuity theory. But issue preclusion is not a doctrine they can commandeer when inconsistent verdicts shroud in mystery what the jury necessarily decided. * * * For the reasons stated, the judgment of the Court of Appeals for the First Circuit is Affirmed.Notes 1 The parties use the expression “collateral estoppel component,” but as this Court has observed, “issue preclusion” is the more descriptive term. Yeager v. United States, 557 U. S. 110 , n. 4 (2009); see Restatement (Second) of Judgments §27, Comment b, pp. 251–252 (1980). 2 Though we earlier recognized that res judicata (which embraces both claim and issue preclusion) applies in criminal as well as civil proceedings, we did not link the issue-preclusion inquiry to the Double Jeopardy Clause. See Sealfon v. United States, 332 U. S. 575, 578 (1948) ; Frank v. Mangum, 237 U. S. 309, 334 (1915) (The principle that “a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be dis-puted between the same parties” applies to “the decisions of criminal courts.”). 3 Petitioners were indicted on several other charges not relevant here. See United States v. Fernandez, 722 F. 3d 1, 7 (CA1 2013). 4 As the First Circuit acknowledged, this holding is contrary to the rulings of “most circuits to have addressed th[e] issue.” Id., at 6. Three other Federal Courts of Appeals have considered the question; each has held that §666 prohibits gratuities as well as quid pro quo bribes. See United States v. Bahel, 662 F. 3d 610, 636 (CA2 2011); United States v. Hawkins, 777 F. 3d 880, 881 (CA7 2015); United States v. Zimmerman, 509 F. 3d 920, 927 (CA8 2007). 5 As just observed, see supra, at 10, petitioners urge that §666 bribery was the sole issue in controversy, and that there was no dispute on other elements of the Travel Act and conspiracy counts. See Tr. of Oral Arg. 4. See also Brief for United States 13 (accepting that the jury “returned irreconcilably inconsistent verdicts”). If another element could explain the acquittals, then there would be no inconsistency and no argument against a new trial on bribery. See infra, at 12–13. 6 Compare United States v. Citron, 853 F. 2d 1055, 1058–1061 (CA2 1988) (holding that retrial does not violate Double Jeopardy Clause under these circumstances); United States v. Price, 750 F. 2d 363, 366 (CA5 1985) (same); Evans v. United States, 987 A. 2d 1138, 1141–1142 (D. C. 2010) (same); and State v. Kelly, 201 N. J. 471, 493–494, 992 A. 2d 776, 789 (2010) (same), with People v. Wilson, 496 Mich. 91, 105–107, 852 N. W. 2d 134, 141–142 (2014) (holding that Double Jeopardy Clause bars retrial in this situation). As the First Circuit explained, “[a]lthough Citron and Price predate Yeager, both the Second and Fifth Circuits decided that vacated counts are relevant to the Ashe analysis at a time when those circuits had already ruled that hung counts should be disregarded for purposes of the Ashe inquiry.” 790 F. 3d 41, 51, n. 7 (2015) (citing United States v. Mespoulede, 597 F. 2d 329, 332, 335–336 (CA2 1979); United States v. Nelson, 599 F. 2d 714, 716–717 (CA5 1979)). The Second Circuit, moreover, has adhered to Citron since Yeager. See United States v. Bruno, 531 Fed. Appx. 47, 49 (2013). 7 Nor is this the first time we have looked to a vacated conviction to ascertain what a jury decided in a prior proceeding. Our holding in Morris v. Mathews, 475 U. S. 237 (1986) , that a conviction vacated on double jeopardy grounds may be “reduced to a conviction for a lesser included offense which is not jeopardy barred,” id., at 246–247, rested on exactly that rationale. See id., at 247 (relying on a jeopardy-barred vacated conviction for aggravated murder to conclude that the jury “necessarily found that the defendant’s conduct satisfie[d] the elements of the lesser included offense” of simple murder). 8 A number of lower courts have reached the same conclusion. See Citron, 853 F. 2d, at 1059 (If the defendant “was convicted of the offense that is the subject of the retrial,” the case is materially different from one with “an acquittal accompanied by a failure to reach a verdict.”); Price, 750 F. 2d, at 366 (a case in which “the jury returned no verdict of conviction” on the compound count, “but only a verdict of acquittal on the substantive count,” is not instructive on whether the Government may retry a defendant after an inconsistent verdict has been vacated); Evans, 987 A. 2d, at 1142 (“Yeager does nothing to undermine” the conclusion that a defendant may be retried after an inconsistent verdict is overturned.); Kelly, 201 N. J., at 494, 992 A. 2d, at 789 (explaining in the context of retrial following vacatur that “Yeager has no application to a case . . . involving an inconsistent verdict of acquittals and convictions returned by the same jury”).

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 BRAVO-FERNANDEZ et al. v. UNITED STATES certiorari to the united states court of appeals for the first circuit No. 15–537. Argued October 4, 2016—Decided November 29, 2016 The issue-preclusion component of the Double Jeopardy Clause bars a second contest of an issue of fact or law raised and necessarily resolved by a prior judgment. Ashe v. Swenson, 397 U. S. 436 . The burden is on the defendant to demonstrate that the issue he seeks to shield from reconsideration was actually decided by a prior jury’s verdict of acquittal. Schiro v. Farley, 510 U. S. 222 . When the same jury returns irreconcilably inconsistent verdicts on the issue in question, a defendant cannot meet that burden. The acquittal, therefore, gains no preclusive effect regarding the count of conviction. United States v. Powell, 469 U. S. 57 –69. Issue preclusion does, however, attend a jury’s verdict of acquittal if the same jury in the same proceeding fails to reach a verdict on a different count turning on the same issue of ultimate fact. Yeager v. United States, 557 U. S. 110 –122. In this case, a jury convicted petitioners Juan Bravo-Fernandez (Bravo) and Hector Martínez-Maldonado (Martínez) of bribery in violation of 18 U. S. C. §666. Simultaneously, the jury acquitted them of conspiring to violate §666 and traveling in interstate commerce to violate §666. Because the only contested issue at trial was whether Bravo and Martínez had violated §666 (the other elements of the acquitted charges—agreement and travel—were undisputed), the jury’s verdicts were irreconcilably inconsistent. Unlike the guilty verdicts in Powell, however, petitioners’ convictions were later vacated on appeal because of error in the judge’s instructions unrelated to the verdicts’ inconsistency. In the First Circuit’s view, §666 proscribes only quid pro quo bribery, yet the charge had permitted the jury to find petitioners guilty on a gratuity theory. On remand, Bravo and Martínez moved for judgments of acquittal on the standalone §666 charges. They argued that the issue-preclusion component of the Double Jeopardy Clause barred the Government from retrying them on those charges because the jury necessarily determined that they were not guilty of violating §666 when it acquitted them of the related conspiracy and Travel Act offenses. The District Court denied the motions, and the First Circuit affirmed, holding that the eventual invalidation of petitioners’ §666 convictions did not undermine Powell’s instruction that issue preclusion does not apply when the same jury returns logically inconsistent verdicts. Held: The issue-preclusion component of the Double Jeopardy Clause does not bar the Government from retrying defendants, like petitioners, after a jury has returned irreconcilably inconsistent verdicts of conviction and acquittal and the convictions are later vacated for legal error unrelated to the inconsistency. . (a) Because petitioners’ trial yielded incompatible jury verdicts, petitioners cannot establish that the jury necessarily resolved in their favor the question whether they violated §666. In view of the Government’s inability to obtain review of the acquittals, Powell, 469 U. S., at 68, the inconsistent jury findings weigh heavily against according those acquittals issue-preclusive effect. The subsequent vacatur of petitioners’ bribery convictions does not alter this analysis. The critical inquiry is whether the jury actually decided that petitioners did not violate §666. Ashe instructs courts to approach that task with “realism and rationality,” 397 U. S., at 444, in particular, to examine the trial record “with an eye to all the circumstances of the proceedings,” ibid. The jury’s verdicts convicting petitioners of violating §666 remain relevant to this practical inquiry, even if the convictions are later vacated on appeal for unrelated trial error. Petitioners could not be retried if the Court of Appeals had vacated their §666 bribery convictions because of insufficient evidence, see Burks v. United States, 437 U. S. 1 –11, or if the trial error could resolve the apparent inconsistency in the jury’s verdicts. But the evidence here was sufficient to convict petitioners on the quid pro quo bribery theory the First Circuit approved. And the instructional error cannot account for the jury’s inconsistent determinations, for the error applied equally to every §666-related count. . (b) Petitioners argue that vacated judgments should be excluded from the Ashe inquiry because vacated convictions, like the hung counts in Yeager, are legal nullities that “have never been accorded respect as a matter of law or history.” Yeager, 557 U. S., at 124. That argument misapprehends the Ashe inquiry. Bravo and Martínez bear the burden of showing that the issue whether they violated §666 has been “determined by a valid and final judgment of acquittal.” 557 U. S., at 119 (internal quotation marks omitted). To judge whether they carried that burden, a court must realistically examine the record to identify the ground for the §666-based acquittals. Ashe, 397 U. S., at 444. A conviction that contradicts those acquittals is plainly relevant to that determination, no less so simply because it is later overturned on appeal for unrelated legal error. See Powell, 469 U. S., at 65. Petitioners further contend that, under Yeager, the §666 convictions are meaningless because the jury was allowed to convict on the basis of conduct not criminal in the First Circuit—payment of a gratuity. But Yeager did not rest on a court’s inability to detect the basis for a decision the jury in fact rendered. Rather, when a jury hangs, there is no decision, hence no inconsistency. 557 U. S., at 124–125. By contrast, a verdict of guilt is a jury decision, even if subsequently vacated, and therefore can evince jury inconsistency. That is the case here. Petitioners gained a second trial on the standalone bribery charges, but they are not entitled to more. Issue preclusion is not a doctrine they can commandeer when inconsistent verdicts shroud in mystery what the jury necessarily decided. . 790 F. 3d 41, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.

A federal grand jury in Puerto Rico indicted petitioners for, inter alia, federal-program bribery, in violation of 18 U.S. C. §666; conspiracy to violate §666 and traveling in interstate commerce to further violations of §666. Following a three-week trial, a jury convicted petitioners of the §666 bribery offense, but acquitted them of the related conspiracy and Travel Act charges. The Court of Appeals vacated the convictions for instructional error, holding that the jury had been erroneously charged on what constitutes criminal conduct under that statute, and that §666 proscribes only quid pro quo and quid quo bribes. On remand, the District Court denied petitioners their motion for acquittal on the hung counts, and the court denied their motions for retrial on the ground that the verdicts could not be retried because it was irreconcilably inconsistent. The court further held that, when the jury acquitted petitioners on the standalone §666 offense, it could not necessarily say that they were violating §666, because the only issue disputed at trial was whether petitioners had offered, and Martínez had accepted, a bribe within the meaning of that statute. Because the same jury had simultaneously convicted them on the unrelated Travel Act and conspiracy charges, the verdict simply was inconsistent. Held: The issue-preclusion component of the Double Jeopardy Clause does not bar retrial in these circumstances. . (a) The doctrine of issue preclusion instructs that a final judgment on the merits foreclos[s] successive litigation of the very same claim. Thus, the doctrine serves to avoid multiple suits on identical entitlements or obligations between the same parties. See, e.g., New Hampshire v. Maine, 532 U. S. 742, 748; see Restatement (Second) of Judgments §19, p. 161; see United States v. Powell, 469 U. S. 57, 68. Although actual inconsistency in a jury verdict is a reality, vacatur of a conviction for unrelated legal error does not reconcile the jury's inconsistent returns. Here, petitioners bear the burden of showing that the issue whether they violated §666 has been determined by a valid and final judgment of acquittal. See, for example, a hung count reveals only a jury's failure to decide, and therefore cannot evidence actual inconsistency with a jury decision. Moreover, the critical inquiry is whether the jury actually decided that petitioners did not violate the statute, since the split verdicts showed that, on one count or the other, the jury did not follo[w] the court's instructions, whether because of mistake, compromise, or lenity. See also Brief for United States 13. Moreover, there is no merit to petitioners' argument that taking account of a vacated conviction in res judicata (which embraces both claim and issue clusion) would give effect to a legal nullity, since a court would be at a loss to know which verdict the jury really meant, and thus bars a second prosecution for the same offense, since such an evaluation is equivalent to an acquittal and therefore bars a retrial, see Burks v. United States, 437 U. s. 1 –11, at 67; see id., at 67. See id., supra, at 66. See ibid., at 70... 790 F. 3d 41, affirmed. WHITE, J., affirmed. REHNQUIST, C.J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p..

2016_16-466

https://www.oyez.org/cases/2016/16-466

. More than 600 plaintiffs, most of whom are not California residents, filed this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. The California Supreme Court held that the California courts have specific jurisdiction to entertain the nonresidents’ claims. We now reverse. I A BMS, a large pharmaceutical company, is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. 1 Cal. 5th 783, 790, 377 P. 3d 874, 879 (2016). Over 50 percent of BMS’s work force in the United States is employed in those two States. Ibid. BMS also engages in business activities in other jurisdictions, including California. Five of the company’s research and laboratory facilities, which employ a total of around 160 employees, are located there. Ibid. BMS also employs about 250 sales representatives in California and maintains a small state-government advocacy office in Sacramento. Ibid. One of the pharmaceuticals that BMS manufactures and sells is Plavix, a prescription drug that thins the blood and inhibits blood clotting. BMS did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California. Ibid. BMS instead engaged in all of these activities in either New York or New Jersey. Ibid. But BMS does sell Plavix in California. Between 2006 and 2012, it sold almost 187 million Plavix pills in the State and took in more than $900 million from those sales. 1 Cal. 5th, at 790–791, 377 P. 3d, at 879. This amounts to a little over one percent of the company’s nationwide sales revenue. Id., at 790, 377 P. 3d, at 879. B A group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States—filed eight separate complaints in California Superior Court, alleging that Plavix had damaged their health. Id., at 789, 377 P. 3d, at 878. All the complaints asserted 13 claims under California law, including products liability, negligent misrepresentation, and misleading advertising claims. Ibid. The nonresident plaintiffs did not allege that they obtained Plavix through California physicians or from any other California source; nor did they claim that they were injured by Plavix or were treated for their injuries in California. Asserting lack of personal jurisdiction, BMS moved to quash service of summons on the nonresidents’ claims, but the California Superior Court denied this motion, finding that the California courts had general jurisdiction over BMS “[b]ecause [it] engages in extensive activities in California.” App. to Pet. for Cert. 150. BMS unsuccess-fully petitioned the State Court of Appeal for a writ of mandate, but after our decision on general jurisdiction in Daimler AG v. Bauman, 571 U. S. ___ (2014), the California Supreme Court instructed the Court of Appeal “to vacate its order denying mandate and to issue an order to show cause why relief sought in the petition should not be granted.” App. 9–10. The Court of Appeal then changed its decision on the question of general jurisdiction. 228 Cal. App. 4th 605, 175 Cal. Rptr. 3d 412 (2014). Under Daimler, it held, general jurisdiction was clearly lacking, but it went on to find that the California courts had specific jurisdiction over the nonresidents’ claims against BMS. 228 Cal. App. 4th 605, 175 Cal. Rptr. 3d, at 425–439. The California Supreme Court affirmed. The court unanimously agreed with the Court of Appeal on the issue of general jurisdiction, but the court was divided on the question of specific jurisdiction. The majority applied a “sliding scale approach to specific jurisdiction.” 1 Cal. 5th, at 806, 377 P. 3d, at 889. Under this approach, “the more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.” Ibid. (internal quotation marks omitted). Applying this test, the majority concluded that “BMS’s extensive contacts with California” permitted the exercise of specific jurisdiction “based on a less direct connection between BMS’s forum activities and plaintiffs’ claims than might otherwise be required.” Ibid. This attenuated requirement was met, the majority found, because the claims of the nonresidents were similar in several ways to the claims of the California residents (as to which specific jurisdiction was uncontested). Id., at 803–806, 377 P. 3d, at 887–889. The court noted that “[b]oth the resident and nonresident plaintiffs’ claims are based on the same allegedly defective product and the assertedly misleading marketing and promotion of that product.” Id., at 804, 377 P. 3d, at 888. And while acknowledging that “there is no claim that Plavix itself was designed and developed in [BMS’s California research facilities],” the court thought it significant that other research was done in the State. Ibid. Three justices dissented. “The claims of . . . nonresidents injured by their use of Plavix they purchased and used in other states,” they wrote, “in no sense arise from BMS’s marketing and sales of Plavix in California,” and they found that the “mere similarity” of the residents’ and nonresidents’ claims was not enough. Id., at 819, 377 P. 3d, at 898 (opinion of Werdegar, J.). The dissent accused the majority of “expand[ing] specific jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction.” Id., at 816, 377 P. 3d, at 896. We granted certiorari to decide whether the California courts’ exercise of jurisdiction in this case violates the Due Process Clause of the Fourteenth Amendment. 580 U. S. ___ (2017).[1] II A It has long been established that the Fourteenth Amendment limits the personal jurisdiction of state courts. See, e.g., Daimler, supra, at ___–___ (slip op., at 6–13); World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291 (1980) ; International Shoe Co. v. Washington, 326 U. S. 310 –317 (1945); Pennoyer v. Neff, 95 U. S. 714, 733 (1878). Because “[a] state court’s assertion of jurisdiction exposes defendants to the State’s coercive power,” it is “subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause,” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915, 918 (2011) , which “limits the power of a state court to render a valid personal judgment against a nonresident defendant,” World-Wide Volkswagen, supra, at 291. The primary focus of our personal jurisdiction inquiry is the defendant’s relationship to the forum State. See Walden v. Fiore, 571 U. S. ___, ___–___ (2014) (slip op., at 5–8); Phillips Petroleum Co. v. Shutts, 472 U. S. 797 –807 (1985). Since our seminal decision in International Shoe, our decisions have recognized two types of personal jurisdiction: “general” (sometimes called “all-purpose”) jurisdiction and “specific” (sometimes called “case-linked”) jurisdiction. Goodyear, 564 U. S., at 919. “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” Id., at 924. A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State. Id., at 919. But “only a limited set of affiliations with a forum will render a defendant amenable to” general jurisdiction in that State. Daimler, 571 U. S., at ___ (slip op., at 18). Specific jurisdiction is very different. In order for a state court to exercise specific jurisdiction, “the suit” must “aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Id., at ___ (slip op., at 8) (internal quotation marks omitted; emphasis added); see Burger King Corp. v. Rudzewicz, 471 U. S. 462 –473 (1985); Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414 (1984) . In other words, there must be “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Goodyear, 564 U. S., at 919 (internal quotation marks and brackets omitted). For this reason, “specific jurisdiction is confined to adjudication of issues deriv-ing from, or connected with, the very controversy that establishes jurisdiction.” Ibid. (internal quotation marks omitted). B In determining whether personal jurisdiction is present, a court must consider a variety of interests. These include “the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice.” Kulko v. Superior Court of Cal., City and County of San Francisco, 436 U. S. 84, 92 (1978) ; see Daimler, supra, at ___–___, n. 20 (slip op., at 21–22, n. 20); Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102, 113 (1987) ; World-Wide Volkswagen, 444 U. S., at 292. But the “primary concern” is “the burden on the defendant.” Id., at 292. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. As we have put it, restrictions on personal jurisdiction “are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States.” Hanson v. Denckla, 357 U. S. 235, 251 (1958) . “[T]he States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State . . . implie[s] a limitation on the sovereignty of all its sister States.” World-Wide Volkswagen, 444 U. S., at 293. And at times, this federalism interest may be decisive. As we explained in World-Wide Volkswagen, “[e]ven if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” Id., at 294. III A Our settled principles regarding specific jurisdiction control this case. In order for a court to exercise specific jurisdiction over a claim, there must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Goodyear, 564 U. S., at 919 (internal quotation marks and brackets in original omitted). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. See id., at 931, n. 6 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales”). For this reason, the California Supreme Court’s “sliding scale approach” is difficult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For spe-cific jurisdiction, a defendant’s general connections with the forum are not enough. As we have said, “[a] corporation’s ‘continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.’ ” Id., at 927 (quoting International Shoe, 326 U. S., at 318). The present case illustrates the danger of the California approach. The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims. As we have explained, “a defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.” Walden, 571 U. S., at ___ (slip op., at 8). This remains true even when third parties (here, the plaintiffs who reside in California) can bring claims similar to those brought by the nonresidents. Nor is it sufficient—or even relevant—that BMS conducted research in California on matters unrelated to Plavix. What is needed—and what is missing here—is a connection between the forum and the specific claims at issue. Our decision in Walden, supra, illustrates this requirement. In that case, Nevada plaintiffs sued an out-of-state defendant for conducting an allegedly unlawful search of the plaintiffs while they were in Georgia preparing to board a plane bound for Nevada. We held that the Nevada courts lacked specific jurisdiction even though the plaintiffs were Nevada residents and “suffered foreseeable harm in Nevada.” Id., at ___ (slip op., at 11). Because the “relevant conduct occurred entirely in Georgi[a] . . . the mere fact that [this] conduct affected plaintiffs with connections to the forum State d[id] not suffice to authorize jurisdiction.” Id., at ___ (slip op., at 14) (emphasis added). In today’s case, the connection between the nonresidents’ claims and the forum is even weaker. The relevant plaintiffs are not California residents and do not claim to have suffered harm in that State. In addition, as in Walden, all the conduct giving rise to the nonresidents’ claims occurred elsewhere. It follows that the California courts cannot claim specific jurisdiction. See World-Wide Volkswagen, supra, at 295 (finding no personal jurisdiction in Oklahoma because the defendant “carr[ied] on no activ-ity whatsoever in Oklahoma” and dismissing “the fortuitous circumstance that a single Audi automobile, sold [by defendants] in New York to New York residents, happened to suffer an accident while passing through Oklahoma” as an “isolated occurrence”). B The nonresidents maintain that two of our cases sup-port the decision below, but they misinterpret those precedents. In Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984) , a New York resident sued Hustler in New Hampshire, claiming that she had been libeled in five issues of the magazine, which was distributed throughout the country, including in New Hampshire, where it sold 10,000 to 15,000 copies per month. Concluding that specific jurisdiction was present, we relied principally on the connection between the circulation of the magazine in New Hampshire and damage allegedly caused within the State. We noted that “[f]alse statements of fact harm both the subject of the falsehood and the readers of the statement.” Id., at 776 (emphasis deleted). This factor amply distinguishes Keeton from the present case, for here the nonresidents’ claims involve no harm in California and no harm to California residents. The nonresident plaintiffs in this case point to our holding in Keeton that there was jurisdiction in New Hampshire to entertain the plaintiff’s request for damages suffered outside the State, id., at 774, but that holding concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as in this case, jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State. Keeton held that there was jurisdiction in New Hampshire to consider the full measure of the plaintiff’s claim, but whether she could actually recover out-of-state damages was a merits question governed by New Hampshire libel law. Id., at 778, n. 9. The Court’s decision in Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985) , which involved a class action filed in Kansas, is even less relevant. The Kansas court exercised personal jurisdiction over the claims of nonresident class members, and the defendant, Phillips Petroleum, argued that this violated the due process rights of these class members because they lacked minimum contacts with the State.[2] According to the defendant, the out-of-state class members should not have been kept in the case unless they affirmatively opted in, instead of merely failing to opt out after receiving notice. Id., at 812. Holding that there had been no due process violation, the Court explained that the authority of a State to entertain the claims of nonresident class members is entirely different from its authority to exercise jurisdiction over an out-of-state defendant. Id., at 808–812. Since Shutts concerned the due process rights of plaintiffs, it has no bearing on the question presented here. Respondents nevertheless contend that Shutts supports their position because, in their words, it would be “absurd to believe that [this Court] would have reached the exact opposite result if the petitioner [Phillips] had only invoked its own due-process rights, rather than those of the non-resident plaintiffs.” Brief for Respondents 28–29, n. 6 (emphasis deleted). But the fact remains that Phillips did not assert that Kansas improperly exercised personal jurisdiction over it, and the Court did not address that issue.[3] Indeed, the Court stated specifically that its “discussion of personal jurisdiction [did not] address class actions where the jurisdiction is asserted against a defendant class.” Shutts, supra, at 812, n. 3. C In a last ditch contention, respondents contend that BMS’s “decision to contract with a California company [McKesson] to distribute [Plavix] nationally” provides a sufficient basis for personal jurisdiction. Tr. of Oral Arg. 32. But as we have explained, “[t]he requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction.” Rush v. Savchuk, 444 U. S. 320, 332 (1980) ; see Walden, 571 U. S., at ___ (slip op, at 8) (“[A] defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction”). In this case, it is not alleged that BMS engaged in relevant acts together with McKesson in California. Nor is it alleged that BMS is derivatively liable for McKesson’s conduct in California. And the nonresidents “have adduced no evidence to show how or by whom the Plavix they took was distributed to the pharmacies that dispensed it to them.” 1 Cal. 5th, at 815, 377 P. 3d, at 895 (Werdegar, J., dissenting) (emphasis deleted). See Tr. of Oral Arg. 33 (“It is impossible to trace a particular pill to a particular person . . . . It’s not possible for us to track particularly to McKesson”). The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State. IV Our straightforward application in this case of settled principles of personal jurisdiction will not result in the parade of horribles that respondents conjure up. See Brief for Respondents 38–47. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. BMS concedes that such suits could be brought in either New York or Delaware. See Brief for Petitioner 13. Alternatively, the plaintiffs who are residents of a particular State—for example, the 92 plaintiffs from Texas and the 71 from Ohio—could probably sue together in their home States. In addition, since our decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97 , n. 5 (1987). * * * The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 California law provides that its courts may exercise jurisdiction “on any basis not inconsistent with the Constitution . . . of the United States,” Cal. Civ. Proc. Code Ann. §410.10 (West 2004); see Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 6). 2 The Court held that the defendant had standing to argue that the Kansas court had improperly exercised personal jurisdiction over the claims of the out-of-state class members because that holding materially affected the defendant’s own interests, specifically, the res judicata effect of an adverse judgment. 472 U. S., at 803–806. 3 Petitioner speculates that Phillips did not invoke its own due process rights because it was believed at the time that the Kansas court had general jurisdiction. See Reply Brief 7, n. 1.

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 BRISTOL-MYERS SQUIBB CO. v. SUPERIOR COURT OF CALIFORNIA, SAN FRANCISCO COUNTY, et al. certiorari to the supreme court of california No. 16–466. Argued April 25, 2017—Decided June 19, 2017 A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. Held: California courts lack specific jurisdiction to entertain the nonresidents’ claims. . (a) The personal jurisdiction of state courts is “subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause.” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. 915 . This Court’s decisions have recognized two types of personal jurisdiction: general and specific. For general jurisdiction, the “paradigm forum” is an “individual’s domicile,” or, for corporations, “an equivalent place, one in which the corporation is fairly regarded as at home.” Id., at 924. Specific jurisdiction, however, requires “the suit” to “aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Daimler, supra, at ___ (internal quotation marks omitted). The “primary concern” in assessing personal jurisdiction is “the burden on the defendant.” World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 . Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. At times, “the Due Process Clause, acting as an instrument of interstate federalism, may . . . divest the State of its power to render a valid judgment.” Id., at 294. . (b) Settled principles of specific jurisdiction control this case. For a court to exercise specific jurisdiction over a claim there must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Goodyear, supra, at 919 (internal quotation marks and brackets omitted). When no such connection exists, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. The California Supreme Court’s “sliding scale approach”—which resembles a loose and spurious form of general jurisdiction—is thus difficult to square with this Court’s precedents. That court found specific jurisdiction without identifying any adequate link between the State and the nonresidents’ claims. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California does not allow the State to assert specific jurisdiction over the nonresidents’ claims. Nor is it sufficient (or relevant) that BMS conducted research in California on matters unrelated to Plavix. What is needed is a connection between the forum and the specific claims at issue. Cf. Walden v. Fiore, 571 U. S. ___. . (c) The nonresident plaintiffs’ reliance on Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , and Phillips Petroleum Co. v. Shutts, 472 U. S. 797 , is misplaced. Keeton concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as here, jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State. And Shutts, which concerned the due process rights of plaintiffs, has no bearing on the question presented here. . (d) BMS’s decision to contract with McKesson, a California company, to distribute Plavix nationally does not provide a sufficient basis for personal jurisdiction. It is not alleged that BMS engaged in relevant acts together with McKesson in California or that BMS is derivatively liable for McKesson’s conduct in California. The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State. . (e) The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. P. 12. 1 Cal. 5th 783, 377 P. 3d 874, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion.

A large pharmaceutical company (BMS) is incorporated in Delaware and headquartered in New York, and maintains substantial operations in both New York and New Jersey. One of the drugs that BMS manufactures and sells is Plavix, a prescription drug that thins the blood and inhibits blood clotting. BMS did not develop or manufacture the drug in California, did not create a marketing strategy for the drug there, and did not manufacture, label, package, or work on the regulatory approval of the product in California. BMS instead engaged in all of these activities in either New York or New Jersey, but it does sell Plovix in California and took in more than $900 million in sales in that State between 2006 and 2012. A group of plaintiffs (consisting of 86 California residents and 592 residents from 33 other States) filed eight separate complaints in California Superior Court, alleging that PlavIX had damaged their health. All the complaints asserted claims under California law, including products liability, negligent misrepresentation, and misleading advertising claims. The nonresident plaintiffs did not allege that they obtained the drug through California physicians or from any other California source, nor did they claim that they were injured by Plavox or were treated for their injuries in California; the Superior Court denied BMS' motion to quash service of summons on the nonresidents' claims, but the court held that the California courts had general jurisdiction over BMS, and the California Supreme Court affirmed. Held: The California courts' exercise of jurisdiction in this case violates the Due Process Clause of the Fourteenth Amendment. . (a) The primary focus of this inquiry is the defendant's relationship to the forum State. When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State. Here, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Pp. 471 U. S. ___. (b) There is no support for the California approach, which resembles a loose and spurious form of general jurisdiction. It is not sufficient for spe-cific jurisdiction, which may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State, but only a limited set of affiliations with a forum will render a defendant amenable to the demand that the defendant be amenable to suits unrelated to that activity. In this case, it is insufficient to link the plaintiffs to California without identifying the California State of origin. Nor is it sufficient to make use of BMS research in California on matters unrelated to the drug, since the relevant plaintiffs are not California residents, and do not claim to have suffered harm there. Furthermore, all the conduct giving rise to these claims occurred elsewhere. Thus, California courts cannot claim specific jurisdiction, and thus are barred from exercising jurisdiction.. 228 Cal. App. 4th 605, 175 Cal. Rptr. 3d 412, reversed and remanded. Certiorari was granted to decide whether the California and out-of-state plaintiffs should join together in a consolidated action in the States that have general jurisdiction of the BMS drug, and whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. See Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., n. 5. P.. (c) The Court of Appeals erred in holding that the plaintiff had standing to argue that the Kansas court had improperly exercised personal jurisdiction over the claims of the nonresident class members because that holding materially affected the defendant in his own interests, specifically, the res judicata effect of an adverse judgment. However, since this decision concerns the due process limits on a State court exercise of specific jurisdiction by it, it leaves open the question whether, under Omni Capital int’l, (d) Although the California judgment does not prevent the California plaintiffs from joining together in consolidated actions in other States, BMS concedes that such suits could be brought in those States. Alternatively, the plaintiffs who are residents of a particular State may sue together in their home States. See Brief for Petitioner 13, or alternatively, the other plaintiffs in the case might sue in their own State. See, e.g., Brief for respondent 8, at 812, n. 3. Although the court did not address the issue of Kansas improperly exercising personal jurisdiction, the fact remains that it did not assert that Kansas improperly exercised such jurisdiction, nor was it addressed that issue. Moreover, the court stated specifically that itsdiscussion of personal jurisdiction did not address class actions where the jurisdiction is asserted against a defendant class. What is needed (and what is missing here) is a connection between BMS and the forum. Cf. Walden v. Hustler Magazine, Inc.,

2016_15-8049

https://www.oyez.org/cases/2016/15-8049

.A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it. In 2006, a Federal District Court relied on that failure—properly, under then-governing law—to hold that Buck’s claim was procedurally defaulted and unreviewable.In 2014, Buck sought to reopen that 2006 judgment by filing a motion under Federal Rule of Civil Procedure 60(b)(6). He argued that this Court’s decisions in Martinez v. Ryan,566 U. S. 1 (2012), and Trevino v. Thaler, 569 U. S. ___ (2013), had changed the law in a way that provided an excuse for his procedural default, permitting him to litigate his claim on the merits. In addition to this change in the law, Buck’s motion identified ten other factors that, he said, constituted the “extraordinary circumstances” required to justify reopening the 2006 judgment under the Rule. See Gonzalez v. Crosby,545 U. S. 524,535 (2005).The District Court below denied the motion, and the Fifth Circuit declined to issue the certificate of appealability (COA) requested by Buck to appeal that decision. We granted certiorari, and now reverse.IAOn the morning of July 30, 1995, Duane Buck arrived at the home of his former girlfriend, Debra Gardner. He was carrying a rifle and a shotgun. Buck entered the home, shot Phyllis Taylor, his stepsister, and then shot Gardner’s friend Kenneth Butler. Gardner fled the house, and Buck followed. So did Gardner’s young children. While Gardner’s son and daughter begged for their mother’s life, Buck shot Gardner in the chest. Gardner and Butler died of their wounds. Taylor survived.Police officers arrived soon after the shooting and placed Buck under arrest. An officer would later testify that Buck was laughing at the scene. He remained “happy” and “upbeat” as he was driven to the police station, “[s]miling and laughing” in the back of the patrol car. App. 134a–135a, 252a.Buck was tried for capital murder, and the jury convicted. During the penalty phase of the trial, the jury was charged with deciding two issues. The first was what the parties term the “future dangerousness” question. At the time of Buck’s trial, a Texas jury could impose the death penalty only if it found—unanimously and beyond a reasonable doubt—“a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Proc. Ann., Art. 37.071, §2(b)(1) (Vernon 1998). The second issue, to be reached only if the jury found Buck likely to be a future danger, was whether mitigating circumstances nevertheless warranted a sentence of life imprisonment instead of death. See §2(e).The parties focused principally on the first question. The State called witnesses who emphasized the brutality of Buck’s crime and his evident lack of remorse in its aftermath. The State also called another former girlfriend, Vivian Jackson. She testified that, during their relationship, Buck had routinely hit her and had twice pointed a gun at her. Finally, the State introduced evidence of Buck’s criminal history, including convictions for delivery of cocaine and unlawfully carrying a weapon. App. 125a–127a, 185a.Defense counsel answered with a series of lay witnesses, including Buck’s father and stepmother, who testified that they had never known him to be violent. Counsel also called two psychologists to testify as experts. The first, Dr. Patrick Lawrence, observed that Buck had previously served time in prison and had been held in minimum custody. From this he concluded that Buck “did not present any problems in the prison setting.” Record in No. 4:04–cv–03965 (SD Tex.), Doc. 5–116, pp. 12–13. Dr. Lawrence further testified that murders within the Texas penal system tend to be gang related (there was no evidence Buck had ever been a member of a gang) and that Buck’s offense had been a “crime of passion” occurring within the context of a romantic relationship. Id., at 4, 19, 21. Based on these considerations, Dr. Lawrence determined that Buck was unlikely to be a danger if he were sentenced to life in prison. Id., at 20–21.Buck’s second expert, Dr. Walter Quijano, had been appointed by the presiding judge to conduct a psychological evaluation. Dr. Quijano had met with Buck in prison prior to trial and shared a report of his findings with defense counsel.Like Dr. Lawrence, Dr. Quijano thought it significant that Buck’s prior acts of violence had arisen from romantic relationships with women; Buck, of course, would not form any such relationships while incarcerated. And Dr. Quijano likewise considered Buck’s behavioral record in prison a good indicator that future violence was unlikely. App. 36a, 39a–40a.But there was more to the report. In determining whether Buck was likely to pose a danger in the future, Dr. Quijano considered seven “statistical factors.” The fourth factor was “race.” His report read, in relevant part: “4. Race. Black: Increased probability. There is an over-representation of Blacks among the violent offenders.” Id., at 19a.Despite knowing Dr. Quijano’s view that Buck’s race was competent evidence of an increased probability of future violence, defense counsel called Dr. Quijano to the stand and asked him to discuss the “statistical factors” he had “looked at in regard to this case.” Id., at 145a–146a. Dr. Quijano responded that certain factors were “know[n] to predict future dangerousness” and, consistent with his report, identified race as one of them. Id., at 146a. “It’s a sad commentary,” he testified, “that minorities, Hispanics and black people, are over represented in the Criminal Justice System.” Ibid. Through further questioning, counsel elicited testimony concerning factors Dr. Quijano thought favorable to Buck, as well as his ultimate opinion that Buck was unlikely to pose a danger in the future. At the close of Dr. Quijano’s testimony, his report was admitted into evidence. Id., at 150a–152a.After opening cross-examination with a series of general questions, the prosecutor likewise turned to the report. She asked first about the statistical factors of past crimes and age, then questioned Dr. Quijano about the roles of sex and race: “You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” Id., at 170a. Dr. Quijano replied, “Yes.” Ibid.During closing arguments, defense counsel emphasized that Buck had proved to be “controllable in the prison population,” and that his crime was one of “jealousy, . . . passion and emotion” unlikely to be repeated in jail. Id., at 189a–191a. The State stressed the crime’s brutal nature and Buck’s lack of remorse, along with the inability of Buck’s own experts to guarantee that he would not act violently in the future—a point it supported by reference to Dr. Quijano’s testimony. See id., at 198a–199a (“You heard from Dr. Quijano, . . . who told you that . . . the probability did exist that [Buck] would be a continuing threat to society.”).The jury deliberated over the course of two days. During that time it sent out four notes, one of which requested the “psychology reports” that had been admitted into evidence. Id., at 209a. These reports—including Dr. Quijano’s—were provided. The jury returned a sentence of death.BBuck’s conviction and sentence were affirmed on direct appeal. Buck v. State, No. 72,810 (Tex. Crim. App., Apr. 28, 1999). His case then entered a labyrinth of state and federal collateral review, where it has wandered for the better part of two decades.Buck filed his first petition for a writ of habeas corpus in Texas state court in 1999. The four claims advanced in his petition, however, were all frivolous or noncognizable. See Ex parte Buck, No. 699684–A (Dist. Ct. Harris Cty., Tex., July 11, 2003), pp. 6–7. The petition failed to mention defense counsel’s introduction of expert testimony that Buck’s race increased his propensity for violence.But Dr. Quijano had testified in other cases, too, and in 1999, while Buck’s first habeas petition was pending, one of those cases reached this Court. The petitioner, Victor Hugo Saldano, argued that his death sentence had been tainted by Dr. Quijano’s testimony that Saldano’s Hispanic heritage “was a factor weighing in the favor of future dangerousness.” App. 302a. Texas confessed error on that ground and asked this Court to grant Saldano’s petition for certiorari, vacate the state court judgment, and remand the case. In June 2000, the Court did so. Saldano v. Texas,530 U. S. 1212.Within days, the Texas Attorney General, John Cornyn, issued a public statement concerning the cases in which Dr. Quijano had testified. The statement affirmed that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.” App. 213a. In keeping with that principle, the Attorney General explained that his office had conducted a “thorough audit” and “identified eight more cases in which testimony was offered by Dr. Quijano that race should be a factor for the jury to consider in making its determination about the sentence in a capital murder trial.” Ibid. Six of those cases were “similar to that of Victor Hugo Saldano”; in those cases, letters had been sent to counsel apprising them of the Attorney General’s findings. Id., at 213a–214a. The statement closed by identifying the defendants in those six cases. Buck was one of them. Id., at 215a–217a. By the close of 2002, the Attorney General had confessed error, waived any avail-able procedural defenses, and consented to resentencing in the cases of five of those six defendants. See Alba v. Johnson, 232 F. 3d 208 (CA5 2000) (Table); Memorandum and Order in Blue v. Johnson, No. 4:99–cv–00350 (SD Tex.), pp. 15–17; Order in Garcia v. Johnson, No. 1:99–cv–00134 (ED Tex.), p. 1; Order in Broxton v. Johnson, No. 4:00–cv–01034 (SD Tex.), pp. 10–11; Final Judgment in Gonzales v. Cockrell, No. 7:99–cv–00072 (WD Tex.), p. 1.Not, however, in Buck’s. In 2002, Buck’s attorney filed a new state habeas petition alleging that trial counsel had rendered ineffective assistance by introducing Dr. Quijano’s testimony. The State was not represented by the Attorney General in this proceeding—the Texas Attorney General represents state respondents in federal habeas cases, but not state habeas cases—and it did not confess error. Because Buck’s petition was successive, the Texas Court of Criminal Appeals dismissed it as an abuse of the writ. Ex parte Buck, Nos. 57,004–01, 57,004–02 (Tex. Crim. App., Oct. 15, 2003) ( per curiam).Buck turned to the federal courts. He filed a petition for habeas corpus under28 U. S. C. §2254 in October 2004, by which time Attorney General Cornyn had left office. See Buck v. Dretke, 2006 WL 8411481, *2 (SD Tex., July 24, 2006). Buck sought relief on the ground that trial counsel’s introduction of Dr. Quijano’s testimony was constitutionally ineffective. The State responded that the state court had dismissed Buck’s ineffective assistance claim because Buck had failed to press it in his first petition, raising it for the first time in a procedurally improper second petition. The State argued that such reliance on an established state rule of procedure was an adequate and independent state ground precluding federal review. Texas acknowledged that it had waived similar procedural defenses in Saldano’s case. But it argued that Buck’s case was different because “[i]n Saldano’s case Dr. Quijano testified for the State”; in Buck’s, “it was Buck who called Dr. Quijano to testify.” Answer and Motion for Summary Judgment in No. 4:04–cv–03965 (SD Tex.), p. 20.Buck countered that, notwithstanding his procedural default, the District Court should reach the merits of his claim because a failure to do so would result in a miscarriage of justice. Buck did not argue that his default should be excused on a showing of “cause” and “prejudice”—that is, cause for the default, and prejudice from the denial of a federal right. And for good reason: At the time Buck filed his §2254 petition, our decision in Coleman v. Thompson,501 U. S. 722–753 (1991), made clear that an attorney’s failure to raise an ineffective assistance claim during state postconviction review could not constitute cause. The District Court rejected Buck’s miscarriage of justice argument and held that, because of his procedural default, his ineffective assistance claim was unreviewable. Buck v. Dretke, 2006 WL 8411481, at *8. Buck unsuccessfully sought review of the District Court’s ruling. See Buck v. Thaler, 345 Fed. Appx. 923 (CA5 2009) ( per curiam) (denying application for a COA), cert. denied,559 U. S. 1072 (2010).In 2011, Buck sought to reopen his case, arguing that the prosecution had violated the Equal Protection and Due Process Clauses by asking Dr. Quijano about the relationship between race and future violence on cross-examination and referring to his testimony during summation. Buck also argued that the State’s decision to treat him differently from the other defendants affected by Dr. Quijano’s testimony justified relieving him of the District Court’s adverse judgment. The Fifth Circuit disagreed, see Buck v. Thaler, 452 Fed. Appx. 423, 427–428 (CA5 2011) ( per curiam), and we denied certiorari, Buck v. Thaler,565 U. S. 1022 (2011). Buck, still barred by Coleman from avoiding the consequences of his procedural default, did not pursue his ineffective assistance claim.CIn 2012, this Court “modif[ied] the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Martinez, 566 U. S., at 9. We held that when a state formally limits the adjudication of claims of ineffective assistance of trial counsel to collateral review, a prisoner may establish cause for procedural default if (1) “the state courts did not appoint counsel in the initial-review collateral proceeding,” or “appointed counsel in [that] proceeding . . . was ineffective under the standards of Strickland v. Washington,466 U. S. 668 (1984)”; and (2) “the underlying . . . claim is a substantial one, which is to say that . . . the claim has some merit.” Id., at 14.By its terms, Martinez did not bear on Buck’s ineffective assistance claim. At the time of Buck’s conviction and appeal, Texas did not formally require criminal defendants to reserve such claims for collateral review. In Tre-vino, however, the Court concluded that the exception an-nounced in Martinez extended to state systems that, as a practical matter, deny criminal defendants “a meaningful opportunity” to press ineffective assistance claims on direct appeal. 569 U. S., at ___ (slip op., at 13). The Court further concluded that the system in Texas, where petitioner had been convicted, was such a system. Ibid. The upshot: Had Martinez and Trevino been decided before Buck filed his §2254 petition, a federal court could have reviewed Buck’s ineffective assistance claim if he demonstrated that (1) state postconviction counsel had been constitutionally ineffective in failing to raise it, and (2) the claim had “some merit.” Martinez, 566 U. S., at 14.DWhen Trevino was decided, Buck’s third state habeas petition was pending in Texas court. That petition was denied in November 2013. Ex parte Buck, 418 S. W. 3d 98 (Tex. Crim. App. 2013) ( per curiam). Two months later, Buck returned to federal court, where he filed a motion to reopen his §2254 case under Federal Rule of Civil Procedure 60(b)(6). Rule 60(b) enumerates specific circumstances in which a party may be relieved of the effect of a judgment, such as mistake, newly discovered evidence, fraud, and the like. The Rule concludes with a catchall category—subdivision (b)(6)—providing that a court may lift a judgment for “any other reason that justifies relief.” Relief is available under subdivision (b)(6), however, only in “extraordinary circumstances,” and the Court has explained that “[s]uch circumstances will rarely occur in the habeas context.” Gonzalez, 545 U. S., at 535.In his motion, Buck identified 11 factors that, in his view, justified reopening the judgment. These included his attorney’s introduction of expert testimony linking Buck’s race to violence, the central issue at sentencing; the prosecution’s questions about race and violence on cross-examination and reliance on Dr. Quijano’s testimony in summation; the State’s confession of error in other cases in which Dr. Quijano testified, but its refusal to concede error in Buck’s case; and the change in law effected by Martinez and Trevino, which, if they had been decided earlier, would have permitted federal review of Buck’s defaulted claim. App. 283a–285a.The District Court denied relief on two grounds. First, the court concluded that Buck had failed to demonstrate extraordinary circumstances. To that end, the court observed that a change in decisional law is rarely extraordinary by itself. Buck v. Stephens, 2014 WL 11310152, *4 (SD Tex., Aug. 29, 2014). It further determined that the State’s “promise” not to oppose resentencing did not count for much, reasoning that “Buck’s case is different in critical respects from the cases in which Texas confessed error” in that Buck’s lawyer, not the prosecutor, had first elicited the objectionable testimony. Id., at *4–*5. The court also dismissed the contention that the nature of Dr. Quijano’s testimony argued for reopening the case. Although “the introduction of any mention of race was,” in the court’s view, “ill[ ]advised at best and repugnant at worst,” it was also “de minimis”: Dr. Quijano had discussed the connection between race and violence only twice. Id., at *5. The court accordingly concluded that Buck had failed to make out the predicate for Rule 60(b)(6) relief.Second, the court determined that—even if the circumstances were extraordinary—Buck’s claim would fail on the merits. The court noted that under Strickland, Buck was obliged to show that counsel’s performance was both deficient and prejudicial. The court held that Buck’s lawyer had indeed performed deficiently in calling Dr. Quijano to give testimony that “len[t] credence to any potential latent racial prejudice held by the jury.” 2014 WL 11310152, at *6. But, the court concluded, Buck had failed to demonstrate prejudice. It observed that Buck’s crime had been “horrific.” Ibid. And the court had already concluded that “the introduction of any mention of race was . . . de minimis.” Id., at *5. For those reasons, it held, Buck had failed to show a reasonable probability that he would not have been sentenced to death but for Dr. Quijano’s testimony about race and violence.Buck sought to appeal the denial of his Rule 60(b)(6) motion. He accordingly filed an application for a COA with the Fifth Circuit. To obtain a COA, Buck was required to make “a substantial showing of the denial of a constitutional right.”[1]*28 U. S. C. §2253(c)(2).The Fifth Circuit denied a COA, concluding that Buck’s case was “not extraordinary at all in the habeas context.” Buck v. Stephens, 623 Fed. Appx. 668, 673 (2015). The panel agreed with the District Court that Martinez and Trevino were not significant factors in the analysis. It characterized most of the other factors Buck had identified as “variations on the merits” of his claim, which was “at least unremarkable as far as [ineffective assistance] claims go.” 623 Fed. Appx., at 673. The panel likewise rejected Buck’s argument that he was entitled to relief because the State had issued a press release indicating that his case would be treated like Saldano’s, and then had confessed error in the other cases identified as similar in the statement, but not in Buck’s. Id., at 674. Because Buck had “not shown extraordinary circumstances that would permit relief under Federal Rule of Civil Procedure 60(b)(6),” the panel “den[ied] the application for a COA.” Id., at 669.Buck’s motion for rehearing en banc was denied over two dissenting votes. Buck v. Stephens, 630 Fed. Appx. 251 (CA5 2015) ( per curiam). We granted certiorari. Buck v. Stephens, 578 U. S. ___ (2016).IIA state prisoner whose petition for a writ of habeas corpus is denied by a federal district court does not enjoy an absolute right to appeal. Federal law requires that he first obtain a COA from a circuit justice or judge.28 U. S. C. §2253(c)(1). A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” §2253(c)(2). Until the prisoner secures a COA, the Court of Appeals may not rule on the merits of his case. Miller-El v. Cockrell,537 U. S. 322 (2003).The COA inquiry, we have emphasized, is not coextensive with a merits analysis. At the COA stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id., at 327. This threshold question should be decided without “full consideration of the factual or legal bases adduced in support of the claims.” Id., at 336. “When a court of appeals sidesteps [the COA] process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.” Id., at 336–337.The court below phrased its determination in proper terms—that jurists of reason would not debate that Buck should be denied relief, 623 Fed. Appx., at 674—but it reached that conclusion only after essentially deciding the case on the merits. As the court put it in the second sentence of its opinion: “Because [Buck] has not shown extraordinary circumstances that would permit relief under Federal Rule of Civil Procedure 60(b)(6), we deny the application for a COA.” Id., at 669. The balance of the Fifth Circuit’s opinion reflects the same approach. The change in law effected by Martinez and Trevino, the panel wrote, was “not an extraordinary circumstance.” 623 Fed. Appx., at 674. Even if Texas initially indicated to Buck that he would be resentenced, its “decision not to follow through” was “not extraordinary.” Ibid. Buck “ha[d] not shown why” the State’s alleged broken promise “would justify relief from the judgment.” Ibid.But the question for the Fifth Circuit was not whether Buck had “shown extraordinary circumstances” or “shown why [Texas’s broken promise] would justify relief from the judgment.” Id., at 669, 674. Those are ultimate merits determinations the panel should not have reached. We reiterate what we have said before: A “court of appeals should limit its examination [at the COA stage] to a threshold inquiry into the underlying merit of [the] claims,” and ask “only if the District Court’s decision was debatable.” Miller-El, 537 U. S., at 327, 348.The dissent does not accept this established rule, arguing that a reviewing court that deems a claim nondebatable “must necessarily conclude that the claim is meritless.” Post, at 2 (opinion of Thomas, J.). Of course when a court of appeals properly applies the COA standard and determines that a prisoner’s claim is not even debatable, that necessarily means the prisoner has failed to show that his claim is meritorious. But the converse is not true. That a prisoner has failed to make the ultimate showing that his claim is meritorious does not logically mean he failed to make a preliminary showing that his claim was debatable. Thus, when a reviewing court (like the Fifth Circuit here) inverts the statutory order of operations and “first decid[es] the merits of an appeal, . . . then justif[ies] its denial of a COA based on its adjudication of the actual merits,” it has placed too heavy a burden on the prisoner at the COA stage. Miller-El, 537 U. S., at 336–337. Miller-El flatly prohibits such a departure from the procedure prescribed by §2253. Ibid.The State defends the Fifth Circuit’s approach by arguing that the court’s consideration of an application for a COA is often quite thorough. The court “occasionally hears oral argument when considering whether to grant a COA in a capital case.” Brief for Respondent 50. Indeed, in one recent case, it “received nearly 200 pages of initial briefing, permitted a reply brief, considered the parties’ supplemental authorities, invited supplemental letter briefs from both sides, and heard oral argument before denying the request for a COA.” Id., at 50–51.But this hurts rather than helps the State’s case. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El, 537 U. S., at 338. The statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and then—if it is—an appeal in the normal course. We do not mean to specify what procedures may be appropriate in every case. But whatever procedures are employed at the COA stage should be consonant with the limited nature of the inquiry.Given the approach of the court below, it is perhaps understandable that the parties have essentially briefed and argued the underlying merits at length. See, e.g., Brief for Petitioner 32 (“[T]rial counsel rendered deficient performance under Strickland.”); id., at 39 (“[T]here is a reasonable probability that Dr. Quijano’s race-as-dangerousness opinion swayed the judgment of jurors in favor of death.” (internal quotation marks and alteration omitted)); id., at 59 (Buck “has demonstrated his entitlement to relief under Rule 60(b)(6)”); Brief for Respondent 40 (“The particular facts of petitioner’s case do not establish extraordinary circumstances justifying relief from the judgment.” (boldface type deleted)). With respect to this Court’s review, §2253 does not limit the scope of our consideration of the underlying merits, and at this juncture we think it proper to meet the decision below and the arguments of the parties on their own terms.IIIBuck’s request for a COA raised two separate questions for the Fifth Circuit, one substantive and one procedural: first, whether reasonable jurists could debate the District Court’s conclusion that Buck was not denied his right to effective assistance of counsel under Strickland; and second, whether reasonable jurists could debate the District Court’s procedural holding that Buck had not made the necessary showing to reopen his case under Rule 60(b)(6).AWe begin with the District Court’s determination (not specifically addressed by the Fifth Circuit) that Buck’s constitutional claim failed on the merits. The Sixth Amendment right to counsel “is the right to the effective assistance of counsel.” Strickland, 466 U. S., at 686 (quoting McMann v. Richardson,397 U. S. 759, n. 14 (1970)). A defendant who claims to have been denied ef-fective assistance must show both that counsel performed deficiently and that counsel’s deficient performance caused him prejudice. 466 U. S., at 687.1Strickland’s first prong sets a high bar. A defense lawyer navigating a criminal proceeding faces any number of choices about how best to make a client’s case. The lawyer has discharged his constitutional responsibility so long as his decisions fall within the “wide range of professionally competent assistance.” Id., at 690. It is only when the lawyer’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” that Strickland’s first prong is satisfied. Id., at 687.The District Court determined that, in this case, counsel’s performance fell outside the bounds of competent representation. We agree. Counsel knew that Dr. Quijano’s report reflected the view that Buck’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether Buck was likely to act violently in the future. Counsel nevertheless (1) called Dr. Quijano to the stand; (2) specifically elicited testimony about the connection between Buck’s race and the likelihood of future violence; and (3) put into evidence Dr. Quijano’s expert report that stated, in reference to factors bearing on future dangerousness, “Race. Black: Increased probability.” App. 19a, 145a–146a.Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens,462 U. S. 862,885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client. See Buck v. Thaler, 565 U. S., at 1022 (statement of Alito, J., joined by Scalia and Breyer, JJ., respecting denial of certiorari) (Buck’s case “concerns bizarre and objectionable testimony”).2To satisfy Strickland, a litigant must also demonstrate prejudice—“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. Accordingly, the question before the District Court was whether Buck had demonstrated a reasonable probability that, without Dr. Quijano’s testimony on race, at least one juror would have harbored a reasonable doubt about whether Buck was likely to be violent in the future. The District Court concluded that Buck had not made such a showing. We disagree.In arguing that the jury would have imposed a death sentence even if Dr. Quijano had not offered race-based testimony, the State primarily emphasizes the brutality of Buck’s crime and his lack of remorse. A jury may conclude that a crime’s vicious nature calls for a sentence of death. See Wong v. Belmontes,558 U. S. 15 (2009) ( per curiam). In this case, however, several considerations convince us that it is reasonably probable—notwithstanding the nature of Buck’s crime and his behavior in its aftermath—that the proceeding would have ended differently had counsel rendered competent representation.Dr. Quijano testified on the key point at issue in Buck’s sentencing. True, the jury was asked to decide two issues—whether Buck was likely to be a future danger, and, if so, whether mitigating circumstances nevertheless justified a sentence of life imprisonment. But the focus of the proceeding was on the first question. Much of the penalty phase testimony was directed to future dangerousness, as were the summations for both sides. The jury, consistent with the focus of the parties, asked during deliberations to see the expert reports on dangerousness. See App. 187a–196a, 198a–203a, 209a.Deciding the key issue of Buck’s dangerousness involved an unusual inquiry. The jurors were not asked to determine a historical fact concerning Buck’s conduct, but to render a predictive judgment inevitably entailing a degree of speculation. Buck, all agreed, had committed acts of terrible violence. Would he do so again?Buck’s prior violent acts had occurred outside of prison, and within the context of romantic relationships with women. If the jury did not impose a death sentence, Buck would be sentenced to life in prison, and no such romantic relationship would be likely to arise. A jury could conclude that those changes would minimize the prospect of future dangerousness.But one thing would never change: the color of Buck’s skin. Buck would always be black. And according to Dr. Quijano, that immutable characteristic carried with it an “[i]ncreased probability” of future violence. Id., at 19a. Here was hard statistical evidence—from an expert—to guide an otherwise speculative inquiry.And it was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray,476 U. S. 28,35 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.This effect was heightened due to the source of the testimony. Dr. Quijano took the stand as a medical expert bearing the court’s imprimatur. The jury learned at the outset of his testimony that he held a doctorate in clinical psychology, had conducted evaluations in some 70 capital murder cases, and had been appointed by the trial judge (at public expense) to evaluate Buck. App. 138a–141a. Reasonable jurors might well have valued his opinion concerning the central question before them. See Satterwhite v. Texas,486 U. S. 249,259 (1988) (testimony from “a medical doctor specializing in psychiatry” on the question of future dangerousness may have influenced the sentencing jury).For these reasons, we cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” 2014 WL 11310152, at *5. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. Ibid. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.The State acknowledges, as it must, that introducing “race or ethnicity as evidence of criminality” can in some cases prejudice a defendant. Brief for Respondent 31. But it insists that this is not such a case, because Buck’s own counsel, not the prosecution, elicited the offending testimony. We are not convinced. In fact, the distinction could well cut the other way. A prosecutor is seeking a conviction. Jurors understand this and may reasonably be expected to evaluate the government’s evidence and arguments in light of its motivations. When a defendant’s own lawyer puts in the offending evidence, it is in the nature of an admission against interest, more likely to be taken at face value.The effect of Dr. Quijano’s testimony on Buck’s sentencing cannot be dismissed as “de minimis.” Buck has demonstrated prejudice.B1We now turn to the lower courts’ procedural holding: that Buck failed to demonstrate that he was entitled to have the judgment against him reopened under Rule 60(b)(6). We have held that a litigant seeking a COA must demonstrate that a procedural ruling barring relief is itself debatable among jurists of reason; otherwise, the appeal would not “deserve encouragement to proceed further.” Slack v. McDaniel,529 U. S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U. S. 880, n. 4 (1983)).The Rule 60(b)(6) holding Buck challenges would be reviewed for abuse of discretion during a merits appeal, see 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2857 (3d ed. 2012), and the parties agree that the COA question is therefore whether a reasonable jurist could conclude that the District Court abused its discretion in declining to reopen the judgment. See Brief for Petitioner 54–57; Brief for Respondent 34.Buck brought his Rule 60(b) motion under the Rule’s catchall category, subdivision (b)(6), which permits a court to reopen a judgment for “any other reason that justifies relief.” Rule 60(b) vests wide discretion in courts, but we have held that relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Gonzalez, 545 U. S., at 535. In determining whether extraordinary circumstances are present, a court may consider a wide range of factors. These may include, in an appropriate case, “the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Services Acquisition Corp.,486 U. S. 847–864 (1988).In the circumstances of this case, the District Court abused its discretion in denying Buck’s Rule 60(b)(6) motion. The District Court’s conclusion that Buck “ha[d] failed to demonstrate that this case presents extraordinary circumstances” rested in large measure on itsdetermination that “the introduction of any mention of race”—though “ill[ ]advised at best and repugnant at worst”—played only a “de minimis” role in the proceeding. 2014 WL 11310152, at *5. The Fifth Circuit, for its part, failed even to mention the racial evidence in concludingthat Buck’s claim was “at least unremarkable as far as [ineffective assistance] claims go.” 623 Fed. Appx., at 673. But our holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race. As an initial matter, this is a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle. As petitioner correctly puts it, “[i]t stretches credulity to characterize Mr. Buck’s [ineffective assistance of counsel] claim as run-of-the-mill.” Brief for Petitioner 57.This departure from basic principle was exacerbated because it concerned race. “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell,443 U. S. 545,555 (1979). Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process. Davis v. Ayala, 576 U. S. ___, ___ (2015) (slip op., at 28). It thus injures not just the defendant, but “the law as an institution, . . . the community at large, and . . . the democratic ideal reflected in the processes of our courts.” Rose, 443 U. S., at 556 (internal quotation marks omitted). Such concerns are precisely among those we have identified as supporting relief under Rule 60(b)(6). See Liljeberg, 486 U. S., at 864.The extraordinary nature of this case is confirmed by what the State itself did in response to Dr. Quijano’s testimony. When the case of Victor Hugo Saldano came before this Court, Texas confessed error and consented to resentencing. The State’s response to Saldano’s petition for certiorari succinctly expressed the injustice Saldano had suffered: “the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin.” App. 306a.The Attorney General’s public statement, issued shortly after we vacated the judgment in Saldano’s case, reflected this sentiment. It explained that the State had responded to Saldano’s troubling petition by conducting a “thorough audit” of criminal cases, finding six similar to Saldano’s “in which testimony was offered by Dr. Quijano that race should be a factor for the jury to consider.” Id., at 213a. The statement affirmed that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.” Ibid. Consistent with this position—and to its credit—the State confessed error in the cases of five of the six defendants identified in the Attorney General’s statement, waiving all available procedural defenses and consenting to resentencing.These were remarkable steps. It is not every day that a State seeks to vacate the sentences of five defendants found guilty of capital murder. But then again, these were—as the State itself put it at oral argument here—“extraordinary” cases. Tr. of Oral Arg. 41; see Buck v. Thaler, 565 U. S., at 1030 (Sotomayor, J., joined by Kagan, J., dissenting from denial of certiorari) (“Especially in light of the capital nature of this case and the express recognition by a Texas attorney general that the relevant testimony was inappropriately race charged, Buck has presented issues that ‘deserve encouragement to proceed further.’ ” (quoting Miller-El, 537 U. S., at 327)).To be sure, the State has repeatedly attempted to justify its decision to treat Buck differently from the other five defendants identified in the Attorney General’s statement, including on asserted factual grounds that the State has been required to abjure. See Brief for Respondent 46, n. 10 (the State’s initial opposition to Buck’s habeas petition “erroneously” argued that Buck was treated differently because defense counsel, not the State, called Dr. Quijano as a witness; that was also true of two of the other defendants). The State continues its efforts before this Court, arguing that Buck’s was the only one of the six cases in which defense counsel, not the prosecution, first elicited Dr. Quijano’s opinion on race. See also post, at 8 (opinion of Thomas, J.).But this is beside the point. The State’s various explanations for distinguishing Buck’s case have nothing to do with the Attorney General’s stated reasons for confessing error in Saldano and the cases acknowledged as similar. Regardless of which party first broached the subject, race was in all these cases put to the jury “as a factor . . . to weigh in making its determination.” App. 306a. The statement that “it is inappropriate to allow race to be considered as a factor in our criminal justice system” is equally applicable whether the prosecution or ineffective defense counsel initially injected race into the proceeding. Id., at 213a. The terms of the State’s announcement provide every reason for originally including Buck on the list of defendants situated similarly to Saldano, and no reason for later taking him off.In opposition, the State reminds us of the importance of preserving the finality of judgments. Brief for Respondent 34. But the “whole purpose” of Rule 60(b) “is to make an exception to finality.” Gonzalez, 545 U. S., at 529. And in this case, the State’s interest in finality deserves little weight. When Texas recognized that the infusion of race into proceedings similar to Saldano’s warranted confession of error, it effectively acknowledged that the people of Texas lack an interest in enforcing a capital sentence obtained on so flawed a basis. In concluding that the value of finality does not demand that we leave the District Court’s judgment in place, we do no more than acknowledge what Texas itself recognized 17 years ago.2Our Rule 60(b)(6) analysis has thus far omitted one significant element. When Buck first sought federal ha-beas relief in 2004, Coleman barred the District Court from hearing his claim. Today, however, a claim of ineffective assistance of trial counsel defaulted in a Texas postconviction proceeding may be reviewed in federal court if state habeas counsel was constitutionally ineffective in failing to raise it, and the claim has “some merit.” Martinez, 566 U. S., at 14; see Trevino, 569 U. S., at ___ (slip op., at 13). Buck cannot obtain relief unless he is entitled to the benefit of this rule—that is, unless Martinez and Trevino, not Coleman, would govern his case were it reopened. If they would not, his claim would remain unreviewable, and Rule 60(b)(6) relief would be inappropriate. See 11 Wright & Miller, Federal Practice and Procedure §2857 (showing “a good claim or defense” is a precondition of Rule 60(b)(6) relief ).Until merits briefing in this Court, both parties litigated this matter on the assumption that Martinez and Trevino would apply if Buck reopened his case. See Pet. for Cert. 27–28; Brief in Opposition 11–13; Amended Application for Certificate of Appealability and Brief in Support 26, Respondent-Appellee’s Opposition to Pet. for En Banc Rehearing 9–11, and Respondent’s Opposition to Application for Certificate of Appealability 15–17 in No. 14–70030 (CA5); Amended Response to Motion for Relief from Judgment in No. 4:04–cv–03965 (SD Tex.), pp. 11–13. But the State’s brief adopts a new position on this issue. The State now argues that those cases announced a “new rule” that, under Teague v. Lane,489 U. S. 288 (1989) (plurality opinion), does not apply retroactively to cases (like Buck’s) on collateral review. Brief for Respondent 38–40. Buck responds that Teague analysis applies only to new rules of criminal procedure that govern trial proceedings—not new rules of habeas procedure that govern collateral proceedings—and that the State has in any event waived its Teague argument. Reply Brief 20.We agree that the argument has been waived. See Danforth v. Minnesota,552 U. S. 264,289 (2008) (“States can waive a Teague defense . . . by failing to raise it in a timely manner . . . .”). It was not advanced in District Court, before the Fifth Circuit, or in the State’s brief in opposition to Buck’s petition for certiorari. Although we may reach the issue in our discretion, we have observed before that a State’s failure to raise a Teague argument at the petition stage is particularly “significant” in deciding whether such an exercise of discretion is appropriate. Schiro v. Farley,510 U. S. 222–229 (1994). When “a legal issue appears to warrant review, we grant certiorari in the expectation of being able to decide that issue.” Id., at 229. If we were to entertain the State’s eleventh-hour Teague argument and find it persuasive, Buck’s Strickland and Rule 60(b)(6) contentions—the issues we thought worthy of review—would be insulated from our consideration. We therefore decline to reach the Teague question and conclude that Martinez and Trevino apply to Buck’s claim. We reach no broader determination concerning the application of these cases.CFor the foregoing reasons, we conclude that Buck has demonstrated both ineffective assistance of counsel under Strickland and an entitlement to relief under Rule 60(b)(6). It follows that the Fifth Circuit erred in denying Buck the COA required to pursue these claims on appeal.The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Notes1* The Federal Courts of Appeals appear to disagree over whether a COA is needed to appeal the denial of a Rule 60(b) motion. See Gonzalez v. Crosby,545 U. S. 524, and n. 7 (2005). In keeping with the approach adopted by the Fifth Circuit below and by the parties in their briefs, we assume without deciding that a COA is required 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 STATESSyllabusBUCK v. DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISIONcertiorari to the united states court of appeals for the fifth circuitNo. 15–8049. Argued October 5, 2016—Decided February 22, 2017Petitioner Duane Buck was convicted of capital murder in a Texas court. Under state law, the jury was permitted to impose a death sentence only if it found unanimously and beyond a reasonable doubt that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist, Dr. Walter Quijano, to offer his opinion on that issue. Dr. Quijano had been appointed to evaluate Buck by the presiding judge and had prepared a report setting out his conclusions. To determine the likelihood that Buck would act violently in the future, Dr. Quijano had considered a number of statistical factors, including Buck’s race. Although Dr. Quijano ultimately concluded that Buck was unlikely to be a future danger, his report also stated that Buck was statistically more likely to act violently because he is black. The report read, in relevant part: “Race. Black: Increased probability.” App. 19a. Despite knowing the contents of the report, Buck’s counsel called Dr. Quijano to the stand, where he testified that race is a factor “know[n] to predict future dangerousness.” Id., at 146a. Dr. Quijano’s report was admitted into evidence at the close of his testimony. The prosecution questioned Dr. Quijano about his conclusions on race and violence during cross-examination, and it relied on his testimony in summation. During deliberations, the jury requested and received the expert reports admitted into evidence, including Dr. Quijano’s. The jury returned a sentence of death.Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. Buck failed to raise this claim in his first state postconviction proceeding. While that proceeding was pending, this Court received a petition for certiorari in Saldano v. Texas,530 U. S. 1212, a case in which Dr. Quijano had testified that the petitioner’s Hispanic heritage weighed in favor of a finding of future dangerousness. Texas confessed error on that ground, and this Court vacated the judgment below. Soon afterward, the Texas Attorney General issued a public statement identifying six similar cases in which Dr. Quijano had testified. Buck’s was one of them. In the other five cases, the Attorney General confessed error and consented to resentencing. But when Buck filed a second state habeas petition alleging that his attorney had been ineffective in introducing Dr. Quijano’s testimony, the State did not confess error, and the court dismissed the petition as an abuse of the writ on the ground that Buck had failed to raise the claim in his first petition.Buck then sought federal habeas relief under28 U. S. C. §2254. The State again declined to confess error, and Buck’s ineffective assistance claim was held procedurally defaulted and unreviewable under Coleman v. Thompson,501 U. S. 722. This Court’s later decisions in Martinez v. Ryan,566 U. S. 1, and Trevino v. Thaler, 569 U. S. ___, modified the rule of Coleman. Had they been decided before Buck filed his federal habeas petition, Buck’s claim could have been heard on the merits provided he had demonstrated that (1) state postconviction counsel had been constitutionally ineffective in failing to raise the claim, and (2) the claim had some merit. Following the decision in Trevino, Buck sought to reopen his §2254 case under Federal Rule of Civil Procedure 60(b)(6). To demonstrate the “extraordinary circumstances” required for relief, Gonzalez v. Crosby,545 U. S. 524, Buck cited the change in law effected by Martinez and Trevino, as well as ten other factors, including the introduction of expert testimony linking Buck’s race to violence and the State’s confession of error in similar cases. The District Court denied relief. Reasoning that “the introduction of any mention of race” during Buck’s sentencing was “de minimis,” the court concluded, first, that Buck had failed to demonstrate extraordinary circumstances; and second, that even if the circumstances were extraordinary, Buck had failed to demonstrate ineffective assistance under Strickland v. Washington,466 U. S. 668. Buck sought a certificate of appealability (COA) from the Fifth Circuit to appeal the denial of his Rule 60(b)(6) motion. The Fifth Circuit denied his application, concluding that he had not shown extraordinary circumstances justifying relief from the District Court’s judgment.Held:1. The Fifth Circuit exceeded the limited scope of the COA analysis. The COA statute sets forth a two-step process: an initial determination whether a claim is reasonably debatable, and, if so, an appeal in the normal course.28 U. S. C. §2253. At the first stage, the only question is whether the applicant has shown that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or . . . could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,537 U. S. 322. Here, the Fifth Circuit phrased its determination in proper terms. But it reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The question for the Court of Appeals was not whether Buck had shown that his case is extraordinary; it was whether jurists of reason could debate that issue. The State points to the Fifth Circuit’s thorough consideration of the merits to defend that court’s approach, but this hurts rather than helps its case. .2. Buck has demonstrated ineffective assistance of counsel under Strickland. .(a) To satisfy Strickland, a defendant must first show that counsel performed deficiently. 466 U. S., at 687. Buck’s trial counsel knew that Dr. Quijano’s report reflected the view that Buck’s race predisposed him to violent conduct and that the principal point of dispute during the penalty phase was Buck’s future dangerousness. Counsel nevertheless called Dr. Quijano to the stand, specifically elicited testimony about the connection between race and violence, and put Dr. Quijano’s report into evidence. No competent defense attorney would introduce evidence that his client is liable to be a future danger because of his race. .(b) Strickland further requires a defendant to demonstrate prejudice—“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. It is reasonably probable that without Dr. Quijano’s testimony on race and violence, at least one juror would have harbored a reasonable doubt on the question of Buck’s future dangerousness. This issue required the jury to make a predictive judgment inevitably entailing a degree of speculation. But Buck’s race was not subject to speculation, and according to Dr. Quijano, that immutable characteristic carried with it an increased probability of future violence. Dr. Quijano’s testimony appealed to a powerful racial stereotype and might well have been valued by jurors as the opinion of a medical expert bearing the court’s imprimatur. For these reasons, the District Court’s conclusion that any mention of race during the penalty phase was de minimis is rejected. So is the State’s argument that Buck was not prejudiced by Dr. Quijano’s testimony because it was introduced by his own counsel, rather than the prosecution. Jurors understand that prosecutors seek convictions and may reasonably be expected to evaluate the government’s evidence in light of its motivations. When damaging evidence is introduced by a defendant’s own lawyer, it is in the nature of an admission against interest, more likely to be taken at face value. .3. The District Court’s denial of Buck’s Rule 60(b)(6) motion was an abuse of discretion. .(a) Relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Gonzalez, 545 U. S., at 535. Determining whether such circumstances are present may include consideration of a wide range of factors, including “the risk of injustice to the parties” and “the risk of undermining the public’s confidence in the judicial process.” Liljeberg v. Health Services Acquisition Corp.,486 U. S. 847–864. The District Court’s denial of Buck’s motion rested largely on its determination that race played only a de minimis role in his sentencing. But there is a reasonable probability that Buck was sentenced to death in part because of his race. This is a disturbing departure from the basic premise that our criminal law punishes people for what they do, not who they are. That it concerned race amplifies the problem. Relying on race to impose a criminal sanction “poisons public confidence” in the judicial process, Davis v. Ayala, 576 U. S. ___, ___, a concern that supports Rule 60(b)(6) relief. The extraordinary nature of this case is confirmed by the remarkable steps the State itself took in response to Dr. Quijano’s testimony in other cases. Although the State attempts to justify its decision to treat Buck differently from the other five defendants identified in the Attorney General’s public statement, its explanations for distinguishing Buck’s case from Saldano have nothing to do with the Attorney General’s stated reasons for confessing error in that case. .(b) Unless Martinez and Trevino, rather than Coleman, would govern Buck’s case were it reopened, his claim would remain unreviewable and Rule 60(b)(6) relief would be inappropriate. The State argues that Martinez and Trevino would not govern Buck’s case because they announced a “new rule” under Teague v. Lane,489 U. S. 288, that does not apply retroactively to cases (like Buck’s) on collateral review. This argument, however, has been waived: the State failed to advance it in District Court, before the Fifth Circuit, or in its brief in opposition to Buck’s petition for certiorari. . 623 Fed. Appx. 668, reversed and remanded.Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Petitioner Buck was convicted of capital murder in a Texas state court. At the time of his trial, a Texas jury could impose the death penalty only if it found that Buck was likely to commit acts of violence in the future. His attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct, but that one of the factors pertinent in assessing a person's propensity for violence was his race. The jury found Buck likely to be a future danger, and it sentenced him to death. Buck filed a habeas corpus petition in Federal District Court under 28 U.S.C. §2254, which provides that, if the jury finds a death sentence imposed on a defendant because of his race, mitigating circumstances, such as the possibility that the defendant would be a continuing threat to society, are the factors to be reached. The court denied the motion, and the Court of Appeals declined to issue the certificate of appealability (COA) requested by Buck to appeal that decision.Held: 1. Buck failed to demonstrate that he was entitled to have the judgment against him reopened under Rule 60(b)(6) of the Federal Rules of Civil Procedure. The Sixth Amendment right to counsel is the right to the effective assistance of counsel. . (a) By its terms, Martinez v. Ryan, 566 U. S. 1 (2012), did not bear on Buck's ineffective assistance claim. The State was not represented by the Attorney General in this proceeding, but the Texas Attorney General represented state respondents in federal habeaas cases, but did not confess error. Moreover, in the circumstances of this case, the District Court abused its discretion in denying Buck a COA, concluding that counsel's performance fell outside the bounds of competent representation, and that the introduction of any mention of race played only a de minimis role in the proceedings. Thus, the court erred in denying relief on the ground that Buck had failed to show extraordinary circumstances justifying the denial of relief under the Rule. P.. (b) The Court below should limit its examination at the COA stage to a threshold inquiry into the underlying merit of the claims. This inquiry is not coextensive with a merits analysis, and should be consonant with the limited nature of the inquiry. See, e.g., Slack v. McDaniel,529 U. S. 473,484 (CA5), and Trevino v. Thaler, 569. ___. Accordingly, the question should be decided without full consideration of the factual or legal bases adduced in support of the claim, and on the basis of the underlying merits. Here, the State did not waive its Teague argument, since it was not advanced in District Court, before the Fifth Circuit, or in the State's brief in opposition to Buck's petition for certiorari. In any event, the argument that a reviewing court that deems a claim nondebatable must necessarily conclude that the claim is meritless is waived, since the State continues its efforts to present evidence of race as a factor in the sentencing process, and since the Court has in any event waived that argument, has been waived. See Danforth v. Minnesota, 569, 663, and Liljeberg v. Health Services Acquisition Corp.,486 U. s. 847-864. 2. The argument that the State has waived the Teague analysis is entitled to an appeal, since, although the State concedes that introducing race into proceedings similar to Saldano's warranted confession of error can in some cases prejudice a defendant, it is not convinced that this is not the case, since a prosecutor is seeking a conviction. Jurors understand this and may reasonably be expected to evaluate the government's evidence and arguments in light of its motivations. When a defendant's own lawyer puts in the offending evidence, it may be in the nature of an admission against interest, more likely than to be taken at face value, and, thus, the appeal would not deserve encouragement to proceed further. Also waived is the argument of the State, which was waived by the court below in its statement announcing a new rule that, under Teague v. Lane, does not apply retroactively to cases (like Buck's) on collateral review. Although the State contends that the new rule announced by the cases announced a new "new rule" that does not effect retroactively in cases like Buck's, it has not been raised in this Court. See id., at *5. That a prisoner has failed to make the ultimate showing that his claim is meritorious does not logically mean he failed not to make a preliminary showing that that claim was debatable. Thus, when a reviewing court inverts the statutory order of operations and first decid[es] the merits of an appeal and first considers the merits, it must be clear that it is inappropriate to allow race to be considered in a collateral proceeding

2016_16-373

https://www.oyez.org/cases/2016/16-373

. The suit giving rise to the case before the Court was filed by a plaintiff who was a member of a putative class in a class action but who later elected to withdraw and proceed in this separate suit, seeking recovery for the same illegalities that were alleged in the class suit. The class-action suit had been filed within the time permitted by statute. Whether the later, separate suit was also timely is the controlling question. I A The Securities Act of 1933 “protects investors by ensuring that companies issuing securities . . . make a ‘full and fair disclosure of information’ relevant to a public offering.” Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. ___, ___ (2015) (slip op., at 1) (quoting Pinter v. Dahl, 486 U. S. 622, 646 (1988) ); see 48Stat. 74, as amended, 15 U. S. C. §77a et seq. Companies may offer securities to the public only after filing a registration statement, which must contain information about the company and the security for sale. Omnicare, 575 U. S., at ___–___ (slip op., at 1–2). Section 11 of the Securities Act “promotes compliance with these disclosure provisions by giving purchasers a right of action against an issuer or designated individuals,” including securities underwriters, for any material misstatements or omissions in a registration statement. Id., at ___ (slip op., at 2); see 15 U. S. C. §77k(a). The Act provides time limits for §11 suits. These time limits are set forth in a two-sentence section of the Act, §13. It provides as follows: “No action shall be maintained to enforce any liability created under [§11] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence . . . . In no event shall any such action be brought to enforce a liability created under [§11] more than three yearsafter the security was bona fide offered to thepublic . . . .” 15 U. S. C. §77m. So there are two time bars in the quoted provision; and the second one, the 3-year bar, is central to this case. B Lehman Brothers Holdings Inc. formerly was one of the largest investment banks in the United States. In 2007 and 2008, Lehman raised capital through a number of public securities offerings. Petitioner, California Public Employees’ Retirement System (sometimes called CalPERS), is the largest public pension fund in the country. Petitioner purchased securities in some of these Lehman offerings; and it is alleged that respondents, various financial firms, are liable under the Act for their participation as underwriters in the transactions. The separate respondents are listed in an appendix to this opinion. In September 2008, Lehman filed for bankruptcy. Around the same time, a putative class action concerning Lehman securities was filed against respondents in the United States District Court for the Southern District of New York. The operative complaint raised claims under §11, alleging that the registration statements for certain of Lehman’s 2007 and 2008 securities offerings included material misstatements or omissions. The complaint was filed on behalf of all persons who purchased the identified securities, making petitioner a member of the putative class. Petitioner, however, was not one of the named plaintiffs in the suit. The class action was consolidated with other securities suits against Lehman in a single multidistrict litigation. In February 2011, petitioner filed a separate complaint against respondents in the United States District Court for the Northern District of California. This suit was filed more than three years after the relevant transactions occurred. The complaint alleged identical securities law violations as the class-action complaint, but the claims were on petitioner’s own behalf. The suit was transferred and consolidated with the multidistrict litigation in the Southern District of New York. Soon thereafter, a proposed settlement was reached in the putative class action. Petitioner, apparently convinced it could obtain a more favorable recovery in its separate suit, opted out of the class. Respondents then moved to dismiss petitioner’s indi-vidual suit alleging §11 violations as untimely under the 3-year bar in the second sentence of §13. Petitioner countered that its individual suit was timely because that 3-year period was tolled during the pendency of the class-action filing. The principal authority cited to support petitioner’s argument that the 3-year period was tolled was American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The District Court disagreed with petitioner’s argument, holding that the 3-year bar in §13 is not subject to tolling. The Court of Appeals for the Second Circuit affirmed. In agreement with the District Court, the Court of Appeals held that the tolling principle discussed in American Pipe is inapplicable to the 3-year time bar. In re Lehman Brothers Securities and ERISA Litigation, 655 Fed. Appx. 13, 15 (2016). As the Court of Appeals noted, there is disagreement about whether the tolling rule of American Pipe applies to the 3-year time bar in §13. Compare Joseph v. Wiles, 223 F. 3d 1155, 1166–1168 (CA10 2000), with Stein v. Regions Morgan Keegan Select High Income Fund, Inc., 821 F. 3d 780, 792–795 (CA6 2016), and Dusek v. JPMorgan Chase & Co., 832 F. 3d 1243, 1246–1249 (CA11 2016). The Court of Appeals also rejected petitioner’s alternative argument that its individual claims were “essentially ‘filed’ in the putative class complaint,” so that the filing of the class action within three years made the individual claims timely. 655 Fed. Appx., at 15. This Court granted certiorari. 580 U. S. ___ (2017). II The question then is whether §13 permits the filing of an individual complaint more than three years after the relevant securities offering, when a class-action complaint was timely filed, and the plaintiff filing the individual complaint would have been a member of the class but for opting out of it. The answer turns on the nature and purpose of the 3-year bar and of the tolling rule that petitioner seeks to invoke. Each will be addressed in turn. A As the Court explained in CTS Corp. v. Waldburger, 573 U. S. ___ (2014), statutory time bars can be divided into two categories: statutes of limitations and statutes of repose. Both “are mechanisms used to limit the temporal extent or duration of liability for tortious acts,” but “each has a distinct purpose.” Id., at ___–___ (slip op., at 5–6). Statutes of limitations are designed to encourage plaintiffs “to pursue diligent prosecution of known claims.” Id., at ___ (slip op., at 6) (internal quotation marks omitted). In accord with that objective, limitations periods begin to run “when the cause of action accrues”—that is, “when the plaintiff can file suit and obtain relief.” Id., at ___ (slip op., at 5) (internal quotation marks omitted). In a personal-injury or property-damage action, for example, more often than not this will be “ ‘when the injury occurred or was discovered.’ ” Ibid. In contrast, statutes of repose are enacted to give more explicit and certain protection to defendants. These statutes “effect a legislative judgment that a defendant should be free from liability after the legislatively determined period of time.” Id., at ___–___ (slip op., at 6–7) (internal quotation marks omitted). For this reason, statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.” Id., at ___ (slip op., at 6). The 3-year time bar in §13 reflects the legislative objective to give a defendant a complete defense to any suit after a certain period. From the structure of §13, and the language of its second sentence, it is evident that the 3-year bar is a statute of repose. In fact, this Court has already described the provision as establishing “a period of repose,” which “ ‘impose[s] an outside limit’ ” on temporal liability. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 363 (1991) . The statute provides in clear terms that “[i]n no event” shall an action be brought more than three years after the securities offering on which it is based. 15 U. S. C. §77m. This instruction admits of no exception and on its face creates a fixed bar against future liability. See CTS, supra, at ___–___ (slip op., at 6–7); cf. United States v. Brockamp, 519 U. S. 347, 350 (1997) (noting that a statute that “sets forth its time limitations in unusually emphatic form . . . cannot easily be read as containing implicit exceptions”). The statute, furthermore, runs from the defendant’s last culpable act (the offering of the securities), not from the accrual of the claim (the plaintiff’s discovery of the defect in the registration statement). Under CTS, this point is close to a dispositive indication that the statute is one of repose. This view is confirmed by the two-sentence structure of §13. In addition to the 3-year time bar, §13 contains a 1-year statute of limitations. The limitations statute runs from the time when the plaintiff discovers (or should have discovered) the securities-law violation. The pairing of a shorter statute of limitations and a longer statute of repose is a common feature of statutory time limits. See, e.g., Gabelli v. SEC, 568 U. S. 442, 453 (2013) (“[S]tatutes applying a discovery rule . . . often couple that rule with an absolute provision for repose”). The two periods work together: The discovery rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of repose protects the defendant from an interminable threat of liability. Cf. Merck & Co. v. Reynolds, 559 U. S. 633, 650 (2010) (reasoning that 2-year discovery rule would not “subject defendants to liability for acts taken long ago,” because the statute also included an “unqualified bar on actions instituted ‘5 years after such violation’ ”). The history of the 3-year provision also supports its classification as a statute of repose. It is instructive to note that the statute was not enacted in its current form. The original version of the 1933 Securities Act featured a 2-year discovery period and a 10-year outside limit, see §13, 48Stat. 84, but Congress changed this framework just one year after its enactment. The discovery period was changed to one year and the outside limit to three years. See Securities Exchange Act of 1934, §207, 48Stat. 908. The evident design of the shortened statutory period was to protect defendants’ financial security in fast-changing markets by reducing the open period for potential liability. B The determination that the 3-year period is a statute of repose is critical in this case, for the question whether a tolling rule applies to a given statutory time bar is one “of statutory intent.” Lozano v. Montoya Alvarez, 572 U. S. 1 , ___ (2014) (slip op., at 8). The purpose of a statute of repose is to create “an absolute bar on a defendant’s temporal liability,” CTS, 573 U. S., at ___ (slip op., at 6) (alteration and internal quotation marks omitted); and that purpose informs the assessment of whether, and when, tolling rules may apply. In light of the purpose of a statute of repose, the provision is in general not subject to tolling. Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances. For example, if the statute of repose itself contains an express exception, this demonstrates the requisite intent to alter the operation of the statutory period. See 1 C. Corman, Limitation of Actions §1.1, pp. 4–5 (1991) (Corman); see, e.g., 29 U. S. C. §1113 (establishing a 6-year statute of repose, but stipulating that, in case of fraud, the 6-year period runs from the plaintiff’s discovery of the violation). In contrast, where the legislature enacts a general tolling rule in a different part of the code—e.g., a rule that suspends time limits until the plaintiff reaches the age of majority—courts must analyze the nature and relation of the legislative purpose of each provision to determine which controls. See 2 Corman §10.2.1, at 108. In keeping with the statute-specific nature of that analysis, courts have reached different conclusions about whether general tolling statutes govern particular periods of repose. Ibid., n. 15. Of course, not all tolling rules derive from legislative enactments. Some derive from the traditional power of the courts to “ ‘apply the principles . . . of equity jurisprudence.’ ” Young v. United States, 535 U. S. 43, 50 (2002) (alteration omitted). The classic example is the doctrine of equitable tolling, which permits a court to pause a statu-tory time limit “when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano, 572 U. S., at ___ (slip op., at 7). Tolling rules of that kind often apply to statutes of limitations based on the presumption that Congress “ ‘legislate[s] against a background of common-law adjudicatory principles.’ ” Id., at ___ (slip op., at 8). The purpose and effect of a statute of repose, by contrast, is to override customary tolling rules arising from the equitable powers of courts. By establishing a fixed limit, a statute of repose implements a “ ‘legislative decisio[n] that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability.’ ” CTS, 573 U. S., at ___ (slip op., at 7). The unqualified nature of that determination supersedes the courts’ residual authority and forecloses the extension of the statutory period based on equitable principles. For this reason, the Court repeatedly has stated in broad terms that statutes of repose are not subject to equitable tolling. See, e.g., id., at ___–___ (slip op., at 7–8); Lampf, Pleva, 501 U. S., at 363. C Petitioner contends that the 3-year provision is subject to tolling based on the rationale and holding in the Court’s decision in American Pipe. The language of the 3-year statute does not refer to or impliedly authorize any exceptions for tolling. If American Pipe had itself been grounded in a legislative enactment, perhaps an argument couldbe made that the enactment expressed a legislative objective to modify the 3-year period. If, however, the tolling decision in American Pipe derived from equity principles, it cannot alter the unconditional language and purpose of the 3-year statute of repose. In American Pipe, a timely class-action complaint was filed asserting violations of federal antitrust law. 414 U. S., at 540. Class certification was denied because the class was not large enough, see Fed. Rule Civ. Proc. 23(a)(1), and individuals who otherwise would have been members of the class then filed motions to intervene as individual plaintiffs. The motions were denied on the grounds that the applicable 4-year time bar had expired. See 15 U. S. C. §15b. The Court of Appeals reversed, permitting intervention. This Court affirmed. It held the individual plaintiffs’ motions to intervene were timely because “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class.” American Pipe, 414 U. S., at 554. The Court reasoned that this result was consistent “both with the procedures of Rule 23 and with the proper function of the limitations statute” at issue. Id., at 555. First, the tolling furthered “the purposes of litigative efficiency and economy” served by Rule 23. Id., at 556. Without the tolling, “[p]otential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable,” which would “breed needless duplication of motions.” Id., at 553–554. Second, the tolling was in accord with “the functional operation of a statute of limitations.” Id., at 554. By filing a class complaint within the statutory period, the named plaintiff “notifie[d] thedefendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” Id., at 555. As this discussion indicates, the source of the tolling rule applied in American Pipe is the judicial power to promote equity, rather than to interpret and enforce statutory provisions. Nothing in the American Pipe opinion suggests that the tolling rule it created was mandated by the text of a statute or federal rule. Nor could it have. The central text at issue in American Pipe was Rule 23, and Rule 23 does not so much as mention the extension or suspension of statutory time bars. The Court’s holding was instead grounded in the traditional equitable powers of the judiciary. The Court described its rule as authorized by the “judicial power to toll statutes of limitations.” Id., at 558; see also id., at 555 (“the tolling rule we establish here” (emphasis added)). The Court also relied on cases that are paradigm applications of equitable tolling principles, explaining with approval that tolling in one such case was based on “considerations ‘deeply rooted in our jurisprudence.’ ” Id., at 559 (quoting Glus v. Brooklyn Eastern Dist. Terminal, 359 U. S. 231, 232 (1959) ; alteration omitted); see also 414 U. S., at 559 (citing Holmberg v. Armbrecht, 327 U. S. 392 (1946) ). The Court noted too that “bad faith” was not the cause of the District Court’s denial of class certification. 414 U. S., at 553 (internal quotation marks omitted). Perhaps for these reasons, this Court has referred to American Pipe as “equitable tolling.” See Irwin v. Department of Veterans Affairs, 498 U. S. 89 , and n. 3 (1990); see also Young, supra, at 49; Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U. S. 322 , n. (1978) (Burger, C. J., concurring) (using American Pipe as an example of “[t]he authority of a federal court, sitting as a chancellor, to toll a statute of limitations on equitable grounds”). It is true, however, that the American Pipe Court did not consider the criteria of the formal doctrine of equitable tolling in any direct manner. It did not analyze, for example, whether the plaintiffs pursued their rights with special care; whether some extraordinary circumstance prevented them from intervening earlier; or whether the defendant engaged in misconduct. See Holland v. Florida, 560 U. S. 631, 649 (2010) (identifying these considerations); Young, 535 U. S., at 50 (same). The balance of the Court’s reasoning nonetheless reveals a rule based on traditional equitable powers, designed to modify a stat-utory time bar where its rigid application would create injustice. D This analysis shows that the American Pipe tolling rule does not apply to the 3-year bar mandated in §13. As explained above, the 3-year limit is a statute of repose. See supra, at 5–7. And the object of a statute of repose, to grant complete peace to defendants, supersedes the application of a tolling rule based in equity. See supra, at 7–8. No feature of §13 provides that deviation from its time limit is permissible in a case such as this one. To the contrary, the text, purpose, structure, and history of the statute all disclose the congressional purpose to offer defendants full and final security after three years. Petitioner raises four counterarguments, but they are not persuasive. First, petitioner contends that this case is indistinguishable from American Pipe itself. If the 3-year bar here cannot be tolled, petitioner reasons, then there was no justification for the American Pipe Court’s contrary decision to suspend the time bar in that case. American Pipe, however, is distinguishable. The statute in American Pipe was one of limitations, not of repose; it began to run when “ ‘the cause of action accrued.’ ” 414 U. S., at 541, n. 2 (quoting 15 U. S. C. §15b). The statute in the instant case, however, is a statute of repose. Consistent with the different purposes embodied in statutes of limitations and statutes of repose, it is reasonable that the former may be tolled by equitable considerations even though the latter in most circumstances may not. See supra, at 7–8. Second, petitioner argues that the filing of a class-action complaint within three years fulfills the purposes of a statutory time limit with regard to later filed suits by individual members of the class. That is because, according to petitioner, the class complaint puts a defendant on notice as to the content of the claims against it and the set of potential plaintiffs who might assert those claims. It is true that the American Pipe Court, in permitting tolling, suggested that generic notice satisfied the purposes of the statute of limitations in that case. See 414 U. S., at 554–555. While this was deemed sufficient in balancing the equities to allow tolling under the antitrust statute, it must be noted that here the analysis differs because the purpose of a statute of repose is to give the defendant full protection after a certain time. If the number and identity of individual suits, where they may be filed, and the litigation strategies they will use are unknown, a defendant cannot calculate its potential liability or set its own plans for litigation with much precision. The initiation of separate individual suits may thus increase a defendant’s practical burdens. See, e.g., Cottreau, Note, The Due Process Right To Opt Out of Class Actions, 73 N. Y. U. L. Rev. 480, 486, and n. 29 (1998) (“A defendant’s transaction costs are likely to be reduced by having to defend just one action”). The emergence of individual suits, furthermore, may increase a defendant’s financial liability; for plaintiffs who opt out have considerable leverage and, as a result, may obtain outsized recoveries. See, e.g., Coffee, Accountability and Competition in Securities Class Actions: Why “Exit” Works Better Than “Voice,” 30 Cardozo L. Rev. 407, 417, 432–433 (2008); Perino, Class Action Chaos? The Theory of the Core and an Analysis of Opt-Out Rights in Mass Tort Class Actions, 46 Emory L. J. 85, 97 (1997). These uncertainties can put defendants at added risk in conducting business going forward, causing destabilization in markets which react with sensitivity to these matters. By permitting a class action to splinter into individual suits, the application of American Pipe tolling would threaten to alter and expand a defendant’s accountability, contradicting the substance of a statute of repose. All this is not to suggest how best to further equity under these circumstances but simply to support the recognition that a statute of repose supersedes a court’s equitable balancing powers by setting a fixed time period for claims to end. Third, petitioner contends that dismissal of its individ-ual suit as untimely would eviscerate its ability to opt out, an ability this Court has indicated should not be disregarded. See Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 363 (2011) . It does not follow, however, from any privilege to opt out that an ensuing suit can be filed without regard to mandatory time limits set by statute. Fourth, petitioner argues that declining to apply American Pipe tolling to statutes of repose will create inefficiencies. It contends that nonnamed class members will inundate district courts with protective filings. Even if petitioner were correct, of course, this Court “lack[s] the authority to rewrite” the statute of repose or to ignore its plain import. Baker Botts L. L. P. v. ASARCO LLC, 576 U. S. ___, ___ (2015) (slip op., at 12). And petitioner’s concerns likely are overstated. Petitioner has not offered evidence of any recent influx of protective filings in the Second Circuit, where the rule affirmed here has been the law since 2013. This is not surprising. The very premise of class actions is that “ ‘small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’ ” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 617 (1997) . Many individual class members may have no interest in protecting their right to litigate on an individ-ual basis. Even assuming that they do, the process is un-likely to be as onerous as petitioner claims. A simple motion to intervene or request to be included as a named plaintiff in the class-action complaint may well suffice. See, e.g., Brief for Washington Legal Foundation as Amicus Curiae 6–11 (describing procedures); Brief for Securities Industry and Financial Markets Association et al. as Amici Curiae 16, 19–20 (same). District courts, furthermore, have ample means and methods to administer their dockets and to ensure that any additional filings proceed in an orderly fashion. Cf. Dietz v. Bouldin, 579 U. S. ___, ___ (2016) (slip op., at 6) (“[D]istrict courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases”). III Petitioner makes an alternative argument that does not depend on tolling. Petitioner submits its individual suit was timely in any event. Section 13 provides that an “action” must be “brought” within three years of the relevant securities offering. See 15 U. S. C. §77m. Petitioner argues that requirement is met here because the filing of the class-action complaint “brought” petitioner’s individual “action” within the statutory time period. This argument rests on the premise that an “action” is “brought” when substantive claims are presented to any court, rather than when a particular complaint is filed in a particular court. The term “action,” however, refers to a judicial “proceeding,” or perhaps to a “suit”—not to the general content of claims. See Black’s Law Dictionary 41 (3d ed. 1933) (defining “action” as, inter alia, “an ordinary proceeding in a court of justice”); see also id., at 43 (“The terms ‘action’ and ‘suit’ are . . . nearly, if not entirely, synonymous”). Whether or not petitioner’s individual complaint alleged the same securities law violations as the class-action complaint, it defies ordinary understanding to suggest that its filing—in a separate forum, on a separate date, by a separate named party—was the same “action,” “proceeding,” or “suit.” The limitless nature of petitioner’s argument, furthermore, reveals its implausibility. It appears that, in petitioner’s view, the bringing of the class action would make any subsequent action raising the same claims timely. Taken to its logical limit, an individual action would be timely even if it were filed decades after the original securities offering—provided a class-action complaint had been filed at some point within the initial 3-year period. Congress would not have intended this result. Petitioner’s argument also fails because it is inconsistent with the reasoning in American Pipe itself. If the filing of a class action made all subsequent actions by putative class members timely, there would be no need for tolling at all. Yet this Court has described American Pipe as creating a tolling rule, necessary to permit the ensuing individual actions to proceed. See, e.g., American Pipe, 414 U. S., at 555; Irwin, 498 U. S., at 96, n. 3; Crown, Cork & Seal Co. v. Parker, 462 U. S. 345, 350 (1983) . Indeed, the American Pipe Court reasoned that the class-action complaint “was filed with 11 days yet to run” in the statutory period, so the motions for intervention were timely only if filed within 11 days after the denial of class certification. 414 U. S., at 561. If the filing of the class action “brought” any included individual actions, it would have sufficed for the Court to note the date on which the class action was filed and deem all subsequent individual actions proper, regardless when filed. * * * Tolling may be of great value to allow injured persons to recover for injuries that, through no fault of their own, they did not discover because the injury or the perpetrator was not evident until the limitations period otherwise would have expired. This is of obvious utility in the securities market, where complex transactions and events can be obscure and difficult for a market participant to analyze or apprehend. In a similar way, tolling as allowed in American Pipe may protect plaintiffs who anticipated their interests would be protected by a class action but later learned that a class suit could not be maintained for reasons outside their control. The purpose of a statute of repose, on the other hand, is to allow more certainty and reliability. These ends, too, are a necessity in a marketplace where stability and reliance are essential components of valuation and expectation for financial actors. The statute in this case reconciles these different ends by its two-tier structure: a conventional statute of limitations in the first clause and a statute of repose in the second. The statute of repose transforms the analysis. In a hypothetical case with a different statutory scheme, consisting of a single limitations period without an additional outer limit, a court’s equitable power under American Pipe in many cases would authorize the relief petitioner seeks. Here, however, the Court need not consider how equitable considerations should be formulated or balanced, for the mandate of the statute of repose takes the case outside the bounds of the American Pipe rule. The final analysis, then, is straightforward. The 3-year time bar in §13 of the Securities Act is a statute of repose. Its purpose and design are to protect defendants against future liability. The statute displaces the traditional power of courts to modify statutory time limits in the name of equity. Because the American Pipe tolling rule is rooted in those equitable powers, it cannot extend the 3-year period. Petitioner’s untimely filing of its individual action is ground for dismissal. The judgment of the Court of Appeals for the Second Circuit is affirmed. It is so ordered. APPENDIX Respondents are the following financial securities firms: ANZ Securities, Inc.; Bankia, S. A.; BBVA Securities Inc.; BMO Capital Markets Corp.; BNP Paribas FS, LLC; BNP Paribas S. A.; BNY Mellon Capital Markets, LLC; CIBC World Markets Corp.; Citigroup Global Markets Inc.; Daiwa Capital Markets Europe Limited; DZ Financial Markets LLC; HSBC Securities (USA) Inc.; HVB Capital Markets, Inc.; ING Financial Markets LLC; Mizuho Securities USA Inc.; M. R. Beal & Company; Muriel Siebert & Co. Inc.; nabSecurities LLC; Natixis Securities Americas LLC; RBC Capital Markets LLC; RBS Securities, Inc.; RBS WCS Holding Company; Santander Investment Securities Inc.; Scotia Capital (USA) Inc.; SG Americas Securities, LLC; Sovereign Securities Corporation LLC; SunTrust Capital Markets, Inc.; Utendahi Capital Partners, L. P.; and Wells Fargo Securities, LLC.

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 CALIFORNIA PUBLIC EMPLOYEES’ RETIREMENT SYSTEM v. ANZ SECURITIES, INC., et al. certiorari to the united states court of appeals for the second circuit No. 16–373. Argued April 17, 2017—Decided June 26, 2017 Section 11 of the Securities Act of 1933 gives purchasers of securities “a right of action against an issuer or designated individuals,” including securities underwriters, for any material misstatements or omissions in a registration statement. Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. ___, ___; see 15 U. S. C. §77k(a). Section 13 provides two time limits for §11 suits. The first sentence states that an action “must be brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence . . . .” The second sentence provides that “[i]n no event shall any such action be brought . . . more than three years after the security was bona fide offered to the public . . . .” §77m. In 2007 and 2008, Lehman Brothers Holdings Inc. raised capital through several public securities offerings. Petitioner, the largest public pension fund in the country, purchased some of those securities; and it is alleged that respondents, various financial firms, are liable under the Act for their participation as underwriters in the transactions. In 2008, a putative class action was filed against respondents in the Southern District of New York. The complaint raised §11 claims, alleging that the registration statements for certain of Lehman’s 2007 and 2008 securities offerings included material misstatements or omissions. Because the complaint was filed on behalf of all persons who purchased the identified securities, petitioner was a member of the putative class. In February 2011, more than three years after the relevant securities offerings, petitioner filed a separate complaint against respondents in the Northern District of California, alleging violations identical to those in the class action on petitioner’s own behalf. Soon thereafter, a proposed settlement was reached in the putative class action, but petitioner opted out of the class. Respondents then moved to dismiss petitioner’s individual suit, alleging that the §11 violations were untimely under the 3-year bar in the second sentence of §13. Petitioner countered that the 3-year period was tolled during the pendency of the class-action filing, relying on American Pipe & Construction Co. v. Utah, 414 U. S. 538 . The trial court disagreed, and the Second Circuit affirmed, holding that American Pipe’s tolling principle is inapplicable to the 3-year bar. It also rejected petitioner’s alternative argument that the timely filing of the class action made petitioner’s individual claims timely as well. Held: Petitioner’s untimely filing of its individual complaint more than three years after the relevant securities offering is ground for dismissal. . (a) Section 13’s 3-year time limit is a statute of repose not subject to equitable tolling. . (1) The two categories of statutory time bars—statutes of limitations and statutes of repose—each have “a distinct purpose.” CTS Corp. v. Waldburger, 573 U. S. ___, ___. Statutes of limitations are designed to encourage plaintiffs “ ‘to pursue diligent prosecution of known claims,’ ” id., at ___, while statutes of repose “effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time,’ ” id., at ___. For this reason, statutes of limitations begin to run “when the cause of action accrues,” while statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.” Id., at ___. From the structure of §13, and the language of its second sentence, it is evident that the 3-year bar is a statute of repose. The instruction that “[i]n no event” shall an action be brought more than three years after the relevant securities offering admits of no exception. The statute also runs from the defendant’s last culpable act (the securities offering), not from the accrual of the claim (the plaintiff’s discovery of the defect). This view is confirmed by §13’s two-sentence structure. The pairing of a shorter statute of limitations and a longer statute of repose is a common feature of statutory time limits. See, e.g., Gabelli v. SEC, 568 U. S. 442 . Section 13’s history also supports the classification. The 1933 Securities Act’s original 2-year discovery period and 10-year outside limit were shortened a year later. The evident design of the shortened period was to protect defendants’ financial security by reducing the open period for potential liability. . (2) The determination that the 3-year period is a statute of repose is critical here, for the question whether a tolling rule applies to a given statutory time bar is one “of statutory intent.” Lozano v. Montoya Alvarez, 572 U. S. 1 , ___. In light of the purpose of a statute of repose, the provision is in general not subject to tolling. Tolling is permissible only where there is a particular indication that the legislature did not intend the statute to provide complete repose but instead anticipated the extension of the statutory period under certain circumstances. A statute of repose implements a “ ‘legislative decisio[n] that . . . there should be a specific time beyond which a defendant should no longer be subjected to protracted liability.’ ” CTS, 573 U. S., at ___. The unqualified nature of that determination supersedes the courts’ residual authority and forecloses the extension of the statutory period based on equitable principles. Thus, the Court repeatedly has stated that statutes of repose are not subject to equitable tolling. See, e.g., id., at ___–___. . (3) The tolling decision in American Pipe derived from equity principles and therefore cannot alter the unconditional language and purpose of the 3-year statute of repose. The source of the tolling rule applied in American Pipe is the judicial power to promote equity, not the power to interpret and enforce statutory provisions. Nothing in the decision suggests that its tolling rule was mandated by a statute or federal rule. Moreover, the Court relied on cases that are paradigm applications of equitable tolling principles, see 414 U. S., at 559. Thus, the Court has previously referred to American Pipe as “equitable tolling.” See, e.g., Irwin v. Department of Veterans Affairs, 498 U. S. 89 , and n. 3. . (4) Petitioner’s counterarguments are unpersuasive. First, petitioner contends that this case is indistinguishable from American Pipe, but the statute there was one of limitations, which may be tolled by equitable considerations even where a statute of repose may not. Second, petitioner argues that the timely filing of a class-action complaint fulfills the purposes of a statutory time limit with regard to later filed suits by individual members of the class. But by permitting a class action to splinter into individual suits, the application of American Pipe tolling here would threaten to alter and expand a defendant’s accountability, contradicting the substance of a statute of repose. Third, petitioner contends that dismissal of its individual suit as untimely would eviscerate its ability to opt out, but it does not follow from any privilege to opt out that an ensuing suit can be filed without regard to mandatory time limits. Fourth, petitioner argues that declining to apply American Pipe tolling to statutes of repose will create inefficiencies, but this Court “lack[s] the authority to rewrite” the statute of repose or to ignore its plain import. Baker Botts L. L. P. v. ASARCO LLC, 576 U. S. ___, ___. And petitioner’s practical concerns likely are overstated. . (b) Also unpersuasive is petitioner’s alternative argument: that §13’s requirement that an “action” be “brought” within three years of the relevant securities offering is met here because the filing of the class-action complaint “brought” petitioner’s individual “action” within the statutory time period. This argument presumes that an “action” is “brought” when substantive claims are presented to any court, rather than when a particular complaint is filed in a particular court. The term “action,” however, refers to a judicial “proceeding,” or perhaps a “suit”—not to the general content of claims. Taken to its logical limit, petitioner’s argument would make an individual action timely even if it were filed decades after the original securities offering—provided a class-action complaint had been filed within the initial 3-year period. Congress would not have intended this result. This argument is also inconsistent with the reasoning in American Pipe itself. If the filing of a class action made all subsequent actions by putative class members timely, there would be no need for tolling at all. . (c) The final analysis is straightforward. Because §13’s 3-year time bar is a statute of repose, it displaces the traditional power of courts to modify statutory time limits in the name of equity. And because the American Pipe tolling rule is rooted in those equitable powers, it cannot extend the 3-year period. Petitioner’s untimely filing of its individual action is thus ground for dismissal. . 655 Fed. Appx. 13, affirmed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Section 11 of the Securities Act of 1933 (Act) provides that no action shall be maintained to enforce any liability created under §11 unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence. In September 2008, Lehman Brothers Holdings Inc. filed for bankruptcy, and a putative class action was filed against respondents in Federal District Court, alleging that the registration statements for certain of Lehman's 2007 and 2008 securities offerings included material misstatements or omissions. Petitioner, who was not named in the action, was one of the named plaintiffs in the class action, and was not one of respondents. In February 2011, petitioner filed a separate complaint against respondents, more than three years after the relevant transactions occurred, alleging identical securities law violations as the class-action complaint, but the claims were on petitioner's own behalf. The suit was transferred and consolidated with the multidistrict litigation in the Southern District of New York. Soon thereafter, a proposed settlement was reached, and soon thereafter, petitioner opted to dismiss the suit in favor of a separate, indvidual class action in the New York District Court. Respondents then reached a settlement in a separate suit in which petitioner apparently could obtain a favorable settlement. Shortly thereafter, the parties reached a separate settlement, and thereafter, after the parties had reached a settled settlement, petitioner, apparently convinced that it was entitled to a more favorable recovery under §13. The District Court dismissed the separate suit, holding that §13 was subject to the 3-year bar, and that the tolling principle discussed in American Pipe Co. v. Utah Constr. Co.,, is inapplicable to that bar. The Court of Appeals affirmed. Held: 1. Section 13 of the Act permits the filing of an individual complaint in a timely class action. . (a) The purpose of a statute of repose is to create an absolute bar on a defendant's temporal liability when the cause of action accrues, i.e., when the plaintiff can file suit and obtain relief. From the structure of §13, and its language, and the language of its second sentence, it is evident that § 13 applies to a given statutory time bar. A tolling rule reflects the legislative objective to give a defendant a complete defense to any suit after a certain period. This purpose informs the assessment of whether, and when, tolling rules may apply. Nothing in the American Pipe opinion suggests that the rule it created was mandated by the text of the statute or federal rule. Nor could it have. There is no merit to petitioner's contention that the filing within three years of the relevant securities offering fulfills the purposes of a statutory time limit with regard to later filed suits by individual members of the class. Petitioner submits its individual suit was timely in any event, since the class complaint puts a defendant on notice as to the content of the claims against it and the set of potential plaintiffs who might assert those claims. Moreover, the fact that the purpose of the statutory period is to give the defendant full protection after a certain time does not render the filing untimely. Furthermore, the balance of the Court's reasoning reveals a rule based on traditional equitable powers, designed to modify a stat-utory time bar where its rigid application would create injustice. To the contrary, the text, purpose, structure, and history all disclose the congressional purpose to offer defendants full and final security after three years. American Pipe, supra, at 573 U. S. ___ (slip op., at 7), reconciles these different ends by its two-tier structure: (1) a conventional statute of limitations in the first clause and (2) a "statutory repose," which serves as the judicial power to promote equity, rather than to interpret and enforce statutory provisions. P.. (b) Petitioner has not offered evidence of any recent influx of protective filings in the Second Circuit, which has affirmed the District Court rule affirmed here. It is reasonable that the former may be tolled by equitable considerations even though the latter in most circumstances may not. Cf. Dietz v. Bouldin, 579 U.S. ___, ___ (emphasis added). . (c) Nor is there merit to the argument that declining to apply American Pipe to the Statute of Repose will create inefficiencies, since nonnamed class members will inundate district courts with protective filings. Even if petitioner were correct, this Court lacks the authority to rewrite the statute, and to ignore its plain import. Such concerns likely are overstated, since many individual class members may have no interest in protecting their right to litigate on an individ-ual basis, and since district courts have ample means and methods to administer their dockets and ensure that additional filings proceed in an orderly fashion. Here, however,

2016_15-1262

https://www.oyez.org/cases/2016/15-1262

. The Constitution entrusts States with the job of designing congressional districts. But it also imposes an important constraint: A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason. In this case, a three-judge District Court ruled that North Carolina officials violated that bar when they created two districts whose voting-age populations were majority black. Applying a deferential standard of review to the factual findings underlying thatdecision, we affirm. I A The Equal Protection Clause of the Fourteenth Amendment limits racial gerrymanders in legislative districting plans. It prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 6) (internal quotation marks and alteration omitted). When a voter sues state officials for drawing such race-based lines, our decisions call for a two-step analysis. First, the plaintiff must prove 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 v. Johnson, 515 U. S. 900, 916 (1995) . That entails demonstrating that the legislature “subordinated” other factors—compactness, respect for political subdivisions, partisan advantage, what have you—to “racial considerations.” Ibid. The plaintiff may make the required showing through “direct evidence” of legislative intent, “circumstantial evidence of a district’s shape and demographics,” or a mix of both. Ibid.[1] Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny. See Bethune-Hill, 580 U. S., at ____ (slip op., at 13). The burden thus shifts to the State to prove that its race-based sorting of voters serves a “compelling interest” and is “narrowly tailored” to that end. Ibid. This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965 (VRA or Act), 79Stat. 437, as amended, 52 U. S. C. §10301 et seq. See, e.g., Shaw v. Hunt, 517 U. S. 899, 915 (1996) (Shaw II). Two provisions of the VRA—§2 and §5—are involved in this case. §§10301, 10304. Section 2 prohibits any “standard, practice, or procedure” that “results in a denial or abridgement of the right . . . to vote on account of race.” §10301(a). We have construed that ban to extend to “vote dilution”—brought about, most relevantly here, by the “dispersal of [a group’s members] into districts in which they constitute an ineffective minority of voters.” Thornburg v. Gingles, 478 U. S. 30 , n. 11 (1986). Section 5, at the time of the districting in dispute, worked through a different mechanism. Before this Court invalidated its coverage formula, see Shelby County v. Holder, 570 U. S. __ (2013), that section required certain jurisdictions (including various North Carolina counties) to pre-clear voting changes with the Department of Justice, so as to forestall “retrogression” in the ability of racial minorities to elect their preferred candidates, Beer v. United States, 425 U. S. 130, 141 (1976) . When a State invokes the VRA to justify race-based districting, it must show (to meet the “narrow tailoring” requirement) that it had “a strong basis in evidence” for concluding that the statute required its action. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 22). Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines. Ibid. That “strong basis” (or “good reasons”) standard gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed. Bethune-Hill, 580 U. S., at ___ (slip op., at 16). A district court’s assessment of a districting plan, in accordance with the two-step inquiry just described, warrants significant deference on appeal to this Court.[2] We of course retain full power to correct a court’s errors of law, at either stage of the analysis. But the court’s findings of fact—most notably, as to whether racial considerations predominated in drawing district lines—are subject to review only for clear error. See Fed. Rule Civ. Proc. 52(a)(6); Easley v. Cromartie, 532 U. S. 234, 242 (2001) (Cromartie II); id., at 259 (Thomas, J., dissenting). Under that standard, we may not reverse just because we “would have decided the [matter] differently.” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) . A finding that is “plausible” in light of the full record—even if another is equally or more so—must govern. Id., at 574. B This case concerns North Carolina’s most recent redrawing of two congressional districts, both of which have long included substantial populations of black voters. In its current incarnation, District 1 is anchored in the northeastern part of the State, with appendages stretching both south and west (the latter into Durham). District 12 begins in the south-central part of the State (where it takes in a large part of Charlotte) and then travels northeast, zig-zagging much of the way to the State’s northern border. (Maps showing the districts are included in an appendix to this opinion.) Both have quite the history before this Court. We first encountered the two districts, in their 1992 versions, in Shaw v. Reno, 509 U. S. 630 (1993) . There, we held that voters stated an equal protection claim by alleging that Districts 1 and 12 were unwarranted racial gerrymanders. See id., at 642, 649. After a remand to the District Court, the case arrived back at our door. See Shaw II, 517 U. S. 899 . That time, we dismissed the challenge to District 1 for lack of standing, but struck down District 12. The design of that “serpentine” district, we held, was nothing if not race-centric, and could not be justified as a reasonable attempt to comply with the VRA. Id., at 906; see id., at 911–918. The next year, the State responded with a new districting plan, including a new District 12—and residents of that district brought another lawsuit alleging an impermissible racial gerrymander. A District Court sustained the claim twice, but both times this Court reversed. See Hunt v. Cromartie, 526 U. S. 541 (1999) (Cromartie I); Cromartie II, 532 U. S. 234 . Racial considerations, we held, did not predominate in designing the revised District 12. Rather, that district was the result of a political gerrymander—an effort to engineer, mostly “without regard to race,” a safe Democratic seat. Id., at 245. The State redrew its congressional districts again in 2001, to account for population changes revealed in the prior year’s census. Under the 2001 map, which went unchallenged in court, neither District 1 nor District 12 had a black voting-age population (called a “BVAP”) that was a majority of the whole: The former had a BVAP of around 48%, the latter a BVAP of around 43%. See App. 312, 503. Nonetheless, in five successive general elections conducted in those reconfigured districts, all the candidates preferred by most African-American voters won their contests—and by some handy margins. In District 1, black voters’ candidates of choice garnered as much as 70% of the total vote, and never less than 59%. See 5 Record 636, 638, 641, 645, 647 (Pls. Exh. 112). And in District 12, those candidates won with 72% of the vote at the high end and 64% at the low. See id., at 637, 640, 643, 646, 650. Another census, in 2010, necessitated yet another congressional map—(finally) the one at issue in this case. State Senator Robert Rucho and State Representative David Lewis, both Republicans, chaired the two committees jointly responsible for preparing the revamped plan. They hired Dr. Thomas Hofeller, a veteran political mapmaker, to assist them in redrawing district lines. Several hearings, drafts, and revisions later, both chambers of the State’s General Assembly adopted the scheme the three men proposed. The new map (among other things) significantly altered both District 1 and District 12. The 2010 census had revealed District 1 to be substantially underpopulated: To comply with the Constitution’s one-person-one-vote principle, the State needed to place almost 100,000 new people within the district’s boundaries. See App. 2690; Evenwel v. Abbott, 578 U. S. ___, ___ (2016) (slip op., at 3) (explaining that “[s]tates must draw congressional districts with populations as close to perfect equality as possible”). Rucho, Lewis, and Hofeller chose to take most of those people from heavily black areas of Durham, requiring a finger-like extension of the district’s western line. See Appendix, infra. With that addition, District 1’s BVAP rose from 48.6% to 52.7%. See App. 312–313. District 12, for its part, had no need for significant total-population changes: It was overpopulated by fewer than 3,000 people out of over 730,000. See id., at 1150. Still, Rucho, Lewis, and Hofeller decided to reconfigure the district, further narrowing its already snakelike body while adding areas at either end—most relevantly here, in Guilford County. See Appendix, infra; App. 1164. Those changes appreciably shifted the racial composition of District 12: As the district gained some 35,000 African-Americans of voting age and lost some 50,000 whites of that age, its BVAP increased from 43.8% to 50.7%. See 2 Record 349 (Fourth Affidavit of Dan Frey, Exh. 5); id., at 416 (Exh. 11). Registered voters in the two districts (David Harris and Christine Bowser, here called “the plaintiffs”) brought this suit against North Carolina officials (collectively, “the State” or “North Carolina”), complaining of impermissible racial gerrymanders. After a bench trial, a three-judge District Court held both districts unconstitutional. All the judges agreed that racial considerations predominated in the design of District 1. See Harris v. McCrory, 159 F. Supp. 3d 600, 611 (MDNC 2016). And in then applying strict scrutiny, all rejected the State’s argument that it had a “strong basis” for thinking that the VRA compelled such a race-based drawing of District 1’s lines. Id., at 623. As for District 12, a majority of the panel held that “race predominated” over all other factors, including partisanship. Id., at 622. And the court explained that the State had failed to put forward any reason, compelling or otherwise, for its attention to race in designing that district. See ibid. Judge Osteen dissented from the conclusion that race, rather than politics, drove District 12’s lines—yet still characterized the majority’s view as “[e]minently reasonable.” Id., at 640. The State filed a notice of appeal, and we noted probable jurisdiction. McCrory v. Harris, 579 U. S. ___ (2016). II We address at the outset North Carolina’s contention that a victory it won in a very similar state-court lawsuit should dictate (or at least influence) our disposition of this case. As the State explains, the North Carolina NAACP and several other civil rights groups challenged Districts 1 and 12 in state court immediately after their enactment, charging that they were unlawful racial gerrymanders. See Brief for Appellants 19–20. By the time the plaintiffs before us filed this action, the state trial court, in Dickson v. Rucho, had rejected those claims—finding that in District 1 the VRA justified the General Assembly’s use of race and that in District 12 race was not a factor at all. See App. 1969. The North Carolina Supreme Court then affirmed that decision by a 4–3 vote, applying the state-court equivalent of clear error review. See Dickson v. Rucho, 368 N. C. 481, 500, 781 S. E. 2d 404, 419 (2015), modified on denial of reh’g, 368 N. C. 673, 789 S. E. 2d 436 (2016), cert. pending, No. 16–24. In this Court, North Carolina makes two related arguments based on the Dickson litigation: first, that the state trial court’s judgment should have barred this case altogether, under familiar principles of claim and issue preclusion; and second, that the state court’s conclusions should cause us to conduct a “searching review” of the decision below, rather than deferring (as usual) to its factual findings. Reply Brief 6. The State’s preclusion theory rests on an assertion about how the plaintiffs in the two cases are affiliated. As the State acknowledges, one person’s lawsuit generally does not bar another’s, no matter how similar they are in substance. See Taylor v. Sturgell, 553 U. S. 880 –893 (2008) (noting the “deep-rooted historic tradition that everyone should have his own day in court”). But when plaintiffs in two cases have a special relationship, a judgment against one can indeed bind both. See id., at 893–895 (describing six categories of qualifying relationships). The State contends that Harris and Bowser, the plaintiffs here, are members of organizations that were plaintiffs in Dickson. And according to North Carolina, that connection prevents the pair from raising anew the questions that the state court previously resolved against those groups. See Brief for Appellants 20–21. But North Carolina never satisfied the District Court that the alleged affiliation really existed. When the State argued that its preclusion theory entitled it to summary judgment, Harris and Bowser responded that they were not members of any of the organizations that had brought the Dickson suit. See 3 Record 1577–1582 (Defs. Motion for Summary Judgment); 4 Record 101–106 (Pls. Opposition to Motion for Summary Judgment). The parties’ dueling contentions turned on intricate issues about those groups’ membership policies (e.g., could Harris’s payment of dues to the national NAACP, or Bowser’s financial contribution to the Mecklenburg County NAACP, have made either a member of the state branch?). Because of those unresolved “factual disputes,” the District Court denied North Carolina’s motion for summary judgment. 4 Record 238 (July 29, 2014 Order). And nothing in the subsequent trial supported the State’s assertion about Harris’s and Bowser’s organizational ties: Indeed, the State chose not to present any further evidence relating to the membership issue. Based on the resulting record, the District Court summarily rejected the State’s claim that Harris and Bowser were something other than independent plaintiffs. See 159 F. Supp. 3d, at 609. That conclusion defeats North Carolina’s attempt to argue for claim or issue preclusion here. We have no basis for assessing the factual assertions underlying the State’s argument any differently than the District Court did. Nothing in the State’s evidence clearly rebuts Harris’s and Bowser’s testimony that they never joined any of the Dickson groups. We need not decide whether the alleged memberships would have supported preclusion if they had been proved. It is enough that the District Court reason-ably thought they had not. The State’s back-up argument about our standard of review also falls short. The rule that we review a trial court’s factual findings for clear error contains no exception for findings that diverge from those made in another court. See Fed. Rule Civ. Proc. 52(a)(6) (“Findings of fact . . . must not be set aside unless clearly erroneous”); see also Hernandez v. New York, 500 U. S. 352, 369 (1991) (plurality opinion) (applying the same standard to a state court’s findings). Whatever findings are under review receive the benefit of deference, without regard to whether a court in a separate suit has seen the matter differently. So here, we must ask not which court considering Districts 1 and 12 had the better view of the facts, but simply whether the court below’s view is clearly wrong. That does not mean the state court’s decision is wholly irrelevant: It is common sense that, all else equal, a finding is more likely to be plainly wrong if some judges disagree with it. Cf. Glossip v. Gross, 576 U. S. ___, ___ (2015) (slip op., at 17) (noting that we are even less likely to disturb a factual determination when “multiple trial courts have reached the same finding”). But the very premise of clear error review is that there are often “two permissible”—because two “plausible”—“views of the evidence.” Anderson, 470 U. S., at 574; see supra, at 4. Even assuming the state court’s findings capture one such view, the District Court’s assessment may yet represent another. And the permissibility of the District Court’s account is the only question before us. III With that out of the way, we turn to the merits of this case, beginning (appropriately enough) with District 1. As noted above, the court below found that race furnished the predominant rationale for that district’s redesign. See supra, at 6–7. And it held that the State’s interest in complying with the VRA could not justify that consideration of race. See supra, at 7. We uphold both conclusions. A Uncontested evidence in the record shows that the State’s mapmakers, in considering District 1, purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population. See 159 F. Supp. 3d, at 611–614. Senator Rucho and Representative Lewis were not coy in expressing that goal. They repeatedly told their colleagues that District 1 had to be majority-minority, so as to comply with the VRA. During a Senate debate, for example, Rucho explained that District 1 “must include a sufficient number of African-Americans” to make it “a majority black district.” App. 689–690. Similarly, Lewis informed the House and Senate redistricting committees that the district must have “a majority black voting age population.” Id., at 610. And that objective was communicated in no uncertain terms to the legislators’ consultant. Dr. Hofeller testified multiple times at trial that Rucho and Lewis instructed him “to draw [District 1] with a [BVAP] in excess of 50 percent.” 159 F. Supp. 3d, at 613; see, e.g., ibid. (“Once again, my instructions [were] that the district had to be drawn at above 50 percent”). Hofeller followed those directions to the letter, such that the 50%-plus racial target “had a direct and significant impact” on District 1’s configuration. Alabama, 575 U. S., at __ (slip op., at 17). In particular, Hofeller moved the district’s borders to encompass the heavily black parts of Durham (and only those parts), thus taking in tens of thousands of additional African-American voters. That change and similar ones, made (in his words) to ensure that the district’s racial composition would “add[ ] up correctly,” deviated from the districting practices he other-wise would have followed. App. 2802. Hofeller candidly admitted that point: For example, he testified, he sometimes could not respect county or precinct lines as he wished because “the more important thing” was to create a majority-minority district. Id., at 2807; see id., at 2809. The result is a district with stark racial borders: Within the same counties, the portions that fall inside District 1 have black populations two to three times larger than the portions placed in neighboring districts. See Brief for United States as Amicus Curiae 19; cf. Alabama, 575 U. S., at ___–___ (slip op., at 17–18) (relying on similar evidence to find racial predominance). Faced with this body of evidence—showing an announced racial target that subordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites—the District Court did not clearly err in finding that race predominated in drawing District 1. Indeed, as all three judges recognized, the court could hardly have concluded anything but. See 159 F. Supp. 3d, at 611 (calling District 1 a “textbook example” of race-based districting).[3] B The more substantial question is whether District 1 can survive the strict scrutiny applied to racial gerrymanders. As noted earlier, we have long assumed that complying with the VRA is a compelling interest. See supra, at 2. And we have held that race-based districting is narrowly tailored to that objective if a State had “good reasons” for thinking that the Act demanded such steps. See supra, at 3. North Carolina argues that District 1 passes muster under that standard: The General Assembly (so says the State) had “good reasons to believe it needed to draw [District 1] as a majority-minority district to avoid Section 2 liability” for vote dilution. Brief for Appellants 52. We now turn to that defense. This Court identified, in Thornburg v. Gingles, three threshold conditions for proving vote dilution under §2 of the VRA. See 478 U. S., at 50–51. First, a “minority group” must be “sufficiently large and geographically compact to constitute a majority” in some reasonably configured legislative district. Id., at 50. Second, the minority group must be “politically cohesive.” Id., at 51. And third, a district’s white majority must “vote[ ] sufficiently as a bloc” to usually “defeat the minority’s preferred candidate.” Ibid. Those three showings, we have explained, are needed to establish that “the minority [group] has the potential to elect a representative of its own choice” in a possible district, but that racially polarized voting prevents it from doing so in the district as actually drawn because it is “submerg[ed] in a larger white voting population.” Growe v. Emison, 507 U. S. 25, 40 (1993) . If a State has good reason to think that all the “Gingles preconditions” are met, then so too it has good reason to believe that §2 requires drawing a majority-minority district. See Bush v. Vera, 517 U. S. 952, 978 (1996) (plurality opinion). But if not, then not. Here, electoral history provided no evidence that a §2 plaintiff could demonstrate the third Gingles prerequisite—effective white bloc-voting.[4] For most of the twenty years prior to the new plan’s adoption, African-Americans had made up less than a majority of District 1’s voters; the district’s BVAP usually hovered between 46% and 48%. See 159 F. Supp. 3d, at 606; App. 312. Yet throughout those two decades, as the District Court noted, District 1 was “an extraordinarily safe district for African-American preferred candidates.” 159 F. Supp. 3d, at 626. In the closest election during that period, African-Americans’ candidate of choice received 59% of the total vote; in other years, the share of the vote garnered by those candidates rose to as much as 70%. See supra, at 5. Those victories (indeed, landslides) occurred because the district’s white population did not “vote[ ] sufficiently as a bloc” to thwart black voters’ preference, Gingles, 478 U. S., at 51; rather, a meaningful number of white voters joined a politically cohesive black community to elect that group’s favored candidate. In the lingo of voting law, District 1 functioned, election year in and election year out, as a “cross-over” district, in which members of the majority help a “large enough” minority to elect its candidate of choice. Bartlett v. Strickland, 556 U. S. 1, 13 (2009) (plurality opinion). When voters act in that way, “[i]t is difficult to see how the majority-bloc-voting requirement could be met”—and hence how §2 liability could be established. Id., at 16. So experience gave the State no reason to think that the VRA required it to ramp up District 1’s BVAP. The State counters that, in this context, past performance is no guarantee of future results. See Brief for Appellants 57–58; Reply Brief 19–20. Recall here that the State had to redraw its whole congressional map following the 2010 census. See supra, at 5. And in particular, the State had to add nearly 100,000 new people to District 1 to meet the one-person-one-vote standard. See supra, at 6. That meant about 13% of the voters in the new district would never have voted there before. See App. 2690; Reply Brief 20. So, North Carolina contends, the question facing the state mapmakers was not whether the then-existing District 1 violated §2. Rather, the question was whether the future District 1 would do so if drawn without regard to race. And that issue, the State claims, could not be resolved by “focusing myopically on past elections.” Id., at 19. But that reasoning, taken alone, cannot justify North Carolina’s race-based redesign of District 1. True enough, a legislature undertaking a redistricting must assess whether the new districts it contemplates (not the old ones it sheds) conform to the VRA’s requirements. And true too, an inescapable influx of additional voters into a district may suggest the possibility that its former track record of compliance can continue only if the legislature intentionally adjusts its racial composition. Still, North Carolina too far downplays the significance of a longtime pattern of white crossover voting in the area that would form the core of the redrawn District 1. See Gingles, 478 U. S., at 57 (noting that longtime voting patterns are highly probative of racial polarization). And even more important, North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1, created without a focus on race but however else the State would choose, could lead to §2 liability. The prospect of a significant population increase in a district only raises—it does not answer—the question whether §2 requires deliberate measures to augment the district’s BVAP. (Indeed, such population growth could cut in either direction, depending on who comes into the district.) To have a strong basis in evidence to conclude that §2 demands such race-based steps, the State must carefully evaluate whether a plaintiff could establish the Gingles preconditions—including effective white bloc-voting—in a new district created without those measures. We see nothing in the legislative record that fits that description.[5] And that absence is no accident: Rucho and Lewis proceeded under a wholly different theory—arising not from Gingles but from Bartlett v. Strickland—of what §2 demanded in drawing District 1. Strickland involved a geographic area in which African-Americans could not form a majority of a reasonably compact district. See 556 U. S., at 8 (plurality opinion). The African-American community, however, was sizable enough to enable the formation of a crossover district, in which a substantial bloc of black voters, if receiving help from some white ones, could elect the candidates of their choice. See supra, at 14. A plurality of this Court, invoking the first Gingles precondition, held that §2 did not require creating that district: When a minority group is not sufficiently large to make up a majority in a reasonably shaped district, §2 simply does not apply. See 556 U. S., at 18–20. Over and over in the legislative record, Rucho and Lewis cited Strickland as mandating a 50%-plus BVAP in District 1. See App. 355–356, 363–364, 472–474, 609–610, 619, 1044. They apparently reasoned that if, as Strickland held, §2 does not require crossover districts (for groups insufficiently large under Gingles), then §2 also cannot be satisfied by crossover districts (for groups in fact meeting Gingles’ size condition). In effect, they concluded, whenever a legislature can draw a majority-minority district, it must do so—even if a crossover district would also allow the minority group to elect its favored candidates. See 1 Tr. 21–22 (counsel’s explanation that “the [S]tate interpreted” Strickland to say that, in order to protect African-Americans’ electoral strength and thus avoid §2 liability, the BVAP in District 1 “need[ed] to be above 50 percent”). That idea, though, is at war with our §2 jurisprudence—Strickland included. Under the State’s view, the third Gingles condition is no condition at all, because even in the absence of effective white bloc-voting, a §2 claim could succeed in a district (like the old District 1) with an under-50% BVAP. But this Court has made clear that unless each of the three Gingles prerequisites is established, “there neither has been a wrong nor can be a remedy.” Growe, 507 U. S., at 41. And Strickland, far from supporting North Carolina’s view, underscored the necessity of demonstrating effective white bloc-voting to prevail in a §2 vote-dilution suit. The plurality explained that “[i]n areas with substantial crossover voting,” §2 plaintiffs would not “be able to establish the third Gingles precondition” and so “majority-minority districts would not be required.” 556 U. S., at 24; see also ibid. (noting that States can “defend against alleged §2 violations by pointing to crossover voting patterns and to effective crossover districts”). Thus, North Carolina’s belief that it was compelled to redraw District 1 (a successful crossover district) as a majority-minority district rested not on a “strong basis in evidence,” but instead on a pure error of law. Alabama, 575 U. S., at ___ (slip op., at 22). In sum: Although States enjoy leeway to take race-based actions reasonably judged necessary under a proper interpretation of the VRA, that latitude cannot rescue District 1. We by no means “insist that a state legislature, when redistricting, determine precisely what percent minority population [§2 of the VRA] demands.” Ibid. But neither will we approve a racial gerrymander whose necessity is supported by no evidence and whose raison d’être is a legal mistake. Accordingly, we uphold the District Court’s conclusion that North Carolina’s use of race as the predominant factor in designing District 1 does not withstand strict scrutiny. IV We now look west to District 12, making its fifth(!) appearance before this Court. This time, the district’s legality turns, and turns solely, on which of two possible reasons predominantly explains its most recent reconfiguration. The plaintiffs contended at trial that the General Assembly chose voters for District 12, as for District 1, because of their race; more particularly, they urged that the Assembly intentionally increased District 12’s BVAP in the name of ensuring preclearance under the VRA’s §5. But North Carolina declined to mount any defense (similar to the one we have just considered for District 1) that §5’s requirements in fact justified race-based changes to District 12—perhaps because §5 could not reasonably be understood to have done so, see n. 10, infra. Instead, the State altogether denied that racial considerations accounted for (or, indeed, played the slightest role in) District 12’s redesign. According to the State’s version of events, Senator Rucho, Representative Lewis, and Dr. Hofeller moved voters in and out of the district as part of a “strictly” political gerrymander, without regard to race. 6 Record 1011. The mapmakers drew their lines, in other words, to “pack” District 12 with Democrats, not African-Americans. After hearing evidence supporting both parties’ accounts, the District Court accepted the plaintiffs’.[6] Getting to the bottom of a dispute like this one poses special challenges for a trial court. In the more usual case alleging a racial gerrymander—where no one has raised a partisanship defense—the court can make real headway by exploring the challenged district’s conformity to traditional districting principles, such as compactness and respect for county lines. In Shaw II, for example, this Court emphasized the “highly irregular” shape of then-District 12 in concluding that race predominated in its design. 517 U. S., at 905 (internal quotation marks omitted). But such evidence loses much of its value when the State asserts partisanship as a defense, because a bizarre shape—as of the new District 12—can arise from a “political motivation” as well as a racial one. Cromartie I, 526 U. S., at 547, n. 3. And crucially, political and racial reasons are capable of yielding similar oddities in a district’s boundaries. That is because, of course, “racial identification is highly correlated with political affiliation.” Cromartie II, 532 U. S., at 243. As a result of those redistricting realities, a trial court has a formidable task: It must make “a sensitive inquiry” into all “circumstantial and direct evidence of intent” to assess whether the plaintiffs have managed to disentangle race from politics and prove that the former drove a district’s lines. Cromartie I, 526 U. S., at 546 (internal quotation marks omitted).[7] Our job is different—and generally easier. As described earlier, we review a district court’s finding as to racial predominance only for clear error, except when the court made a legal mistake. See supra, at 3–4. Under that standard of review, we affirm the court’s finding so long as it is “plausible”; we reverse only when “left with the definite and firm conviction that a mistake has been committed.” Anderson, 470 U. S., at 573–574; see supra, at 4. And in deciding which side of that line to come down on, we give singular deference to a trial court’s judgments about the credibility of witnesses. See Fed. Rule Civ. Proc. 52(a)(6). That is proper, we have explained, because the various cues that “bear so heavily on the listener’s understanding of and belief in what is said” are lost on an appellate court later sifting through a paper record. Anderson, 470 U. S., at 575.[8] In light of those principles, we uphold the District Court’s finding of racial predominance respecting District 12. The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view, the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent. A Begin with some facts and figures, showing how the redistricting of District 12 affected its racial composition. As explained above, District 12 (unlike District 1) was approximately the right size as it was: North Carolina did not—indeed, could not—much change its total population. See supra, at 6. But by further slimming the district and adding a couple of knobs to its snakelike body (including in Guilford County), the General Assembly incorporated tens of thousands of new voters and pushed out tens of thousands of old ones. And those changes followed racial lines: To be specific, the new District 12 had 35,000 more African-Americans of voting age and 50,000 fewer whites of that age. (The difference was made up of voters from other racial categories.) See ibid. Those voter exchanges produced a sizable jump in the district’s BVAP, from 43.8% to 50.7%. See ibid. The Assembly thus turned District 12 (as it did District 1, see supra, at 10–11) into a majority-minority district. As the plaintiffs pointed out at trial, Rucho and Lewis had publicly stated that racial considerations lay behind District 12’s augmented BVAP. In a release issued along with their draft districting plan, the two legislators ascribed that change to the need to achieve preclearance of the plan under §5 of the VRA. See App. 358. At that time, §5 covered Guilford County and thus prohibited any “retrogression in the [electoral] position of racial minorities” there. Beer, 425 U. S., at 141; see 31 Fed. Reg. 5081 (1966). And part of Guilford County lay within District 12, which meant that the Department of Justice would closely scrutinize that district’s new lines. In light of those facts, Rucho and Lewis wrote: “Because of the presence of Guilford County in the Twelfth District, we have drawn our proposed Twelfth District at a [BVAP] level that is above the percentage of [BVAP] found in the current Twelfth District.” App. 358. According to the two legislators, that race-based “measure w[ould] ensure preclearance of the plan.” Ibid. Thus, the District Court found, Rucho’s and Lewis’s own account “evince[d] intentionality” as to District 12’s racial composition: Because of the VRA, they increased the number of African-Americans. 159 F. Supp. 3d, at 617. Hofeller confirmed that intent in both deposition testimony and an expert report. Before the redistricting, Hofeller testified, some black residents of Guilford County fell within District 12 while others fell within neighboring District 13. The legislators, he continued, “decided to reunite the black community in Guilford County into the Twelfth.” App. 558; see id., at 530–531. Why? Hofeller responded, in language the District Court emphasized: “[I]n order to be cautious and draw a plan that would pass muster under the Voting Rights Act.” Id., at 558; see 159 F. Supp. 3d, at 619. Likewise, Hofeller’s expert report highlighted the role of the VRA in altering District 12’s lines. “[M]indful that Guilford County was covered” by §5, Hofeller explained, the legislature “determined that it was prudent to reunify [the county’s] African-American community” into District 12. App. 1103. That change caused the district’s compactness to decrease (in expert-speak, it “lowered the Reock Score”), but that was a sacrifice well worth making: It would “avoid the possibility of a [VRA] charge” that would “inhibit[ ] preclearance.” Ibid. The State’s preclearance submission to the Justice Department indicated a similar determination to concentrate black voters in District 12. “One of the concerns of the Redistricting Chairs,” North Carolina there noted, had to do with the Justice Department’s years-old objection to “a failure by the State to create a second majority minority district” (that is, in addition to District 1). Id., at 478. The submission then went on to explain that after considering alternatives, the redistricters had designed a version of District 12 that would raise its BVAP to 50.7%. Thus, concluded the State, the new District 12 “increases[ ] the African-American community’s ability to elect their candidate of choice.” Id., at 479. In the District Court’s view, that passage once again indicated that making District 12 majority-minority was no “mere coincidence,” but a deliberate attempt to avoid perceived obstacles to preclearance. 159 F. Supp. 3d, at 617.[9] And still there was more: Perhaps the most dramatic testimony in the trial came when Congressman Mel Watt (who had represented District 12 for some 20 years) recounted a conversation he had with Rucho in 2011 about the district’s future make-up. According to Watt, Rucho said that “his leadership had told him that he had to ramp the minority percentage in [District 12] up to over 50 percent to comply with the Voting Rights Law.” App. 2369; see id., at 2393. And further, that it would then be Rucho’s “job to go and convince the African-American community” that such a racial target “made sense” under the Act. Ibid.; see id., at 2369.[10] The District Court cred-ited Watt’s testimony about the conversation, citing his courtroom demeanor and “consistent recollection” under “probing cross-examination.” 159 F. Supp. 3d, at 617–618.[11] In the court’s view, Watt’s account was of a piece with all the other evidence—including the redistricters’ on-the-nose attainment of a 50% BVAP—indicating that the General Assembly, in the name of VRA compliance, deliberately redrew District 12 as a majority-minority district. See id., at 618.[12] The State’s contrary story—that politics alone drove decisionmaking—came into the trial mostly through Hofeller’s testimony. Hofeller explained that Rucho and Lewis instructed him, first and foremost, to make the map as a whole “more favorable to Republican candidates.” App. 2682. One agreed-on stratagem in that effort was to pack the historically Democratic District 12 with even more Democratic voters, thus leaving surrounding districts more reliably Republican. See id., at 2682–2683, 2696–2697. To that end, Hofeller recounted, he drew District 12’s new boundaries based on political data—specifically, the voting behavior of precincts in the 2008 Presidential election between Barack Obama and John McCain. See id., at 2701–2702. Indeed, he claimed, he displayed only this data, and no racial data, on his computer screen while mapping the district. See id., at 2721. In part of his testimony, Hofeller further stated that the Obama-McCain election data explained (among other things) his incorporation of the black, but not the white, parts of Guilford County then located in District 13. See id., at 2824. Only after he drew a politics-based line between those adjacent areas, Hofeller testified, did he “check[ ]” the racial data and “f[ind] out” that the resulting configuration of District 12 “did not have a [§5] issue.” Id., at 2822. The District Court, however, disbelieved Hofeller’s asserted indifference to the new district’s racial composition. The court recalled Hofeller’s contrary deposition testimony—his statement (repeated in only slightly different words in his expert report) that Rucho and Lewis “decided” to shift African-American voters into District 12 “in order to” ensure preclearance under §5. See 159 F. Supp. 3d, at 619–620; App. 558. And the court explained that even at trial, Hofeller had given testimony that undermined his “blame it on politics” claim. Right after asserting that Rucho and Lewis had told him “[not] to use race” in designing District 12, Hofeller added a qualification: “except perhaps with regard to Guilford County.” Id., at 2791; see id., at 2790. As the District Court understood, that is the kind of “exception” that goes pretty far toward swallowing the rule. District 12 saw a net increase of more than 25,000 black voters in Guilford County, relative to a net gain of fewer than 35,000 across the district: So the newly added parts of that county played a major role in pushing the district’s BVAP over 50%. See id., at 384, 500–502.[13] The District Court came away from Hofeller’s self-contradictory testimony unpersuaded that this decisive influx of black voters was an accident. Whether the racial make-up of the county was displayed on his computer screen or just fixed in his head, the court thought, Hofeller’s denial of race-based districting “r[ang] hollow.” 159 F. Supp. 3d, at 620, n. 8. Finally, an expert report by Dr. Stephen Ansolabehere lent circumstantial support to the plaintiffs’ race-not-politics case. Ansolabehere looked at the six counties overlapping with District 12—essentially the region from which the mapmakers could have drawn the district’s population. The question he asked was: Who from those counties actually ended up in District 12? The answer he found was: Only 16% of the region’s white registered voters, but 64% of the black ones. See App. 321–322. Ansolabehere next controlled for party registration, but discovered that doing so made essentially no difference: For example, only 18% of the region’s white Democrats wound up in District 12, whereas 65% of the black Democrats did. See id., at 332. The upshot was that, regardless of party, a black voter was three to four times more likely than a white voter to cast his ballot within District 12’s borders. See ibid. Those stark disparities led Ansolabehere to conclude that “race, and not party,” was “the dominant factor” in District 12’s design. Id., at 337.[14] His report, as the District Court held, thus tended to confirm the plaintiffs’ direct evidence of racial predominance. See 159 F. Supp. 3d, at 620–621. The District Court’s assessment that all this evidence proved racial predominance clears the bar of clear error review. The court emphasized that the districting plan’s own architects had repeatedly described the influx of African-Americans into District 12 as a §5 compliance measure, not a side-effect of political gerrymandering. And those contemporaneous descriptions comported with the court’s credibility determinations about the trial testimony—that Watt told the truth when he recounted Rucho’s resolve to hit a majority-BVAP target; and conversely that Hofeller skirted the truth (especially as to Guilford County) when he claimed to have followed only race-blind criteria in drawing district lines. We cannot disrespect such credibility judgments. See Anderson, 470 U. S., at 575 (A choice to believe “one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence,” can “virtually never be clear error”). And more generally, we will not take it upon ourselves to weigh the trial evidence as if we were the first to hear it. See id., at 573 (A “reviewing court oversteps” under Rule 52(a) “if it undertakes to duplicate the role of the lower court”). No doubt other interpretations of that evidence were permissible. Maybe we would have evaluated the testimony differently had we presided over the trial; or then again, maybe we would not have. Either way—and it is only this which matters—we are far from having a “definite and firm conviction” that the District Court made a mistake in concluding from the record before it that racial considerations predominated in District 12’s design. B The State mounts a final, legal rather than factual, attack on the District Court’s finding of racial predominance. When race and politics are competing explanations of a district’s lines, argues North Carolina, the party challenging the district must introduce a particular kind of circumstantial evidence: “an alternative [map] that achieves the legislature’s political objectives while improving racial balance.” Brief for Appellants 31 (emphasis deleted). That is true, the State says, irrespective of what other evidence is in the case—so even if the plaintiff offers powerful direct proof that the legislature adopted the map it did for racial reasons. See Tr. of Oral Arg. 8. Because the plaintiffs here (as all agree) did not present such a counter-map, North Carolina concludes that they cannot prevail. The dissent echoes that argument. See post, at 6–11. We have no doubt that an alternative districting plan, of the kind North Carolina describes, can serve as key evidence in a race-versus-politics dispute. One, often highly persuasive way to disprove a State’s contention that politics drove a district’s lines is to show that the legislature had the capacity to accomplish all its partisan goals without moving so many members of a minority group into the district. If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible, rather than a prohibited, ground. See, e.g., Miller-El v. Dretke, 545 U. S. 231, 249 (2005) (“If that were the [real] explanation for striking [juror] Warren[,] the prosecutors should have struck [juror] Jenkins” too). But they are hardly the only means. Suppose that the plaintiff in a dispute like this one introduced scores of leaked emails from state officials instructing their mapmaker to pack as many black voters as possible into a district, or telling him to make sure its BVAP hit 75%. Based on such evidence, a court could find that racial rather than political factors predominated in a district’s design, with or without an alternative map. And so too in cases lacking that kind of smoking gun, as long as the evidence offered satisfies the plaintiff’s burden of proof. In Bush v. Vera, for example, this Court upheld a finding of racial predominance based on “substantial direct evidence of the legislature’s racial motivations”—including credible testimony from political figures and statements made in a §5 preclearance submission—plus circumstantial evidence that redistricters had access to racial, but not political, data at the “block-by-block level” needed to explain their “intricate” designs. See 517 U. S., at 960–963 (plurality opinion). Not a single Member of the Court thought that the absence of a counter-map made any difference. Similarly, it does not matter in this case, where the plaintiffs’ introduction of mostly direct and some circumstantial evidence—documents issued in the redistricting process, testimony of government officials, expert analysis of demographic patterns—gave the District Court a sufficient basis, sans any map, to resolve the race-or-politics question. A plaintiff’s task, in other words, is simply to persuade the trial court—without any special evidentiary prerequisite—that race (not politics) was the “predominant consideration in deciding to place a significant number of voters within or without a particular district.” Alabama, 575 U. S., at ___ (slip op., at 4) (internal quotation marks omitted); cf. Bethune-Hill, 580 U. S., at ___, ___ (slip op., at 8, 10) (rejecting a similar effort to elevate one form of “persuasive circumstantial evidence” in a dispute respecting racial predominance to a “mandatory precondition” or “threshold requirement” of proof). That burden of proof, we have often held, is “demanding.” E.g., Cromartie II, 532 U. S., at 241. And because that is so, a plaintiff will sometimes need an alternative map, as a practical matter, to make his case. But in no area of our equal protection law have we forced plaintiffs to submit one particular form of proof to prevail. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 –268 (1977) (offering a varied and non-exhaustive list of “subjects of proper inquiry in determining whether racially discriminatory intent existed”). Nor would it make sense to do so here. The Equal Protection Clause prohibits the unjustified drawing of district lines based on race. An alternative map is merely an evidentiary tool to show that such a substantive violation has occurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim.[15] North Carolina insists, however, that we have already said to the contrary—more particularly, that our decision in Cromartie II imposed a non-negotiable “alternative-map requirement.” Brief for Appellants 31. As the State observes, Cromartie II reversed as clearly erroneous a trial court’s finding that race, rather than politics, predominated in the assignment of voters to an earlier incarnation of District 12. See 532 U. S., at 241; supra, at 5. And as the State emphasizes, a part of our opinion faulted the Cromartie plaintiffs for failing to offer a convincing account of how the legislature could have accomplished its political goals other than through the map it chose. See 532 U. S., at 257–258. We there stated: “In a case such as this one where majority-minority districts . . . are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance.” Id., at 258. According to North Carolina, that passage alone settles this case, because it makes an alternative map “essential” to a finding that District 12 (a majority-minority district in which race and partisanship are correlated) was a racial gerrymander. Reply Brief 11. Once again, the dissent says the same. See post, at 7. But the reasoning of Cromartie II belies that reading. The Court’s opinion nowhere attempts to explicate or justify the categorical rule that the State claims to find there. (Certainly the dissent’s current defense of that rule, see post, at 8–11, was nowhere in evidence.) And given the strangeness of that rule—which would treat a mere form of evidence as the very substance of a constitutional claim, see supra, at 29–31—we cannot think that the Court adopted it without any explanation. Still more, the entire thrust of the Cromartie II opinion runs counter to an inflexible counter-map requirement. If the Court had adopted that rule, it would have had no need to weigh each piece of evidence in the case and determine whether, taken together, they were “adequate” to show “the predominance of race in the legislature’s line-drawing process.” 532 U. S., at 243–244. But that is exactly what Cromartie II did, over a span of 20 pages and in exhaustive detail. Item by item, the Court discussed and dismantled the supposed proof, both direct and circumstantial, of race-based redistricting. All that careful analysis would have been superfluous—that dogged effort wasted—if the Court viewed the absence or inadequacy of a single form of evidence as necessarily dooming a gerrymandering claim. Rightly understood, the passage from Cromartie II had a different and narrower point, arising from and reflecting the evidence offered in that case. The direct evidence of a racial gerrymander, we thought, was extremely weak: We said of one piece that it “says little or nothing about whether race played a predominant role” in drawing district lines; we said of another that it “is less persuasive than the kinds of direct evidence we have found significant in other redistricting cases.” Id., at 253–254 (emphasis deleted). Nor did the report of the plaintiffs’ expert impress us overmuch: In our view, it “offer[ed] little insight into the legislature’s true motive.” Id., at 248. That left a set of arguments of the would-have-could-have variety. For example, the plaintiffs offered several maps purporting to “show how the legislature might have swapped” some mostly black and mostly white precincts to obtain greater racial balance “without harming [the legislature’s] political objective.” Id., at 255 (internal quotation marks omitted). But the Court determined that none of those proposed exchanges would have worked as advertised—essentially, that the plaintiffs’ “you could have redistricted differently” arguments failed on their own terms. See id., at 254–257. Hence emerged the demand quoted above, for maps that would actually show what the plaintiffs’ had not. In a case like Cromartie II—that is, one in which the plaintiffs had meager direct evidence of a racial gerrymander and needed to rely on evidence of forgone alternatives—only maps of that kind could carry the day. Id., at 258. But this case is most unlike Cromartie II, even though it involves the same electoral district some twenty years on. This case turned not on the possibility of creating more optimally constructed districts, but on direct evidence of the General Assembly’s intent in creating the actual District 12, including many hours of trial testimony subject to credibility determinations. That evidence, the District Court plausibly found, itself satisfied the plaintiffs’ burden of debunking North Carolina’s “it was really politics” defense; there was no need for an alternative map to do the same job. And we pay our precedents no respect when we extend them far beyond the circumstances for which they were designed. V Applying a clear error standard, we uphold the District Court’s conclusions that racial considerations predominated in designing both District 1 and District 12. For District 12, that is all we must do, because North Carolina has made no attempt to justify race-based districting there. For District 1, we further uphold the District Court’s decision that §2 of the VRA gave North Carolina no good reason to reshuffle voters because of their race. We accordingly affirm the judgment of the District Court. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case. Congressional District 1 (Enacted 2011) Congressional District 12 (Enacted 2011)Notes 1 A plaintiff succeeds at this stage even if the evidence reveals that a legislature elevated race to the predominant criterion in order to advance other goals, including political ones. See Bush v. Vera, 517 U. S. 952 –970 (1996) (plurality opinion) (holding that race predominated when a legislature deliberately “spread[ ] the Black population” among several districts in an effort to “protect[ ] Democratic incumbents”); Miller v. Johnson, 515 U. S. 900, 914 (1995) (stating that the “use of race as a proxy” for “political interest[s]” is “prohibit[ed]”). 2 Challenges to the constitutionality of congressional districts are heard by three-judge district courts, with a right of direct appeal to this Court. See 28 U. S. C. §§2284(a), 1253. 3 The State’s argument to the contrary rests on a legal proposition that was foreclosed almost as soon as it was raised in this Court. According to the State, racial considerations cannot predominate in drawing district lines unless there is an “actual conflict” between those lines and “traditional districting principles.” Brief for Appellants 45. But we rejected that view earlier this Term, holding that when (as here) race furnished “the overriding reason for choosing one map over others,” a further showing of “inconsistency between the enacted plan and traditional redistricting criteria” is unnecessary to a finding of racial predominance. Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 10). And in any event, the evidence recounted in the text indicates that District 1’s boundaries did conflict with traditional districting principles—for example, by splitting numerous counties and precincts. See supra, at 11. So we would uphold the District Court’s finding of racial predominance even under the (incorrect) legal standard the State proposes. 4 In the District Court, the parties also presented arguments relating to the first Gingles prerequisite, contesting whether the African-American community in the region was sufficiently large and compact to form a majority of a reasonably shaped district. The court chose not to decide that fact-intensive question. And aside from the State’s unelaborated assertion that “[t]here is no question that the first factor was satisfied,” Brief for Appellants 52, the parties have not briefed or argued the issue before us. We therefore have no occasion to address it. 5 North Carolina calls our attention to two expert reports on voting patterns throughout the State, but neither casts light on the relevant issue. The first (by Dr. Thomas Brunell) showed that some elections in many of the State’s counties exhibited “statistically significant” racially polarized voting. App. 1001. The second (by Dr. Ray Block) found that in various elections across the State, white voters were “noticeably” less likely than black voters to support black candidates. Id., at 959. From those far-flung data points—themselves based only on past elections—the experts opined (to no one’s great surprise) that in North Carolina, as in most States, there are discernible, non-random relationships between race and voting. But as the District Court found, see Harris v. McCrory, 159 F. Supp. 3d 600, 624 (MDNC 2016), that generalized conclusion fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter “sufficient[ ]” white bloc-voting to “cancel [their] ability to elect representatives of their choice,” Gingles, 478 U. S., at 56. And so the reports do not answer whether the legislature needed to boost District 1’s BVAP to avoid potential §2 liability. 6 Justice Alito charges us with “ignor[ing]” the State’s political-gerrymander defense, making our analysis “like Hamlet without the prince.” Post, at 20 (opinion concurring in judgment in part and dissenting in part) (hereinafter dissent); see post, at 20, 34. But we simply take the State’s account for what it is: one side of a thoroughly two-sided case (and, as we will discuss, the side the District Court rejected, primarily on factual grounds). By contrast, the dissent consistently treats the State’s version of events (what it calls “the Legislature’s political strategy and the relationship between that strategy and [District 12’s] racial composition,” post, at 20) as if it were a simple “fact of the matter”—the premise of, rather than a contested claim in, this case. See post, at 12–14, 16, 20, 26, 27–29, 33. The dissent’s narrative thus tracks, top-to-bottom and point-for-point, the testimony of Dr. Hofeller, the State’s star witness at trial—so much so that the dissent could just have block-quoted that portion of the transcript and saved itself a fair bit of trouble. Compare post, at 12–20, with App. 2671–2755. Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow. 7 As earlier noted, that inquiry is satisfied when legislators have “place[d] a significant number of voters within or without” a district predominantly because of their race, regardless of their ultimate objective in taking that step. See supra, at 2, and n. 1. So, for example, if legislators use race as their predominant districting criterion with the end goal of advancing their partisan interests—perhaps thinking that a proposed district is more “sellable” as a race-based VRA compliance measure than as a political gerrymander and will accomplish much the same thing—their action still triggers strict scrutiny. See Vera, 517 U. S., at 968–970 (plurality opinion). In other words, the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics. See Miller, 515 U. S., at 914. 8 Undeterred by these settled principles, the dissent undertakes to refind the facts of this case at every turn. See post, at 11–33. Indeed, the dissent repeatedly flips the appropriate standard of review—arguing, for example, that the District Court’s is not “the only plausible interpretation” of one piece of contested evidence and that the State offered an “entirely natural” view of another. Post, at 24, 31; see also post, at 20, 26, 27, 33. Underlying that approach to the District Court’s factfinding is an elemental error: The dissent mistakes the rule that a legislature’s good faith should be presumed “until a claimant makes a showing sufficient to support th[e] allegation” of “race-based decisionmaking,” Miller, 515 U. S., at 915, for a kind of super-charged, pro-State presumption on appeal, trumping clear-error review. See post, at 11–12, n. 7. 9 The dissent’s contrary reading of the preclearance submission—as reporting the redistricters’ “decis[ion] not to construct District 12 as a majority-minority district,” post, at 24—is difficult to fathom. The language the dissent cites explains only why Rucho and Lewis rejected one particular way of creating such a district; the submission then relates their alternative (and, of course, successful) approach to attaining an over-50% BVAP. See App. 478–479. 10 Watt recalled that he laughed in response because the VRA required no such target. See id., at 2369. And he told Rucho that “the African-American community will laugh at you” too. Ibid. Watt explained to Rucho: “I’m getting 65 percent of the vote in a 40 percent black district. If you ramp my [BVAP] to over 50 percent, I’ll probably get 80 percent of the vote, and[ ] that’s not what the Voting Rights Act was designed to do.” Ibid. 11 The court acknowledged that, in the earlier state-court trial involving District 12, Rucho denied making the comments that Watt recalled. See 159 F. Supp. 3d, at 617–618. But the court explained that it could not “assess [the] credibility” of Rucho’s contrary account because even though he was listed as a defense witness and present in the courtroom throughout the trial, the State chose not to put him on the witness stand. Id., at 618. 12 The dissent conjures a different way of explaining Watt’s testi-mony. Perhaps, the dissent suggests, Rucho disclosed a majority-minority target to Watt, but Watt then changed Rucho’s mind—and perhaps it was just a coincidence (or a mistake?) that Rucho still created a 50.7%-BVAP district. See post, at 25–26. But nothing in the record supports that hypothesis. See ibid. (relying exclusively on the State’s preclearance submission to back up this story); supra, at 23, and n. 9 (correcting the dissent’s misreading of that submission). And the State, lacking the dissent’s creativity, did not think to present it at trial. 13 The dissent charges that this comparison is misleading, but offers no good reason why that is so. See post, at 29–30. It is quite true, as the dissent notes, that another part of District 12 (in Mecklenburg County) experienced a net increase in black voters even larger than the one in Guilford County. See post, at 30. (The net increases in the two counties thus totaled more than 35,000; they were then partially offset by net decreases in other counties in District 12.) But that is irrelevant to the point made here: Without the numerous black voters added to District 12 in Guilford County—where the evidence most clearly indicates voters were chosen based on race—the district would have fallen well shy of majority-minority status. 14 Hofeller did not dispute Ansolabehere’s figures, but questioned his inference. Those striking patterns, the mapmaker claimed, were nothing more than the result of his own reliance on voting data from the 2008 Presidential election—because that information (i.e., who voted for Obama and who for McCain) tracked race better than it did party registration. See App. 1101, 1111–1114; cf. Cromartie II, 532 U. S. 234, 245 (2001) (recognizing that “party registration and party preference do not always correspond”). As we have just recounted, however, the District Court had other reasons to disbelieve Hofeller’s testimony that he used solely that electoral data to draw District 12’s lines. See supra, at 25–26. And Ansolabehere contended that even if Hofeller did so, that choice of data could itself suggest an intent to sort voters by race. Voting results from a “single [Presidential] election with a Black candidate,” Ansolabehere explained, would be a “problematic and unusual” indicator of future party preference, because of the racial dynamics peculiar to such a match-up. App. 341; see id., at 342–343. That data would, indeed, be much more useful as a reflection of an area’s racial composition: “The Obama vote,” Ansolabehere found, is “an extremely strong positive indicator of the location of Black registered voters” and, conversely, an “extremely strong negative indicator of the location of White registered voters.” Id., at 342; see id., at 2546–2550. 15 The dissent responds that an alternative-map requirement “should not be too hard” for plaintiffs (or at least “sophisticated” litigants “like those in the present case”) to meet. Post, at 10–11. But if the plaintiffs have already proved by a preponderance of the evidence that race predominated in drawing district lines, then we have no warrant to demand that they jump through additional evidentiary hoops (whether the exercise would cost a hundred dollars or a million, a week’s more time or a year’s). Or at least that would be so if we followed the usual rules. Underlying the dissent’s view that we should not—that we should instead create a special evidentiary burden—is its belief that “litigation of this sort” often seeks to “obtain in court what [a political party] could not achieve in the political arena,” post, at 9, and so that little is lost by making suits like this one as hard as possible. But whatever the possible motivations for bringing such suits (and the dissent says it is not questioning “what occurred here,” ibid.), they serve to prevent legislatures from taking unconstitutional districting action—which happens more often than the dissent must suppose. State lawmakers sometimes misunderstand the VRA’s requirements (as may have occurred here with respect to §5), leading them to employ race as a predominant districting criterion when they should not. See supra, at 22–24, and n. 10. Or they may resort to race-based districting for ultimately political reasons, leveraging the strong correlation between race and voting behavior to advance their partisan interests. See nn. 1, 7, supra. Or, finally—though we hope less commonly—they may simply seek to suppress the electoral power of minority voters. When plaintiffs meet their burden of showing that such conduct has occurred, there is no basis for subjecting them to additional—and unique—evidentiary hurdles, preventing them from receiving the remedy to which they are entitled.

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 COOPER, GOVERNOR OF NORTH CAROLINA, et al. v. HARRIS et al. on appeal from the united states district court for the middle district of north carolina No. 15–1262. Argued December 5, 2016—Decided May 22, 2017 The Equal Protection Clause of the Fourteenth Amendment prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___. When a voter sues state officials for drawing such race-based lines, this Court’s decisions call for a two-step analysis. First, the plaintiff must prove 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 v. Johnson, 515 U. S. 900 . Second, if racial considerations did predominate, the State must prove that its race-based sorting of voters serves a “compelling interest” and is “narrowly tailored” to that end, Bethune-Hill, 580 U. S., at ___. This Court has long assumed that one compelling interest is compliance with the Voting Rights Act of 1965 (VRA or Act). When a State invokes the VRA to justify race-based districting, it must show (to meet the “narrow tailoring” requirement) that it had “good reasons” for concluding that the statute required its action. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. A district court’s factual findings made in the course of this two-step inquiry are reviewed only for clear error. See Fed. Rule Civ. Proc. 52(a)(6); Easley v. Cromartie, 532 U. S. 234 (Cromartie II). This case concerns North Carolina’s redrawing of two congressional districts, District 1 and District 12, after the 2010 census. Prior to that redistricting, neither district had a majority black voting-age population (BVAP), but both consistently elected the candidates preferred by most African-American voters. The new map significantly altered both District 1 and District 12. The State needed to add almost 100,000 people to District 1 to comply with the one-person-one-vote principle, and it chose to take most of those people from heavily black areas of Durham—increasing the district’s BVAP from 48.6% to 52.7%. The State also reconfigured District 12, increasing its BVAP from 43.8% to 50.7%. Registered voters in those districts (here called “the plaintiffs”) filed suit against North Carolina officials (collectively, “the State” or “North Carolina”), complaining of impermissible racial gerrymanders. A three-judge District Court held both districts unconstitutional. It found that racial considerations predominated in the drawing of District 1’s lines and rejected the State’s claim that this action was justified by the VRA. As for District 12, the court again found that race predominated, and it explained that the State made no attempt to justify its attention to race in designing that district. Held: 1. North Carolina’s victory in a similar state-court lawsuit does not dictate the disposition of this case or alter the applicable standard of review. Before this case was filed, a state trial court rejected a claim by several civil rights groups that Districts 1 and 12 were unlawful racial gerrymanders. The North Carolina Supreme Court affirmed that decision under the state-court equivalent of clear error review. The State claims that the plaintiffs are members of the same organizations that brought the earlier case, and thus precluded from raising the same questions anew. But the State never satisfied the District Court that the alleged affiliation really existed. And because the District Court’s factual finding was reasonable, it defeats North Carolina’s attempt to argue for claim or issue preclusion here. The State’s backup argument about the proper standard of review also falls short. The rule that a trial court’s factual findings are reviewed only for clear error contains no exception for findings that diverge from those made in another court. See Fed. Rule Civ. Proc. 52(a)(6). Although the state court’s decision is certainly relevant, the premise of clear error review is that there are often “two permissible views of the evidence.” Anderson v. Bessemer City, 470 U. S. 564 . Even assuming that the state court’s findings capture one such view, the only question here is whether the District Court’s assessment represents another. . 2. The District Court did not err in concluding that race furnished the predominant rationale for District 1’s redesign and that the State’s interest in complying with the VRA could not justify that consideration of race. . (a) The record shows that the State purposefully established a racial target for the district and that the target “had a direct and significant impact” on the district’s configuration, Alabama, 575 U. S., at ___, subordinating other districting criteria. Faced with this body of evidence, the District Court did not clearly err in finding that race predominated in drawing District 1; indeed, it could hardly have concluded anything but. . (b) North Carolina’s use of race as the predominant factor in designing District 1 does not withstand strict scrutiny. The State argues that it had good reasons to believe that it had to draw a majority-minority district to avoid liability for vote dilution under §2 of the VRA. Thornburg v. Gingles, 478 U. S. 30 , identifies three threshold conditions for proving such a vote-dilution claim: (1) A “minority group” must be “sufficiently large and geographically compact to constitute a majority” in some reasonably configured legislative district, id., at 50; (2) the minority group must be “politically cohesive,” id., at 51; and (3) a district’s white majority must “vote[ ] sufficiently as a bloc” to usually “defeat the minority’s preferred candidate,” ibid. If a State has good reason to think that all three of these conditions are met, then so too it has good reason to believe that §2 requires drawing a majority-minority district. But if not, then not. Here, electoral history provided no evidence that a §2 plaintiff could demonstrate the third Gingles prerequisite. For nearly 20 years before the new plan’s adoption, African-Americans made up less than a majority of District 1’s voters, but their preferred candidates scored consistent victories. District 1 thus functioned as a “crossover” district, in which members of the majority help a “large enough” minority to elect its candidate of choice. Bartlett v. Strickland, 556 U. S. 1 (plurality opinion). So experience gave the State no reason to think that the VRA required it to ramp up District 1’s BVAP. The State counters that because it needed to substantially increase District 1’s population, the question facing the state mapmakers was not whether the then-existing District 1 violated §2, but whether the future District 1 would do so if drawn without regard to race. But that reasoning, taken alone, cannot justify the State’s race-based redesign of the district. Most important, the State points to no meaningful legislative inquiry into the key issue it identifies: whether a new, enlarged District 1, created without a focus on race, could lead to §2 liability. To have a strong basis to conclude that §2 demands race-based measures to augment a district’s BVAP, the State must evaluate whether a plaintiff could establish the Gingles preconditions in a new district created without those measures. Nothing in the legislative record here fits that description. And that is no accident: The redistricters believed that this Court’s decision in Strickland mandated a 50%-plus BVAP in District 1. They apparently reasoned that if, as Strickland held, §2 does not require crossover districts (for groups insufficiently large under Gingles), then §2 also cannot be satisfied by crossover districts (for groups meeting Gingles’ size condition). But, as this Court’s §2 jurisprudence makes clear, unless each of the three Gingles prerequisites is established, “there neither has been a wrong nor can be a remedy.” Growe v. Emison, 507 U. S. 25 . North Carolina’s belief that it was compelled to redraw District 1 (a successful crossover district) as a majority-minority district thus rested on a pure error of law. Accordingly, the Court upholds the District Court’s conclusion that the State’s use of race as the predominant factor in designing District 1 does not withstand strict scrutiny. . 3. The District Court also did not clearly err by finding that race predominated in the redrawing of District 12. . (a) The district’s legality turns solely on which of two possible reasons predominantly explains its reconfiguration. The plaintiffs contended at trial that North Carolina intentionally increased District 12’s BVAP in the name of ensuring preclearance under §5 of the VRA. According to the State, by contrast, the mapmakers moved voters in and out of the district as part of a “strictly” political gerrymander, without regard to race. After hearing evidence supporting both parties’ accounts, the District Court accepted the plaintiffs’. Getting to the bottom of a dispute like this one poses special challenges for a trial court, which must make “ ‘a sensitive inquiry’ ” into all “ ‘circumstantial and direct evidence of intent’ ” to assess whether the plaintiffs have proved that race, not politics, drove a district’s lines. Hunt v. Cromartie, 526 U. S. 541 (Cromartie I). This Court’s job is different—and generally easier. It affirms a trial court’s factual finding as to racial predominance so long as the finding is “plausible”; it reverses only when “left with the definite and firm conviction that a mistake has been committed.” Anderson, 470 U. S., at 573–574. In assessing a finding’s plausibility, moreover, the Court gives singular deference to a trial court’s judgments about the credibility of witnesses. See Fed. Rule Civ. Proc. 52(a)(6). Applying those principles here, the evidence at trial—including live witness testimony subject to credibility determinations—adequately supports the District Court’s conclusion that race, not politics, accounted for District 12’s reconfiguration. And contrary to the State’s view, the court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12. . (b) By slimming the district and adding a couple of knobs to its snakelike body, North Carolina added 35,000 African-Americans and subtracted 50,000 whites, turning District 12 into a majority-minority district. State Senator Robert Rucho and State Representative David Lewis—the chairs of the two committees responsible for preparing the revamped plan—publicly stated that racial considerations lay behind District 12’s augmented BVAP. Specifically, Rucho and Lewis explained that because part of Guilford County, a jurisdiction covered by §5 of the VRA, lay in the district, they had increased the district’s BVAP to ensure preclearance of the plan. Dr. Thomas Hofeller, their hired mapmaker, confirmed that intent. The State’s preclearance submission to the Justice Department indicated a similar determination to concentrate black voters in District 12. And, in testimony that the District Court found credible, Congressman Mel Watt testified that Rucho disclosed a majority-minority target to him in 2011. Hofeller testified that he had drawn District 12’s lines based on political data, and that he checked the racial data only after he drew a politics-based line between adjacent areas in Guilford County. But the District Court disbelieved Hofeller’s asserted indifference to the new district’s racial composition, pointing to his contrary deposition testimony and a significant contradiction in his trial testimony. Finally, an expert report lent circumstantial support to the plaintiffs’ case, showing that, regardless of party, a black voter in the region was three to four times more likely than a white voter to cast a ballot within District 12’s borders. The District Court’s assessment that all this evidence proved racial predominance clears the bar of clear error review. Maybe this Court would have evaluated the testimony differently had it presided over the trial; or then again, maybe it would not have. Either way, the Court is far from having a “definite and firm conviction” that the District Court made a mistake in concluding from the record before it that racial considerations predominated in District 12’s design. . (c) Finally, North Carolina argues that when race and politics are competing explanations of a district’s lines, plaintiffs must introduce an alternative map that achieves a State’s asserted political goals while improving racial balance. Such a map can serve as key evidence in a race-versus-politics dispute, but it is hardly the only means to disprove a State’s contention that politics drove a district’s lines. In this case, the plaintiffs’ introduction of mostly direct and some circumstantial evidence gave the District Court a sufficient basis, sans any map, to resolve the race-or-politics question. Although a plaintiff will sometimes need an alternative map, as a practical matter, to make his case, such a map is merely an evidentiary tool to show that an equal protection violation has occurred; neither its presence nor its absence can itself resolve a racial gerrymandering claim. North Carolina claims that a passage of this Court’s opinion in Cromartie II makes an alternative map essential in cases like this one, but the reasoning of Cromartie II belies that reading. The Court’s opinion nowhere attempts to explicate or justify the categorical rule that the State claims to find there, and the entire thrust of the opinion runs counter to an inflexible counter-map requirement. Rightly understood, the passage on which the State relies had a different and narrower point: Given the weak evidence of a racial gerrymander offered in Cromartie II, only maps that would actually show what the plaintiffs’ had not could carry the day. This case, in contrast, turned not on the possibility of creating more optimally constructed districts, but on direct evidence of the General Assembly’s intent in creating the actual District 12—including many hours of trial testimony subject to credibility determinations. That evidence, the District Court plausibly found, itself satisfied the plaintiffs’ burden of debunking North Carolina’s politics defense. . 159 F. Supp. 3d 600, affirmed. Kagan, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Roberts, C. J., and Kennedy, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.

The Equal Protection Clause of the Fourteenth Amendment prohibits a State, in the absence of sufficient justification, from segregating its citizens into different voting districts on the basis of race. . (a) When a voter sues state officials for drawing district lines, the plaintiff must prove that race was the predominant factor motivating the legislature to place a significant number of voters within or without a particular district. That entails demonstrating that the legislature subordinated other factors to racial considerations. The burden then shifts to the State to prove that its race-based sorting of voters serves a compelling interest and is narrowly tailored to that end. This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965 (VRA), which prohibits any standard, practice, or procedure that results in a denial or abridgement of the right to vote on account of race, but, when a State invokes the VRA to justify such districting, it must show (to meet the narrow tailoring requirement) that it had a strong basis in evidence for concluding that the statute required its action. Here, the state trial court, in Dickson v. Rucho,, rejected the NAACP and several other civil rights groups' claims that racial considerations predominated in the design of the two districts. Applying a deferential standard of review to the factual findings underlying thatdecision, the District Court held both districts unconstitutional, and affirmed. Held: A victory in a very similar state-court lawsuit should dictate (or at least influence) this Court's disposition of the case. Pp. 456 U. S. 574-554. (b) Although States enjoy leeway to take actions reasonably judged necessary under a proper VRA interpretation, that latitude cannot rescue District 1. The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district reconfiguration, and no error of law infected that judgment. Even assuming, arguendo, that a state court may approve a districting decision based on the findings of fact, such findings may be subject to review only for clear error, and may not be reversed just because the court would have decided the matter differently. See, e.g., Shaw v. Reno, 509 U.S. 630. Moreover, the record in this case discloses that the state court did not err in concluding from the record before it that there was racial predominance in drawing the district.. 159 F. Supp. 3d 611, affirmed. Applying a clear error standard, this Court upholds the conclusion of the trial court that, in view of North Carolina, the State had good reasons to believe it needed to draw the district as a majority-minority district to avoid § 2 liability for vote dilution, and that, therefore, §2 gave North Carolina no good reason to reshuffle voters because of their race.. (c) This case turns on the possibility of creating more optimally constructed districts, not on whether the then-existing District 1 violated §2, but on direct evidence of the General Assembly's intent in creating the actual District 12, including many hours of trial testimony. Nothing in the State's evidence clearly rebut the plaintiffs' testimony that they never joined any of the Dickson groups, and it is enough that the district court reasonably thought they had not. However, in a case like the one here, where the evidence offered in the trial showed an announced racial target that subordinated other districting criteria and produced boundaries amplifying divisions between blacks and whites, the court, rather than creating a special evidentiary burden, could hardly have concluded anything but. In any event, the evidence recounted in the text indicates that District 1's boundaries did conflict with traditional districting principles, such as the need to achieve preclearance of the plan under §5 of VRA... Appeal dismissed. Reported below: 159 F Supp.3d 609. On resumption of this Court, the parties presented arguments relating to the first Gingles prerequisite, contesting whether the African-American community in the region was sufficiently large and compact to form a majority of a reasonably shaped district. The court chose not to decide that fact-intensive question, and, indeed, did not decide whether the alleged memberships would have supported preclusion if they had been proved. But the court nevertheless concluded that race predominated in drawing District 1, and summarily rejected the claim that Harris and Bowser were something other than independent plaintiffs. Such conclusion defeats North Carolina's attempt to argue for claim or issue preclusion here. As to the second Gingles requirement, there is nothing in the evidence to show that race (not politics) was the dominant factor in the District 1 design, with or without an alternative map. Nor is there any merit to the argument that

2016_16-369

https://www.oyez.org/cases/2016/16-369

. If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force? The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation. We hold that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure. I A In October 2010, deputies from the Los Angeles County Sheriff’s Department were searching for a parolee-at-large named Ronnie O’Dell. A felony arrest warrant had been issued for O’Dell, who was believed to be armed and dangerous and had previously evaded capture. Findings of Fact and Conclusions of Law, No. 2:11–cv–04771 (CD Cal.), App. to Pet. for Cert. 56a, 64a. Deputies Christopher Conley and Jennifer Pederson were assigned to assist the task force searching for O’Dell. Id., at 57a–58a. The task force received word from a confidential informant that O’Dell had been seen on a bicycle at a home in Lancaster, California, owned by Paula Hughes, and the officers then mapped out a plan for apprehending O’Dell. Id., at 58a. Some officers would approach the front door of the Hughes residence, while Deputies Conley and Pederson would search the rear of the property and cover the back door of the residence. Id., at 59a. During this briefing, it was announced that a man named Angel Mendez lived in the backyard of the Hughes home with a pregnant woman named Jennifer Garcia (now Mrs. Jennifer Mendez). Ibid. Deputy Pederson heard this announcement, but at trial Deputy Conley testified that he did not remember it. Ibid. When the officers reached the Hughes residence around midday, three of them knocked on the front door while Deputies Conley and Pederson went to the back of the property. Id., at 63a. At the front door, Hughes asked if the officers had a warrant. Ibid. A sergeant responded that they did not but were searching for O’Dell and had a warrant for his arrest. Ibid. One of the officers heard what he thought were sounds of someone running inside the house. Id., at 64a. As the officers prepared to open the door by force, Hughes opened the door and informed them that O’Dell was not in the house. Ibid. She was placed under arrest, and the house was searched, but O’Dell was not found. Ibid. Meanwhile, Deputies Conley and Pederson, with guns drawn, searched the rear of the residence, which was cluttered with debris and abandoned automobiles. Id., at 60a, 65a. The property included three metal storage sheds and a one-room shack made of wood and plywood. Id., at 60a. Mendez had built the shack, and he and Garcia had lived inside for about 10 months. Id., at 61a. The shack had a single doorway covered by a blue blanket. Ibid. Amid the debris on the ground, an electrical cord ran into the shack, and an air conditioner was mounted on the side. Id., at 62a. A gym storage locker and clothes and other possessions were nearby. Id., at 61a. Mendez kept a BB rifle in the shack for use on rats and other pests. Id., at 62a. The BB gun “closely resembled a small caliber rifle.” Ibid. Deputies Conley and Pederson first checked the three metal sheds and found no one inside. Id., at 65a. They then approached the door of the shack. Id., at 66a. Unbeknownst to the officers, Mendez and Garcia were in the shack and were napping on a futon. Id., at 67a. The deputies did not have a search warrant and did not knock and announce their presence. Id., at 66a. When Deputy Conley opened the wooden door and pulled back the blanket, Mendez thought it was Ms. Hughes and rose from the bed, picking up the BB gun so he could stand up and place it on the floor. Id., at 68a. As a result, when the deputies entered, he was holding the BB gun, and it was “point[ing] somewhat south towards Deputy Conley.” Id., at 69a. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, discharging a total of 15 rounds. Id., at 69a–70a. Mendez and Garcia “were shot multiple times and suffered severe injuries,” and Mendez’s right leg was later amputated below the knee. Id., at 70a. O’Dell was not in the shack or anywhere on the property. Ibid. B Mendez and his wife (respondents here) filed suit under Rev. Stat. §1976, 42 U. S. C. §1983, against petitioners, the County of Los Angeles and Deputies Conley and Pederson. As relevant here, they pressed three Fourth Amendment claims. First, they claimed that the deputies executed an unreasonable search by entering the shack without a warrant (the “warrantless entry claim”); second, they asserted that the deputies performed an unreason-able search because they failed to announce their presence before entering the shack (the “knock-and-announce claim”); and third, they claimed that the deputies effected an unreasonable seizure by deploying excessive force in opening fire after entering the shack (the “excessive force claim”). After a bench trial, the District Court ruled largely in favor of respondents. App. to Pet. for Cert. 135a–136a. The court found Deputy Conley liable on the warrantless entry claim, and the court also found both deputies liable on the knock-and-announce claim. But the court awarded nominal damages for these violations because “the act of pointing the BB gun” was a superseding cause “as far as damage [from the shooting was] concerned.” App. 238. The District Court then addressed respondents’ excessive force claim. App. to Pet. for Cert. 105a–127a. The court began by evaluating whether the deputies used excessive force under Graham v. Connor, 490 U. S. 386 (1989) . The court held that, under Graham, the deputies’ use of force was reasonable “given their belief that a man was holding a firearm rifle threatening their lives.” App. to Pet. for Cert. 108a. But the court did not end its excessive force analysis at this point. Instead, the court turned to the Ninth Circuit’s provocation rule, which holds that “an officer’s otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation.” Id., at 111a. Based on this rule, the District Court held the deputies liable for excessive force and awarded respondents around $4 million in damages. Id., at 135a–136a. The Court of Appeals affirmed in part and reversed in part. 815 F. 3d 1178 (CA9 2016). Contrary to the District Court, the Court of Appeals held that the officers were entitled to qualified immunity on the knock-and-announce claim. Id., at 1191–1193. But the court concluded that the warrantless entry of the shack violated clearly established law and was attributable to both deputies. Id., at 1191, 1195. Finally, and most important for present purposes, the court affirmed the application of the provocation rule. The Court of Appeals did not disagree with the conclusion that the shooting was reasonable under Graham; instead, like the District Court, the Court of Appeals applied the provocation rule and held the deputies liable for the use of force on the theory that they had intentionally and recklessly brought about the shooting by entering the shack without a warrant in violation of clearly established law. 815 F. 3d, at 1193. The Court of Appeals also adopted an alternative rationale for its judgment. It held that “basic notions of proximate cause” would support liability even without the provocation rule because it was “reasonably foreseeable” that the officers would meet an armed homeowner when they “barged into the shack unannounced.” Id., at 1194–1195. We granted certiorari. 580 U. S. ___ (2016). II The Ninth Circuit’s provocation rule permits an excessive force claim under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.” Billington v. Smith, 292 F. 3d 1177, 1189 (CA9 2002). The rule comes into play after a forceful seizure has been judged to be reasonable under Graham. Once a court has made that determination, the rule instructs the court to ask whether the law enforcement officer violated the Fourth Amendment in some other way in the course of events leading up to the seizure. If so, that separate Fourth Amendment violation may “render the officer’s otherwise reasonable defensive use of force unreasonable as a matter of law.” Id., at 1190–1191. The provocation rule, which has been “sharply questioned” outside the Ninth Circuit, City and County of San Francisco v. Sheehan, 575 U. S. ___, ___, n. 4 (2015) (slip op., at 14, n. 4), is incompatible with our excessive force jurisprudence. The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist. The Fourth Amendment prohibits “unreasonable searches and seizures.” “[R]easonableness is always the touchstone of Fourth Amendment analysis,” Birchfield v. North Dakota, 579 U. S. ___, ___ (2016) (slip op., at 37), and reasonableness is generally assessed by carefully weighing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U. S. 1, 8 (1985) (internal quotation marks omitted). Our case law sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. See Graham, 490 U. S., at 395. As in other areas of our Fourth Amendment jurisprudence, “[d]etermining whether the force used to effect a particular seizure is ‘reasonable’ ” requires balancing of the individual’s Fourth Amendment interests against the relevant government interests. Id., at 396. The operative question in excessive force cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Garner, supra, at 8–9. The reasonableness of the use of force is evaluated under an “objective” inquiry that pays “careful attention to the facts and circumstances of each particular case.” Graham, supra, at 396. And “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. “Excessive force claims . . . are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.” Saucier v. Katz, 533 U. S. 194, 207 (2001) . That inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The basic problem with the provocation rule is that it fails to stop there. Instead, the rule provides a novel and unsupported path to liability in cases in which the use of force was reasonable. Specifically, it instructs courts to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force. That distinct violation, rather than the forceful seizure itself, may then serve as the foundation of the plaintiff’s excessive force claim. Billington, supra, at 1190 (“The basis of liability for the subsequent use of force is the initial constitutional violation . . . ”). This approach mistakenly conflates distinct Fourth Amendment claims. Contrary to this approach, the objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional. An excessive force claim is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force that was not justified under the relevant circumstances. It is not a claim that an officer used reasonable force after committing a distinct Fourth Amendment violation such as an unreasonable entry. By conflating excessive force claims with other Fourth Amendment claims, the provocation rule permits excessive force claims that cannot succeed on their own terms. That is precisely how the rule operated in this case. The District Court found (and the Ninth Circuit did not dispute) that the use of force by the deputies was reasonable under Graham. However, respondents were still able to recover damages because the deputies committed a separate constitutional violation (the warrantless entry into the shack) that in some sense set the table for the use of force. That is wrong. The framework for analyzing excessive force claims is set out in Graham. If there is no excessive force claim under Graham, there is no excessive force claim at all. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.[1]* The Ninth Circuit’s efforts to cabin the provocation rule only undermine it further. The Ninth Circuit appears to recognize that it would be going entirely too far to suggest that any Fourth Amendment violation that is connected to a reasonable use of force should create a valid excessive force claim. See, e.g., Beier v. Lewiston, 354 F. 3d 1058, 1064 (CA9 2004) (“Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa”). Instead, that court has endeavored to limit the rule to only those distinct Fourth Amendment violations that in some sense “provoked” the need to use force. The concept of provocation, in turn, has been defined using a two-prong test. First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; second, the separate constitutional violation must be committed recklessly or intentionally. 815 F. 3d, at 1193 (internal quotation marks omitted). Neither of these limitations solves the fundamental problem of the provocation rule: namely, that it is an unwarranted and illogical expansion of Graham. But in addition, each of the limitations creates problems of its own. First, the rule includes a vague causal standard. It applies when a prior constitutional violation “created a situation which led to” the use of force. The rule does not incorporate the familiar proximate cause standard. Indeed, it is not clear what causal standard is being applied. Second, while the reasonableness of a search or seizure is almost always based on objective factors, see Whren v. United States, 517 U. S. 806, 814 (1996) , the provocation rule looks to the subjective intent of the officers who carried out the seizure. As noted, under the Ninth Circuit’s rule, a prior Fourth Amendment violation may be held to have provoked a later, reasonable use of force only if the prior violation was intentional or reckless. The provocation rule may be motivated by the notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all of their constitutional torts. See Billington, 292 F. 3d, at 1190 (“[I]f an officer’s provocative actions are objectively unreasonable under the Fourth Amendment, . . . liability is established, and the question becomes . . . what harms the constitutional violation proximately caused”). However, there is no need to distort the excessive force inquiry in order to accomplish this objective. To the contrary, both parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation. See, e.g., Heck v. Humphrey, 512 U. S. 477, 483 (1994) (§1983 “creates a species of tort liability” informed by tort principles regarding “damages and the prerequisites for their recovery” (internal quotation marks omitted)); Memphis Community School Dist. v. Stachura, 477 U. S. 299, 306 (1986) (“[W]hen §1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts”). Thus, there is no need to dress up every Fourth Amendment claim as an excessive force claim. For example, if the plaintiffs in this case cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. The harm proximately caused by these two torts may overlap, but the two claims should not be confused. III The Court of Appeals also held that “even without relying on [the] provocation theory, the deputies are liable for the shooting under basic notions of proximate cause.” 815 F. 3d, at 1194. In other words, the court apparently concluded that the shooting was proximately caused by the deputies’ warrantless entry of the shack. Proper analysis of this proximate cause question required consideration of the “foreseeability or the scope of the risk created by the predicate conduct,” and required the court to conclude that there was “some direct relation between the injury asserted and the injurious conduct alleged.” Paroline v. United States, 572 U. S. ___, ___ (2014) (slip op., at 7) (internal quotation marks omitted). Unfortunately, the Court of Appeals’ proximate cause analysis appears to have been tainted by the same errors that cause us to reject the provocation rule. The court reasoned that when officers make a “startling entry” by “barg[ing] into” a home “unannounced,” it is reasonably foreseeable that violence may result. 815 F. 3d, at 1194–1195 (internal quotation marks omitted). But this appears to focus solely on the risks foreseeably associated with the failure to knock and announce, which could not serve as the basis for liability since the Court of Appeals concluded that the officers had qualified immunity on that claim. By contrast, the Court of Appeals did not identify the foreseeable risks associated with the relevant constitutional violation (the warrantless entry); nor did it explain how, on these facts, respondents’ injuries were proximately caused by the warrantless entry. In other words, the Court of Appeals’ proximate cause analysis, like the provocation rule, conflated distinct Fourth Amendment claims and required only a murky causal link between the warrantless entry and the injuries attributed to it. On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for their shooting injuries based on the deputies’ failure to secure a warrant at the outset. See Bank of America Corp. v. Miami, ante, at 12 (declining to “draw the precise boundaries of proximate cause” in the first instance). The arguments made on this point by the parties and by the United States as amicus provide a useful starting point for this inquiry. See Brief for Petitioners 42–56; Brief for Respondents 20–31, 51–59; Reply Brief 17–24; Brief for United States as Amicus Curiae 26–32. * * * For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 * Respondents do not attempt to defend the provocation rule. Instead, they argue that the judgment below should be affirmed under Graham itself. Graham commands that an officer’s use of force be assessed for reasonableness under the “totality of the circumstances.” 490 U. S., at 396 (internal quotation marks omitted). On respondents’ view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. Brief for Respondents 42–43. We did not grant certiorari on that question, and the decision below did not address it. Accordingly, we decline to address it here. See, e.g., McLane Co. v. EEOC, ante, at 11 (“[W]e are a court of review, not of first view” (internal quotation marks omitted)). All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation. Any argument regarding the District Court’s application of Graham in this case should be addressed to the Ninth Circuit on remand.

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 COUNTY OF LOS ANGELES, CALIFORNIA, et al. v. MENDEZ et al. certiorari to the united states court of appeals for the ninth circuit No. 16–369. Argued March 22, 2017—Decided May 30, 2017 The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived. Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times. Officers did not find the parolee in the shack or elsewhere on the property. Mendez and Garcia sued Deputies Conley and Pederson and the County under 42 U. S. C. §1983, pressing three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable under Graham v. Connor, 490 U. S. 386 , but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,” Billington v. Smith, 292 F. 3d 1177, 1189. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule. Held: The Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule.” . (a) The provocation rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. See Graham, supra, at 395. The operative question in such cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Tennessee v. Garner, 471 U. S. 1 –9. When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The provocation rule, however, instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims. The proper framework is set out in Graham. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately. The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. 815 F. 3d 1178, 1193. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham. In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. See, e.g., Heck v. Humphrey, 512 U. S. 477 . Here, if respondents cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. . (b) The Ninth Circuit’s proximate-cause holding is similarly tainted. Its analysis appears to focus solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry. On remand, the court should revisit the question whether proximate cause permits respondents to recover damages for their injuries based on the deputies’ failure to secure a warrant at the outset. . 815 F. 3d 1178, vacated and remanded. Alito, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

Respondents (respondents here) filed suit in Federal District Court under Rev. Stat. §1976, 42 U. S. C. §1983, against petitioners, the County of Los Angeles and Deputies Conley and Pederson, who were assigned to assist a county task force in searching for a parolee-at-large. The task force received word from a confidential informant that the parolee had been seen on a bicycle at a home in California owned by one of the petitioners. The officers then mapped out a plan for apprehending the elusive parolee. Some officers would approach the front door of the residence, while others would search the rear of the property and cover the back door. During this briefing, it was announced that a man (Mendoez) lived in the backyard of the home with a pregnant woman (Garcia) and that Mendez had built the shack and had lived there for about 10 months. When the officers arrived at the home, three of them knocked on the door, while two others went to the back. One of the officers heard what he thought were sounds of someone running inside the house. Hughes opened the door and informed them that O'Dell was not in the house, and that she was placed under arrest and the house was searched. Meanwhile, the search warrantless entry of the house violated clearly established law, and was attributable to both deputies. The District Court then addressed respondents' excessive force claim, holding that, under Graham v. Connor,, an officer's otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) provocation is an independent constitutional violation. Based on this rule, the District Court held the deputies liable for excessive force and awarded them around $4 million in damages. The Court of Appeals affirmed in part and reversed in part. Held: The judgment is vacated, and the case is remanded. 815 F. 3d 1178 (CA9 2016). (a) The provocation rule, which imposes liability in a situation where an officer makes a "seizure" of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, is incompatible with excessive force jurisprudence. The rule fails to stop there. Instead, the rule provides a novel and unsupported path to liability in cases in which the use of the force was reasonable. Specifically, it instructs courts to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force. That distinct violation, rather than the forceful seizure itself, may then serve as the foundation of the plaintiff's excessive force claim. . (b) By conflating excessive force claims with other Fourth Amendment claims, the provocation rule permits unreasonable force claims that cannot succeed on their own terms. That is precisely how the rule operated in this case. Respondents were still able to recover damages because the deputies committed a separate constitutional violation that in some sense set the table for the use of force. However, the court appears to have tainted its proximate cause analysis by the same errors that cause this Court to reject the provocation rule. By focusing solely on the foreseeable risks associated with the foreseeable future of the arrest, it appears that it did not identify the causal basis for respondents' Fourth Amendment claim, nor did it identify any other causal link between the incident and the injuries associated with it. On remand, the Court should revisit the question whether proximate causes permits respondents to recover compensatory damages for their shooting injuries based on the deputies' failure to secure a warrant at the outset. P.. (c) Once a use-of-force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional error. See, e.g., McLane Co. v. EEOC, ante, at 11. Here, where it appears to be tainted by errors that caused this Court from accepting the provocation theory, the case should be remanded for further proceedings consistent with this opinion. Any argument regarding the court's application of that theory should be addressed to the Ninth Circuit on remand. (d) The court apparently concluded that the shooting was proximately caused by the deputy sheriff, since the deputies had intentionally and recklessly brought about the shooting by entering the shack without a warrant in violation of clearly established state law. This conclusion is not entirely qualified on the ground that the officers had foreseeably foreseeably entered the shack with a warrant for the arrest. Moreover, the reasonableness of a search or seizure is evaluated under an objective inquiry that pays careful attention to the facts and circumstances of each particular case and pays attention to objective factors. Thus, there is no need to distort the excessive force inquiry in order to accomplish this objective, since plaintiffs can

2016_16-149

https://www.oyez.org/cases/2016/16-149

. In the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U. S. C. §8901 et seq., Congress authorized the Office of Personnel Management (OPM) to contract with private carriers for federal employees’ health insurance. §8902(a), (d). FEHBA contains a provision expressly preempting state law. §8902(m)(1). That provision reads: “The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” Contracts OPM negotiates with private carriers provide for reimbursement and subrogation. Reimbursement requires an insured employee who receives payment from another source (e.g., the proceeds yielded by a tort claim) to return healthcare costs earlier paid out by the carrier. Subrogation involves transfer of the right to a third-party payment from the insured employee to the carrier, who can then pursue the claim against the third party. Several States, however, Missouri among them, bar enforcement of contractual subrogation and reimbursement provisions. The questions here presented: Does FEHBA’s express-preemption prescription, §8902(m)(1), override state law prohibiting subrogation and reimbursement; and if §8902(m)(1) has that effect, is the statutory prescription consistent with the Supremacy Clause, U. S. Const., Art. VI, cl. 2? We hold, contrary to the decision of the Missouri Supreme Court, that contractual subrogation and reimbursement prescriptions plainly “relate to . . . payments with respect to benefits,” §8902(m)(1); therefore, by statutory instruction, they override state law barring subrogation and reimbursement. We further hold, again contrary to the Missouri Supreme Court, that the regime Congress enacted is compatible with the Supremacy Clause. Section 8902(m)(1) itself, not the contracts OPM negotiates, triggers the federal preemption. As Congress directed, where FEHBA contract terms “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” §8902(m)(1) ensures that those terms will be uniformly enforceable nationwide, free from state interference. I A FEHBA “establishes a comprehensive program of health insurance for federal employees.” Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 682 (2006) . As just noted, supra, at 1, FEHBA contains an express-preemption provision, §8902(m)(1). FEHBA assigns to OPM broad administrative and rulemaking authority over the program. See §§8901–8913. OPM contracts with private insurance carriers to offer a range of healthcare plans. §§8902, 8903. OPM’s contracts with private carriers have long included provisions requiring those carriers to seek subrogation and reimbursement. Accordingly, OPM has issued detailed regulations governing subrogation and reimbursement clauses in FEHBA contracts. See 5 CFR §890.106 (2016). Under those regulations, a carrier’s “right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan’s coverage.” §890.106(b)(1). In 2015, after notice and comment, OPM published a rule confirming that “[a] carrier’s rights and responsibilities pertaining to subrogation and reimbursement under any [FEHBA] contract relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of” §8902(m)(1). §890.106(h). Such “rights and responsibilities,” OPM’s rule provides, “are . . . effective notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.” Ibid. Its rule, OPM explained, “comports with longstanding Federal policy and furthers Congres[s’] goals of reducing health care costs and enabling uniform, nationwide application of [FEHBA] contracts.” 80 Fed. Reg. 29203 (2015) (final rule). B Respondent Jodie Nevils is a former federal employee who enrolled in and was insured under a FEHBA plan offered by petitioner Coventry Health Care of Missouri.[1] Nevils v. Group Health Plan, Inc., 418 S. W. 3d 451, 453 (Mo. 2014) (Nevils I ). When Nevils was injured in an automobile accident, Coventry paid his medical expenses. Ibid. Nevils sued the driver who caused his injuries and recovered a settlement award. Ibid. Based on its contract with OPM, see App. to Pet. for Cert. 129a–130a, Coventry asserted a lien for $6,592.24 against part of the settlement proceeds to cover medical bills it had paid. Nevils I, 418 S. W. 3d, at 453. Nevils repaid that amount, thereby satisfying the lien. Ibid. Nevils then filed this class action against Coventry in Missouri state court, alleging that Coventry had unlawfully obtained reimbursement. Ibid. Nevils premised his claim on Missouri law, which does not permit subrogation or reimbursement in this context, see, e.g., Benton House, LLC v. Cook & Younts Ins., Inc., 249 S. W. 3d 878, 881–882 (Mo. App. 2008). Coventry countered that §8902(m)(1) makes subrogation and reimbursement clauses in FEHBA contracts enforceable notwithstanding state law. The trial court granted summary judgment in Coventry’s favor, Nevils v. Group Health Plan, Inc., No. 11SL–CC00535 (Cir. Ct., St. Louis Cty., Mo., May 21, 2012), App. to Pet. for Cert. 28a, 32a, and the Missouri Court of Appeals affirmed, Nevils v. Group Health Plan, Inc., 2012 WL 6689542, *5 (Dec. 26, 2012). The Missouri Supreme Court reversed. Nevils I, 418 S. W. 3d, at 457. That court began with “the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.” Id., at 454 (quoting Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992) ) (alterations in original). Finding §8902(m)(1) susceptible to diverse “plausible readings,” the court invoked a “presumption against preemption” to conclude that the federal statute’s preemptive scope excluded subrogation and reimbursement. 418 S. W. 3d, at 455. Judge Wilson, joined by Judge Breckenridge, concurred in the judgment. Id., at 457. Observing that “it defies logic to insist that benefit repayment terms do not relate to the nature or extent of Nevils’ benefits,” id., at 460 (emphasis deleted), Judge Wilson concluded that “Congress plainly intended for §8902(m)(1) to apply to the benefit repayment terms in [Coventry’s] contract,” id., at 462. He nevertheless concurred, reasoning that the Supremacy Clause did not authorize preemption based on the terms of FEHBA contracts. Id., at 462–465. Coventry sought our review, and we invited the Solicitor General to file a brief expressing the views of the United States. Coventry Health Care of Mo., Inc. v. Nevils, 574 U. S. ___ (2014). While Coventry’s petition was pending, OPM finalized its rule governing subrogation and reimbursement. See supra, at 3. This Court granted certiorari, vacated the Missouri Supreme Court’s judgment, and remanded for further consideration in light of OPM’s recently adopted rule. Coventry Health Care of Mo., Inc. v. Nevils, 576 U. S. ___ (2015). On remand, the Missouri Supreme Court adhered to its earlier decision. Nevils v. Group Health Plan, Inc., 492 S. W. 3d 918, 920, 925 (2016). OPM’s rule, the court maintained, “does not overcome the presumption against preemption and demonstrate Congress’ clear and manifest intent to preempt state law.” Id., at 920. Judge Wilson again concurred, this time joined by a majority of the judges of the Missouri Supreme Court. Id., at 925.[2] In their view, Congress’ “attempt to give preemptive effect to the provisions of a contract between the federal government and a private party is not a valid application of the Supremacy Clause” and, “therefore, does not displace Missouri law here.” Ibid. We granted certiorari to resolve conflicting interpretations of §8902(m)(1). 580 U. S. ___ (2016). Compare 492 S. W. 2d, at 925 (majority opinion), with Bell v. Blue Cross & Blue Shield of Okla., 823 F. 3d 1198, 1199 (CA8 2016) (§8902(m)(1) preempts state antisubrogation law); Helfrich v. Blue Cross & Blue Shield Assn., 804 F. 3d 1090, 1092 (CA10 2015) (same). II Section 8902(m)(1) places two preconditions on federal preemption. See supra, at 1. The parties agree that Missouri’s law prohibiting subrogation and reimbursement meets one of the two limitations, i.e., the State’s law “relates to health insurance or plans.” §8902(m)(1). They dispute only whether the subrogation and reimbursement requirements in OPM’s contract with Coventry “relate to the nature, provision, or extent of coverage or benefits,” “including payments with respect to benefits.” Ibid. Coventry contends that §8902(m)(1) unambiguously covers the contractual terms at issue here. In any event, Coventry, joined by the United States as amicus curiae, urges that the rule published by OPM in 2015 leaves no room for doubt that insurance-contract terms providing for subrogation and reimbursement fall within §8902(m)(1)’s preemptive scope. See supra, at 3. Deference is due to OPM’s reading, Coventry and the United States assert, under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . In Nevils’ view, by contrast, §8902(m)(1) does not preempt state antisubrogation and antireimbursement laws in light of the presumption against preemption. Given that presumption, Nevils maintains, OPM’s rule is not entitled to deference. Though we have called Nevils’ construction “plausible,” McVeigh, 547 U. S., at 698, the reading advanced by Coventry and the United States best comports with §8902(m)(1)’s text, context, and purpose. A Contractual provisions for subrogation and reimbursement “relate to . . . payments with respect to benefits” because subrogation and reimbursement rights yield just such payments. When a carrier exercises its right to either reimbursement or subrogation, it receives from either the beneficiary or a third party “payment” respecting the benefits the carrier had previously paid. The carrier’s very provision of benefits triggers the right to payment. See Tr. of Oral Arg. 31; Helfrich, 804 F. 3d, at 1106; Bell, 823 F. 3d, at 1204. Congress’ use of the expansive phrase “relate to” shores up that understanding. We have “repeatedly recognized” that the phrase “relate to” in a preemption clause “express[es] a broad pre-emptive purpose.” Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383 (1992) ; accord Northwest, Inc. v. Ginsberg, 572 U. S. ___, ___, ___ (2014) (slip op., at 5, 9). Congress characteristically employs the phrase to reach any subject that has “a connection with, or reference to,” the topics the statute enumerates. Morales, 504 U. S., at 384. The phrase therefore weighs against Nevils’ effort to narrow the term “payments” to exclude payments that occur “long after” a carrier’s provision of benefits (Brief for Respondent 27 (quoting McVeigh, 547 U. S., at 697)). See Nevils I, 418 S. W. 3d, at 460 (Wilson, J., concurring); cf. Hillman v. Maretta, 569 U. S. ___, ___ (2013) (slip op., at 10) (in the Federal Employees’ Group Life Insurance Act context, it “makes no difference” whether state law withholds benefits in the first instance or instead takes them away after they have been paid). Given language notably “expansive [in] sweep,” Morales, 504 U. S., at 384 (internal quotation marks omitted), Nevils’ argument that Congress intended to preempt only state coverage requirements (e.g., for acupuncture and chiropractic services, see Brief for Respondent 36) also miscarries. The statutory context and purpose reinforce our conclusion. FEHBA concerns “benefits from a federal health insurance plan for federal employees that arise from a federal law” in an area with a “long history of federal involvement.” Bell, 823 F. 3d, at 1202. Strong and “distinctly federal interests are involved,” McVeigh, 547 U. S., at 696, in uniform administration of the program, free from state interference, particularly in regard to coverage, benefits, and payments. The Federal Government, more-over, has a significant financial stake. OPM estimates that, in 2014 alone, FEHBA “carriers were reimbursed by approximately $126 million in subrogation recoveries.” 80 Fed. Reg. 29203. Such “recoveries translate to premium cost savings for the federal government and [FEHBA] enrollees.” Ibid. B Invoking our suggestion in McVeigh that §8902(m)(1) has two “plausible” interpretations, 547 U. S., at 698, Nevils nonetheless urges us to apply a presumption against preemption because §8902(m)(1) does not clearly cover contractual terms pertaining to subrogation and reimbursement. This argument is blind to McVeigh’s context. In McVeigh, we considered the discrete question whether 28 U. S. C. §1331 gives federal courts subject-matter jurisdiction over FEHBA reimbursement actions. See 547 U. S., at 683. Our principal holding was that §1331 did not confer federal jurisdiction. Ibid.; see Bell, 823 F. 3d, at 1205. The carrier in McVeigh, as part of its argument in favor of federal jurisdiction, asserted that §8902(m)(1) itself conferred federal jurisdiction. See 547 U. S., at 697. In responding to that assertion, we summarized competing interpretations of §8902(m)(1) advanced in briefing, readings that map closely onto the parties’ positions here. See ibid. (carrier and United States as amicus curiae urged interpretation similar to Coventry’s; an amicus brief in support of beneficiary offered interpretation similar to Nevils’). We made no choice between the two interpretationsset out in McVeigh, however, because the answer madeno difference to the question there presented. Id., at698. “[E]ven if FEHBA’s preemption provision reaches contract-based reimbursement claims,” we explained, “that provision is not sufficiently broad to confer federal jurisdiction.” Ibid. Because §8902(m)(1) is a “choice-of-law prescription,” not a “jurisdiction-conferring provision,” id., at 697, we had no cause to consider §8902(m)(1)’s text, context, and purpose, as we do today, see supra, at 6–8.[3] III Nevils further contends that, if §8902(m)(1) covers subrogation and reimbursement clauses in OPM contracts, then the statute itself would violate the Supremacy Clause by assigning preemptive effect to the terms of a contract, not to the laws of the United States. We conclude, however, that the statute, not a contract, strips state law of its force. Without §8902(m)(1), there would be no preemption of state insurance law. FEHBA contract terms have preemptive force only as they “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” §8902(m)(1)—i.e., when the contract terms fall within the statute’s preemptive scope. It is therefore the statute that “ensures that [FEHBA contract] terms will be uniformly enforceable nationwide, notwithstanding any state law relating to health insurance or plans.” Brief for United States as Amicus Curiae 28 (internal quotation marks omitted). Many other federal statutes preempt state law in this way, leaving the context-specific scope of preemption to contractual terms. The Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. §1001 et seq., for example, preempts “any and all State laws insofar as they . . . relate to any employee benefit plan.” §1144(a). And the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., limits the grounds for denying enforcement of “written provision[s] in . . . contract[s]” providing for arbitration, thereby preempting state laws that would otherwise interfere with such contracts. §2. This Court has several times held that those statutes preempt state law, see, e.g., Gobeille v. Liberty Mut. Ins. Co., 577 U. S. ___, ___–___ (2016) (slip op., at 5–12) (ERISA); Marmet Health Care Center, Inc. v. Brown, 565 U. S. 530 –534 (2012) (per curiam) (FAA), and Nevils does not contend that those measures violate the Supremacy Clause, see Brief for Respondent 22. Nevils instead attempts to distinguish those other statutes by highlighting a particular textual feature of §8902(m)(1): Section 8902(m)(1) states that the “terms of any contract” between OPM and a carrier “shall supersede and preempt” certain state or local laws. (Emphasis added.) That formulation, Nevils asserts, violates the Supremacy Clause’s mandate that only the “Laws of the United States” may reign supreme over state law. U. S. Const., Art. VI, cl. 2 (emphasis added). Nevils’ argument elevates semantics over substance. While Congress’ formulation might differ from the phrasing of other statutes, §8902(m)(1) manifests the same intent to preempt state law.[4] Because we do not require Congress to employ a particular linguistic formulation when preempting state law, Nevils’ Supremacy Clause challenge fails.[5] * * * For the reasons stated, the judgment of the Supreme Court of Missouri is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 Coventry was formerly known as Group Health Plan, Inc. Pet. for Cert. ii. We refer to both the current and former entities as “Coventry.” 2 Under Missouri law, a “concurring opinion” in which “a majority of the court concur[s]” is binding precedent. Mueller v. Burchfield, 359 Mo. 876, 880, 224 S. W. 2d 87, 89 (1949). 3 Because the statute alone resolves this dispute, we need not consider whether Chevron deference attaches to OPM’s 2015 rule. 4 Congress’ choice of language is not unique to §8902(m)(1). Several related statutes governing federal-employee and military-member benefits employ similar formulations. See §8959 (“The terms of any contract that relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to dental benefits, insurance, plans, or contracts.”); §8989 (same for vision); §9005(a) (same for long-term care); 10 U. S. C. §1103(a) (certain state laws “shall not apply to any contract entered into pursuant to this chapter”). 5 Nevils’ speculation about the Government’s outsourcing preemption to private entities, see Brief for Respondent 24, is far afield from the matter before us. This case involves only Congress’ preemption of state insurance laws to ensure that the terms in contracts negotiated by OPM, a federal agency, operate free from state interference.

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 COVENTRY HEALTH CARE OF MISSOURI, INC., fka GROUP HEALTH PLAN, INC. v. NEVILS certiorari to the supreme court of missouri No. 16–149. Argued March 1, 2017—Decided April 18, 2017 The Federal Employees Health Benefits Act of 1959 (FEHBA) authorizes the Office of Personnel Management (OPM) to contract with private carriers for federal employees’ health insurance. 5 U. S. C. §8902(a), (d). FEHBA contains an express-preemption provision, §8902(m)(1), which states that the “terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law . . . which relates to health insurance or plans.” OPM’s contracts have long required private carriers to seek subrogation and reimbursement. Accordingly, OPM’s regulations make a carrier’s “right to pursue and receive subrogation and reimbursement recoveries . . . a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan’s coverage.” 5 CFR §890.106(b)(1). In 2015, OPM published a new rule confirming that a carrier’s subrogation and reimbursement rights and responsibilities “relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of” §8902(m)(1), and “are . . . effective notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.” §890.106(h). Respondent Jodie Nevils was insured under a FEHBA plan offered by petitioner Coventry Health Care of Missouri. When Nevils was injured in an automobile accident, Coventry paid his medical expenses. Coventry subsequently asserted a lien against part of the settlement Nevils recovered from the driver who caused his injuries. Nevils satisfied the lien, then filed a class action in Missouri state court, alleging that, under Missouri law, which does not permit subrogation or reimbursement in this context, Coventry had unlawfully obtained reimbursement. Coventry countered that §8902(m)(1) preempted the state law. The trial court granted summary judgment in Coventry’s favor, and the Missouri Court of Appeals affirmed. The Missouri Supreme Court reversed. Finding §8902(m)(1) susceptible to diverse plausible readings, the court invoked a “presumption against preemption” to conclude that the federal statute’s preemptive scope excluded subrogation and reimbursement. On remand from this Court for further consideration in light of OPM’s 2015 rule, the Missouri Supreme Court adhered to its earlier decision. A majority of the Missouri Supreme Court also held that §8902(m)(1) violates the Supremacy Clause. Held: 1. Because contractual subrogation and reimbursement prescriptions plainly “relate to . . . payments with respect to benefits,” §8902(m)(1), they override state laws barring subrogation and reimbursement. . (a) This reading best comports with §8902(m)(1)’s text, context, and purpose. Contractual provisions for subrogation and reimbursement “relate to . . . payments with respect to benefits” because subrogation and reimbursement rights yield just such payments. When a carrier exercises its right to either reimbursement or subrogation, it receives from either the beneficiary or a third party “payment” respecting the benefits the carrier had previously paid. The carrier’s very provision of benefits triggers the right to payment. Congress’ use of the expansive phrase “relate to,” which “express[es] a broad pre-emptive purpose,” Morales v. Trans World Airlines, Inc., 504 U. S. 374 , weighs against Nevils’ effort to narrow the term “payments” to exclude payments that occur “long after” a carrier’s provision of benefits. Nevils’ argument that Congress intended to preempt only state coverage requirements, e.g., inclusion of acupuncture and chiropractic services, also miscarries. The statutory context and purpose reinforce this conclusion. FEHBA concerns “benefits from a federal health insurance plan for federal employees that arise from a federal law.” Bell v. Blue Cross & Blue Shield of Okla., 823 F. 3d 1198, 1202. Strong and “distinctly federal interests are involved,” Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677 , in uniform administration of the program, free from state interference, particularly in regard to coverage, benefits, and payments. The Federal Government also has a significant financial stake in subrogation and reimbursement. . (b) McVeigh’s suggestion that §8902(m)(1) has two “plausible” interpretations, 547 U. S., at 698, Nevils asserts, supports application of the presumption against preemption here. But the Court never chose between the two readings set out in McVeigh, because doing so was not pertinent to the discrete question whether federal courts have subject-matter jurisdiction over FEHBA reimbursement actions. Having decided in McVeigh that §8902(m)(1) is a “choice-of-law prescription,” not a “jurisdiction-conferring provision,” id., at 697, the Court had no cause to consider §8902(m)(1)’s text, context, and purpose, as it does here. . 2. The regime Congress enacted is compatible with the Supremacy Clause. The statute itself, not a contract, strips state law of its force. FEHBA contract terms have preemptive force only if they fall within §8902(m)(1)’s preemptive scope. Many other federal statutes found to preempt state law, including the Employee Retirement Income Security Act of 1974 and the Federal Arbitration Act, leave the context-specific scope of preemption to contractual terms. While §8902(m)(1)’s phrasing may differ from those other statutes’, FEHBA’s express-preemption provision manifests the same intent to preempt state law. . 492 S. W. 3d 918, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case. Thomas, J., filed a concurring opinion.

The Federal Employees Health Benefits Act of 1959 (FEHBA) authorizes the Office of Personnel Management (OPM) to contract with private carriers for federal employees' health insurance. Title §8902(m)(1) of the FEHBA provides for reimbursement and subrogation. Reimbursement requires an insured employee who receives payment from another source (e.g., the proceeds yielded by a tort claim) to return healthcare costs earlier paid out by the carrier. Subrogation involves transfer of the right to a third-party payment from the insured employee to the carrier, who can then pursue the claim against the third party. However, several States bar enforcement of contractual subrogations and reimbursement provisions. One of them, Missouri, bars enforcement of such provisions. The Missouri Court of Appeals affirmed, but the Missouri Supreme Court reversed, holding that the Supremacy Clause did not authorize preemption based on the terms of federal health insurance contracts. Held: 1. The express-preemption prescription of §§8902 (m) and (d) plainly override state law prohibiting reimbursement and (2) is compatible with federal preemption. . (a) The express preemption prescription plainly involves payments with respect to benefits. Where a federal statute relates to the nature, provision, or extent of coverage or benefits, it applies where the contract terms are subject to state law. Here, OPM has issued a rule that ensures that such terms will be uniformly enforceable nationwide, free from state interference. P.. (b) The language of §8901(m) itself, not the contracts OPM negotiates, triggers the federal statutory preemption, since it ensures that those terms will always be uniformly enforced. Congress characteristically employs the phrase to reach any subject that has a connection with, or reference to, the topics enumerated. It is therefore the statute that assures that the terms in contracts will be enforced uniformly, notwithstanding any state law relating to health insurance or plans. Cf. Coventry Health Care of Mo., Inc. v. Nevils, 576 U. S. ___. The phrase weighs against Nevils' effort to narrow the term "payments" to exclude payments that occur "long after" a carrier's provision of benefits, since many other federal statutes preempt state law in this way, leaving the context-specific scope of preemption to contractual terms. Moreover, since the preemption involves only Congress' preemption of state insurance laws to ensure that contracts negotiated by OPM, a federal agency, operate free from federal interference, this case involves only OPM preemption for state insurance law.. 2. Nor does the language in OPM contract terms fall within the federal statute's preemptive scope. There is no merit to the argument that, if §8903(m), covering reimbursement clauses, does not cover such clauses, then the statute itself would violate the Constitution by assigning preemptive effect to the contract, not to the laws of the United States. This conclusion is supported by the language of the statute, its text, context, and purpose, and by the legislative history of federal-employee and military-member benefits that reinforce federal involvement in the health insurance plan. And the fact that Congress has long omitted state law, rather than federal law, marks a preemptive purpose for the federal statutes that otherwise would interfere with state law by denying federal employees the benefit of federal insurance, chiropractic, and health insurance services... 3. Nor is the substitution of subrogated and reimbursement clauses in contracts between OPM and a carrier violative of the Supreacy Clause. That argument is blind to McVeigh, supra, at 454 (emphasis deleted). Although Congress might differ from the phrasing of other statutes, it manifests the same intent to preempt state laws, and this reading best comports with the statute. Furthermore, the phrase "relate to" in a preemption clause gives the phrase a broad pre-emptive purpose. See, e. g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) ; accord Northwest, Inc. Ginsberg, 572 U. s. ___, ___,___ (2014) (slip op., at 5, 9). . 4. Although the language used in the OPM rule is not unique to the statute in question, it is sufficient to distinguish those other statutes by highlighting a particular textual feature of that provision. Section 8902(e)(1), which states that the term of any contract shall supersede and preemptes certain state or local laws, manifests a similar intent. Although the phrase is a choice-of-law prescription, not a jurisdictional-conferring provision, it weighs against the argument of Nevils that, under Missouri law, preemption would result in a violation of federal law if it were applied to OPM contracts.

2016_15-649

https://www.oyez.org/cases/2016/15-649

. Bankruptcy Code Chapter 11 allows debtors and their creditors to negotiate a plan for dividing an estate’s value. See 11 U. S. C. §§1123, 1129, 1141. But sometimes the parties cannot agree on a plan. If so, the bankruptcy court may decide to dismiss the case. §1112(b). The Code then ordinarily provides for what is, in effect, a restoration of the prepetition financial status quo. §349(b). In the case before us, a Bankruptcy Court dismissed a Chapter 11 bankruptcy. But the court did not simply restore the prepetition status quo. Instead, the court ordered a distribution of estate assets that gave money to high-priority secured creditors and to low-priority general unsecured creditors but which skipped certain dissenting mid-priority creditors. The skipped creditors would have been entitled to payment ahead of the general unsecured creditors in a Chapter 11 plan (or in a Chapter 7 liquidation). See §§507, 725, 726, 1129. The question before us is whether a bankruptcy court has the legal power to order this priority-skipping kind of distribution scheme in connection with a Chapter 11 dismissal. In our view, a bankruptcy court does not have such a power. A distribution scheme ordered in connection with the dismissal of a Chapter 11 case cannot, without the consent of the affected parties, deviate from the basic priority rules that apply under the primary mechanisms the Code establishes for final distributions of estate value in business bankruptcies. I A 1 We begin with a few fundamentals: A business may file for bankruptcy under either Chapter 7 or Chapter 11. In Chapter 7, a trustee liquidates the debtor’s assets and distributes them to creditors. See §701 et seq. In Chapter 11, debtor and creditors try to negotiate a plan that will govern the distribution of valuable assets from the debtor’s estate and often keep the business operating as a going concern. See, e.g., §§1121, 1123, 1129, 1141 (setting out the framework in which the parties negotiate). Filing for Chapter 11 bankruptcy has several relevant legal consequences. First, an estate is created comprising all property of the debtor. §541(a)(1). Second, a fiduciary is installed to manage the estate in the interest of the creditors. §§1106, 1107(a). This fiduciary, often the debtor’s existing management team, acts as “debtor in possession.” §§1101(1), 1104. It may operate the business, §§363(c)(1), 1108, and perform certain bankruptcy-related functions, such as seeking to recover for the estate preferential or fraudulent transfers made to other persons, §547 (transfers made before bankruptcy that unfairly preferred particular creditors); §548 (fraudulent transfers, including transfers made before bankruptcy for which the debtor did not receive fair value). Third, an “automatic stay” of all collection proceedings against the debtor takes effect. §362(a). It is important to keep in mind that Chapter 11 foresees three possible outcomes. The first is a bankruptcy-court-confirmed plan. Such a plan may keep the business operating but, at the same time, help creditors by providing for payments, perhaps over time. See §§1123, 1129, 1141. The second possible outcome is conversion of the case to a Chapter 7 proceeding for liquidation of the business and a distribution of its remaining assets. §§1112(a), (b), 726. That conversion in effect confesses an inability to find a plan. The third possible outcome is dismissal of the Chapter 11 case. §1112(b). A dismissal typically “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case”—in other words, it aims to return to the prepetition financial status quo. §349(b)(3). Nonetheless, recognizing that conditions may have changed in ways that make a perfect restoration of the status quo difficult or impossible, the Code permits the bankruptcy court, “for cause,” to alter a Chapter 11 dismissal’s ordinary restorative consequences. §349(b). A dismissal that does so (or which has other special conditions attached) is often referred to as a “structured dismissal,” defined by the American Bankruptcy Institute as a “hybrid dismissal and confirmation order . . . that . . . typically dismisses the case while, among other things, approving certain distributions to creditors, granting certain third-party releases, enjoining certain conduct by creditors, and not necessarily vacating orders or unwinding transactions undertaken during the case.” American Bankruptcy Institute Commission To Study the Reform of Chapter 11, 2012–2014 Final Report and Recommendations 270 (2014). Although the Code does not expressly mention structured dismissals, they “appear to be increasingly common.” Ibid., n. 973. 2 The Code also sets forth a basic system of priority, which ordinarily determines the order in which the bankruptcy court will distribute assets of the estate. Secured creditors are highest on the priority list, for they must receive the proceeds of the collateral that secures their debts. 11 U. S. C. §725. Special classes of creditors, such as those who hold certain claims for taxes or wages, come next in a listed order. §§507, 726(a)(1). Then come low-priority creditors, including general unsecured creditors. §726(a)(2). The Code places equity holders at the bottom of the priority list. They receive nothing until all previ-ously listed creditors have been paid in full. §726(a)(6). The Code makes clear that distributions of assets in a Chapter 7 liquidation must follow this prescribed order. §§725, 726. It provides somewhat more flexibility for distributions pursuant to Chapter 11 plans, which may impose a different ordering with the consent of the af-fected parties. But a bankruptcy court cannot confirm a plan that contains priority-violating distributions over the objection of an impaired creditor class. §§1129(a)(7), 1129(b)(2). The question here concerns the interplay between the Code’s priority rules and a Chapter 11 dismissal. Here, the Bankruptcy Court neither liquidated the debtor under Chapter 7 nor confirmed a Chapter 11 plan. But the court, instead of reverting to the prebankruptcy status quo, ordered a distribution of the estate assets to creditors by attaching conditions to the dismissal (i.e., it ordered a structured dismissal). The Code does not explicitly state what priority rules—if any—apply to a distribution in these circumstances. May a court consequently provide for distributions that deviate from the ordinary priority rules that would apply to a Chapter 7 liquidation or a Chapter 11 plan? Can it approve conditions that give estate assets to members of a lower priority class while skipping objecting members of a higher priority class? B In 2006, Sun Capital Partners, a private equity firm, acquired Jevic Transportation Corporation with money borrowed from CIT Group in a “leveraged buyout.” In a leveraged buyout, the buyer (B) typically borrows from a third party (T) a large share of the funds needed to purchase a company (C). B then pays the money to C’s shareholders. Having bought the stock, B owns C. B then pledges C’s assets to T so that T will have security for its loan. Thus, if the selling price for C is $50 million, B might use $10 million of its own money, borrow $40 million from T, pay $50 million to C’s shareholders, and then pledge C assets worth $40 million (or more) to T as secu-rity for T’s $40 million loan. If B manages C well, it might make enough money to pay T back the $40 million and earn a handsome profit on its own $10 million investment. But, if the deal sours and C descends into bankruptcy, beware of what might happen: Instead of C’s $40 million in assets being distributed to its existing creditors, the money will go to T to pay back T’s loan—the loan that allowed B to buy C. (T will receive what remains of C’s assets because T is now a secured creditor, putting it at the top of the priority list). Since C’s shareholders receive money while C’s creditors lose their claim to C’s remaining assets, unsuccessful leveraged buyouts often lead to fraudulent conveyance suits alleging that the purchaser (B) transferred the company’s assets without receiving fair value in return. See Lipson & Vandermeuse, Stern, Seriously: The Article I Judicial Power, Fraudulent Transfers, and Leveraged Buyouts, 2013 Wis. L. Rev. 1161, 1220–1221. This is precisely what happened here. Just two years after Sun’s buyout, Jevic (C in our leveraged buyout example) filed for Chapter 11 bankruptcy. At the time of filing, it owed $53 million to senior secured creditors Sun and CIT (B and T in our example), and over $20 million to tax and general unsecured creditors. The circumstances surrounding Jevic’s bankruptcy led to two lawsuits. First, petitioners, a group of former Jevic truckdrivers, filed suit in bankruptcy court against Jevic and Sun. Petitioners pointed out that, just before entering bankruptcy, Jevic had halted almost all its operations and had told petitioners that they would be fired. Petitioners claimed that Jevic and Sun had thereby violated state and federal Worker Adjustment and Retraining Notification (WARN) Acts—laws that require a company to give workers at least 60 days’ notice before their termination. See 29 U. S. C. §2102; N. J. Stat. Ann. §34:21–2 (West 2011). The Bankruptcy Court granted summary judgment for petitioners against Jevic, leaving them (and this is the point to remember) with a judgment that petitioners say is worth $12.4 million. See In re Jevic Holding Corp., 496 B.R. 151 (Bkrtcy. Ct. Del. 2013). Some $8.3 million of that judgment counts as a priority wage claim under 11 U. S. C. §507(a)(4), and is therefore entitled to payment ahead of general unsecured claims against the Jevicestate. Petitioners’ WARN suit against Sun continued throughout most of the litigation now before us. But eventually Sun prevailed on the ground that Sun was not the workers’ employer at the relevant times. See In re Jevic Holding Corp., 656 Fed. Appx. 617 (CA3 2016). Second, the Bankruptcy Court authorized a committee representing Jevic’s unsecured creditors to sue Sun and CIT. The Bankruptcy Court and the parties were aware that any proceeds from such a suit would belong not to the unsecured creditors, but to the bankruptcy estate. See §§541(a)(1), (6); Official Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 552–553 (CA3 2003) (en banc) (holding that a creditor’s committee can bring a derivative action on behalf of the estate). The committee alleged that Sun and CIT, in the course of their leveraged buyout, had “hastened Jevic’s bankruptcy by saddling it with debts that it couldn’t service.” In re Jevic Holding Corp., 787 F.3d 173, 176 (CA3 2015). In 2011, the Bankruptcy Court held that the committee had adequately pleaded claims of preferential transfer under §547 and of fraudulent transfer under §548. In re Jevic Holding Corp., 2011 WL 4345204 (Bkrtcy. Ct. Del., Sept. 15, 2011). Sun, CIT, Jevic, and the committee then tried to negotiate a settlement of this “fraudulent-conveyance” lawsuit. By that point, the depleted Jevic estate’s only remaining assets were the fraudulent-conveyance claim itself and $1.7 million in cash, which was subject to a lien held by Sun. The parties reached a settlement agreement. It pro-vided (1) that the Bankruptcy Court would dismiss the fraudulent-conveyance action with prejudice; (2) that CIT would deposit $2 million into an account earmarked to pay the committee’s legal fees and administrative expenses; (3) that Sun would assign its lien on Jevic’s remaining $1.7 million to a trust, which would pay taxes and administrative expenses and distribute the remainder on a pro rata basis to the low-priority general unsecured creditors, but which would not distribute anything to petitioners (who, by virtue of their WARN judgment, held an $8.3 million mid-level-priority wage claim against the estate); and (4) that Jevic’s Chapter 11 bankruptcy would be dismissed. Apparently Sun insisted on a distribution that would skip petitioners because petitioners’ WARN suit against Sun was still pending and Sun did not want to help finance that litigation. See 787 F. 3d, at 177–178, n. 4 (Sun’s counsel acknowledging before the Bankruptcy Court that “ ‘Sun probably does care where the money goes because you can take judicial notice that there’s a pending WARN action against Sun by the WARN plaintiffs. And if the money goes to the WARN plaintiffs, then you’re funding someone who is suing you who otherwise doesn’t have funds and is doing it on a contingent fee basis’ ”). The essential point is that, regardless of the reason, the proposed settlement called for a structured dismissal that provided for distributions that did not follow ordinary priority rules. Sun, CIT, Jevic, and the committee asked the Bankruptcy Court to approve the settlement and dismiss the case. Petitioners and the U. S. Trustee objected, arguing that the settlement’s distribution plan violated the Code’s priority scheme because it skipped petitioners—who, by virtue of their WARN judgment, had mid-level priority claims against estate assets—and distributed estate money to low-priority general unsecured creditors. The Bankruptcy Court agreed with petitioners that the settlement’s distribution scheme failed to follow ordinary priority rules. App. to Pet. for Cert. 58a. But it held that this did not bar approval. Ibid. That, in the Bankruptcy Court’s view, was because the proposed payouts would occur pursuant to a structured dismissal of a Chapter 11 petition rather than an approval of a Chapter 11 plan. Ibid. The court accordingly decided to grant the motion in light of the “dire circumstances” facing the estate and its creditors. Id., at 57a. Specifically, the court predicted that without the settlement and dismissal, there was “no realistic prospect” of a meaningful distribution for anyone other than the secured creditors. Id., at 58a. A confirm-able Chapter 11 plan was unattainable. And there would be no funds to operate, investigate, or litigate were the case converted to a proceeding in Chapter 7. Ibid. The District Court affirmed the Bankruptcy Court. It recognized that the settlement distribution violated ordinary priority rules. But those rules, it wrote, were “not a bar to the approval of the settlement as [the settlement] is not a reorganization plan.” In re Jevic Holding Corp., 2014 WL 268613, *3 (D Del., Jan. 24, 2014). The Third Circuit affirmed the District Court by a vote of 2 to 1. 787 F. 3d, at 175; id., at 186 (Scirica, J., concurring in part and dissenting in part). The majority held that structured dismissals need not always respect prior-ity. Congress, the court explained, had only “codified the absolute priority rule . . . in the specific context of plan confirmation.” Id., at 183. As a result, courts could, “in rare instances like this one, approve structured dismissals that do not strictly adhere to the Bankruptcy Code’s priority scheme.” Id., at 180. Petitioners (the workers with the WARN judgment) sought certiorari. We granted their petition. II Respondents initially argue that petitioners lack standing because they have suffered no injury, or at least no injury that will be remedied by a decision in their favor. See Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6) (explaining that, for Article III standing, a plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision”). Respondents concede that the structured dismissal approved by the Bankruptcy Court contained distribution conditions that skipped over petitioners, ensur-ing that petitioners received nothing on their multimillion-dollar WARN claim against the Jevic estate. But respondents still assert that petitioners suffered no loss. The reason, respondents say, is that petitioners would have gotten nothing even if the Bankruptcy Court had never approved the structured dismissal in the first place, and will still get nothing if the structured dismissal is undone now. Reversal will eliminate the settlement of the committee’s fraudulent-conveyance lawsuit, which was conditioned on the Bankruptcy Court’s approval of the priority-violating structured dismissal. If the Bankruptcy Court cannot approve that dismissal, respondents contend, Sun and CIT will no longer agree to settle. Nor will petitioners ever be able to obtain a litigation recovery. Hence there will be no lawsuit money to distribute. And in the absence of lawsuit money, Jevic’s assets amount to about $1.7 million, all pledged to Sun, leaving nothing for anyone else, let alone petitioners. Thus, even if petitioners are right that the structured dismissal was impermissible, it cost them nothing. And a judicial decision in their favor will gain them nothing. No loss. No redress. This argument, however, rests upon respondents’ claims (1) that, without a violation of ordinary priority rules, there will be no settlement, and (2) that, without a settlement, the fraudulent-conveyance lawsuit has no value. In our view, the record does not support either of these propositions. As to the first, the record indicates that a settlement that respects ordinary priorities remains a reasonable possibility. It makes clear (as counsel made clear before our Court, see Tr. of Oral Arg. 58) that Sun insisted upon a settlement that gave petitioners nothing only because it did not want to help fund petitioners’ WARN lawsuit against it. See 787 F. 3d, at 177–178, n. 4. But, Sun has now won that lawsuit. See 656 Fed. Appx. 617. If Sun’s given reason for opposing distributions to petitioners has disappeared, why would Sun not settle while permitting some of the settlement money to go to petitioners? As to the second, the record indicates that the fraudulent-conveyance claim could have litigation value. CIT and Sun, after all, settled the lawsuit for $3.7 million, which would make little sense if the action truly had no chance of success. The Bankruptcy Court could convert the case to Chapter 7, allowing a Chapter 7 trustee to pursue the suit against Sun and CIT. Or the court could simply dismiss the Chapter 11 bankruptcy, thereby allowing petitioners to assert the fraudulent-conveyance claim themselves. Given these possibilities, there is no reason to believe that the claim could not be pursued with counsel obtained on a contingency basis. Of course, the lawsuit—like any lawsuit—might prove fruitless, but the mere possibility of failure does not eliminate the value of the claim or petitioners’ injury in being unable to bring it. Consequently, the Bankruptcy Court’s approval of the structured dismissal cost petitioners something. They lost a chance to obtain a settlement that respected their prior-ity. Or, if not that, they lost the power to bring their own lawsuit on a claim that had a settlement value of $3.7 million. For standing purposes, a loss of even a small amount of money is ordinarily an “injury.” See, e.g., McGowan v. Maryland, 366 U.S. 420 –431 (1961) (finding that appellants fined $5 plus costs had standing to assert an Establishment Clause challenge). And the ruling before us could well have cost petitioners considerably more. See Clinton v. City of New York, 524 U.S. 417 –431 (1998) (imposition of a “substantial contingent liability” qualifies as an injury). A decision in petitioners’ favor is likely to redress that loss. We accordingly conclude that petitioners have standing. III We turn to the basic question presented: Can a bankruptcy court approve a structured dismissal that provides for distributions that do not follow ordinary priority rules without the affected creditors’ consent? Our simple answer to this complicated question is “no.” The Code’s priority system constitutes a basic underpinning of business bankruptcy law. Distributions of estate assets at the termination of a business bankruptcy normally take place through a Chapter 7 liquidation or a Chapter 11 plan, and both are governed by priority. In Chapter 7 liquidations, priority is an absolute command—lower priority creditors cannot receive anything until higher priority creditors have been paid in full. See 11 U. S. C. §§725, 726. Chapter 11 plans provide somewhat more flexibility, but a priority-violating plan still cannot be confirmed over the objection of an impaired class of creditors. See §1129(b). The priority system applicable to those distributions has long been considered fundamental to the Bankruptcy Code’s operation. See H. R. Rep. No. 103–835, p. 33 (1994) (explaining that the Code is “designed to enforce a distribution of the debtor’s assets in an orderly manner . . . in accordance with established principles rather than on the basis of the inside influence or economic leverage of a particular creditor”); Roe & Tung, Breaking Bankruptcy Priority: How Rent-Seeking Upends The Creditors’ Bargain, 99 Va. L. Rev. 1235, 1243, 1236 (2013) (arguing that the first principle of bankruptcy is that “distribution conforms to predetermined statutory and contractual priorities,” and that priority is, “quite appropriately, bankruptcy’s most important and famous rule”); Markell, Owners, Auctions, and Absolute Priority in Bankruptcy Reorganizations, 44 Stan. L. Rev. 69, 123 (1991) (stating that a fixed priority scheme is recognized as “the cornerstone of reorganization practice and theory”). The importance of the priority system leads us to expect more than simple statutory silence if, and when, Congress were to intend a major departure. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might say, hide elephants in mouseholes”). Put somewhat more directly, we would expect to see some affirmative indication of intent if Congress actually meant to make structured dismissals a backdoor means to achieve the exact kind of nonconsen-sual priority-violating final distributions that the Code prohibits in Chapter 7 liquidations and Chapter 11 plans. We can find nothing in the statute that evinces this intent. The Code gives a bankruptcy court the power to “dismiss” a Chapter 11 case. §1112(b). But the word “dismiss” itself says nothing about the power to make nonconsensual priority-violating distributions of estate value. Neither the word “structured,” nor the word “conditions,” nor anything else about distributing estate value to creditors pursuant to a dismissal appears in any relevant part of the Code. Insofar as the dismissal sections of Chapter 11 foresee any transfer of assets, they seek a restoration of the pre-petition financial status quo. See §349(b)(1) (dismissal ordinarily reinstates a variety of avoided transfers and voided liens); §349(b)(2) (dismissal ordinarily vacates certain types of bankruptcy orders); §349(b)(3) (dismissal ordinarily “revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case”); see also H. R. Rep. No. 95–595, p. 338 (1977) (dismissal’s “basic purpose . . . is to undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case”). Section 349(b), we concede, also says that a bankruptcy judge may, “for cause, orde[r] otherwise.” But, read in context, this provision appears designed to give courts the flexibility to “make the appropriate orders to protect rights acquired in reliance on the bankruptcy case.” H. R. Rep. No. 95–595, at 338; cf., e.g., Wiese v. Community Bank of Central Wis., 552 F.3d 584, 590 (CA7 2009) (upholding, under §349(b), a Bankruptcy Court’s decision not to reinstate a debtor’s claim against a bank that gave up a lien in reliance on the claim being released in the debtor’s reorganization plan). Nothing else in the Code authorizes a court ordering a dismissal to make general end-of-case distributions of estate assets to creditors of the kind that normally take place in a Chapter 7 liquidation or Chapter 11 plan—let alone final distributions that do not help to restore the status quo ante or protect reliance interests acquired in the bankruptcy, and that would be flatly impermissible in a Chapter 7 liquidation or a Chapter 11 plan because they violate priority without the impaired creditors’ consent. That being so, the word “cause” is too weak a reed upon which to rest so weighty a power. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988) (noting that “[s]tatutory construction . . . is a holistic endeavor” and that a court should select a “meanin[g that] produces a substantive effect that is compatible with the rest of the law”); Kelly v. Robinson, 479 U.S. 36, 43 (1986) (in interpreting a statute, a court “must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy” (internal quotation marks omitted)); cf. In re Sadler, 935 F.2d 918, 921 (CA7 1991) (“ ‘Cause’ under §349(b) means an acceptable reason. Desire to make an end run around a statute is not an adequate reason”). We have found no contrary precedent, either from this Court, or, for that matter, from lower court decisions reflecting common bankruptcy practice. The Third Circuit referred briefly to In re Buffet Partners, L. P., 2014 WL 3735804 (Bkrtcy. Ct. ND Tex., July 28, 2014). The court in that case approved a structured dismissal. (We express no view about the legality of structured dismissals in general.) But at the same time it pointed out “that not one party with an economic stake in the case has objected to the dismissal in this manner.” Id., at *4. The Third Circuit also relied upon In re Iridium Operating LLC, 478 F.3d 452 (CA2 2007). But Iridium did not involve a structured dismissal. It addressed an interim distribution of settlement proceeds to fund a litigation trust that would press claims on the estate’s behalf. See id., at 459–460. The Iridium court observed that, when evaluating this type of preplan settlement, “[i]t is difficult to employ the rule of priorities” because “the nature and extent of the Estate and the claims against it are not yet fully resolved.” Id., at 464 (emphasis added). The decision does not state or suggest that the Code authorizes nonconsensual departures from ordinary priority rules in the context of a dismissal—which is a final distribution of estate value—and in the absence of any further unresolved bankruptcy issues. We recognize that Iridium is not the only case in which a court has approved interim distributions that violate ordinary priority rules. But in such instances one can generally find significant Code-related objectives that the priority-violating distributions serve. Courts, for example, have approved “first-day” wage orders that allow payment of employees’ prepetition wages, “critical vendor” orders that allow payment of essential suppliers’ prepetition invoices, and “roll-ups” that allow lenders who continue financing the debtor to be paid first on their prepetition claims. See Cybergenics, 330 F. 3d, at 574, n. 8; D. Baird, Elements of Bankruptcy 232–234 (6th ed. 2014); Roe, 99 Va. L. Rev., at 1250–1264. In doing so, these courts have usually found that the distributions at issue would “enable a successful reorganization and make even the disfavored creditors better off.” In re Kmart Corp., 359 F.3d 866, 872 (CA7 2004) (discussing the justifications for critical-vendor orders); see also Toibb v. Radloff, 501 U.S. 157 –164 (1991) (recognizing “permitting business debtors to reorganize and restructure their debts in order to revive the debtors’ businesses” and “maximizing the value of the bankruptcy estate” as purposes of the Code). By way of contrast, in a structured dismissal like the one ordered below, the priority-violating distribution is attached to a final disposition; it does not preserve the debtor as a going concern; it does not make the disfavored creditors better off; it does not promote the possibility of a confirmable plan; it does not help to restore the status quo ante; and it does not protect reliance interests. In short, we cannot find in the violation of ordinary priority rules that occurred here any significant offsetting bankruptcy-related justification. Rather, the distributions at issue here more closely resemble proposed transactions that lower courts have refused to allow on the ground that they circumvent the Code’s procedural safeguards. See, e.g., In re Braniff Airways, Inc., 700 F.2d 935, 940 (CA5 1983) (prohibiting an attempt to “short circuit the requirements of Chapter 11 for confirmation of a reorganization plan by establishing the terms of the plan sub rosa in connection with a sale of assets”); In re Lionel Corp., 722 F.2d 1063, 1069 (CA2 1983) (reversing a Bankruptcy Court’s approval of an asset sale after holding that §363 does not “gran[t] the bankruptcy judge carte blanche” or “swallo[w] up Chapter 11’s safeguards”); In re Biolitec, Inc., 528 B.R. 261, 269 (Bkrtcy. Ct. NJ 2014) (rejecting a structured dismissal because it “seeks to alter parties’ rights without their consent and lacks many of the Code’s most important safeguards”); cf. In re Chrysler LLC, 576 F.3d 108, 118 (CA2 2009) (approving a §363 asset sale because the bankruptcy court demonstrated “proper solicitude for the priority between creditors and deemed it essential that the [s]ale in no way upset that priority”), vacated as moot, 592 F.3d 370 (CA2 2010) (per curiam). IV We recognize that the Third Circuit did not approve nonconsensual priority-violating structured dismissals in general. To the contrary, the court held that they were permissible only in those “rare case[s]” in which courts could find “sufficient reasons” to disregard priority. 787 F. 3d, at 175, 186. Despite the “rare case” limitation, we still cannot agree. For one thing, it is difficult to give precise content to the concept “sufficient reasons.” That fact threatens to turn a “rare case” exception into a more general rule. Consider the present case. The Bankruptcy Court feared that (1) without the worker-skipping distribution, there would be no settlement, (2) without a settlement, all the unsecured creditors would receive nothing, and consequently (3) its distributions would make some creditors (high- and low-priority creditors) better off without making other (mid-priority) creditors worse off (for they would receive nothing regardless). But, as we have pointed out, the record provides equivocal support for the first two propositions. See supra, at 9–11. And, one can readily imagine other cases that turn on comparably dubious predictions. The result is uncertainty. And uncertainty will lead to similar claims being made in many, not just a few, cases. See Rudzik, A Priority Is a Priority Is a Priority—Except When It Isn’t, 34 Am. Bankr. Inst. J. 16, 79 (2015) (“[O]nce the floodgates are opened, debtors and favored creditors can be expected to make every case that ‘rare case’ ”). The consequences are potentially serious. They include departure from the protections Congress granted particular classes of creditors. See, e.g., United States v. Embassy Restaurant, Inc., 359 U.S. 29, 32 (1959) (Congress established employee wage priority “to alleviate in some degree the hardship that unemployment usually brings to workers and their families” when an employer files for bankruptcy); H. R. Rep. No. 95–595, at 187 (explaining the importance of ensuring that employees do not “abandon a failing business for fear of not being paid”). They include changes in the bargaining power of different classes of creditors even in bankruptcies that do not end in structured dismissals. See Warren, A Theory of Absolute Priority, 1991 Ann. Survey Am. L. 9, 30. They include risks of collusion, i.e., senior secured creditors and general unsecured creditors teaming up to squeeze out priority unsecured creditors. See Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434, 444 (1999) (discussing how the absolute priority rule was developed in response to “concern with ‘the ability of a few insiders, whether representatives of management or major creditors, to use the reorganization process to gain an unfair advantage’ ” (quoting H. R. Doc. No. 93–137, pt. I, p. 255 (1973))). And they include making settlement more difficult to achieve. See Landes & Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J. Law & Econ. 249, 271 (1976) (arguing that “the ratio of lawsuits to settlements is mainly a function of the amount of uncertainty, which leads to divergent estimates by the parties of the probable outcome”); see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 649 (2012) (noting the importance of clarity and predictability in light of the fact that the “Bankruptcy Code standardizes an expansive (and sometimes unruly) area of law”). For these reasons, as well as those set forth in Part III, we conclude that Congress did not authorize a “rare case” exception. We cannot “alter the balance struck by the statute,” Law v. Siegel, 571 U. S. ___, ___ (2014) (slip op., at 11), not even in “rare cases.” Cf. Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 207 (1988) (explaining that courts cannot deviate from the procedures “specified by the Code,” even when they sincerely “believ[e] that . . . creditors would be better off”). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus CZYZEWSKI et al. v. JEVIC HOLDING CORP. et al. certiorari to the united states court of appeals for the third circuit No. 15–649. Argued December 7, 2016—Decided March 22, 2017 There are three possible conclusions to a Chapter 11 bankruptcy. First, debtor and creditors may negotiate a plan to govern the distribution of the estate’s value. See, e.g., 11 U. S. C. §§1121, 1123, 1129, 1141. Second, the bankruptcy court may convert the case to Chapter 7 for liquidation of the business and distribution of its assets to creditors. §§1112(a), (b), 726. Finally, the bankruptcy court may dismiss the case. §1112(b). A court ordering a dismissal ordinarily attempts to restore the prepetition financial status quo. §349(b)(3). Yet if perfect restoration proves difficult or impossible, the court may, “for cause,” alter the dismissal’s normal restorative consequences, §349(b)—i.e., it may order a “structured dismissal.” The Bankruptcy Code also establishes basic priority rules for determining the order in which the court will distribute an estate’s assets. The Code makes clear that distributions in a Chapter 7 liquidation must follow this prescribed order. §§725, 726. Chapter 11 permits some flexibility, but a court still cannot confirm a plan that contains priority-violating distributions over the objection of an impaired creditor class. §§1129(a)(7), (b)(2). The Code does not explicitly state what priority rules—if any—apply to the distribution of assets in a structured dismissal. Respondent Jevic Transportation filed for Chapter 11 bankruptcy after being purchased in a leveraged buyout. The bankruptcy prompted two lawsuits. In the first, a group of former Jevic truckdrivers, petitioners here, was awarded a judgment against Jevic for Jevic’s failure to provide proper notice of termination in violation of state and federal Worker Adjustment and Retraining Notification (WARN) Acts. Part of that judgment counted as a priority wage claim under §507(a)(4), entitling the workers to payment ahead of general unsecured claims against the Jevic estate. In the second suit, a court-authorized committee representing Jevic’s unsecured creditors sued Sun Capital and CIT Group, respondents here, for fraudulent conveyance in connection with the leveraged buyout of Jevic. These parties negotiated a settlement agreement that called for a structured dismissal of Jevic’s Chapter 11 bankruptcy. Under the proposed structured dismissal, petitioners would receive nothing on their WARN claims, but lower-priority general unsecured creditors would be paid. Petitioners argued that the distribution scheme accordingly violated the Code’s priority rules by paying general unsecured claims ahead of their own. The Bankruptcy Court nevertheless approved the settlement agreement and dismissed the case, reasoning that because the proposed payouts would occur pursuant to a structured dismissal rather than an approved plan, the failure to follow ordinary priority rules did not bar approval. The District Court and the Third Circuit affirmed. Held: 1. Petitioners have Article III standing. Respondents argue that petitioners have not “suffered an injury in fact,” or at least one “likely to be redressed by a favorable judicial decision,” Spokeo, Inc. v. Robins, 578 U. S. ___, ___, because petitioners would have gotten nothing even if the Bankruptcy Court had never approved the structured dismissal and will still get nothing if the structured dismissal is undone now. That argument rests upon the assumptions that (1) without a violation of ordinary priority rules, there will be no settlement, and (2) without a settlement, the fraudulent-conveyance lawsuit has no value. The record, however, indicates both that a settlement that respects ordinary priorities remains a reasonable possibility and that the fraudulent-conveyance claim could have litigation value. Therefore, as a consequence of the Bankruptcy Court’s approval of the structured dismissal, petitioners lost a chance to obtain a settlement that respected their priorities or, if not that, the power to assert the fraudulent-conveyance claim themselves. A decision in their favor is likely to redress that loss. . 2. Bankruptcy courts may not approve structured dismissals that provide for distributions that do not follow ordinary priority rules without the consent of affected creditors. . (a) Given the importance of the priority system, this Court looks for an affirmative indication of intent before concluding that Congress means to make a major departure. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457 . Nothing in the statute evinces such intent. Insofar as the dismissal sections of Chapter 11 foresee any transfer of assets, they seek a restoration of the prepetition financial status quo. Read in context, §349(b), which permits a bankruptcy judge, “for cause, [to] orde[r] otherwise,” seems designed to give courts the flexibility to protect reliance interests acquired in the bankruptcy, not to make general end-of-case distributions that would be flatly impermissible in a Chapter 11 plan or Chapter 7 liquidation. Precedent does not support a contrary position. E.g., In re Iridium Operating LLC, 478 F. 3d 452 (CA2), distinguished. Cases in which courts have approved deviations from ordinary priority rules generally involve interim distributions serving significant Code-related objectives. That is not the case here, where, e.g., the priority-violating distribution is attached to a final disposition, does not preserve the debtor as a going concern, does not make the disfavored creditors better off, does not promote the possibility of a confirmable plan, does not help to restore the status quo ante, and does not protect reliance interests. . (b) Congress did not authorize a “rare case” exception that permits courts to disregard priority in structured dismissals for “sufficient reasons.” The fact that it is difficult to give precise content to the concept of “sufficient reasons” threatens to turn the court below’s exception into a more general rule, resulting in uncertainty that has potentially serious consequences—e.g., departure from the protections granted particular classes of creditors, changes in the bargaining power of different classes of creditors even in bankruptcies that do not end in structured dismissals, risks of collusion, and increased difficulty in achieving settlements. Courts cannot deviate from the strictures of the Code, even in “rare cases.” . 787 F. 3d 173, 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.

The Bankruptcy Code Chapter 11 allows debtors and their creditors to negotiate a plan for dividing an estate. In Chapter 7, a trustee liquidates the debtor's assets and distributes them to creditors. In Chapter 11, debtor and creditors try to negotiate an estate plan that will govern the distribution of valuable assets from the debtor and often keep the business operating as a going concern. Filing for Chapter 11 bankruptcy, the buyer typically borrows from a third party (T) a large share of the funds needed to purchase a company (C). The buyer then pledges the estate assets to T so that T will have security for its loan. Chapter 11 foresees three possible outcomes: (1) a bankruptcy-court-confirmed plan; (2) a reorganization plan, such as a Chapter 7 proceeding for liquidation of the business and a distribution of its remaining assets; and (3) dismissal of the Chapter 11 case. The bankruptcy court, after granting summary judgment against Jevic Transportation Corp. (Jevic) with a judgment that was worth $12.4 million, dismissed the case in light of the dire circumstances facing the estate and its creditors. Petitioners, who were unsecured creditors, filed suit against Sun Capital Partners, a private equity firm, in Federal District Court, claiming, inter alia, that Sun had violated the bankruptcy code by failing to follow ordinary priority rules. The court granted summary judgment for petitioners, holding that the bankruptcy court did not bar approval of the settlement, but that the proposed payouts would occur pursuant to a structured dismissal of a Chapter 11 petition rather than an approved Chapter 7 plan, and that a bankruptcy court cannot confirm a plan that contains priority-violating distributions over the objection of an impaired creditor class. The District Court affirmed. Held: 1. A bankruptcy court does not have the legal power to order a priority-skipping kind of distribution scheme in connection with a Chapter11 dismissal. The Code does not explicitly state what priority rules apply to a distribution in these circumstances.. 2. Petitioners have standing. . (a) Petitioners lack standing because they have suffered no injury, or at least no injury that will be remedied by a decision in their favor. P.. (b) The Code's priority system constitutes a basic underpinning of business bankruptcy law. Distributions of estate assets at the termination of a business bankruptcy normally take place through either Chapter 7 or Chapter 11 plans, and both are governed by priority. With Chapter 7 liquidations, priority is an absolute command, and lower priority creditors cannot receive anything until higher priority creditors have been paid in full. Thus, the priority system applicable to those distributions has long been considered fundamental to the Code's operation. Although the Code authorizes a court to make general end-of-case distributions, it does not authorize a court ordering a dismissal to make such distributions. See, e.g., Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6), the word cause is too weak a reed upon which to rest so weighty a power. There is no contrary precedent, either from this Court, or, for that matter, from lower court decisions reflecting common bankruptcy practice. Even if petitioners are right that the structured dismissal was impermissible, it cost them nothing, and a judicial decision in petitioners' favor will gain them nothing. No loss. No redress. This argument rests upon respondents' claims that, without a priority violation, there will be no settlement. Moreover, the record indicates that the fraudulent-conveyance claim could have no litigation value. CIT and Sun, after all, settled the lawsuit for $3.7 million, which would make little sense if the action truly had no chance of success. Nor is there any reason to believe that the claim could not be pursued with counsel obtained on a contingency basis. As to the second claim, the records indicate that it could have litigation value, and there is no reason for believing that the settlement would be unavailing. Furthermore, the court could simply dismiss the bankruptcy, thereby allowing petitioners to assert the claim themselves, and thereby allowing them to assert it themselves. And the ruling before this Court could well have cost petitioners considerably more. Cf. In re Kmart Corp., 524 U.S. 417 –431 (CA7). Pp. 787 F. 3d 173, 175. (c) The Court of Appeals did not approve nonconsensual priority-skpping structured dismissals in general, but held that they were permissible only in those "rare case[s]," in which courts could find "sufficient reasons" to disregard priority, including the possibility of a favorable judicial decision. However, this Court cannot alter the balance struck by the statute, Law v. Siegel, 5

2016_16-6219

https://www.oyez.org/cases/2016/16-6219

. Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground. A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error. An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U. S. 722 (1991) . In Martinez v. Ryan, 566 U. S. 1 (2012) , and Trevino v. Thaler, 569 U. S. 413 (2013) , this Court announced a narrow exception to Coleman’s general rule. That exception treats ineffective assistance by a prisoner’s state postconviction counsel as cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim—ineffective assistance of appellate counsel. We decline to do so. I A On April 6, 2008, a group of family and friends gathered at Annette Stevenson’s home to celebrate her granddaughter’s birthday. Petitioner Erick Daniel Davila, believing he had seen a member of a rival street gang at the celebration, fired a rifle at the group while they were eating cake and ice cream. He shot and killed Annette and her 5-year-old granddaughter Queshawn, and he wounded three other children and one woman. After the police arrested petitioner, he confessed to the killings. He stated that he “wasn’t aiming at the kids or the woman,” but that he was trying to kill Annette’s son (and Queshawn’s father) Jerry Stevenson and the other “guys on the porch.” App. 38. The other “guys on the porch” were, apparently, women. The State indicted petitioner for capital murder under Tex. Penal Code Ann. §19.03(a)(7)(A) (West 2016), which makes it a capital crime to “murde[r] more than one person . . . during the same criminal transaction.” In response to the jury’s request for clarification during deliberations, the trial court proposed instructing the jury on transferred intent. Under that doctrine, the jury could find petitioner guilty of murder if it determined that he intended to kill one person but instead killed a different person. Petitioner’s counsel objected to the additional instruction, arguing that the trial judge should “wait” to submit it “until the jury indicates that they can’t reach . . . a resolution.” App. 51. The trial court overruled the objection and submitted the instruction to the jury. The jury convicted petitioner of capital murder, and the trial court sentenced petitioner to death. B Petitioner appealed his conviction and sentence. Al-though his appellate counsel argued that the State presented insufficient evidence to show that he acted with the requisite intent, counsel did not challenge the instruction about transferred intent. The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Davila v. State, 2011 WL 303265 (Jan. 26, 2011), cert. denied, 565 U. S. 885 (2011) . Petitioner next sought habeas relief in Texas state court. His counsel did not challenge the instruction about transferred intent, nor did he challenge the failure of his appellate counsel to raise the alleged instructional error on direct appeal. The Texas Court of Criminal Appeals denied relief. Ex parte Davila, 2013 WL 1655549 (Apr. 17, 2013), cert. denied, 571 U. S. ___ (2013). C Petitioner then sought habeas relief in Federal District Court under 28 U. S. C. §2254. As relevant here, he argued that his appellate counsel provided ineffective assistance by failing to challenge the jury instruction about transferred intent. Petitioner conceded that he had failed to raise his claim of ineffective assistance of appellate counsel in his state habeas petition, but argued that the failure was the result of his state habeas counsel’s ineffective assistance. Petitioner invoked this Court’s decisions in Martinez and Trevino to argue that his state habeas attorney’s ineffective assistance provided cause to excuse the procedural default of his claim of ineffective assistance of appellate counsel. The District Court denied petitioner’s §2254 petition. It concluded that Martinez and Trevino did not supply cause to excuse the procedural default of petitioner’s claim of ineffective assistance of appellate counsel because those decisions applied exclusively to claims of ineffective assistance of trial counsel. See Davila v. Stephens, 2015 WL 1808689, *20 (ND Tex., Apr. 21, 2015). The Court of Appeals for the Fifth Circuit denied a certificate of appealability on the same ground. 650 Fed. Appx. 860, 867–868 (2016). Petitioner then sought a writ of certiorari, asking us to reverse the Fifth Circuit on the ground that Martinez and Trevino should be extended to claims of ineffective assistance of appellate counsel. We granted certiorari, 580 U. S. ___ (2017), and now affirm. II Our decision in this case is guided by two fundamental tenets of federal review of state convictions. First, a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court. §2254(b)(1)(A). The exhaustion requirement is designed to avoid the “unseemly” result of a federal court “upset[ting] a state court conviction without” first according the state courts an “opportunity to . . . correct a constitutional violation,” Rose v. Lundy, 455 U. S. 509, 518 (1982) (internal quotation marks omitted). Second, a federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U. S. 53, 55 (2009) . This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U. S. 386, 392 (2004) . “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman, 501 U. S., at 731–732.[1] The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U. S. 467, 493 (1991) . A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show “cause” to excuse his failure to comply with the state procedural rule and “actual prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, 433 U. S. 72, 84 (1977) ; Coleman, supra, at 750. To establish “cause”—the element of the doctrine relevant in this case—the prisoner must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U. S. 478, 488 (1986) . A factor is external to the defense if it “cannot fairly be attributed to” the prisoner. Coleman, supra, at 753. It has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel. See Edwards v. Carpenter, 529 U. S. 446, 451 (2000) . An error amounting to constitutionally ineffective assistance is “imputed to the State” and is therefore external to the prisoner. Murray, supra, at 488. Attorney error that does not violate the Constitution, however, is attributed to the prisoner “under well-settled principles of agency law.” Coleman, supra, at 754. It follows, then, that in proceedings for which the Constitution does not guarantee the assistance of counsel at all, attorney error cannot provide cause to excuse a default. Thus, in Coleman, this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guarantee the right to counsel, see Murray v. Giarratano, 492 U. S. 1 (1989) (plurality opinion)—cannot supply cause to excuse a procedural default that occurs in those proceedings. 501 U. S., at 755. In Martinez, this Court announced a narrow, “equitable . . . qualification” of the rule in Coleman that applies where state law requires prisoners to raise claims of ineffective assistance of trial counsel “in an initial-review collateral proceeding,” rather than on direct appeal. Martinez, 566 U. S., at 16, 17. It held that, in those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if” the default results from the ineffective assistance of the prisoner’s counsel in the collateral proceeding. Id., at 17. In Trevino, the Court clarified that this exception applies both where state law explicitly prohibits prisoners from bringing claims of ineffective assistance of trial counsel on direct appeal and where the State’s “procedural framework, by reason of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise” that claim on direct appeal. 569 U. S., at ___ (slip op., at 14). III Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so. A On its face, Martinez provides no support for extending its narrow exception to new categories of procedurally defaulted claims. Martinez did not purport to displace Coleman as the general rule governing procedural default. Rather, it “qualifie[d] Coleman by recognizing a narrow exception” that applies only to claims of “ineffective assistance of counsel at trial” and only when, “under state law,” those claims “must be raised in an initial-review collateral proceeding.” Martinez, supra, at 9, 17. And Trevino merely clarified that the exception applies whether state law explicitly or effectively forecloses review of the claim on direct appeal. 569 U. S., at ___ (slip op. at 2, 13). In all but those “limited circumstances,” Martinez made clear that “[t]he rule of Coleman governs.” 566 U. S., at 16. Applying Martinez’s highly circumscribed, equitable exception to new categories of procedurally defaulted claims would thus do precisely what this Court disclaimed in Martinez: Replace the rule of Coleman with the exception of Martinez. B Petitioner also finds no support in the underlying rationale of Martinez. Petitioner’s primary argument is that his claim of ineffective assistance of appellate counsel might never be reviewed by any court, state or federal, without expanding the exception to the rule in Coleman. He argues that this situation is analogous to Martinez, where the Court expressed that same concern about claims of ineffective assistance of trial counsel. But the Court in Martinez was principally concerned about trial errors—in particular, claims of ineffective assistance of trial counsel. Ineffective assistance of appellate counsel is not a trial error. Nor is petitioner’s rule necessary to ensure that a meritorious trial error (of any kind) receives review. 1 Petitioner argues that allowing a claim of ineffective assistance of appellate counsel to evade review is just as concerning as allowing a claim of ineffective assistance of trial counsel to evade review. Brief for Petitioner 12; see also id., at 18–26. We do not agree. The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not. The Constitution twice guarantees the right to a criminal trial, see Art. III, §2; Amdt. 6, but does not guarantee the right to an appeal at all, Halbert v. Michigan, 545 U. S. 605, 610 (2005) . The trial “is the main event at which a defendant’s rights are to be determined,” McFarland v. Scott, 512 U. S. 849, 859 (1994) (internal quotation marks omitted), “and not simply a tryout on the road to appellate review,” Freytag v. Commissioner, 501 U. S. 868, 895 (1991) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted). And it is where the stakes for the defendant are highest, not least because it is where a presumptively innocent defendant is adjudged guilty, see Ross v. Moffitt, 417 U. S. 600, 610 (1974) ; Wainwright, 433 U. S., at 90, and where the trial judge or jury makes factual findings that nearly always receive deference on appeal and collateral review, see Jackson v. Virginia, 443 U. S. 307 –319 (1979); see also Cavazos v. Smith, 565 U. S. 1, 2 (2011) (per curiam) (under deferential standard of review, “judges will sometimes encounter convictions that they believe to be mistaken, but that they must nevertheless uphold”). The Court in Martinez made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel. As the Court explained, “the limited nature” of its holding “reflect[ed] the importance of the right to the effective assistance of trial counsel,” which is “a bedrock principle in our justice system.” 566 U. S., at 12, 16 (emphasis added). In declining to expand the Martinez exception to the distinct context of ineffective assistance of appellate counsel, we do no more than respect that judgment. 2 Petitioner’s rule also is not required to ensure that meritorious claims of trial error receive review by at least one state or federal court—the chief concern identified by this Court in Martinez. See id., at 10, 12. Martinez was concerned that a claim of trial error—specifically, ineffective assistance of trial counsel—might escape review in a State that required prisoners to bring the claim for the first time in state postconviction proceedings rather than on direct appeal. Because it is difficult to assess a trial attorney’s performance until the trial has ended, a trial court ordinarily will not have the opportunity to rule on such a claim. And when the State requires a prisoner to wait until postconviction proceedings to raise the claim, the appellate court on direct appeal also will not have the opportunity to review it. If postconviction counsel then fails to raise the claim, no state court will ever review it. Finally, because attorney error in a state postconviction proceeding does not qualify as cause to excuse procedural default under Coleman, no federal court could consider the claim either. Claims of ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule. This is true regardless of whether trial counsel preserved the alleged error at trial. If trial counsel preserved the error by properly objecting, then that claim of trial error “will have been addressed by . . . the trial court.” Martinez, 566 U. S., at 11. A claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Martinez exception because at least “one court” will have considered the claim on the merits. Ibid.; see also Coleman, 501 U. S., at 755–756. If trial counsel failed to preserve the error at trial, then petitioner’s proposed rule ordinarily would not give the prisoner access to federal review of the error, anyway. Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed. Smith v. Murray, 477 U. S. 527, 536 (1986) ; Jones v. Barnes, 463 U. S. 745 –753 (1983). Declining to raise a claim on appeal, therefore, is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court. See Smith v. Robbins, 528 U. S. 259, 288 (2000) . In most cases, an unpreserved trial error will not be a plainly stronger ground for appeal than preserved errors. See 2 B. Means, Postconviction Remedies §35:19, p. 627, and n. 16 (2016). Thus, in most instances in which the trial court did not rule on the alleged trial error (because it was not preserved), the prisoner could not make out a substantial claim of ineffective assistance of appellate counsel and therefore could not avail himself of petitioner’s expanded Martinez exception. Adopting petitioner’s proposed rule would be unnecessary to ensure review of a claim of trial error even when a prisoner has a legitimate claim of ineffective assistance of appellate counsel based on something other than a preserved trial error. If an unpreserved trial error was so obvious that appellate counsel was constitutionally required to raise it on appeal, then trial counsel likely provided ineffective assistance by failing to object to it in the first instance. In that circumstance, the prisoner likely could invoke Martinez or Coleman to obtain review of trial counsel’s failure to object. Similarly, if the underlying, defaulted claim of trial error was ineffective assistance of trial counsel premised on something other than the failure to object, then Martinez and Coleman again already provide a vehicle for obtaining review of that error in most circumstances. Petitioner’s proposed rule is thus unnecessary for ensuring that trial errors are reviewed by at least one court. C The Court in Martinez also was responding to an equitable consideration that is unique to claims of ineffective assistance of trial counsel and accordingly inapplicable to claims of ineffective assistance of appellate counsel. In Martinez, the State “deliberately cho[se] to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed,” into the postconviction review process, where we have never held that the Constitution guarantees a right to counsel. 566 U. S., at 13; id., at 9. By doing so, “the State significantly diminishe[d] prisoners’ ability to file such claims.” Id., at 13. Similarly, in Trevino, the State had chosen a procedural framework pursuant to which collateral review was, “as a practical matter, the onl[y] method for raising an ineffective-assistance-of-trial-counsel claim.” 569 U. S., at ___ (slip op., at 13). Although this Court acknowledged in Martinez that there was nothing inappropriate about the State’s choice, it explained that the choice was “not without consequences for the State’s ability to assert a procedural default” in subsequent federal habeas proceedings. 566 U. S., at 13. Specifically, the Court concluded that it would be inequitable to refuse to hear a defaulted claim of ineffective assistance of trial counsel when the State had channeled that claim to a forum where the prisoner might lack the assistance of counsel in raising it. The States have not made a similar choice with respect to claims of ineffective assistance of appellate counsel—nor could they. By their very nature, such claims gener-ally cannot be presented until after the termination of direct appeal. Put another way, they necessarily must be heard in collateral proceedings, where counsel is not constitutionally guaranteed. The fact that claims of appellate ineffectiveness are considered in proceedings in which counsel is not constitutionally guaranteed is a function of the nature of the claim, not of the State’s “deliberat[e] cho[ice] to move . . . claims outside of the direct-appeal process.” Ibid. The equitable concerns raised in Martinez therefore do not apply. D Finally, the Court in Martinez grounded its decision in part on the belief that its narrow exception was unlikely to impose significant systemic costs. See id., at 15–16. The same cannot be said of petitioner’s proposed extension. 1 Adopting petitioner’s argument could flood the federal courts with defaulted claims of appellate ineffectiveness. For one thing, every prisoner in the country could bring these claims. Martinez currently applies only to States that deliberately choose to channel claims of ineffective assistance of trial counsel into collateral proceedings. See, e.g., Lee v. Corsini, 777 F. 3d 46, 60–61 (CA1 2015) (Martinez and Trevino do not apply to Massachusetts); Henness v. Bagley, 766 F. 3d 550, 557 (CA6 2014) (Martinez does not apply to Ohio). If we applied Martinez to claims of appellate ineffectiveness, however, we would bring every State within Martinez’s ambit, because claims of appellate ineffectiveness necessarily must be heard in collateral proceedings. See supra, at 12. Extending Martinez to defaulted claims of ineffective assistance of appellate counsel would be especially troublesome because those claims could serve as the gatewayto federal review of a host of trial errors, while Martinez covers only one trial error (ineffective assistance of trial counsel). If a prisoner can establish ineffective assistance of trial counsel under Martinez, he ordinarily is entitled to a new trial. See United States v. Morrison, 449 U. S. 361 –365 (1981); see also Hagens v. State, 979 S. W. 2d 788, 792 (Tex. App. 1998). But if he cannot, Martinez provides no avenue for litigating other defaulted trial errors.[2] An expanded Martinez exception, however, would mean that any defaulted trial error could result in a new trial. In Carpenter, this Court held that, when a prisoner can show cause to excuse a defaulted claim of ineffective assistance of appellate counsel, he can in turn rely on that claim as cause to litigate an underlying claim of trial error that was defaulted due to appellate counsel’s ineffectiveness. 529 U. S., at 453. Expanding Martinez as petitioner suggests would thus produce a domino effect: Prisoners could assert their postconviction counsel’s inadequacy as cause to excuse the default of their appellate ineffectiveness claims, and use those newly reviewable appellate ineffectiveness claims as cause to excuse the default of their underlying claims of trial error. Petitioner’s rule thus could ultimately knock down the procedural barriers to federal habeas review of nearly any defaulted claim of trial error. The scope of that review would exceed anything the Martinez Court envisioned when it established its narrow exception to Coleman. Petitioner insists that these concerns are overstated because many of the newly raised claims will be meritless. See Brief for Petitioner 28. But even if that were true, courts would still have to undertake the task of separating the wheat from the chaff. And we are not reassured by petitioner’s suggestion that extending Martinez would increase only the number of claims in each petition rather than the number of federal habeas petitions themselves. Reply Brief 14. Each additional claim would require the district court to review the prisoner’s trial record, appellate briefing, and state postconviction record to determine the claim’s viability. This effort could be repeated at each level of federal review. We cannot “assume that these costs would be negligible,” Murray, 477 U. S., at 487, and we are loath to further “burden . . . scarce federal judicial resources” in this way, McCleskey, 499 U. S., at 491. 2 Expanding Martinez would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes. Federal habeas review of state convictions “entails significant costs,” Engle v. Isaac, 456 U. S. 107, 126 (1982) , “ ‘and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority,’ ” Harrington v. Richter, 562 U. S. 86, 103 (2011) (quoting Harris v. Reed, 489 U. S. 255, 282 (1989) (Kennedy, J., dissenting)). It “frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Calderon v. Thompson, 523 U. S. 538 –556 (1998) (internal quotation marks omitted). It “degrades the prominence of the [State] trial,” Engle, supra, at 127, and it “disturbs the State’s significant interest in repose for concluded litigation [and] denies society the right to punish some admitted offenders,” Harrington, supra, at 103 (internal quotation marksomitted). Apart from increasing the sheer frequency of federal intrusion into state criminal affairs, petitioner’s proposed rule would also undermine the doctrine of procedural default and the values it serves. That doctrine, like the federal habeas statute generally, is designed to ameliorate the injuries to state sovereignty that federal habeas review necessarily inflicts by giving state courts the first opportunity to address challenges to convictions in state court, thereby “promoting comity, finality, and federalism.” Cullen v. Pinholster, 563 U. S. 170, 185 (2011) ; McCleskey, supra, at 493. Expanding the narrow exception announced in Martinez would unduly aggravate the “special costs on our federal system” that federal habeas review already imposes. Engle, supra, at 128. 3 Not only would these burdens on the federal courts and our federal system be severe, but the benefit would—as a systemic matter—be small. To be sure, permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner. Petitioner’s counsel concedes, however, that relief is granted in, “[i]f any, a very minute number” of “post-conviction ineffective assistance of appellate counselcases.” Tr. of Oral Arg. 14. Indeed, he concedes that the number of meritorious cases is “infinitesimally small.” Ibid. We think it is likely that the claims heard in federal court because of petitioner’s proposed rule would also be largely meritless, given that the proposed rule would generally affect only those cases in which the trial court already adjudicated, and rejected, the prisoner’s argument regarding the alleged underlying trial error. See supra, at 11. Given that petitioner’s proposed rule would likely generate high systemic costs and low systemic benefits, and that the unique concerns of Martinez are not implicated in cases like his, we do not think equity requires anexpansion of Martinez. * * * For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered.Notes 1 The Fifth Circuit treats unexhausted claims as procedurally defaulted if “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Bagwell v. Dretke, 372 F. 3d 748, 755 (2004) (internal quotation marks omitted); cf. Coleman, 501 U. S., at 735, n. Relying on this doctrine, the District Court concluded that petitioner’s federal claim was procedurally defaulted (even though a state court had never actually found it procedurally barred) because Texas law would likely bar a Texas court from deciding the claim on the merits if petitioner were to present it in a successive habeas petition. Davila v. Stephens, 2015 WL 1808689, *19–*20 (ND Tex., Apr. 21, 2015) (citing Davila v. Stephens, 2014 WL 5879879, *2 (ND Tex., Nov. 10, 2014)); see also Davila v. Stephens, 2014 WL 6057907, *2 (ND Tex., Nov. 10, 2014). Petitioner did not seek a certificate of appealability regarding that holding, and neither petitioner nor the State disputes in this Court that the claim was procedurally defaulted. Accordingly, we assume that it was procedurally defaulted for purposes of this case. 2 The dissent argues that Martinez already provides a gateway to the review of underlying trial errors no differently than would petitioner’s proposed rule. See post, at 7 (opinion of Breyer, J.). That is not so. If a prisoner succeeds on his claim of ineffective assistance of trial counsel under Martinez, the federal habeas court would not need to consider any other claim of trial error since the successful claim of trial ineffectiveness—unlike a successful claim of ineffective assistance of appellate counsel—entitles the prisoner to a new trial. See 7 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §28.4(d), p. 258, n. 75 (4th ed. 2015).

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 DAVILA v. DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION certiorari to the united states court of appeals for the fifth circuit No. 16–6219. Argued April 24, 2017—Decided June 26, 2017 In petitioner’s state capital murder trial, the trial court overruled counsel’s objection to a proposed jury instruction and submitted the instruction to the jury, which convicted petitioner. Appellate counsel did not challenge the jury instruction, and petitioner’s conviction and sentence were affirmed. Petitioner’s state habeas counsel did not raise the instructional issue or challenge appellate counsel’s failure to raise it on appeal, and the state habeas court denied relief. Petitioner then sought federal habeas relief. Invoking Martinez v. Ryan, 566 U. S. 1 , and Trevino v. Thaler, 569 U. S. 413 , petitioner argued that his state habeas counsel’s ineffective assistance in failing to raise an ineffective-assistance-of-appellate-counsel claim provided cause to excuse the procedural default of that claim. The District Court denied relief, concluding that Martinez and Trevino apply exclusively to ineffective-assistance-of-trial-counsel claims. The Fifth Circuit denied a certificate of appealability. Held: The ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of ineffective-assistance-of-appellate-counsel claims. . (a) In Coleman v. Thompson, 501 U. S. 722 , this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guarantee the right to counsel—cannot supply cause to excuse a procedural default that occurs in those proceedings. Id., at 755. In Martinez, the Court announced an “equitable . . . qualification” of Coleman’s rule that applies where state law requires a claim of ineffective assistance of trial counsel to be raised in an “initial-review collateral proceeding,” rather than on direct appeal. 566 U. S., at 16, 17. In those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if” the default results from the ineffective assistance of the prisoner’s counsel in the collateral proceeding. Id., at 17. The Court clarified in Trevino that Martinez’s exception also applies where the State’s “procedural framework, by reason of its design and operation, makes it unlikely in a typical case that a defendant will have a meaningful opportunity to raise” the claim on direct appeal. 569 U. S., at ___. . (b) This Court declines to extend the Martinez exception to allow a federal court to hear a substantial, but procedurally defaulted, claim of appellate ineffectiveness when a prisoner’s state postconviction counsel provides ineffective assistance by failing to raise it. . (1) Martinez itself does not support extending this exception to new categories of procedurally defaulted claims. The Martinez Court did not purport to displace Coleman as the general rule governing procedural default. Rather, it “qualifie[d] Coleman by recognizing a narrow exception,” 566 U. S., at 9, and made clear that “[t]he rule of Coleman governs in all but th[ose] limited circumstances,” id., at 16. Applying Martinez’s highly circumscribed, equitable exception to new categories of procedurally defaulted claims would do precisely what this Court disclaimed in that case. P. 7. (2) Martinez’s underlying rationale does not support extending its exception to appellate-ineffectiveness claims. Petitioner argues that his situation is analogous to Martinez, where the Court expressed concern that trial-ineffectiveness claims might completely evade review. The Court in Martinez made clear, however, that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel. Declining to expand Martinez to the appellate-ineffectiveness context does no more than respect that judgment. Nor is petitioner’s rule required to ensure that meritorious claims of trial error receive review by at least one state or federal court—Martinez’s chief concern. See 566 U. S., at 10, 12. A claim of trial error, preserved by trial counsel but not raised by counsel on appeal, will have been addressed by the trial court. If an unpreserved trial error was so obvious that appellate counsel was constitutionally required to raise it on appeal, then trial counsel likely provided ineffective assistance by failing to raise it at trial. In that circumstance, the prisoner likely could invoke Martinez or Coleman to obtain review of trial counsel’s failure to object. Similarly, if the underlying, defaulted claim of trial error was ineffective assistance of trial counsel premised on something other than the failure to object, then Martinez and Coleman again already provide a vehicle for obtaining review of that error in most circumstances. . (3) The equitable concerns addressed in Martinez do not apply to appellate-ineffectiveness claims. In Martinez and Trevino, the States deliberately chose to make postconviction process the only means for raising trial-ineffectiveness claims. The Court determined that it would be inequitable to refuse to hear a defaulted claim when the State had channeled that claim to a forum where the prisoner might lack the assistance of counsel in raising it. The States have not made a similar choice with respect to appellate-ineffectiveness claims—nor could they, since such claims generally cannot be presented until after the termination of direct appeal. The fact that appellate-ineffectiveness claims are considered in proceedings in which counsel is not constitutionally guaranteed is a function of the nature of the claim, not of the States’ deliberate choices. . (4) The Martinez decision was also grounded in part on the belief that its narrow exception was unlikely to impose significant systemic costs. See 566 U. S., at 15–16. But adopting petitioner’s proposed extension could flood the federal courts with defaulted appellate-ineffectiveness claims, and potentially serve as a gateway to federal review of a host of defaulted claims of trial error. It would also aggravate the harm to federalism that federal habeas review of state convictions necessarily causes. Not only would these burdens on the federal courts and federal system be severe, but the systemic benefit would be small, as claims heard in federal court solely by virtue of petitioner’s proposed rule would likely be largely meritless. . 650 Fed. Appx. 860, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

Petitioner Davila, believing he had seen a member of a rival street gang at the celebration, fired a rifle at a group of family and friends at them while they were eating cake and ice cream. He then shot and killed two children and wounded others. The jury convicted him of capital murder and sentenced him to death. Al-though his appellate counsel argued that the State presented insufficient evidence to show that he acted with the requisite intent, counsel did not challenge the instruction about transferred intent. The Texas Court of Criminal Appeals affirmed his conviction and sentence, and petitioner next sought habeas relief in a Texas state court. His counsel, neither challenging the instruction on transferred intent nor challenging the appellate counsel failure to raise the alleged instructional error on direct appeal, but the trial court overruled his objection and submitted the instruction to the jury, and he was convicted and sentenced. He appealed his conviction to death, and the Texas appellate court affirmed. However, his conviction was affirmed by the Texas court, and his conviction in a state court was affirmed in the state court, his counsel not challenging the transfer intent instruction, nor did he challenge the failure of appellate counsel to raise that error on appeal. After the state appellate court denied his claim under 28 U.S.C. §2254(b)(1)(A) and § Trevino v. Treviino, 569 U. S. 413, this Court denied a certificate of appealability on the same ground. Petitioner then sought a writ of certiorari, asking to be set aside on the ground that Martinez v. Thompson, 501 U. s. 722 (1991) and Trevinos, 566 U. s. 413 (2013) did not supply cause to excuse the procedural default of his state postconviction counsel. The District Court denied relief, but conceded that ineffective assistance by appellate counsel in state court proceedings was provided by state decisions that provided no excuse for failing to raise his claim of ineffective assistance of trial counsel. As to the District Court, the court concluded that Martinez and Treiino did not supply cause to excuse his procedural default, because those decisions applied exclusively to claims of ineffective assist of appellate counsel. Held: The Court of Appeals erred in extending Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of appellate assistance of counsel, when a prisoner's state appellate counsel provides ineffective assistance to the prisoner in a single context, where the State effectively requires a defendant to bring that claim in state post-conviction proceedings. . (a) The narrow exception to the general rule governing procedural default that treats ineffective assistance as cause to overcome the default of a single claim (ineffective assistance of the trial counsel) in a one context, such as in a case where a State requires a prisoner to bring the claim for the first time in postconvictiction proceedings, rather than on direct appeals, does not extend to such claims. A state prisoner must exhaust available state remedies before presenting his claim. First, he must show that some objective factor external to the defense impeded counsels efforts to comply with the State procedural rule. To establish such cause, the prisoner must show the objective external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel. Second, to ensure that meritorious claims of appellate ineffectiveness receive review by at least one state or federal court, Martinez, supra, at 12, would be unnecessary to ensure review of a claim of trial error even when the prisoner has a legitimate claim of such assistance based on something other than a preserved trial error. If an unpreserved trial error was so obvious that appellate counsel was constitutionally required to raise it on appeal, then trial counsel likely provided ineffective assistance simply by failing to object to it in the first instance. Similarly, if the error was premised on a failure to object, the claim would be subject to review by the appellate court. In addition, the proposed rule is unlikely to impose significant systemic costs, since it would also undermine the doctrine of procedural default and the values it serves. An expanded Martinez exception would mean that any defaulted trial error could result in a new trial, and would likely generate high systemic costs and low systemic benefits. Moreover, the unique concerns of Martinez are not implicated in cases like his. Thus, it is likely that the claims heard in federal court because of petitioner's proposed rule would also be largely meritless, since petitioner would generally affect only those cases in which the trial court already adjudicated, and rejected, his argument regarding the alleged underlying trial error, which was not involved in the Martinez claim... 650 Fed. Appx. 860, 867, 868, affirmed. Davila v. Stephens, 2015 WL 1808689, *20 (ND Tex., Apr. 21, 2015). (c) Adop

2016_15-9260

https://www.oyez.org/cases/2016/15-9260

. Congress has made it a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime. 18 U. S. C. §924(c). That separate firearm offense carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. The question presented is whether, in calculating the sentence for the predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c). I Levon Dean, Jr., and his brother robbed a methamphetamine dealer in a Sioux City motel room. Less than two weeks later, they robbed another drug dealer at his home. During each robbery, Dean’s brother threatened the victim with a modified semiautomatic rifle, later using that rifle to club the victim on the head. Dean, meanwhile, ransacked the area for drugs, money, and other valuables. A federal grand jury returned a multicount indictment charging Dean and his brother with a host of crimes related to the two robberies. Following a joint trial, a jury convicted Dean of one count of conspiracy to commit robbery, two counts of robbery, and one count of possessing a firearm as a convicted felon. He was also convicted of two counts of possessing and aiding and abetting the possession of a firearm in furtherance of a crime of violence, in violation of 18 U. S. C. §§2 and 924(c). Section 924(c) criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime. There is no dispute that Dean’s two robbery convictions qualified as predicate crimes of violence for purposes of §924(c). Section 924(c) does more than create a distinct offense. It also mandates a distinct penalty, one that must be imposed “in addition to the punishment provided for [the predicate] crime of violence or drug trafficking crime.” §924(c)(1)(A) (emphasis added). A first-time offender under §924(c) receives a five-year mandatory minimum. A “second or subsequent conviction” under §924(c) carries an additional 25-year mandatory minimum. §§924(c)(1)(A)(i), (C)(i). A sentence imposed under §924(c) must run consecutively to “any other term of imprisonment imposed on the person,” including any sentence for the predicate crime “during which the firearm was used, carried, or possessed.” §924(c)(1)(D)(ii). For Dean, this meant a 30-year mandatory minimum, to be served after and in addition to any sentence he received for his other counts of conviction. At sentencing Dean did not dispute that each of his four other counts resulted in a sentencing range of 84–105 months under the Sentencing Guidelines. He argued, however, that the court should consider his lengthy mandatory minimum sentences when calculating the sentences for his other counts, and impose concurrent one-day sentences for those counts. Finding that Dean was “clearly the follower” and that he lacked “any significant history of any violence,” the District Judge agreed that 30 years plus one day was “more than sufficient for a sentence in this case.” App. 26. Yet the judge understood §924(c) to preclude such a sentence. In his view, he was required to disregard Dean’s 30-year mandatory minimum when determining the appropriate sentences for Dean’s other counts of conviction. Viewed on their own—and not as part of a combined package—those counts plainly warranted sentences longer than one day. In the end, the judge still granted a significant downward variance from the 84–105 month Guidelines range. Dean received concurrent sentences of 40 months for each non-§924(c) conviction, which, when added to his 360-month mandatory minimum, yielded a total sentence of 400 months. Dean appealed. Before the Eighth Circuit, Dean argued that the District Court had erred in concluding that it could not vary from the Guidelines range based on the mandatory minimum sentences he would receive under §924(c). The Court of Appeals disagreed, ruling that Dean’s argument was foreclosed by Circuit precedent and that his sentence was otherwise substantively reasonable. 810 F. 3d 521 (2015). We granted certiorari. 580 U. S. ___ (2016). II Sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence. Pepper v. United States, 562 U. S. 476 –489 (2011). This durable tradition remains, even as federal laws have required sentencing courts to evaluate certain factors when exercising their discretion. Ibid. A Section 3553(a) of Title 18 specifies the factors courts are to consider in imposing a sentence. The list of factors is preceded by what is known as the parsimony principle, a broad command that instructs courts to “impose a sentence sufficient, but not greater than necessary, to comply with” the four identified purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation. Ibid. A sentencing court is then directed to take into account “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing. §§3553(a)(1), (2)(A)–(D); see Gall v. United States, 552 U. S. 38 , n. 6 (2007). The court must also consider the pertinent guidelines and policies adopted by the Sentencing Commission. §§3553(a)(4), (5); see id., at 50, n. 6. The §3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. Under §3582 a court, “in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a).” §3582(a). And §3584 provides: “[I]n determining whether the terms imposed are to be ordered to run concurrently or consecutively, [the court] shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).” §3584(b). As a general matter, the foregoing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts. Take the directive that a court assess “the need for the sentence imposed . . . to protect the public from further crimes of the defendant.” §3553(a)(2)(C). Dean committed the two robberies at issue here when he was 23 years old. That he will not be released from prison until well after his fiftieth birthday because of the §924(c) convictions surely bears on whether—in connection with his predicate crimes—still more incarceration is necessary to protect the public. Likewise, in considering “the need for the sentence imposed . . . to afford adequate deterrence,” §3553(a)(2)(B), the District Court could not reasonably ignore the deterrent effect of Dean’s 30-year mandatory minimum. According to the Government, this is not how sentencing is meant to work. Rather, district courts should calculate the appropriate term of imprisonment for each individual offense. That determination, insists the Government, disregards whatever sentences the defendant may also face on other counts. Not until deciding whether to run sentences consecutively or concurrently—i.e., not until applying §3584—should a district court consider the effect of those other sentences. Brief for United States 21–26. Nothing in the law requires such an approach. The Government states that the §3553(a) factors are “normally relevant in determining the total length of imprisonment” under §3584. Id., at 28. No doubt they are. But there is no reason they may not also be considered at the front end, when determining a prison sentence for each individual offense in a multicount case. At odds with the text, the Government’s interpretation is also at odds with its own practice in “sentencing package cases.” Greenlaw v. United States, 554 U. S. 237, 253 (2008) . “Those cases typically involve multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction.” Ibid. In those cases—including ones where §924(c) convictions are invalidated—the Government routinely argues that an appellate court should vacate the entire sentence so that the district court may increase the sentences for any remaining counts up to the limit set by the original aggregate sentence. See United States v. Smith, 756 F. 3d 1179, 1188–1189, and n. 5 (CA10 2014) (collecting cases). And appellate courts routinely agree. Id., at 1189, and n. 6 (same). As we understand it, the Government’s theory in those cases is that the district court may have relied on a now-vacated conviction when imposing sentences for the other counts. But that theory of course directly contradicts the position the Government now advances—that district courts must determine sentences independently of one another, accounting for multiple sentences only when deciding whether to stack them or run them concurrently. B Nothing in §924(c) restricts the authority conferred on sentencing courts by §3553(a) and the related provisions to consider a sentence imposed under §924(c) when calculating a just sentence for the predicate count. The Government points to two limitations in §924(c). First, the Government notes, a mandatory sentence under §924(c) must be imposed “in addition to the punishment provided” for the predicate crime. §924(c)(1)(A) (emphasis added). This limitation says nothing about the length of a non-§924(c) sentence, much less about what information a court may consider in determining that sentence. Whether the sentence for the predicate offense is one day or one decade, a district court does not violate the terms of §924(c) so long as it imposes the mandatory minimum “in addition to” the sentence for the violent or drug trafficking crime. Second, §924(c) states that “no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the [predicate] crime during which the firearm was used, carried, or possessed.” §924(c)(1)(D)(ii). Nothing in that language prevents a district court from imposing a 30-year mandatory minimum sentence under §924(c) and a one-day sentence for the predicate violent or drug trafficking crime, provided those terms run one after the other. The Government emphasizes that the requirement of consecutive sentences removes the discretion to run sentences concurrently that district courts exercise under §3584. We agree. So does Dean, for that matter. But we fail to see the significance of the point. The bar on imposing concurrent sentences does not affect a court’s discretion to consider a mandatory minimum when calculating each individual sentence. The Government would, in effect, have us read an additional limitation into §924(c): Where §924(c) says “in addition to the punishment provided for [the predicate] crime of violence,” what the statute really means is “in addition to the punishment provided for [the predicate] crime of violence in the absence of a Section 924(c) conviction.” See Reply Brief 2. We have said that “[d]rawing meaning from silence is particularly inappropriate” where “Congress has shown that it knows how to direct sentencing practices in express terms.” Kimbrough v. United States, 552 U. S. 85, 103 (2007) . Congress has shown just that in another statute, 18 U. S. C. §1028A. That section, which criminalizes the commission of identity theft “during and in relation to” certain predicate felonies, imposes a mandatory minimum sentence “in addition to the punishment provided for” the underlying offense. §1028A(a)(1). It also says that the mandatory minimum must be consecutive to the sentence for the underlying offense. §1028A(b)(2). So far, §1028A tracks §924(c) in relevant respects. But §1028A goes further: It provides that in determining the appropriate length of imprisonment for the predicate felony “a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section.” §1028A(b)(3). Section 1028A says just what the Government reads §924(c) to say—of course, without actually saying it. The Government responds that §1028A was passed in 2004, long after Congress enacted the 1984 amendments creating the current sentencing regime in §924(c). Brief for United States 46. True. But §1028A confirms that it would have been easy enough to make explicit what the Government argues is implicit in §924(c). It also underscores that for over a decade Congress has been aware of a clear way to bar consideration of a mandatory minimum, but never during that time changed the language of §924(c) to mirror that of §1028A, even as it has amended other aspects of §924(c). * * * The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough. But no such intent finds expression in the language of §924(c). That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense. 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 . SUPREME COURT OF THE UNITED STATES Syllabus DEAN v. UNITED STATES certiorari to the united states court of appeals for the eighth circuit No. 15–9260. Argued February 28, 2017—Decided April 3, 2017 Petitioner Dean and his brother committed two robberies of drug dealers. During each robbery, Dean’s brother threatened and assaulted the victim with a gun, while Dean searched the premises for valuables. Dean was convicted of multiple robbery and firearms counts, as well as two counts of possessing a firearm in furtherance of a crime of violence, in violation of 18 U. S. C. §924(c). Section 924(c) criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime. That provision mandates a distinct penalty to be imposed “in addition to the punishment provided for [the predicate] crime,” §924(c)(1)(A). Further, §924(c) says that any sentence mandated by that provision must run consecutively to “any other term of imprisonment imposed on the person,” including any sentence for the predicate crime, §924(c)(1)(D)(ii). A first conviction under §924(c) carries a five-year mandatory minimum penalty, §924(c)(1)(A)(i), while a second conviction carries an additional 25-year mandatory minimum, §924(c)(1)(C)(i). For Dean, that meant a 30-year mandatory minimum, to be served after and in addition to any sentence he received for his other counts of conviction. At sentencing, Dean urged the District Court to consider his lengthy mandatory minimum sentences when calculating the sentences for his other counts and to impose concurrent one-day sentences for those counts. The judge said he would have agreed to Dean’s request but understood §924(c) to preclude a sentence of 30 years plus one day. On appeal, Dean argued that the District Court had erred in concluding that it could not vary from the Guidelines range based on the mandatory minimum sentences he would receive under §924(c). The Court of Appeals ruled that Dean’s argument was foreclosed by Circuit precedent and that his sentence was otherwise substantively reasonable. Held: Section 924(c) does not prevent a sentencing court from considering a mandatory minimum imposed under that provision when calculating an appropriate sentence for the predicate offense. . (a) Sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence, and they continue to do so even as federal laws have required them to evaluate certain factors when exercising their discretion. Pepper v. United States, 562 U. S. 476 –489. Section 3553(a) specifies the factors courts are to consider when imposing a sentence. They include “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing: just punishment, deterrence, protection of the public, and rehabilitation. The §3553(a) factors are used to set both the length of separate prison terms, §3582(a), and an aggregate prison term comprising separate sentences for multiple counts of conviction, §3584(b). As a general matter, these sentencing provisions permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts. The Government argues that district courts should calculate the appropriate term of imprisonment for each individual offense, disregarding whatever sentences a defendant may face on other counts. Only when determining an aggregate prison sentence, the Government maintains, should a district court consider the effect of those other sentences. Nothing in the law requires such an approach. There is no reason that the §3553(a) factors may not also be considered when determining a prison sentence for each individual offense in a multicount case. The Government’s interpretation is at odds not only with the text of those provisions but also with the Government’s own practice in “sentencing package cases.” Greenlaw v. United States, 554 U. S. 237 . . (b) The Government points to two limitations in §924(c) that, in its view, restrict the authority of sentencing courts to consider a sentence imposed under §924(c) when calculating a just sentence for the predicate count. Neither limitation supports the Government’s position. First, that a mandatory sentence under §924(c) must be imposed “in addition to the punishment provided” for the predicate crime says nothing about the length of a non-§924(c) sentence, much less about what information a court may consider in determining that sentence. Second, nothing in the requirement of consecutive sentences prevents a district court from imposing a 30-year mandatory minimum sentence under §924(c) and a one-day sentence for the predicate crime, provided those terms run one after the other. The Government would, in effect, have this Court read into §924(c) the limitation explicitly made in §1028A(b)(3), which provides that in determining the appropriate length of imprisonment for a predicate felony, “a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section.” But “[d]rawing meaning from silence is particularly inappropriate” where, as demonstrated in §1028A, “Congress has shown that it knows how to direct sentencing practices in express terms.” Kimbrough v. United States, 552 U. S. 85 . . 810 F. 3d 521, reversed and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

Under 18 U.S. C. §924(c), a separate offense to use or possess a firearm in connection with a violent or drug trafficking crime carries a mandatory minimum sentence of five years for the first conviction and 25 years for a second conviction. Those sentences must be in addition to and consecutive to the sentence for the underlying predicate offense. A federal grand jury returned a multicount indictment charging respondent Dean and his brother with a host of crimes related to the two robberies. Dean was also convicted of two counts of possessing and aiding and abetting the possession of a firearm used, carried, or possessed in furtherance of a crime of violence, in violation of §9 24(c). The Sentencing Guidelines set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction. The court also imposed concurrent one-day sentences for Dean, finding that 30 years plus one day was more than sufficient for a sentence in this case, but that, in view of his lack of any violence, the judge was required to disregard Dean's 30-year mandatory minimum when determining the appropriate sentences for the other counts. Viewed on their own, and not as part of a combined package, those counts plainly warranted sentences longer than one day, and Dean received concurrent sentences of 40 months for each of his four other convictions, which, when added to his 360-month mandatory minimum, yielded a total of 400 months of mandatory minimum sentences. Before the Eighth Circuit Court of Appeals disagreed, the District Court argued that it could not vary in the mandatory minimum range based on Dean, and that the court erred in ruling based on the quoted sentence. That court disagreed, and the Circuit Court disagreed. Held: In calculating the appropriate sentence for a predicate offense, a judge must not ignore the fact that the defendant will serve the statutory mandatory minimums. . (a) The bar on imposing concurrent sentences does not affect a district court's discretion to consider a mandatory minimum when calculating each individual sentence, and nothing in the law requires such an approach. There is no reason to read the §3553(a)(2)(C) factors as being normally relevant in determining the total length of imprisonment under §3584. Although they may not also be considered at the front end, when determining a prison sentence for each individual offense in multicount cases, they are at odds with the text of the statute and with the Government's practice in sentencing package cases in which multicount indictments and a successful attack by a defendant on some but not all of the counts of convictions are invalidated. In such cases, the Government routinely argues that an appellate court should vacate the entire sentence that may be set up by the district court that may set up the remainder of the original sentence by setting up any remaining sentence by the original district court. See Smith v. United States, 11 U. S.C. 589, 586 F.2d 562. Nothing in the statute restricts the authority conferred on courts by sentencing laws to run sentences concurrently when they have conferred authority on them to evaluate certain sentencing laws. However, §3583(a), which specifies the factors to consider in imposing a sentence, permits a court to impose concurrent sentences, but disregards whatever sentences the defendant may also face on other counts, and does not until deciding whether to run consecutively or concurrently (i.e., not until applying 3584) should a court consider the effect of those other sentences, see id., at 28. Moreover, §1028A(b)(2) says just what the Government reads it to say, without actually saying it, and confirms that it would have been easy enough to make explicit what it argues is implicit in §923(c) and underscores that for over a decade Congress has been aware of a clear way to bar consideration of a minimum sentence but never changed that language during the time that it changed. P.. (b) Nothing in §3582(c)'s language prevents courts from imposing sentences on multiple counts whenever they find out that they have already run them consecutively and concurrently under the applicable sentencing laws, or even when considering a sentence under the appropriate sentencing requirements when considering an offense under the predicate count. Here, however, nothing in that language prevents a court from considering a predicate sentence when calculating a just sentence for an offense in an appropriate sentencing context. Even if the Government now finds out that the statutory language requires the addition of a sentence consecutively under the sentencing requirements under the relevant sentencing provisions, it does not prevent courts from considering such a sentence when considering the appropriate predicate offense when considering such an offense when they consider the sentence under that provision when considering that predicate count, and even when they themselves have amended the sentencing language under that section whenever they think they have amended it to mirror other aspects of that language. This Court will not reverse and remand for further proceedings consistent with this opinion.

2016_15-827

https://www.oyez.org/cases/2016/15-827

. Thirty-five years ago, this Court held that the Individuals with Disabilities Education Act establishes a substantive right to a “free appropriate public education” for certain children with disabilities. Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982) . We declined, however, to endorse any one standard for determining “when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act.” Id., at 202. That “more difficult problem” is before us today. Ibid. I A The Individuals with Disabilities Education Act (IDEA or Act) offers States federal funds to assist in educating children with disabilities. 84Stat. 175, as amended, 20 U. S. C. §1400 et seq.; see Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 295 (2006) . In exchange for the funds, a State pledges to comply with a number of statutory conditions. Among them, the State must provide a free appropriate public education—a FAPE, for short—to all eligible children. §1412(a)(1). A FAPE, as the Act defines it, includes both “special education” and “related services.” §1401(9). “Special education” is “specially designed instruction . . . to meet the unique needs of a child with a disability”; “related services” are the support services “required to assist a child . . . to benefit from” that instruction. §§1401(26), (29). A State covered by the IDEA must provide a disabled child with such special education and related services “in conformity with the [child’s] individualized education program,” or IEP. §1401(9)(D). The IEP is “the centerpiece of the statute’s education delivery system for disabled children.” Honig v. Doe, 484 U. S. 305, 311 (1988) . A comprehensive plan prepared by a child’s “IEP Team” (which includes teachers, school officials, and the child’s parents), an IEP must be drafted in compliance with a detailed set of procedures. §1414(d)(1)(B) (internal quotation marks omitted). These procedures emphasize collaboration among parents and educators and require careful consideration of the child’s individual circumstances. §1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child. Rowley, 458 U. S., at 181. The IDEA requires that every IEP include “a statement of the child’s present levels of academic achievement and functional performance,” describe “how the child’s disability affects the child’s involvement and progress in the general education curriculum,” and set out “measurable annual goals, including academic and functional goals,” along with a “description of how the child’s progresstoward meeting” those goals will be gauged. §§1414(d)(1)(A)(i)(I)–(III). The IEP must also describe the “special education and related services . . . that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and, when possible, “be involved in and make progress in the general education curriculum.” §1414(d)(1)(A)(i)(IV). Parents and educators often agree about what a child’s IEP should contain. But not always. When disagreement arises, parents may turn to dispute resolution procedures established by the IDEA. The parties may resolve their differences informally, through a “[p]reliminary meeting,” or, somewhat more formally, through mediation. §§1415(e), (f )(1)(B)(i). If these measures fail to produce accord, the parties may proceed to what the Act calls a “due process hearing” before a state or local educational agency. §§1415(f)(1)(A), (g). And at the conclusion of the administrative process, the losing party may seek redress in state or federal court. §1415(i)(2)(A). B This Court first addressed the FAPE requirement in Rowley.[1] Plaintiff Amy Rowley was a first grader with impaired hearing. Her school district offered an IEP under which Amy would receive instruction in the regular classroom and spend time each week with a special tutor and a speech therapist. The district proposed that Amy’s classroom teacher speak into a wireless transmitter and that Amy use an FM hearing aid designed to amplify her teacher’s words; the district offered to supply both components of this system. But Amy’s parents argued that the IEP should go further and provide a sign-language interpreter in all of her classes. Contending that the school district’s refusal to furnish an interpreter denied Amy a FAPE, Amy’s parents initiated administrative proceedings, then filed a lawsuit under the Act. Rowley, 458 U. S., at 184–185. The District Court agreed that Amy had been denied a FAPE. The court acknowledged that Amy was making excellent progress in school: She was “perform[ing] better than the average child in her class” and “advancing easily from grade to grade.” Id., at 185 (internal quotation marks omitted). At the same time, Amy “under[stood] considerably less of what goes on in class than she could if she were not deaf.” Ibid. (internal quotation marks omitted). Concluding that “it has been left entirely to the courts and the hearings officers to give content to the requirement of an ‘appropriate education,’ ” 483 F. Supp. 528, 533 (SDNY 1980), the District Court ruled that Amy’s education was not “appropriate” unless it provided her “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” Rowley, 458 U. S., at 185–186 (internal quotation marks omitted). The Second Circuit agreed with this analysis andaffirmed. In this Court, the parties advanced starkly different understandings of the FAPE requirement. Amy’s parents defended the approach of the lower courts, arguing that the school district was required to provide instruction and services that would provide Amy an “equal educational opportunity” relative to children without disabilities. Id., at 198 (internal quotation marks omitted). The school district, for its part, contended that the IDEA “did not create substantive individual rights”; the FAPE provision was instead merely aspirational. Brief for Petitioners in Rowley, O. T. 1981, No. 80–1002, pp. 28, 41. Neither position carried the day. On the one hand, this Court rejected the view that the IDEA gives “courts carte blanche to impose upon the States whatever burden their various judgments indicate should be imposed.” Rowley, 458 U. S., at 190, n. 11. After all, the statutory phrase “free appropriate public education” was expressly defined in the Act, even if the definition “tend[ed] toward the cryptic rather than the comprehensive.” Id., at 188. This Court went on to reject the “equal opportunity” standard adopted by the lower courts, concluding that “free appropriate public education” was a phrase “too complex to be captured by the word ‘equal’ whether one is speaking of opportunities or services.” Id., at 199. The Court also viewed the standard as “entirely unworkable,” apt to require “impossible measurements and comparisons” that courts were ill suited to make. Id., at 198. On the other hand, the Court also rejected the school district’s argument that the FAPE requirement was actually no requirement at all. Id., at 200. Instead, the Court carefully charted a middle path. Even though “Congress was rather sketchy in establishing substantive requirements” under the Act, id., at 206, the Court nonetheless made clear that the Act guarantees a substantively adequate program of education to all eligible children, id., at 200–202, 207; see id., at 193, n. 15 (describing the “substantive standard . . . implicit in the Act”). We explained that this requirement is satisfied, and a child has received a FAPE, if the child’s IEP sets out an educational program that is “reasonably calculated to enable the child to receive educational benefits.” Id., at 207. For children receiving instruction in the regular classroom, this would generally require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 204; see also id., at 203, n. 25. In view of Amy Rowley’s excellent progress and the “substantial” suite of specialized instruction and services offered in her IEP, we concluded that her program satisfied the FAPE requirement. Id., at 202. But we went no further. Instead, we expressly “confine[d] our analysis” to the facts of the case before us. Ibid. Observing that the Act requires States to “educate a wide spectrum” of children with disabilities and that “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end,” we declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” Ibid. C Petitioner Endrew F. was diagnosed with autism at age two. Autism is a neurodevelopmental disorder generally marked by impaired social and communicative skills, “engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 CFR §300.8(c)(1)(i) (2016); see Brief for Petitioner 8. A child with autism qualifies as a “[c]hild with a disability” under the IDEA, and Colorado (where Endrew resides) accepts IDEA funding. §1401(3)(A). Endrew is therefore entitled to the benefits of the Act, including a FAPE provided by the State. Endrew attended school in respondent Douglas County School District from preschool through fourth grade. Each year, his IEP Team drafted an IEP addressed to his educational and functional needs. By Endrew’s fourth grade year, however, his parents had become dissatisfied with his progress. Although Endrew displayed a number of strengths—his teachers described him as a humorous child with a “sweet disposition” who “show[ed] concern[ ] for friends”—he still “exhibited multiple behaviors that inhibited his ability to access learning in the classroom.” Supp. App. 182a; 798 F. 3d 1329, 1336 (CA10 2015). Endrew would scream in class, climb over furniture and other students, and occasionally run away from school. Id., at 1336. He was afflicted by severe fears of commonplace things like flies, spills, and public restrooms. As Endrew’s parents saw it, his academic and functional progress had essentially stalled: Endrew’s IEPs largely carried over the same basic goals and objectives from one year to the next, indicating that he was failing to make meaningful progress toward his aims. His parents believed that only a thorough overhaul of the school district’s approach to Endrew’s behavioral problems could reverse the trend. But in April 2010, the school district presented Endrew’s parents with a proposed fifth grade IEP that was, in their view, pretty much the same as his past ones. So his parents removed Endrew from public school and enrolled him at Firefly Autism House, a private school that specializes in educating children with autism. Endrew did much better at Firefly. The school developed a “behavioral intervention plan” that identified Endrew’s most problematic behaviors and set out particular strategies for addressing them. See Supp. App. 198a–201a. Firefly also added heft to Endrew’s academic goals. Within months, Endrew’s behavior improved significantly, permitting him to make a degree of academic progress that had eluded him in public school. In November 2010, some six months after Endrew started classes at Firefly, his parents again met with representatives of the Douglas County School District. The district presented a new IEP. Endrew’s parents considered the IEP no more adequate than the one proposed in April, and rejected it. They were particularly concerned that the stated plan for addressing Endrew’s behavior did not differ meaningfully from the plan in his fourth grade IEP, despite the fact that his experience at Firefly suggested that he would benefit from a different approach. In February 2012, Endrew’s parents filed a complaint with the Colorado Department of Education seeking reimbursement for Endrew’s tuition at Firefly. To qualify for such relief, they were required to show that the school district had not provided Endrew a FAPE in a timely manner prior to his enrollment at the private school. See §1412(a)(10)(C)(ii). Endrew’s parents contended that the final IEP proposed by the school district was not “reason-ably calculated to enable [Endrew] to receive educational benefits” and that Endrew had therefore been denied a FAPE. Rowley, 458 U. S., at 207. An Administrative Law Judge (ALJ) disagreed and denied relief. Endrew’s parents sought review in Federal District Court. Giving “due weight” to the decision of the ALJ, the District Court affirmed. 2014 WL 4548439, *5 (D Colo., Sept. 15, 2014) (quoting Rowley, 458 U. S., at 206). The court acknowledged that Endrew’s performance under past IEPs “did not reveal immense educational growth.” 2014 WL 4548439, at *9. But it concluded that annual modifications to Endrew’s IEP objectives were “sufficient to show a pattern of, at the least, minimal progress.” Ibid. Because Endrew’s previous IEPs had enabled him to make this sort of progress, the court reasoned, his latest, similar IEP was reasonably calculated to do the same thing. In the court’s view, that was all Rowley demanded. 2014 WL 4548439, at *9. The Tenth Circuit affirmed. The Court of Appeals recited language from Rowley stating that the instruction and services furnished to children with disabilities must be calculated to confer “some educational benefit.” 798 F. 3d, at 1338 (quoting Rowley, 458 U. S., at 200; emphasis added by Tenth Circuit). The court noted that it had long interpreted this language to mean that a child’s IEP is adequate as long as it is calculated to confer an “educational benefit [that is] merely . . . more than de minimis.” 798 F. 3d, at 1338 (internal quotation marks omitted). Applying this standard, the Tenth Circuit held that Endrew’s IEP had been “reasonably calculated to enable [him] to make some progress.” Id., at 1342 (internal quotation marks omitted). Accordingly, he had not been denied a FAPE. We granted certiorari. 579 U. S. ___ (2016). II A The Court in Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.” 458 U. S., at 202. The school district, however, contends that Rowley nonetheless established that “an IEP need not promise any particular level of benefit,” so long as it is “ ‘ reasonably calculated’ to provide some benefit, as opposed to none.” Brief for Respondent 15. The district relies on several passages from Rowley to make its case. It points to our observation that “any substantive standard prescribing the level of education to be accorded” children with disabilities was “[n]oticeably absent from the language of the statute.” 458 U. S., at 189; see Brief for Respondent 14. The district also emphasizes the Court’s statement that the Act requires States to provide access to instruction “sufficient to confer some educational benefit,” reasoning that any benefit, however minimal, satisfies this mandate. Brief for Respondent 15 (quoting Rowley, 458 U. S., at 200). Finally, the district urges that the Court conclusively adopted a “some educational benefit” standard when it wrote that “the intent of the Act was more to open the door of public education to handicapped children . . . than to guarantee any particular level of education.” Id., at 192; see Brief for Respond-ent 14. These statements in isolation do support the school district’s argument. But the district makes too much of them. Our statement that the face of the IDEA imposed no explicit substantive standard must be evaluated alongside our statement that a substantive standard was “implicit in the Act.” Rowley, 458 U. S., at 193, n. 15. Similarly, we find little significance in the Court’s language concerning the requirement that States provide instruction calculated to “confer some educational benefit.” Id., at 200. The Court had no need to say anything more particular, since the case before it involved a child whose progress plainly demonstrated that her IEP was designed to deliver more than adequate educational benefits. See id., at 202, 209–210. The Court’s principal concern was to correct what it viewed as the surprising rulings below: that the IDEA effectively empowers judges to elaborate a federal common law of public education, and that a child performing better than most in her class had been denied a FAPE. The Court was not concerned with precisely articulating a governing standard for closer cases. See id., at 202. And the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id., at 192 (internal quotation marks omitted). No law could do that—for any child. More important, the school district’s reading of these isolated statements runs headlong into several points on which Rowley is crystal clear. For instance—just after saying that the Act requires instruction that is “sufficient to confer some educational benefit”—we noted that “[t]he determination of when handicapped children are receiving sufficient educational benefits . . . presents a . . . difficult problem.” Id., at 200, 202 (emphasis added). And then we expressly declined “to establish any one test for determining the adequacy of educational benefits” under the Act. Id., at 202 (emphasis added). It would not have been “difficult” for us to say when educational benefits are sufficient if we had just said that any educational benefit was enough. And it would have been strange to refuse to set out a test for the adequacy of educational benefits if we had just done exactly that. We cannot accept the school district’s reading of Rowley. B While Rowley declined to articulate an overarching standard to evaluate the adequacy of the education provided under the Act, the decision and the statutory language point to a general approach: To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. The “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials. Id., at 207. The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians. Id., at 208–209. Any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal. Id., at 206–207. The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. See §§1414(d)(1)(A)(i)(I)–(IV). This reflects the broad purpose of the IDEA, an “ambitious” piece of legislation enacted “in response to Congress’ perception that a majority of handicapped children in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to “drop out.” ’ ” Rowley, 458 U. S., at 179 (quoting H. R. Rep. No. 94–332, p. 2 (1975)). A substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act. That the progress contemplated by the IEP must be appropriate in light of the child’s circumstances should come as no surprise. A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program.” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv). As we observed in Rowley, the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” 458 U. S., at 202. Rowley sheds light on what appropriate progress will look like in many cases. There, the Court recognized that the IDEA requires that children with disabilities receive education in the regular classroom “whenever possible.” Ibid. (citing §1412(a)(5)). When this preference is met, “the system itself monitors the educational progress of the child.” Id., at 202–203. “Regular examinations are administered, grades are awarded, and yearly advancement to higher grade levels is permitted for those children who attain an adequate knowledge of the course material.” Id., at 203. Progress through this system is what our society generally means by an “education.” And access to an “education” is what the IDEA promises. Ibid. Accordingly, for a child fully integrated in the regular classroom, an IEP typically should, as Rowley put it, be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 203–204. This guidance is grounded in the statutory definition of a FAPE. One of the components of a FAPE is “special education,” defined as “specially designed instruction . . . to meet the unique needs of a child with a disability.” §§1401(9), (29). In determining what it means to “meet the unique needs” of a child with a disability, the provisions governing the IEP development process are a natural source of guidance: It is through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child. Id.,at 181. The IEP provisions reflect Rowley’s expectation that, for most children, a FAPE will involve integration in the reg-ular classroom and individualized special education calculated to achieve advancement from grade to grade. Every IEP begins by describing a child’s present level of achieve-ment, including explaining “how the child’s disability affects the child’s involvement and progress in the general education curriculum.” §1414(d)(1)(A)(i)(I)(aa). It then sets out “a statement of measurable annual goals . . . designed to . . . enable the child to be involved in and make progress in the general education curriculum,” along with a description of specialized instruction and services that the child will receive. §§1414(d)(1)(A)(i)(II), (IV). The instruction and services must likewise be provided with an eye toward “progress in the general education curriculum.” §1414(d)(1)(A)(i)(IV)(bb). Similar IEP requirements have been in place since the time the States began accepting funding under the IDEA. The school district protests that these provisions impose only procedural requirements—a checklist of items the IEP must address—not a substantive standard enforce-able in court. Tr. of Oral Arg. 50–51. But the procedures are there for a reason, and their focus provides insight into what it means, for purposes of the FAPE definition, to “meet the unique needs” of a child with a disability. §§1401(9), (29). When a child is fully integrated in the regular classroom, as the Act prefers, what that typically means is providing a level of instruction reasonablycalculated to permit advancement through the general curriculum.[2] Rowley had no need to provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level. That case concerned a young girl who was progressing smoothly through the regular curriculum. If that is not a reason-able prospect for a child, his IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives. Of course this describes a general standard, not a formula. But whatever else can be said about it, this standard is markedly more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfiedwith barely more than de minimis progress for those who cannot. When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to “sitting idly . . . awaiting the time when they were old enough to ‘drop out.’ ” Rowley, 458 U. S., at 179 (some internal quotation marks omitted). The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. C Endrew’s parents argue that the Act goes even further. In their view, a FAPE is “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Brief for Petitioner 40. This standard is strikingly similar to the one the lower courts adopted in Rowley, and it is virtually identical to the formulation advanced by Justice Blackmun in his separate writing in that case. See 458 U. S., at 185–186; id., at 211 (opinion concurring in judgment) (“[T]he question is whether Amy’s program . . . offered her an opportunity to understand and participate in the classroom that was substantially equal to that given her non-handicapped classmates”). But the majority rejected any such standard in clear terms. Id., at 198 (“The requirement that States provide ‘equal’ educational opportunities would . . . seem to present an entirely unworkable standard requiring impossible measurements and comparisons”). Mindful that Congress (despite several intervening amendments to the IDEA) has not materially changed the statutory definition of a FAPE since Rowley was decided, we decline to interpret the FAPE provision in a manner so plainly at odds with the Court’s analysis in that case. Compare §1401(18) (1976 ed.) with §1401(9) (2012 ed.). D We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule, however, should not be mistaken for “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Rowley, 458 U. S., at 206. At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The Act vests these officials with responsibility for decisions of critical importance to the life of a disabled child. The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue. See §§1414, 1415; id., at 208–209. By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. The judgment of the United States 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.Notes 1 The requirement was initially set out in the Education of the Handicapped Act, which was later amended and renamed the IDEA. See Pub. L. 101–476, §901(a), 104Stat. 1141. For simplicity’s sake—and to avoid “acronym overload”—we use the latter title throughout this opinion. Fry v. Napoleon Community Schools, 580 U. S. ___, ___, n. 1 (2017) (slip op., at 4, n. 1). 2 This guidance should not be interpreted as an inflexible rule. We declined to hold in Rowley, and do not hold today, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 203, n. 25 (1982) .

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 ENDREW F., a minor, by and through his parents and next friends, JOSEPH F. et al. v. DOUGLAS COUNTY SCHOOL DISTRICT RE–1 certiorari to the united states court of appeals for the tenth circuit No. 15–827. Argued January 11, 2017—Decided March 22, 2017 The Individuals with Disabilities Education Act (IDEA) offers States federal funds to assist in educating children with disabilities. The Act conditions that funding on compliance with certain statutory requirements, including the requirement that States provide every eligible child a “free appropriate public education,” or FAPE, by means of a uniquely tailored “individualized education program,” or IEP. 20 U. S. C. §§1401(9)(D), 1412(a)(1). This Court first addressed the FAPE requirement in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 . The Court held that the Act guarantees a substantively adequate program of education to all eligible children, and that this requirement is satisfied if the child’s IEP sets out an educational program that is “reasonably calculated to enable the child to receive educational benefits.” Id., at 207. For children fully integrated in the regular classroom, this would typically require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Id., at 204. Because the IEP challenged in Rowley plainly met this standard, the Court declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act,” instead “confin[ing] its analysis” to the facts of the case before it. Id., at 202. Petitioner Endrew F., a child with autism, received annual IEPs in respondent Douglas County School District from preschool through fourth grade. By fourth grade, Endrew’s parents believed his academic and functional progress had stalled. When the school district proposed a fifth grade IEP that resembled those from past years, Endrew’s parents removed him from public school and enrolled him in a specialized private school, where he made significant progress. School district representatives later presented Endrew’s parents with a new fifth grade IEP, but they considered it no more adequate than the original plan. They then sought reimbursement for Endrew’s private school tuition by filing a complaint under the IDEA with the Colorado Department of Education. Their claim was denied, and a Federal District Court affirmed that determination. The Tenth Circuit also affirmed. That court interpreted Rowley to establish a rule that a child’s IEP is adequate as long as it is calculated to confer an “ educational benefit [that is] merely . . . more than de minimis,” 798 F. 3d 1329, 1338 (internal quotation marks omitted), and concluded that Endrew’s IEP had been “ reasonably calculated to enable [him] to make some progress, ” id., at 1342 (internal quotation marks omitted). The court accordingly held that Endrew had received a FAPE. Held: To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. . (a) Rowley and the language of the IDEA point to the approach adopted here. The “reasonably calculated” qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials, informed by their own expertise and the views of a child’s parents or guardians; any review of an IEP must appreciate that the question is whether the IEP is reasonable, not whether the court regards it as ideal. An IEP must aim to enable the child to make progress; the essential function of an IEP is to set out a plan for pursuing academic and functional advancement. And the degree of progress contemplated by the IEP must be appropriate in light of the child’s circumstances, which should come as no surprise. This reflects the focus on the particular child that is at the core of the IDEA, and the directive that States offer instruction “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program.” §§1401(29), (14) (emphasis added). Rowley sheds light on what appropriate progress will look like in many cases: For a child fully integrated in the regular classroom, an IEP typically should be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U. S., at 204. This guidance is grounded in the statutory definition of a FAPE. One component of a FAPE is “special education,” defined as “specially designed instruction . . . to meet the unique needs of a child with a disability.” §§1401(9), (29). In determining what it means to “meet the unique needs” of a child with a disability, the provisions of the IDEA governing the IEP development process provide guidance. These provisions reflect what the Court said in Rowley by focusing on “progress in the general education curriculum.” §§1414(d)(1)(A)(i) (I)(aa), (II)(aa), (IV)(bb). Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level. A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives. This standard is more demanding than the “merely more than de minimis” test applied by the Tenth Circuit. It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not. . (b) Endrew’s parents argue that the Act goes even further and requires States to provide children with disabilities educational opportunities that are “substantially equal to the opportunities afforded children without disabilities.” Brief for Petitioner 40. But the lower courts in Rowley adopted a strikingly similar standard, and this Court rejected it in clear terms. Mindful that Congress has not materially changed the statutory definition of a FAPE since Rowley was decided, this Court declines to interpret the FAPE provision in a manner so plainly at odds with the Court’s analysis in that case. P. 15. (c) The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule should not be mistaken for “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Rowley, 458 U. S., at 206. At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The nature of the IEP process ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue; thus, by the time any dispute reaches court, school authorities will have had the chance to bring their expertise and judgment to bear on areas of disagreement. See §§1414, 1415; Rowley, 458 U. S., at 208–209. At that point, a reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. . 798 F. 3d 1329, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

The Individuals with Disabilities Education Act (IDEA or Act) offers States federal funds to assist in educating children with disabilities. In exchange for the funds, a State pledges to comply with a number of statutory conditions, including the requirement that it provide a free appropriate public education (FAPE) to all eligible children. A FAPE, as the Act defines it, includes both "special education" and related services. A State covered by the IDEA must provide a disabled child with such services in conformity with the child's individualized education program, or IEP. The IEP must be drafted in compliance with a detailed set of procedures. To qualify for such relief, parents must show that the school district had not provided the child a FAPE in a timely manner prior to his enrollment at the private school. If the parties fail to produce the required educational measures, the state agency may proceed to seek state educational redress. In this case, the parents of petitioner Endrew F., who was diagnosed with autism at age two, filed a complaint with the Colorado Department of Education seeking reimbursement for his tuition at a private school, claiming that the final IEP proposed by the district was not "reasonably calculated to enable [Endrew] to receive educational benefits..., and therefore had been denied FAPE." The Administrative Law Court denied relief, and the Federal District Court affirmed. The Court of Appeals recited language from Rowley, stating that the instruction and services furnished to a child with disabilities must be calculated to confer some educational benefit. Applying this standard, the court held that Endrew had been given an FAPE. Held: 1. To meet its substantive obligation under the Act, a school must offer an IEP reasonably calculated by the school to enable the child to make progress appropriate in light of his circumstances. Rowley declined to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Rather, the parties advanced starkly different understandings of the FAPE requirement. . (a) The instruction offered must be reasonably calculated to meet a child's unique needs through an individualized special education program. An IEP is not a form document, but is constructed only after careful consideration of the child�s present levels of achievement, disability, and potential for growth. It should be designed to enable a child to achieve academic and functional advancement. When a child is fully integrated in the regular classroom, as respondent school district prefers, what that typically means is providing a level of instruction reasonablycalculated to permit advancement through the general curriculum. Moreover, a substantive standard not focused on student progress would do little to remedy the pervasive and tragic academic stagnation that prompted Congress to act. This standard is markedly more demanding than the test applied by the Tenth Circuit when it wrote that the intent of the Act was more to open the door of public education to handicapped children, rather than to guarantee any particular level of education. Thus, a student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all. Similarly, the Court had no need to provide concrete guidance with respect to a student who, if not fully integrated, and not able to achieve on grade level, but his educational program must be appropriately ambitious in light of the student's circumstances, just as advancement from grade to grade is appropriately ambitious for most children, and every child should have the chance to meet challenging objectives. Pp. 468 U.S. 578. (b) Rowley also declined to articulate an overarching standard to evaluate the inadequacy of the Education of the Handicapped Act (IDEA) education, which is designed to provide a school with a disability opportunities to obtain academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities. The IDEA demands more. It requires more. Cf. Rowley.. 2. This guidance should not be interpreted as an inflexible rule requiring that, in order to elaborate on what appropriate progress will look like from case to case, school authorities must provide an instruction calculated to give the child some benefit, as opposed to none. There is nothing in Rowley to indicate that Rowley intended an explicit substantive standard, and deference is based on the application of expertise and the exercise of judgment by school authorities, the nature of the IEP process, from the initial consultation through state administrative proceedings, ensuring that parents and school representatives will fully air their respective opinions on the degree of progress a child IEP should pursue. At the same time, deference must be based on application of experts and the judgment of school authorities. Deference is not based on a standard enforceable in court, but on deference based on an evaluation of the authority of school officials to make a cogent and responsive explanation for their decisions that shows the I

2016_16-54

https://www.oyez.org/cases/2016/16-54

. The Immigration and Nationality Act (INA), 66Stat. 163, as amended, provides that “[a]ny alien who is convicted of an aggravated felony after admission” to the United States may be removed from the country by the Attorney General. 8 U. S. C. §1227(a)(2)(A)(iii). One of the many crimes that constitutes an aggravated felony under the INA is “sexual abuse of a minor.” §1101(a)(43)(A). A conviction for sexual abuse of a minor is an aggravated felony regardless of whether it is for a “violation of Federal or State law.” §1101(a)(43). The INA does not expressly define sexual abuse of a minor. We must decide whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA. We hold that it does not. I Petitioner Juan Esquivel-Quintana is a native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident in 2000. In 2009, he pleaded no contest in the Superior Court of California to a statutory rape offense: “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” Cal. Penal Code Ann. §261.5(c) (West 2014); see also §261.5(a) (“Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor”). For purposes of that offense, California defines “minor” as “a person under the age of 18 years.” Ibid. The Department of Homeland Security initiated removal proceedings against petitioner based on that conviction. An Immigration Judge concluded that the conviction qualified as “sexual abuse of a minor,” 8 U. S. C. §1101(a)(43)(A), and ordered petitioner removed to Mexico. The Board of Immigration Appeals (Board) dismissed his appeal. 26 I. & N. Dec. 469 (2015). “[F]or a statutory rape offense involving a 16- or 17-year-old victim” to qualify as “ ‘sexual abuse of a minor,’ ” it reasoned, “the statute must require a meaningful age difference between the victim and the perpetrator.” Id., at 477. In its view, the 3-year age difference required by Cal. Penal Code §261.5(c) was meaningful. Id., at 477. Accordingly, the Board concluded that petitioner’s crime of conviction was an aggravated felony, making him removable under the INA. Ibid. A divided Court of Appeals denied Esquivel-Quintana’s petition for review, deferring to the Board’s interpretation of sexual abuse of a minor under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . 810 F. 3d 1019 (CA6 2016); see also id., at 1027 (Sutton, J., concurring in part and dissenting in part). We granted certiorari, 580 U. S. ___ (2016), and now reverse. II Section 1227(a)(2)(A)(iii) makes aliens removable based on the nature of their convictions, not based on their actual conduct. See Mellouli v. Lynch, 575 U. S. ___, ___ (2015) (slip op., at 7). Accordingly, to determine whether an alien’s conviction qualifies as an aggravated felony under that section, we “employ a categorical approach by looking to the statute . . . of conviction, rather than to the specific facts underlying the crime.” Kawashima v. Holder, 565 U. S. 478, 483 (2012) ; see, e.g., Gonzales v. Duenas-Alvarez, 549 U. S. 183, 186 (2007) (applying the categorical approach set forth in Taylor v. United States, 495 U. S. 575 (1990) , to the INA). Under that approach, we ask whether “ ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U. S. 184, 190 (2013) (quoting Duenas-Alvarez, supra, at 186). In other words, we presume that the state conviction “rested upon . . . the least of th[e] acts” criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime. Johnson v. United States, 559 U. S. 133, 137 (2010) ; see also Moncrieffe, supra, at 191 (focusing “on the minimum conduct criminalized by the state statute”).[1] Petitioner’s state conviction is thus an “aggravated felony” under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor. A Because Cal. Penal Code §261.5(c) criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator” and defines a minor as someone under age 18, the conduct criminalized under this provision would be, at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. Regardless of the actual facts of petitioner’s crime, we must presume that his conviction was based on acts that were no more criminal than that. If those acts do not constitute sexual abuse of a minor under the INA, then petitioner was not convicted of an aggravated felony and is not, on that basis, removable. Petitioner concedes that sexual abuse of a minor under the INA includes some statutory rape offenses. But he argues that a statutory rape offense based solely on the partners’ ages (like the one here) is “ ‘abuse’ ” “only when the younger partner is under 16.” Reply Brief 2. Because the California statute criminalizes sexual intercourse when the victim is up to 17 years old, petitioner contends that it does not categorically qualify as sexual abuse of a minor. B We agree with petitioner that, in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16. Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under §1101(a)(43)(A). We begin, as always, with the text. 1 Section 1101(a)(43)(A) does not expressly define sexual abuse of a minor, so we interpret that phrase using the normal tools of statutory interpretation. “Our analysis begins with the language of the statute.” Leocal v. Ashcroft, 543 U. S. 1, 8 (2004) ; see also Lopez v. Gonzales, 549 U. S. 47, 53 (2006) (“The everyday understanding of” the term used in §1101 “should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant”). Congress added sexual abuse of a minor to the INA in 1996, as part of a comprehensive immigration reform act. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §321(a)(i), 110Stat. 3009–627. At that time, the ordinary meaning of “sexual abuse” included “the engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam-Webster’s Dictionary of Law 454 (1996). By providing that the abuse must be “of a minor,” the INA focuses on age, rather than mental or physical incapacity. Accordingly, to qualify as sexual abuse of a minor, the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim. Statutory rape laws are one example of this category of crimes. Those laws generally provide that an older person may not engage in sexual intercourse with a younger person under a specified age, known as the “age of consent.” See id., at 20 (defining “age of consent” as “the age at which a person is deemed competent by law to give consent esp. to sexual intercourse” and cross-referencing “statutory rape”). Many laws also require an age differential between the two partners. Although the age of consent for statutory rape purposes varies by jurisdiction, see infra, at 9, reliable dictionaries provide evidence that the “generic” age—in 1996 and today—is 16. See B. Garner, A Dictionary of Modern Legal Usage 38 (2d ed. 1995) (“Age of consent, usu[ally] 16, denotes the age when one is legally capable of agreeing . . . to sexual intercourse” and cross-referencing “statutory rape”); Black’s Law Dictionary 73 (10th ed. 2014) (noting that the age of consent is “usu[ally] defined by statute as 16 years”). 2 Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “ ‘everyday understanding’ ” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “ ‘Sexual abuse of a minor,’ ” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17. We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse). Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred approach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”). C The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16. 1 Surrounding provisions of the INA guide our interpretation of sexual abuse of a minor. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). This offense is listed in the INA as an “aggravated felony.” 8 U. S. C. §1227(a)(2)(A)(iii) (emphasis added). “An ‘aggravated’ offense is one ‘made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.’ ” Carachuri-Rosendo v. Holder, 560 U. S. 563, 574 (2010) (quoting Black’s Law Dictionary 75 (9th ed. 2009)). Moreover, the INA lists sexual abuse of a minor in the samesubparagraph as “murder” and “rape,” §1101(a)(43)(A)—among the most heinous crimes it defines as aggravated felonies. §1227(a)(2)(A)(iii). The structure of the INA therefore suggests that sexual abuse of a minor encompasses only especially egregious felonies. A closely related federal statute, 18 U. S. C. §2243, provides further evidence that the generic federal definition of sexual abuse of a minor incorporates an age of consent of 16, at least in the context of statutory rape offenses predicated solely on the age of the participants. Cf. Leocal, 543 U. S., at 12–13, n. 9 (concluding that Congress’ treatment of 18 U. S. C. §16 in an Act passed “just nine months earlier” provided “stron[g] suppor[t]” for our interpretation of §16 as incorporated into the INA); Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) . Section 2243, which criminalizes “[s]exual abuse of a minor or ward,” contains the only definition of that phrase in the United States Code. As originally enacted in 1986, §2243 proscribed engaging in a “sexual act” with a person between the ages of 12 and 16 if the perpetrator was at least four years older than the victim. In 1996, Congress expanded §2243 to include victims who were younger than 12, thereby protecting anyone under the age of 16. §2243(a); see also §2241(c). Congress did this in the same omnibus law that added sexual abuse of a minor to the INA, which suggests that Congress understood that phrase to cover victims under age 16.[2] See Omnibus Consolidated Appropriations Act, 1997, §§121(7), 321, 110Stat. 3009–31, 3009–627. Petitioner does not contend that the definition in §2243(a) must be imported wholesale into the INA, Brief for Petitioner 17, and we do not do so. One reason is that the INA does not cross-reference §2243(a), whereas many other aggravated felonies in the INA are defined by cross-reference to other provisions of the United States Code, see, e.g., §1101(a)(43)(H) (“an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom)”). Another is that §2243(a) requires a 4-year age difference between the perpetrator and the victim. Combining that element with a 16-year age of consent would categorically exclude the statutory rape laws of most States. See Brief for Respondent 34–35; cf. Taylor, 495 U. S., at 594 (declining to “constru[e] ‘burglary’ to mean common-law burglary,” because that “would come close to nullifying that term’s effect in the statute,” since “few of the crimes now generally recognized as burglaries would fall within the common-law definition”). Accordingly, we rely on §2243(a) for evidence of the meaning of sexual abuse of a minor, but not as providing the complete or exclusive definition. 2 As in other cases where we have applied the categorical approach, we look to state criminal codes for additional evidence about the generic meaning of sexual abuse of a minor. See Taylor, 495 U. S., at 598 (interpreting “ ‘bur-glary’ ” under the Armed Career Criminal Act of 1984 according to “the generic sense in which the term is now used in the criminal codes of most States”); Duenas-Alvarez, 549 U. S., at 190 (interpreting “theft” in the INA in the same manner). When “sexual abuse of a minor” was added to the INA in 1996, thirty-one States and the District of Columbia set the age of consent at 16 for statutory rape offenses that hinged solely on the age of the participants. As for the other States, one set the age of consent at 14; two set the age of consent at 15; six set the age of consent at 17; and the remaining ten, including California, set the age of consent at 18. See Appendix, infra; cf. ALI, Model Penal Code §213.3(1)(a) (1980) (in the absence of a special relationship, setting the default age of consent at 16 for the crime of “[c]orruption of [m]inors”).[3] A significant majority of jurisdictions thus set the age of consent at 16 for statutory rape offenses predicated exclusively on the age of the participants. Many jurisdictions set a different age of consent for offenses that include an element apart from the age of the participants, such as offenses that focus on whether the perpetrator is in some special relationship of trust with the victim. That was true in the two States that had offenses labeled “sexual abuse of a minor” in 1996. See Alaska Stat. §11.41.438 (1996) (age of consent for third-degree “sexual abuse of a minor” was 16 generally but 18 where “the offender occupie[d] a position of authority in relation to the victim”); Me. Rev. Stat. Ann., Tit. 17–A, §254(1) (1983), as amended by 1995 Me. Laws p. 123 (age of consent for “[s]exual abuse of minors” was 16 generally but 18 where the victim was “a student” and the offender was “a teacher, employee or other official in the . . . school . . . in which the student [was] enrolled”). And that is true in four of the five jurisdictions that have offenses titled “sexual abuse of a minor” today. Compare, e.g., D. C. Code §§22–3001 (2012), 22–3008 (2016 Cum. Supp.) (age of consent is 16 in the absence of a significant relationship) with §22–3009.01 (age of consent is 18 where the offender “is in a significant relationship” with the victim); see also Brief for Respondent 31 (listing statutes with that title). Accordingly, the generic crime of sexual abuse of a minor may include a different age of consent where the perpetrator and victim are in a significant relationship of trust. As relevant to this case, however, the general consensus from state criminal codes points to the same generic definition as dictionaries and federal law: Where sexual intercourse is abusive solely because of the ages of the participants, the victim must be younger than 16. D The laws of many States and of the Federal Government include a minimum age differential (in addition to an age of consent) in defining statutory rape. We need not and do not decide whether the generic crime of sexual abuse of a minor under 8 U. S. C. §1101(a)(43)(A) includes an additional element of that kind. Petitioner has “show[n] something special about California’s version of the doctrine”—that the age of consent is 18, rather than 16—and needs no more to prevail. Duenas-Alvarez, supra, at 191. Absent some special relationship of trust, consensual sexual conduct involving a younger partner who is at least 16 years of age does not qualify as sexual abuse of a minor under the INA, regardless of the age differential between the two participants. We leave for another day whether the generic offense requires a particular age differential between the victim and the perpetrator, and whether the generic offense encompasses sexual intercourse involving victims over the age of 16 that is abusive because of the nature of the relationship between the participants. III Finally, petitioner and the Government debate whether the Board’s interpretation of sexual abuse of a minor is entitled to deference under Chevron, 467 U. S. 837 . Petitioner argues that any ambiguity in the meaning of this phrase must be resolved in favor of the alien under the rule of lenity. See Brief for Petitioner 41–45. The Government responds that ambiguities should be resolved by deferring to the Board’s interpretation. See Brief for Respondent 45–53. We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board’s interpretation. Therefore, neither the rule of lenity nor Chevron applies. * * * We hold that in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of “sexual abuse of a minor” under §1101(a)(43)(A) requires the age of the victim to be less than 16. The judgment of the Court of Appeals, accordingly, is reversed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case. APPENDIX These tables list offenses criminalizing sexual intercourse solely because of the age of the participants. The tables are organized according to the statutory age of consent as of September 30, 1996—the date “sexual abuse of a minor” was added to the INA. 14 Years 15 Years 16 Years 17 Years 18 Years Notes 1 Where a state statute contains several different crimes that are described separately, we employ what is known as the “modified categorical approach.” See Gonzales v. Duenas-Alvarez, 549 U. S. 183, 187 (2007) (internal quotation marks omitted). Under that approach, which is not at issue here, the court may review the charging documents, jury instructions, plea agreement, plea colloquy, and similar sources to determine the actual crime of which the alien was convicted. See ibid. 2 To eliminate a redundancy, Congress later amended §2243(a) to revert to the pre-1996 language. See Protection of Children From Sexual Predators Act of 1998, §301(b), 112Stat. 2979. That amendment does not change Congress’ understanding in 1996, when it added sexual abuse of a minor to the INA. 3 The Government notes that this sort of multijurisdictional analysis can “be useful insofar as it helps shed light on the ‘common understanding and meaning’ of the federal provision being interpreted,” but that it is not required by the categorical approach. Brief for Respondent 23–25 (quoting Perrin v. United States, 444 U. S. 37, 45 (1979) ). We agree. In this case, state criminal codes aid our interpretation of “sexual abuse of a minor” by offering useful context.

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 ESQUIVEL-QUINTANA v. SESSIONS, ATTORNEY GENERAL certiorari to the united states court of appeals for the sixth circuit No. 16–54. Argued February 27, 2017—Decided May 30, 2017 Petitioner, a citizen of Mexico and lawful permanent resident of the United States, pleaded no contest in a California court to a statutory rape offense criminalizing “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator.” Cal. Penal Code Ann. §261.5(c). For purposes of that offense, California defines “minor” as “a person under the age of 18.” §261.5(a). Based on this conviction, the Department of Homeland Security initiated removal proceedings under the Immigration and Nationality Act (INA), which makes removable “[a]ny alien who is convicted of an aggravated felony,” 8 U. S. C. §1227(a)(2)(A)(iii), including “sexual abuse of a minor,” §1101(a)(43)(A). An Immigration Judge ordered petitioner removed to Mexico. The Board of Immigration Appeals agreed that petitioner’s crime constituted sexual abuse of a minor and dismissed his appeal. A divided Court of Appeals denied his petition for review. Held: In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires the age of the victim to be less than 16. . (a) Under the categorical approach employed to determine whether an alien’s conviction qualifies as an aggravated felony, the Court asks whether “ ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, 569 U. S. 184 . Petitioner’s state conviction is thus an “aggravated felony” only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor. Johnson v. United States, 559 U. S. 133 . . (b) The least of the acts criminalized by Cal. Penal Code §261.5(c) would be consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. Regardless of the actual facts of the case, this Court presumes that petitioner’s conviction was based on those acts. . (c) In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of “sexual abuse of a minor” requires that the victim be younger than 16. The Court begins, as always, with the text. . (1) Congress added sexual abuse of a minor to the INA in 1996. At that time, the ordinary meaning of “sexual abuse” included “the engaging in sexual contact with a person who is below a specified age or who is incapable of giving consent because of age or mental or physical incapacity.” Merriam-Webster’s Dictionary of Law 454. By providing that the abuse must be “of a minor,” the INA focuses on age, rather than mental or physical incapacity. Accordingly, to qualify as sexual abuse of a minor, the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim. Statutory rape laws, which are one example of this category of crimes, generally provide that an older person may not engage in sexual intercourse with a younger person under the “age of consent.” Reliable dictionaries indicate that the “generic” age of consent in 1996 was 16, and it remains so today. . (2) The Government argues that sexual abuse of a minor includes any conduct that is illegal, involves sexual activity, and is directed at a person younger than 18. For support, it points to the 1990 Black’s Law Dictionary, which defined sexual abuse of a minor as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” But the generic federal offense does not correspond to the Government’s definition, for three reasons. First, the Government’s definition is inconsistent with its own dictionary’s requirement that a special relationship of trust exist between the victim and offender. Second, in the statutory rape context, “of a minor” refers to the age of consent, not the age of legal competence. Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense as whatever is illegal under the law of the State of conviction. . (d) The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense based solely on the age of the participants to qualify as sexual abuse of a minor under the INA, the victim must be younger than 16. The INA lists sexual abuse of a minor as an “aggravated” felony, §1227(a)(2)(A)(iii), and lists it in the same subparagraph as “murder” and “rape,” §1101(a)(43)(A), suggesting that it encompasses only especially egregious felonies. A different statute, 18 U. S. C. §2243, criminalizes “[s]exual abuse of a minor or ward.” Section 2243 was amended to protect anyone under age 16 in the same omnibus law that added sexual abuse of a minor to the INA, suggesting that Congress understood that phrase to cover victims under (but not over) age 16. Finally, a significant majority of state criminal codes set the age of consent at 16 for statutory rape offenses predicated exclusively on the age of the participants. . (e) This Court does not decide whether the generic crime of sexual abuse of a minor requires a particular age differential between the victim and the perpetrator or whether it encompasses sexual intercourse involving victims over 16 that is abusive because of the nature of the relationship between the participants. P. 11. (f) Because the statute, read in context, unambiguously forecloses the Board’s interpretation of sexual abuse of a minor, neither the rule of lenity nor Chevron deference applies. . 810 F. 3d 1019, reversed. Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

One of the many crimes that constitutes an aggravated felony under the Immigration and Nationality Act (INA) is sexual abuse of a minor. Section 1101(a)(43)(A) of the INA provides that an alien who is convicted of a statutory rape offense may be removed from the country by the Attorney General. Title 8 U.S. C. §1227(a) defines a minor as someone under the age of 18. Section 2243 criminalizes sexual intercourse with a minor who is more than three years younger than the perpetrator. For purposes of that offense, Cal. Penal Code §261.5(c) criminalizes unlawful sexual intercourse when the victim is up to 17 years old. Petitioner, a native and citizen of Mexico, pleaded no contest in California Superior Court to an offense, inter alia, that was committed when he was 21-year-old and a perpetrator who just turned 21. An Immigration Judge concluded that the conviction qualified as sexual abuse, and ordered petitioner removed to Mexico. The Board of Immigration Appeals (Board) dismissed his appeal, holding that the 3-year age difference required by the Cal.Penal Code §26.5 (c) statute was meaningful. Accordingly, the Board concluded that petitioner's crime of conviction was an aggravated felicitous felony, thus making him removable under the InA. A divided Court of Appeals denied his petition for review. Held: In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of sexual abuse under §1101 (43) requires that the victim be younger than 16. Because the California statute at issue does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under that definition. In this context, however, state criminal codes aid our interpretation of the generic definition by offering useful context. See, e.g., Kawashima v. Holder, 565 U. S. 478, 483 (2012) ; Gonzales v. Duenas-Alvarez, 549 U. s. 549, 569. . 10 F. 3d 1019 (CA6 2016), reversed. Justice Gorsuch took no part in the consideration or decision of this case. Reported below: 14 Years 15 Years 16 Years 17 Years 18 Years Notes 1. The California statute criminalizes consensual sexual intercourse between persons younger than 12 and younger, and thus defines sexual abuse as an act of sexual intercourse accomplished with a person who is not the perpetrator, if the perpetrator was at least four years older than the victim. Thus, the conviction under that statute is an "aggravated felony" under that provision only if the least of the acts criminalized by the state statute falls within the generic federal definition, i.e., sexual abuse of a child. P.. 2. The generic federal sexual abuse offense does not include an additional element of that kind. It is not necessary to decide whether the generic offense requires a particular age differential between the victim and perpetrator, and whether the offense encompasses sexual intercourse involving victims over the age of 16 that is abusive because of the nature of the relationship between the participants. There is no "generic" definition at all. Nor is there any ambiguity in the meaning of the phrase in §2243(a), but not as providing the complete or exclusive definition.. 3. The State Criminal Codes aid this interpretation by offering a useful context, and are not entitled to deference under Chevron. That statute, read in context, unambiguously forecloses the Board's interpretation. Therefore, neither the rule of lenity nor Chevron applies. Moreover, petitioner and the Government have no need to resolve whether Chevron receives priority in this case because the statute here, read at least in the context in which the Board interprets the language of the federal statute, in which it appears that the language is not to be interpreted, but that it should be resolved in favor of the alien, under the Chevron rule. Applying the modified categorical approach, the State Criminal Code provides useful context for the purposes of the multidistrict approach. Although, in many States and of the Federal Government, a minimum age differential (in addition to an age of consent) in defining statutory rape is the only definition of that phrase in the United States Code, the general consensus points to the same generic definition as dictionaries and federal law: Where sexual intercourse is abusive solely because of participants' ages, the victim must be younger. As relevant to this case, the law of many Statesand of the Government points to a generic definition that does not require that the act be performed by a parent, guardian, relative, or acquaintance, but defines it as whatever is illegal under the particular law of the State where the defendant was convicted. Here, where sexual intercourse in a state statute contains several different crimes that are described

2016_15-1391

https://www.oyez.org/cases/2016/15-1391

. Each time a customer pays for an item with a credit card, the merchant selling that item must pay a transaction fee to the credit card issuer. Some merchants balk at paying the fees and want to discourage the use of credit cards, or at least pass on the fees to customers who use them. One method of achieving those ends is through differential pricing—charging credit card users more than customers using cash. Merchants who wish to employ differential pricing may do so in two ways relevant here: impose a surcharge for the use of a credit card, or offer a discount for the use of cash. In N. Y. Gen. Bus. Law §518, New York has banned the former practice. The question presented is whether §518 regulates merchants’ speech and—if so—whether the statute violates the First Amendment. We conclude that §518 does regulate speech and remand for the Court of Appeals to determine in the first instance whether that regulation is unconstitutional. I A When credit cards were first introduced, contracts between card issuers and merchants barred merchants from charging credit card users higher prices than cash customers. Congress put a partial stop to this practice in the 1974 amendments to the Truth in Lending Act (TILA). The amendments prohibited card issuers from contractually preventing merchants from giving discounts to customers who paid in cash. See §306, 88Stat. 1515. The law, however, said nothing about surcharges for the use of credit. Two years later, Congress refined its dissimilar treatment of discounts and surcharges. First, the 1976 version of TILA barred merchants from imposing surcharges on customers who use credit cards. Act of Feb. 27, 1976, §3(c)(1), 90Stat. 197. Second, Congress added definitions of the two terms. A discount was “a reduction made from the regular price,” while a surcharge was “any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means.” §3(a), ibid. In 1981, Congress further delineated the distinction between discounts and surcharges by defining “regular price.” Where a merchant “tagged or posted” a single price, the regular price was that single price. Cash Discount Act, §102(a), 95Stat. 144. If no price was tagged or posted, or if a merchant employed a two-tag approach—posting one price for credit and another for cash—the regular price was whatever was charged to credit card users. Ibid. Because a surcharge was defined as an increase from the regular price, there could be no credit card surcharge where the regular price was the same as the amount charged to customers using credit cards. The effect of all this was that a merchant could violate the surcharge ban only by posting a single price and charging credit card users more than that posted price. The federal surcharge ban was short lived. Congress allowed it to expire in 1984 and has not renewed the ban since. See §201, ibid. The provision preventing credit card issuers from contractually barring discounts for cash, however, remained in place. With the lapse of the federal surcharge ban, several States, New York among them, immediately enacted their own surcharge bans. Passed in 1984, N. Y. Gen. Bus. Law §518 adopted the operative language of the federal ban verbatim, providing that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” N. Y. Gen. Bus. Law Ann. §518 (West 2012); see also 15 U. S. C. §1666f(a)(2) (1982 ed.). Unlike the federal ban, the New York legislation included no definition of “surcharge.” In addition to these state legislative bans, credit card companies—though barred from prohibiting discounts for cash—included provisions in their contracts prohibiting merchants from imposing surcharges for credit card use. For most of its history, the New York law was essentially coextensive with these contractual prohibitions. In recent years, however, merchants have brought antitrust challenges to contractual no-surcharge provisions. Those suits have created uncertainty about the legal validity of such contractual surcharge bans. The result is that otherwise redundant legislative surcharge bans like §518 have increasingly gained importance, and increasingly come under scrutiny. B Petitioners, five New York businesses and their owners, wish to impose surcharges on customers who use credit cards. Each time one of their customers pays with a credit card, these merchants must pay some transaction fee to the company that issued the credit card. The fee is generally two to three percent of the purchase price. Those fees add up, and the merchants allege that they pay tens of thousands of dollars every year to credit card companies. Rather than increase prices across the board to absorb those costs, the merchants want to pass the fees along only to their customers who choose to use credit cards. They also want to make clear that they are not the bad guys—that the credit card companies, not the merchants, are responsible for the higher prices. The merchants believe that surcharges for credit are more effective than discounts for cash in accomplishing these goals. In 2013, after several major credit card issuers agreed to drop their contractual surcharge prohibitions, the merchants filed suit against the New York Attorney General and three New York District Attorneys to challenge §518—the only remaining obstacle to their charging surcharges for credit card use. As relevant here, they argued that the law violated the First Amendment by regulating how they communicated their prices, and that it was unconstitutionally vague because liability under the law “turn[ed] on the blurry difference” between surcharges and discounts. App. 39, Complaint ¶51. The District Court ruled in favor of the merchants. It read the statute as “draw[ing a] line between prohibited ‘surcharges’ and permissible ‘discounts’ based on words and labels, rather than economic realities.” 975 F. Supp. 2d 430, 444 (SDNY 2013). The court concluded that the law therefore regulated speech, and violated the First Amendment under this Court’s commercial speech doctrine. In addition, because the law turned on the “virtually incomprehensible distinction between what a vendor can and cannot tell its customers,” the District Court found that the law was unconstitutionally vague. Id., at 436. The Court of Appeals for the Second Circuit vacated the judgment of the District Court with instructions to dismiss the merchants’ claims. It began by considering single-sticker pricing, where merchants post one price and would like to charge more to customers who pay by credit card. All the law did in this context, the Court of Appeals explained, was regulate a relationship between two prices—the sticker price and the price charged to a credit card user—by requiring that the two prices be equal. Relying on our precedent holding that price regulation alone regulates conduct, not speech, the Court of Appeals concluded that §518 did not violate the First Amendment. The court also considered other types of pricing regimes—for example, posting separate cash and credit prices. The Court of Appeals thought it “far from clear” that §518 prohibited such pricing schemes. 808 F. 3d 118, 137 (CA2 2015). The federal surcharge ban on which §518 was modeled did not apply outside the single-sticker context, and the merchants had not clearly shown that §518 had a “broader reach” than the federal law. Ibid. Deciding that petitioners’ challenge in this regard “turn[ed] on an unsettled question of state law,” the Court of Appeals abstained from reaching the merits of the constitutional question beyond the single-sticker context. Id., at 135 (citing Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496 (1941) ). We granted certiorari. 579 U. S. ___ (2016). II As a preliminary matter, we note that petitioners present us with a limited challenge. Observing that the merchants were not always particularly clear about the scope of their suit, the Court of Appeals deemed them to be bringing a facial attack on §518 as well as a challenge to the application of the statute to two particular pricing regimes: single-sticker pricing and two-sticker pricing. Before us, however, the merchants have disclaimed a facial challenge, assuring us that theirs is an as-applied challenge only. See Tr. of Oral Arg. 4–5, 18. There remains the question of what precise application of the law they seek to challenge. Although the merchants have presented a wide array of hypothetical pricing regimes, they have expressly identified only one pricing scheme that they seek to employ: posting a cash price and an additional credit card surcharge, expressed either as a percentage surcharge or a “dollars-and-cents” additional amount. See, e.g., App. 101–102, 104; Tr. of Oral Arg. 4–5, 18. Under this pricing approach, petitioner Expressions Hair Design might, for example, post a sign outside its salon reading “Haircuts $10 (we add a 3% surcharge if you pay by credit card).” Or, petitioner Brooklyn Farmacy & Soda Fountain might list one of the sundaes on its menu as costing “$10 (with a $0.30 surcharge for credit card users).” We take petitioners at their word and limit our review to the question whether §518 is unconstitutional as applied to this particular pricing practice.[1] III The next question is whether §518 prohibits the pricing regime petitioners wish to employ. The Court of Appeals concluded that it does. The court read “surcharge” in §518 to mean “an additional amount above the seller’s regular price,” and found it “basically self-evident” how §518 applies to sellers who post a single sticker price: “the sticker price is the ‘regular’ price, so sellers may not charge credit-card customers an additional amount above the sticker price that is not also charged to cash customers.” 808 F. 3d, at 128. Under this interpretation, signs of the kind that the merchants wish to post—“$10, with a $0.30 surcharge for credit card users”—violate §518 because they identify one sticker price—$10—and indicate that credit card users are charged more than that amount. “We generally accord great deference to the interpretation and application of state law by the courts of appeals.” Pembaur v. Cincinnati, 475 U. S. 469 , n. 13 (1986). This deference is warranted to “render unnecessary review of their decisions in this respect” and because lower fed-eral courts “are better schooled in and more able to interpret the laws of their respective States.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 500 (1985) (quoting Cort v. Ash, 422 U. S. 66 , n. 6 (1975); internal quotation marks omitted). “[W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute,” and have done so in instances where the lower court’s construction was “clearly wrong” or “plain error.” 472 U. S., at 500, and n. 9 (internal quotation marks omitted). But that is not the case here. Section 518 does not define “surcharge,” but the Court of Appeals looked to the ordinary meaning of the term: “a charge in excess of the usual or normal amount.” 808 F. 3d, at 127 (quoting Webster’s Third New International Dictionary 2299 (2002); internal quotation marks omitted). Where a seller posts a single sticker price, it is reasonable to treat that sticker price as the “usual or normal amount” and conclude, as the court below did, that a merchant imposes a surcharge when he charges a credit card user more than that sticker price. In short, we cannot dismiss the Court of Appeals’ interpretation of §518 as “clearly wrong.” Accordingly, consistent with our customary practice, we follow that interpretation. IV Having concluded that §518 bars the pricing regime petitioners wish to employ, we turn to their constitutional arguments: that the law unconstitutionally regulates speech and is impermissibly vague. A The Court of Appeals concluded that §518 posed no First Amendment problem because the law regulated conduct, not speech.[2] In reaching this conclusion, the Court of Appeals began with the premise that price controls regulate conduct alone. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 507 (1996) (plurality opinion); id., at 524 (Thomas, J., concurring in part and concurring in judgment); id., at 530 (O’Connor, J., concurring in judgment). Section 518 regulates the relationship between“(1) the seller’s sticker price and (2) the price the seller charges to credit card customers,” requiring that these two amounts be equal. 808 F. 3d, at 131. A law regulating the relationship between two prices regulates speech nomore than a law regulating a single price. The Court of Ap-peals concluded that §518 was therefore simply a conduct regulation. But §518 is not like a typical price regulation. Such a regulation—for example, a law requiring all New York delis to charge $10 for their sandwiches—would simply regulate the amount that a store could collect. In other words, it would regulate the sandwich seller’s conduct. To be sure, in order to actually collect that money, a store would likely have to put “$10” on its menus or have its employees tell customers that price. Those written or oral communications would be speech, and the law—by determining the amount charged—would indirectly dictate the content of that speech. But the law’s effect on speech would be only incidental to its primary effect on conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Rumsfeld v. Forum for Aca-demic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006) (quoting Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949) ; internal quotation marks omitted); see also Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011) . Section 518 is different. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10, with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 ashis sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech. Because it concluded otherwise, the Court of Appeals had no occasion to conduct a further inquiry into whether §518, as a speech regulation, survived First Amendment scrutiny. On that question, the parties dispute whether §518 is a valid commercial speech regulation under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) , and whether the law can be upheld as a valid disclosure requirement under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985) . “[W]e are 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). Accordingly, we decline to consider those questions in the first instance. Instead, we remand for the Court of Appeals to analyze §518 as a speech regulation.[3] B Given the way the merchants have presented their case, their vagueness challenge gives us little pause. Before this Court, the only pricing practice they express an interest in employing is a single-sticker regime, listing one price and a separate surcharge amount. As we have explained, §518 bars them from doing so. “[A] plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim.” Holder v. Humanitarian Law Project, 561 U. S. 1, 20 (2010) . Although the merchants argue that “no one can seem to put a finger on just how far the law sweeps,” Brief for Petitioners 51, it is at least clear that §518 proscribes their intended speech. Accordingly, the law is not vague as applied to them.[4] C The judgment of the Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Petitioner Expressions Hair Design currently posts separate dollars-and-cents prices for cash and credit—that is, it posts something like “$10 cash, $10.30 credit.” It displays its prices in this way, however, only because it considers itself compelled to do so by the challenged law if it wants to charge different prices. Prior to becoming aware of the law, Expressions posted single prices along with a notice informing customers that a three percent surcharge would be added to their bill if they paid by credit card. Expressions has indicated that it would prefer to return to its prior practice. See App. 19, Complaint ¶3; id., at 103–104. Given petitioners’ representations about the narrow scope of their as-applied challenge, we limit our consideration to the single-sticker pricing regime for present purposes. Petitioners’ affidavits and briefing reference other potential pricing schemes, which may be considered by the Court of Appeals to the extent it deems appropriate. See, e.g., id., at 56; Brief for Petitioners 50. 2 Relying fully on their claim that §518 regulated speech, petitioners did not advance any argument before the Court of Appeals that §518 was constitutionally problematic even if deemed a regulation of conduct. See 808 F. 3d 118, 135 (CA2 2015) (noting that petitioners had not challenged §518 under United States v. O’Brien, 391 U. S. 367 (1968) ). 3 To assess the statute’s constitutionality, the Court of Appeals may need to consider a question we need not answer here: whether the statute permits two-sticker pricing schemes like the one petitioner Expressions currently uses, see n. 1, supra. Respondents’ argument that §518 is a constitutionally valid disclosure requirement rests on an interpretation of the statute that allows such two-sticker schemes. 4 For similar reasons, petitioners’ related argument regarding abstention is no longer at issue. The Court of Appeals abstained from deciding whether §518 was constitutional outside of the single-sticker context, but the merchants have disavowed any intent to challenge the law outside of this context.

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 EXPRESSIONS HAIR DESIGN et al. v. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, et al. certiorari to the united states court of appeals for the second circuit No. 15–1391. Argued January 10, 2017—Decided March 29, 2017 New York General Business Law §518 provides that “[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.” Petitioners, five New York businesses and their owners who wish to impose surcharges for credit card use, filed suit against state officials, arguing that the law violates the First Amendment by regulating how they communicate their prices, and that it is unconstitutionally vague. The District Court ruled in favor of the merchants, but the Court of Appeals vacated the judgment with instructions to dismiss. The Court of Appeals concluded that in the context of single-sticker pricing—where merchants post one price and would like to charge more to customers who pay by credit card—the law required that the sticker price be the same as the price charged to credit card users. In that context, the law regulated a relationship between two prices. Relying on this Court’s precedent holding that price regulation alone regulates conduct, not speech, the Court of Appeals concluded that §518 did not violate the First Amendment. The Court of Appeals abstained from reaching the merits of the constitutional challenge to pricing practices outside the single-sticker context. Held: 1. This Court’s review is limited to whether §518 is unconstitutional as applied to the particular pricing scheme that, before this Court, petitioners have argued they seek to employ: a single-sticker regime, in which merchants post a cash price and an additional credit card surcharge. . 2. Section 518 prohibits the pricing regime petitioners wish to employ. Section 518 does not define “surcharge.” Relying on the term’s ordinary meaning, the Court of Appeals concluded that a merchant imposes a surcharge when he posts a single sticker price and charges a credit card user more than that sticker price. This Court “generally accord[s] great deference to the interpretation and application of state law by the courts of appeals.” Pembaur v. Cincinnati, 475 U. S. 469 , n. 13. Because the interpretation of the Court of Appeals is not “clearly wrong,” Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , n. 9, this Court follows that interpretation. . 3. Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typical price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regulates speech. Because the Court of Appeals concluded otherwise, it did not determine whether §518 survives First Amendment scrutiny. On remand the Court of Appeals should analyze §518 as a speech regulation. . 4. Section 518 is not vague as applied to petitioners. As explained, §518 bans the single-sticker pricing petitioners argue they wish to employ, and “a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim,” Holder v. Humanitarian Law Project, 561 U. S. 1 . . 808 F. 3d 118, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, and Kagan, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed an opinion concurring in the judgment, in which Alito, J., joined.

The Truth in Lending Act (TILA) prohibits card issuers from contractually preventing merchants from imposing surcharges on customers who use credit cards. However, in 1981, Congress further delineated the distinction between discounts and surcharges by defining a regular price as an increase from the regular price. In 1984, N. Y. Gen. Bus. Law §518 adopted the operative language of the federal ban verbatim, forbidding a seller in any sales transaction to impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means. The New York legislation included no definition of a "surcharge." Petitioner Expressions Hair Design currently posts separate dollars-and-cents prices for cash and credit. Prior to becoming aware of the law, Expressions posted single prices along with a notice informing customers that they would be charged a certain surcharge if they added their credit card bill to their bill. Before this Court, most of New York law with regard to contractual surcharge bans was essentially coextensive with such bans. Petitioners brought these antitrust challenges to the validity of those bans. The District Court ruled in petitioners favor, holding that §518 regulated speech, and violated the First Amendment under this Court's commercial speech doctrine. The Court of Appeals vacated the judgment of the District Court with instructions to dismiss petitioners' claims. Held: 1. Section518 bars the pricing regime petitioners wish to employ. Although the only pricing practice petitioners express an interest in employing is a single-sticker regime listing one price and a separate surcharge amount, §518 posed no First Amendment problem because the law regulated conduct, not speech. . (a) Where a seller posts a single sticker price, it is reasonable to treat that sticker price as the price the seller charges to credit card customers, and conclude, as the court below did, that a merchant imposes a surcharge when he charges a Credit card user more than that price. P.. (b) A law regulating the relationship between two prices regulates speech nomore than a law regulating a single price, and §518 is not like a typical price regulation. Such a regulation would simply regulate the amount of money that the store or its employees collect or collect, and would likely dictate the amount that the price actually is charged to its customers. To require a seller to collect a sum of money in order to collect that sum would also likely dictate its communications. Pp. 456 U. S. 586-596. (c) The merchants have disclaimed a facial challenge to §518, but have expressly identified only one pricing scheme that they seek to employ: posting a cash price and an additional credit card surcharge, expressed either as a percentage surcharge or as a portion surcharge. They have indicated that it would be appropriate to add the surcharge to the bill if it was added by the credit card payer. While petitioners have presented a wide array of hypothetical pricing regimes, they have expressly designated only one: pricing schemes such as the one Expressions currently uses. Section518 proscribes their intended speech. Accordingly, the law is not vague as applied to them. ; 808 F. 3d 118, vacated and remanded. CHIEF JUSTICE REHNQUIST, C.J., concurring in the judgment, concluded that the law unconstitutionally regulates speech and is impermissibly vague. After abstaining from deciding whether §518 was constitutional outside of the singlesticker context, but the merchants have disavowed any intent to challenge the law outside of that context, the court, on remand, analyzed §518 as a speech regulation. JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, concluded, inter alia, that, in regulating the communication of prices, rather than prices themselves, §518 regulates speech. BLACKMUN, J., filed a concurring opinion, post, p.. BRENNAN and MARSHALL, JJ., took no part in the consideration or decision of the case.

2016_15-497

https://www.oyez.org/cases/2016/15-497

. The Individuals with Disabilities Education Act (IDEA or Act), 84Stat. 175, as amended, 20 U. S. C. §1400 et seq., ensures that children with disabilities receive needed special education services. One of its provisions, §1415(l), addresses the Act’s relationship with other laws protecting those children. Section 1415(l) makes clear that nothing in the IDEA “restrict[s] or limit[s] the rights [or] remedies” that other federal laws, including antidiscrimination statutes, confer on children with disabilities. At the same time, the section states that if a suit brought under such a law “seek[s] relief that is also available under” the IDEA, the plaintiff must first exhaust the IDEA’s administrative procedures. In this case, we consider the scope of that exhaustion requirement. We hold that exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a “free appropriate public education.” §1412(a)(1)(A). I A The IDEA offers federal funds to States in exchange for a commitment: to furnish a “free appropriate public education”—more concisely known as a FAPE—to all children with certain physical or intellectual disabilities. Ibid.; see §1401(3)(A)(i) (listing covered disabilities). As defined in the Act, a FAPE comprises “special education and related services”—both “instruction” tailored to meet a child’s “unique needs” and sufficient “supportive services” to permit the child to benefit from that instruction. §§1401(9), (26), (29); see Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 203 (1982) . An eligible child, as this Court has explained, acquires a “substantive right” to such an education once a State accepts the IDEA’s financial assistance. Smith v. Robinson, 468 U. S. 992, 1010 (1984) . Under the IDEA, an “individualized education program,” called an IEP for short, serves as the “primary vehicle” for providing each child with the promised FAPE. Honig v. Doe, 484 U. S. 305, 311 (1988) ; see §1414(d). (Welcome to—and apologies for—the acronymic world of federal legislation.) Crafted by a child’s “IEP Team”—a group of school officials, teachers, and parents—the IEP spells out a personalized plan to meet all of the child’s “educational needs.” §§1414(d)(1)(A)(i)(II)(bb), (d)(1)(B). Most notably, the IEP documents the child’s current “levels of academic achievement,” specifies “measurable an-nual goals” for how she can “make progress in the general education curriculum,” and lists the “special education and related services” to be provided so that she can “advance appropriately toward [those] goals.” §§1414(d)(1)(A)(i)(I), (II), (IV)(aa). Because parents and school representatives sometimes cannot agree on such issues, the IDEA establishes formal procedures for resolving disputes. To begin, a dissatisfied parent may file a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides). See §1415(b)(6). That pleading generally triggers a “[p]reliminary meeting” involving the contending parties, §1415(f )(1)(B)(i); at their option, the parties may instead (or also) pursue a full-fledged mediation process, see §1415(e). Assuming their impasse continues, the matter proceeds to a “due pro-cess hearing” before an impartial hearing officer. §1415(f )(1)(A); see §1415(f )(3)(A)(i). Any decision of the officer granting substantive relief must be “based on a determination of whether the child received a [FAPE].” §1415(f )(3)(E)(i). If the hearing is initially conducted at the local level, the ruling is appealable to the state agency. See §1415(g). Finally, a parent unhappy with the outcome of the administrative process may seek judicial review by filing a civil action in state or federal court. See §1415(i)(2)(A). Important as the IDEA is for children with disabilities, it is not the only federal statute protecting their interests. Of particular relevance to this case are two antidiscrimination laws—Title II of the Americans with Disabilities Act (ADA), 42 U. S. C. §12131 et seq., and §504 of the Rehabilitation Act, 29 U. S. C. §794—which cover both adults and children with disabilities, in both public schools and other settings. Title II forbids any “public entity” from discriminating based on disability; Section 504 applies the same prohibition to any federally funded “program or activity.” 42 U. S. C. §§12131–12132; 29 U. S. C. §794(a). A regulation implementing Title II requires a public entity to make “reasonable modifications” to its “policies, practices, or procedures” when necessary to avoid such discrimination. 28 CFR §35.130(b)(7) (2016); see, e.g., Alboniga v. School Bd. of Broward Cty., 87 F. Supp. 3d 1319, 1345 (SD Fla. 2015) (requiring an accommodation to permit use of a service animal under Title II). In similar vein, courts have interpreted §504 as demanding certain “reasonable” modifications to existing practices in order to “accommodate” persons with disabilities. Alexander v. Choate, 469 U. S. 287 –300 (1985); see, e.g., Sullivan v. Vallejo City Unified School Dist., 731 F. Supp. 947, 961–962 (ED Cal. 1990) (requiring an accommodation to permit use of a service animal under §504). And both statutes authorize individuals to seek redress for violations of their substantive guarantees by bringing suits for injunctive relief or money damages. See 29 U. S. C. §794a(a)(2); 42 U. S. C. §12133. This Court first considered the interaction between such laws and the IDEA in Smith v. Robinson, 468 U. S. 992 .[1] The plaintiffs there sought “to secure a ‘free appropriate public education’ for [their] handicapped child.” Id., at 994. But instead of bringing suit under the IDEA alone, they appended “virtually identical” claims (again alleging the denial of a “free appropriate public education”) under §504 of the Rehabilitation Act and the Fourteenth Amendment’s Equal Protection Clause. Id., at 1009; see id., at 1016. The Court held that the IDEA altogether foreclosed those additional claims: With its “comprehensive” and “carefully tailored” provisions, the Act was “the exclusive avenue” through which a child with a disability (or his parents) could challenge the adequacy of his education. Id., at 1009; see id., at 1013, 1016, 1021. Congress was quick to respond. In the Handicapped Children’s Protection Act of 1986, 100Stat. 796, it overturned Smith’s preclusion of non-IDEA claims while also adding a carefully defined exhaustion requirement. Now codified at 20 U. S. C. §1415(l), the relevant provision of that statute reads: “Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including §504], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].” The first half of §1415(l) (up until “except that”) “reaffirm[s] the viability” of federal statutes like the ADA or Rehabilitation Act “as separate vehicles,” no less integral than the IDEA, “for ensuring the rights of handicapped children.” H. R. Rep. No. 99–296, p. 4 (1985); see id., at 6. According to that opening phrase, the IDEA does not prevent a plaintiff from asserting claims under such laws even if, as in Smith itself, those claims allege the denial of an appropriate public education (much as an IDEA claim would). But the second half of §1415(l) (from “except that” onward) imposes a limit on that “anything goes” regime, in the form of an exhaustion provision. According to that closing phrase, a plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws must in certain circumstances—that is, when “seeking relief that is also available under” the IDEA—first exhaust the IDEA’s administrative procedures. The reach of that requirement is the issue in this case. B Petitioner E. F. is a child with a severe form of cerebral palsy, which “significantly limits her motor skills and mobility.” App. to Brief in Opposition 6, Complaint ¶19.[2] When E. F. was five years old, her parents—petitioners Stacy and Brent Fry—obtained a trained service dog for her, as recommended by her pediatrician. The dog, a goldendoodle named Wonder, “help[s E. F.] to live as independently as possible” by assisting her with various life activities. Id., at 2, ¶3. In particular, Wonder aids E. F. by “retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, [and] helping her transfer to and from the toilet.” Id., at 7, ¶27. But when the Frys sought permission for Wonder to join E. F. in kindergarten, officials at Ezra Eby Elementary School refused the request. Under E. F.’s existing IEP, a human aide provided E. F. with one-on-one support throughout the day; that two-legged assistance, the school officials thought, rendered Wonder superfluous. In the words of one administrator, Wonder should be barred from Ezra Eby because all of E. F.’s “physical and academic needs [were] being met through the services/programs/accommodations” that the school had already agreed to. Id., at 8, ¶33. Later that year, the school officials briefly allowed Wonder to accompany E. F. to school on a trial basis; but even then, “the dog was required to remain in the back of the room during classes, and was forbidden from assisting [E. F.] with many tasks he had been specifically trained to do.” Ibid., ¶35. And when the trial period concluded, the administrators again informed the Frys that Wonder was not welcome. As a result, the Frys removed E. F. from Ezra Eby and began homeschooling her. In addition, the Frys filed a complaint with the U. S. Department of Education’s Office for Civil Rights (OCR), charging that Ezra Eby’s exclusion of E. F.’s service animal violated her rights under Title II of the ADA and §504 of the Rehabilitation Act. Following an investigation, OCR agreed. The office explained in its decision letter that a school’s obligations under those statutes go beyond providing educational services: A school could offer a FAPE to a child with a disability but still run afoul of the laws’ ban on discrimination. See App. 30–32. And here, OCR found, Ezra Eby had indeed violated that ban, even if its use of a human aide satisfied the FAPE standard. See id., at 35–36. OCR analogized the school’s conduct to “requir[ing] a student who uses a wheelchair to be carried” by an aide or “requir[ing] a blind student to be led [around by a] teacher” instead of permitting him to use a guide dog or cane. Id., at 35. Regardless whether those—or Ezra Eby’s—policies denied a FAPE, they violated Title II and §504 by discriminating against children with disabilities. See id., at 35–36. In response to OCR’s decision, school officials at last agreed that E. F. could come to school with Wonder. But after meeting with Ezra Eby’s principal, the Frys became concerned that the school administration “would resent [E. F.] and make her return to school difficult.” App. to Brief in Opposition 10, ¶48. Accordingly, the Frys found a different public school, in a different district, where administrators and teachers enthusiastically received both E. F. and Wonder. C The Frys then filed this suit in federal court against the local and regional school districts in which Ezra Eby is located, along with the school’s principal (collectively, the school districts). The complaint alleged that the school districts violated Title II of the ADA and §504 of the Rehabilitation Act by “denying [E. F.] equal access” to Ezra Eby and its programs, “refus[ing] to reasonably accommodate” E. F.’s use of a service animal, and otherwise “discriminat[ing] against [E. F.] as a person with disabilities.” Id., at 15, ¶68, 17–18, ¶¶82–83. According to the complaint, E. F. suffered harm as a result of that discrimination, including “emotional distress and pain, embarrassment, [and] mental anguish.” Id., at 11–12, ¶51. In their prayer for relief, the Frys sought a declaration that the school districts had violated Title II and §504, along with money damages to compensate for E. F.’s injuries. The District Court granted the school districts’ motion to dismiss the suit, holding that §1415(l) required the Frys to first exhaust the IDEA’s administrative procedures. See App. to Pet. for Cert. 50. A divided panel of the Court of Appeals for the Sixth Circuit affirmed on the same ground. In that court’s view, §1415(l) applies if “the injuries [alleged in a suit] relate to the specific substantive protections of the IDEA.” 788 F. 3d 622, 625 (2015). And that means, the court continued, that exhaustion is necessary whenever “the genesis and the manifestations” of the complained-of harms were “educational” in nature. Id., at 627 (quoting Charlie F. v. Board of Ed. of Skokie School Dist. 68, 98 F. 3d 989, 993 (CA7 1996)). On that understanding of §1415(l), the Sixth Circuit held, the Frys’ suit could not proceed: Because the harms to E. F. were generally “educational”—most notably, the court reasoned, because “Wonder’s absence hurt her sense of independence and social confidence at school”—the Frys had to exhaust the IDEA’s procedures. 788 F. 3d, at 627. Judge Daugh-trey dissented, emphasizing that in bringing their Title II and §504 claims, the Frys “did not allege the denial of a FAPE” or “seek to modify [E. F.’s] IEP in any way.” Id., at 634. We granted certiorari to address confusion in the courts of appeals as to the scope of §1415(l)’s exhaustion requirement. 579 U. S. ___ (2016).[3] We now vacate the Sixth Circuit’s decision. II Section 1415(l) requires that a plaintiff exhaust the IDEA’s procedures before filing an action under the ADA, the Rehabilitation Act, or similar laws when (but only when) her suit “seek[s] relief that is also available” under the IDEA. We first hold that to meet that statutory standard, a suit must seek relief for the denial of a FAPE, because that is the only “relief” the IDEA makes “avail-able.” We next conclude that in determining whether a suit indeed “seeks” relief for such a denial, a court should look to the substance, or gravamen, of the plaintiff’s complaint.[4] A In this Court, the parties have reached substantial agreement about what “relief” the IDEA makes “avail-able” for children with disabilities—and about how the Sixth Circuit went wrong in addressing that question. The Frys maintain that such a child can obtain remedies under the IDEA for decisions that deprive her of a FAPE, but none for those that do not. So in the Frys’ view, §1415(l)’s exhaustion requirement can come into play only when a suit concerns the denial of a FAPE—and not, as the Sixth Circuit held, when it merely has some articulable connection to the education of a child with a disability. See Reply Brief 13–15. The school districts, for their part, also believe that the Sixth Circuit’s exhaustion standard “goes too far” because it could mandate exhaustion when a plaintiff is “seeking relief that is not in substance avail-able” under the IDEA. Brief for Respondents 30. And in particular, the school districts acknowledge that the IDEA makes remedies available only in suits that “directly implicate[ ]” a FAPE—so that only in those suits can §1415(l) apply. Tr. of Oral Arg. 46. For the reasons that follow, we agree with the parties’ shared view: The only relief that an IDEA officer can give—hence the thing a plaintiff must seek in order to trigger §1415(l)’s exhaustion rule—is relief for the denial of a FAPE. We begin, as always, with the statutory language at issue, which (at risk of repetition) compels exhaustion when a plaintiff seeks “relief” that is “available” under the IDEA. The ordinary meaning of “relief” in the context of a lawsuit is the “redress[ ] or benefit” that attends a favor-able judgment. Black’s Law Dictionary 1161 (5th ed. 1979). And such relief is “available,” as we recently explained, when it is “accessible or may be obtained.” Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at 8) (quoting Webster’s Third New International Dictionary 150 (1993)). So to establish the scope of §1415(l), we must identify the circumstances in which the IDEA enables a person to obtain redress (or, similarly, to access a benefit). That inquiry immediately reveals the primacy of a FAPE in the statutory scheme. In its first section, the IDEA declares as its first purpose “to ensure that all children with disabilities have available to them a free appropriate public education.” §1400(d)(1)(A). That principal purpose then becomes the Act’s principal command: A State receiving federal funding under the IDEA must make such an education “available to all children with disabilities.” §1412(a)(1)(A). The guarantee of a FAPE to those children gives rise to the bulk of the statute’s more specific provisions. For example, the IEP—“the centerpiece of the statute’s education delivery system”—serves as the “vehicle” or “means” of providing a FAPE. Honig, 484 U. S., at 311; Rowley, 458 U. S., at 181; see supra, at 2. And finally, as all the above suggests, the FAPE requirement provides the yardstick for measuring the adequacy of the education that a school offers to a child with a disability: Under that standard, this Court has held, a child is entitled to “meaningful” access to education based on her individual needs. Rowley, 458 U. S., at 192.[5] The IDEA’s administrative procedures test whether a school has met that obligation—and so center on the Act’s FAPE requirement. As noted earlier, any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f )(3)(E)(i); see supra, at 3.[6] Or said in Latin: In the IDEA’s administrative process, a FAPE denial is the sine qua non. Suppose that a parent’s complaint protests a school’s failure to provide some accommodation for a child with a disability. If that accommodation is needed to fulfill the IDEA’s FAPE requirement, the hearing officer must order relief. But if it is not, he cannot—even though the dispute is between a child with a disability and the school she attends. There might be good reasons, unrelated to a FAPE, for the school to make the requested accommodation. Indeed, another federal law (like the ADA or Rehabilitation Act) might require the accommodation on one of those alternative grounds. See infra, at 15. But still, the hearing officer cannot provide the requested relief. His role, under the IDEA, is to enforce the child’s “substantive right” to a FAPE. Smith, 468 U. S., at 1010. And that is all.[7] For that reason, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing her suit under a statute other than the IDEA—as when, for example, the plaintiffs in Smith claimed that a school’s failure to provide a FAPE also violated the Rehabilitation Act.[8] Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required. After all, the plaintiff could not get any relief from those procedures: A hearing officer, as just explained, would have to send her away empty-handed. And that is true even when the suit arises directly from a school’s treatment of a child with a disability—and so could be said to relate in some way to her education. A school’s conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unrelated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to §1415(l)’s exhaustion rule because, once again, the only “relief” the IDEA makes “available” is relief for the denial of a FAPE. B Still, an important question remains: How is a court to tell when a plaintiff “seeks” relief for the denial of a FAPE and when she does not? Here, too, the parties have found some common ground: By looking, they both say, to the “substance” of, rather than the labels used in, the plaintiff’s complaint. Brief for Respondents 20; Reply Brief 7–8. And here, too, we agree with that view: What matters is the crux—or, in legal-speak, the gravamen—of the plaintiff’s complaint, setting aside any attempts at artful pleading. That inquiry makes central the plaintiff’s own claims, as §1415(l) explicitly requires. The statutory language asks whether a lawsuit in fact “seeks” relief available under the IDEA—not, as a stricter exhaustion statute might, whether the suit “could have sought” relief avail-able under the IDEA (or, what is much the same, whether any remedies “are” available under that law). See Brief for United States as Amicus Curiae 20 (contrasting §1415(l) with the exhaustion provision in the Prison Litigation Reform Act, 42 U. S. C. §1997e(a)). In effect, §1415(l) treats the plaintiff as “the master of the claim”: She identifies its remedial basis—and is subject to exhaustion or not based on that choice. Caterpillar Inc. v. Williams, 482 U. S. 386 , and n. 7 (1987). A court deciding whether §1415(l) applies must therefore examine whether a plaintiff’s complaint—the principal instrument by which she describes her case—seeks relief for the de-nial of an appropriate education. But that examination should consider substance, not surface. The use (or non-use) of particular labels and terms is not what matters. The inquiry, for example, does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) “FAPE” or “IEP.” After all, §1415(l)’s premise is that the plaintiff is suing under a statute other than the IDEA, like the Rehabilitation Act; in such a suit, the plaintiff might see no need to use the IDEA’s distinctive language—even if she is in essence contesting the adequacy of a special education program. And still more critically, a “magic words” approach would make §1415(l)’s exhaustion rule too easy to bypass. Just last Term, a similar worry led us to hold that a court’s jurisdiction under the Foreign Sovereign Immunities Act turns on the “gravamen,” or “essentials,” of the plaintiff’s suit. OBB Personenverkehr AG v. Sachs, 577 U. S. ___, ___, ___, ___ (2015) (slip op., at 6, 8, 9). “[A]ny other approach,” we explained, “would allow plaintiffs to evade the Act’s restrictions through artful pleading.” Id., at ___ (slip op., at 8). So too here. Section 1415(l) is not merely a pleading hurdle. It requires exhaustion when the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way. In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and Rehabilitation Act (most notably) on the other. The IDEA, of course, protects only “children” (well, really, adolescents too) and concerns only their schooling. §1412(a)(1)(A). And as earlier noted, the statute’s goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her “unique needs.” §1401(29); see Rowley, 458 U. S., at 192, 198; supra, at 11. By contrast, Title II of the ADA and §504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs. See supra, at 3–4. In short, the IDEA guarantees individually tailored educational services, while Title II and §504 promise non-discriminatory access to public institutions. That is not to deny some overlap in coverage: The same conduct might violate all three statutes—which is why, as in Smith, a plaintiff might seek relief for the denial of a FAPE under Title II and §504 as well as the IDEA. But still, the statutory differences just discussed mean that a complaint brought under Title II and §504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation. One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor—have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim. Take two contrasting examples. Suppose first that a wheelchair-bound child sues his school for discrimination under Title II (again, without mentioning the denial of a FAPE) because the building lacks access ramps. In some sense, that architectural feature has educational consequences, and a different lawsuit might have alleged that it violates the IDEA: After all, if the child cannot get inside the school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real-world) success. But is the denial of a FAPE really the gravamen of the plaintiff’s Title II complaint? Consider that the child could file the same basic complaint if a municipal library or theater had no ramps. And similarly, an employee or visitor could bring a mostly identical complaint against the school. That the claim can stay the same in those alternative scenarios suggests that its essence is equality of access to public facilities, not adequacy of special education. See supra, at 7 (describing OCR’s use of a similar example). And so §1415(l) does not require exhaustion.[9] But suppose next that a student with a learning disability sues his school under Title II for failing to provide remedial tutoring in mathematics. That suit, too, might be cast as one for disability-based discrimination, grounded on the school’s refusal to make a reasonable accommo-dation; the complaint might make no reference at all to a FAPE or an IEP. But can anyone imagine the student making the same claim against a public theater or library? Or, similarly, imagine an adult visitor or employee suing the school to obtain a math tutorial? The difficulty of transplanting the complaint to those other contexts suggests that its essence—even though not its wording—is the provision of a FAPE, thus bringing §1415(l ) into play.[10] A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA’s formal procedures to handle the dispute—thus starting to exhaust the Act’s remedies before switching midstream. Recall that a parent dissatisfied with her child’s education initiates those administrative procedures by filing a complaint, which triggers a preliminary meeting (or possibly mediation) and then a due process hearing. See supra, at 2–3. A plain-tiff’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maximize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obligation and that the grievance involves something else entirely. But prior pursuit of the IDEA’s administrative reme-dies will often provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.[11] III The Court of Appeals did not undertake the analysis we have just set forward. As noted above, it asked whether E. F.’s injuries were, broadly speaking, “educational” in nature. See supra, at 8; 788 F. 3d, at 627 (reasoning that the “value of allowing Wonder to attend [school] with E. F. was educational” because it would foster “her sense of independence and social confidence,” which is “the sort of interest the IDEA protects”). That is not the same as asking whether the gravamen of E. F.’s complaint charges, and seeks relief for, the denial of a FAPE. And that difference in standard may have led to a difference in result in this case. Understood correctly, §1415(l) might not require exhaustion of the Frys’ claim. We lack some important information on that score, however, and so we remand the issue to the court below. The Frys’ complaint alleges only disability-based discrimination, without making any reference to the ade-quacy of the special education services E. F.’s school provided. The school districts’ “refusal to allow Wonder to act as a service dog,” the complaint states, “discriminated against [E. F.] as a person with disabilities . . . by denying her equal access” to public facilities. App. to Brief in Opposition 15, Complaint ¶68. The complaint contains no allegation about the denial of a FAPE or about any deficiency in E. F.’s IEP. More, it does not accuse the school even in general terms of refusing to provide the educational instruction and services that E. F. needs. See 788 F. 3d, at 631 (acknowledging that the Frys do not “state that Wonder enhances E. F.’s educational opportunities”). As the Frys explained in this Court: The school districts “have said all along that because they gave [E. F.] a one-on-one [human] aide, that all of her . . . educational needs were satisfied. And we have not challenged that, and it would be difficult for us to challenge that.” Tr. of Oral Arg. 16. The Frys instead maintained, just as OCR had earlier found, that the school districts infringed E. F.’s right to equal access—even if their actions complied in full with the IDEA’s requirements. See App. to Brief in Opposition 15, 18–19, Complaint ¶¶ 69, 85, 87; App. 34–37; supra, at 7–8. And nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. Consider, as suggested above, that the Frys could have filed essentially the same complaint if a public library or theater had refused admittance to Wonder. See supra, at 16. Or similarly, consider that an adult visitor to the school could have leveled much the same charges if prevented from entering with his service dog. See ibid. In each case, the plaintiff would challenge a public facility’s policy of precluding service dogs (just as a blind person might challenge a policy of barring guide dogs, see supra, at 7) as violating Title II’s and §504’s equal access requirements. The suit would have nothing to do with the provision of educational services. From all that we know now, that is exactly the kind of action the Frys have brought. But we do not foreclose the possibility that the history of these proceedings might suggest something different. As earlier discussed, a plaintiff’s initial pursuit of the IDEA’s administrative remedies can serve as evidence that the gravamen of her later suit is the denial of a FAPE, even though that does not appear on the face of her complaint. See supra, at 17–18. The Frys may or may not have sought those remedies before filing this case: None of the parties here have addressed that issue, and the record is cloudy as to the relevant facts. Accordingly, on remand, the court below should establish whether (or to what extent) the Frys invoked the IDEA’s dispute resolution process before bringing this suit. And if the Frys started down that road, the court should decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion. With these instructions and 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.Notes 1 At the time (and until 1990), the IDEA was called the Education of the Handicapped Act, or EHA. See §901(a), 104Stat. 1141–1142 (renaming the statute). To avoid confusion—and acronym overload—we refer throughout this opinion only to the IDEA. 2 Because this case comes to us on review of a motion to dismiss E. F.’s suit, we accept as true all facts pleaded in her complaint. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993) . 3 See Payne v. Peninsula School Dist., 653 F. 3d 863, 874 (CA9 2011) (en banc) (cataloguing different Circuits’ understandings of §1415(l)). In particular, the Ninth Circuit has criticized an approach similar to the Sixth Circuit’s for “treat[ing] §1415(l) as a quasi-preemption provision, requiring administrative exhaustion for any case that falls within the general ‘field’ of educating disabled students.” Id., at 875. 4 In reaching these conclusions, we leave for another day a further question about the meaning of §1415(l): Is exhaustion required when the plaintiff complains of the denial of a FAPE, but the specific remedy she requests—here, money damages for emotional distress—is not one that an IDEA hearing officer may award? The Frys, along with the Solicitor General, say the answer is no. See Reply Brief 2–3; Brief for United States as Amicus Curiae 16. But resolution of that question might not be needed in this case because the Frys also say that their complaint is not about the denial of a FAPE, see Reply Brief 17—and, as later explained, we must remand that distinct issue to the Sixth Circuit, see infra, at 18–20. Only if that court rejects the Frys’ view of their lawsuit, using the analysis we set out below, will the question about the effect of their request for money damages arise. 5 A case now before this Court, Endrew F. v. Douglas County School Dist. RE–1, No. 15–827, presents unresolved questions about the precise content of the FAPE standard. 6 Without finding the denial of a FAPE, a hearing officer may do nothing more than order a school district to comply with the Act’s various procedural requirements, see §1415(f )(3)(E)(iii)—for example, by allowing parents to “examine all records” relating to their child, §1415(b)(1). 7 Similarly, a court in IDEA litigation may provide a substantive remedy only when it determines that a school has denied a FAPE. See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 369 (1985) . Without such a finding, that kind of relief is (once again) unavailable under the Act. 8 Once again, we do not address here (or anywhere else in this opinion) a case in which a plaintiff, although charging the denial of a FAPE, seeks a form of remedy that an IDEA officer cannot give—for example, as in the Frys’ complaint, money damages for resulting emotional injury. See n. 4, supra. 9 The school districts offer another example illustrating the point. They suppose that a teacher, acting out of animus or frustration, strikes a student with a disability, who then sues the school under a statute other than the IDEA. See Brief for Respondents 36–37. Here too, the suit could be said to relate, in both genesis and effect, to the child’s education. But the school districts opine, we think correctly, that the substance of the plaintiff’s claim is unlikely to involve the adequacy of special education—and thus is unlikely to require exhaustion. See ibid. A telling indicator of that conclusion is that a child could file the same kind of suit against an official at another public facility for inflicting such physical abuse—as could an adult subject to similar treatment by a school official. To be sure, the particular circumstances of such a suit (school or theater? student or employee?) might be pertinent in assessing the reasonableness of the challenged conduct. But even if that is so, the plausibility of bringing other variants of the suit indicates that the gravamen of the plaintiff’s complaint does not concern the appropriateness of an educational program. 10 According to Justice Alito, the hypothetical inquiries described above are useful only if the IDEA and other federal laws are mutually exclusive in scope. See post, at 1 (opinion concurring in part and concurring in judgment). That is incorrect. The point of the questions is not to show that a plaintiff faced with a particular set of circumstances could only have proceeded under Title II or §504—or, alternatively, could only have proceeded under the IDEA. (Depending on the circumstances, she might well have been able to proceed under both.) Rather, these questions help determine whether a plaintiff who has chosen to bring a claim under Title II or §504 instead of the IDEA—and whose complaint makes no mention of a FAPE—nevertheless raises a claim whose substance is the denial of an appropriate education. 11 The point here is limited to commencement of the IDEA’s formal administrative procedures; it does not apply to more informal requests to IEP Team members or other school administrators for accommodations or changes to a special education program. After all, parents of a child with a disability are likely to bring all grievances first to those familiar officials, whether or not they involve the denial of a FAPE.

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 FRY et vir, as next friends of minor E. F. v. NAPOLEON COMMUNITY SCHOOLS et al. certiorari to the united states court of appeals for the sixth circuit No. 15–497. Argued October 31, 2016—Decided February 22, 2017 The Individuals with Disabilities Education Act (IDEA) offers federal funds to States in exchange for a commitment to furnish a “free appropriate public education” (FAPE) to children with certain disabilities, 20 U. S. C. §1412(a)(1)(A), and establishes formal administrative procedures for resolving disputes between parents and schools concerning the provision of a FAPE. Other federal statutes also protect the interests of children with disabilities, including Title II of the Americans with Disabilities Act (ADA) and §504 of the Rehabilitation Act. In Smith v. Robinson, 468 U. S. 992 , this Court considered the interaction between those other laws and the IDEA, holding that the IDEA was “the exclusive avenue” through which a child with a disability could challenge the adequacy of his education. Id., at 1009. Congress responded by passing the Handicapped Children’s Protection Act of 1986, overturning Smith’s preclusion of non-IDEA claims and adding a carefully defined exhaustion provision. Under that provision, a plaintiff bringing suit under the ADA, the Rehabilitation Act, or similar laws “seeking relief that is also available under [the IDEA]” must first exhaust the IDEA’s administrative procedures. §1415(l). Petitioner E. F. is a child with a severe form of cerebral palsy; a trained service dog named Wonder assists her with various daily life activities. When E. F.’s parents, petitioners Stacy and Brent Fry, sought permission for Wonder to join E. F. in kindergarten, officials at Ezra Eby Elementary School refused. The officials reasoned that the human aide provided as part of E. F.’s individualized education program rendered the dog superfluous. In response, the Frys removed E. F. from Ezra Eby and began homeschooling her. They also filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E. F.’s service animal violated her rights under Title II and §504. OCR agreed, and school officials invited E. F. to return to Ezra Eby with Wonder. But the Frys, concerned about resentment from school officials, instead enrolled E. F. in a different school that welcomed the service dog. The Frys then filed this suit in federal court against Ezra Eby’s local and regional school districts and principal (collectively, the school districts), alleging that they violated Title II and §504 and seeking declaratory and monetary relief. The District Court granted the school districts’ motion to dismiss the suit, holding that §1415(l) required the Frys to first exhaust the IDEA’s administrative procedures. The Sixth Circuit affirmed, reasoning that §1415(l) applies whenever a plaintiff’s alleged harms are “educational” in nature. Held: 1. Exhaustion of the IDEA’s administrative procedures is unnecessary where the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a FAPE. . (a) The language of §1415(l) compels exhaustion when a plaintiff seeks “relief” that is “available” under the IDEA. Establishing the scope of §1415(l), then, requires identifying the circumstances in which the IDEA enables a person to obtain redress or access a benefit. That inquiry immediately reveals the primacy of a FAPE in the statutory scheme. The IDEA’s stated purpose and specific commands center on ensuring a FAPE for children with disabilities. And the IDEA’s administrative procedures test whether a school has met this obligation: Any decision by a hearing officer on a request for substantive relief “shall” be “based on a determination of whether the child received a free appropriate public education.” §1415(f)(3)(E)(i). Accordingly, §1415(l)’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a FAPE. If a lawsuit charges such a denial, the plaintiff cannot escape §1415(l) merely by bringing the suit under a statute other than the IDEA. But if the remedy sought in a suit brought under a different statute is not for the denial of a FAPE, then exhaustion of the IDEA’s procedures is not required. . (b) In determining whether a plaintiff seeks relief for the denial of a FAPE, what matters is the gravamen of the plaintiff’s complaint, setting aside any attempts at artful pleading. That inquiry makes central the plaintiff’s own claims, as §1415(l) explicitly requires in asking whether a lawsuit in fact “seeks” relief available under the IDEA. But examination of a plaintiff’s complaint should consider substance, not surface: §1415(l) requires exhaustion when the gravamen of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way. In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities. The IDEA guarantees individually tailored educational services for children with disabilities, while Title II and §504 promise nondiscriminatory access to public institutions for people with disabilities of all ages. That is not to deny some overlap in coverage: The same conduct might violate all three statutes. But still, these statutory differences mean that a complaint brought under Title II and §504 might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation. One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term. . 2. This case is remanded to the Court of Appeals for a proper analysis of whether the gravamen of E. F.’s complaint charges, and seeks relief for, the denial of a FAPE. The Frys’ complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services E. F.’s school provided. Instead, the Frys have maintained that the school districts infringed E. F.’s right to equal access—even if their actions complied in full with the IDEA’s requirements. But the possibility remains that the history of these proceedings might suggest something different. The parties have not addressed whether the Frys initially pursued the IDEA’s administrative remedies, and the record is cloudy as to the relevant facts. On remand, the court below should establish whether (or to what extent) the Frys invoked the IDEA’s dispute resolution process before filing suit. And if the Frys started down that road, the court should decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion. . 788 F. 3d 622, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.

The Individuals with Disabilities Education Act (IDEA), 20 U.S. C. §1400 et seq., offers federal funds to States in exchange for a commitment: to furnish a "free appropriate public education" (FAPE) to all children with certain physical or intellectual disabilities. Under the IDEA, an individualized education program (IEP) serves as the primary vehicle for providing each child with the promised FAPE. The IEP spells out a personalized plan to meet all of the child's educational needs. If a dissatisfied parent files a complaint as to any matter concerning the provision of a FAPE with the local or state educational agency (as state law provides), that pleading generally triggers a "reliminary meeting" involving the contending parties, and at their option, the parties may pursue a full-fledged mediation process. If the child continues to receive an impasse, the child must be given a hearing, and an administrative determination of whether the child is entitled to an FAPE must be made at the local level. The court granted the school districts' motion to dismiss the suit on the ground that exhaustion was necessary whenever the genesis and the manifestations of the complained-of harms were educational in nature. The Court of Appeals affirmed on the same ground. Held: The scope of §1415(l) exhaustion requirement is limited to the gravamen of the plaintiff complaint. . (a) To meet the statutory exhaustion standard, a suit must seek relief for the denial of the FAPE, because that is the only relief that the IDEA makes "avail-able." See id., at 1009. Here, since the parties have reached substantial agreement about what disability-based discrimination means and the extent to which that means applies to children with disabilities, a court should look to the substance, or gravamen, of a plaintiff's complaint, rather than the statute itself. In determining whether a suit indeed seeks relief for such a denial, the court should examine the substance (or gravamen) of the complaint, setting aside any attempts at artful pleading or any implicit focus on the adequacy of the education that a school offers to a child with a disability. Pp. 468 U. S. 992-968. (b) The statutory language asks whether a lawsuit in fact peeks relief available under the IDEA. It also asks whether the suit could have sought relief avail-able under that Act, or whether any remedies are available under that law. A court deciding whether the statute applies must therefore examine whether a plaintiff complaint (the principal instrument by which she describes her case) seeks relief for the de-nial of an appropriate education. Such an examination should consider substance, not surface. Moreover, a hearing officer may do nothing more than order a school district to comply with the Act's various procedural requirements. Similarly, a district in IDEA litigation may provide a substantive remedy only when it determines that the school has denied a FAP. However, such a court may also provide a remedy merely by bringing her suit under a other statute, such as the Rehabilitation Act. Thus, exhaustion is not necessary when a plaintiff, although charging the denial, seeks a form of remedy that an IDEA officer cannot give, but none for those that do not. Endrew F. v. Douglas County School Dist. RE–1, No. 15-827, 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 a dissenting opinion, post, p..

2016_15-1406

https://www.oyez.org/cases/2016/15-1406

. In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand. I Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.[1] The Haegers alleged that the failure of a Goodyear G159 tire on the vehicle caused the accident: Their theory was that the tire was not designed to withstand the level of heat it generated when used on a motorhome at highway speeds. Discovery in the case lasted several years—and itself generated considerable heat. The Haegers repeatedly asked Goodyear to turn over internal test results for the G159, but the company’s responses were both slow in coming and unrevealing in content. After making the District Court referee some of their more contentious discovery battles, the parties finally settled the case (for a still-undisclosed sum) on the eve of trial. Some months later, the Haegers’ lawyer learned from a newspaper article that, in another lawsuit involving the G159, Goodyear had disclosed a set of test results he had never seen. That data indicated that the G159 got unusually hot at speeds of between 55 and 65 miles per hour. In ensuing correspondence, Goodyear conceded withholding the information from the Haegers even though they had requested (both early and often) “all testing data” related to the G159. Record in No. 2:05–cv–2046 (D Ariz.), Doc. 938, p. 8; see id., Doc. 938–1, at 24, 36; id., Doc. 1044–2, at 25 (filed under seal). The Haegers accordingly sought sanctions for discovery fraud, claiming that “Goodyear knowingly concealed crucial ‘internal heat test’ records related to the [G159’s] defective design.” Id., Doc. 938, at 1. That conduct, the Haegers urged, entitled them to attorney’s fees and costs expended in the litigation. See id., at 14. The District Court agreed to make such an award in the exercise of its inherent power to sanction litigation misconduct.[2] The court’s assessment of Goodyear’s actions was harsh (and is not contested here). Goodyear, the court found, had engaged in a “years-long course” of bad-faith behavior. 906 F. Supp. 2d 938, 972 (D Ariz. 2012). By withholding the G159’s test results at every turn, the company and its lawyers had made “repeated and deliberate attempts to frustrate the resolution of this case on the merits.” Id., at 971. But because the case had already settled, the court had limited options. It could not take the measure it most wished: an “entry of default judgment” against Goodyear. Id., at 972. All it could do for the Haegers was to order Goodyear to reimburse them for attorney’s fees and costs paid during the suit. But that award, in the District Court’s view, could be comprehensive, covering both expenses that could be causally tied to Goodyear’s misconduct and those that could not. The court calculated that the Haegers had spent $2.7 million in legal fees and costs since the moment, early in the litigation, when Goodyear made its first dishonest discovery response. And the court awarded the Haegers that entire sum. In the “usual[ ]” case, the court reasoned, “sanctions under a [c]ourt’s inherent power must be limited to the amount [of legal fees] caused by the misconduct.” Id., at 974–975 (emphasis deleted). But this case was not the usual one: Here, “the sanctionable conduct r[ose] to a truly egregious level.” Id., at 975. And when a litigant behaves that badly, the court opined, “all of the attorneys’ fees incurred in the case [can] be awarded,” without any need to find a “causal link between [those expenses and] the sanctionable conduct.” Ibid. As further support for its decision, the court considered the chances that full and timely disclosure of the test results would have affected Goodyear’s settlement calculus. “While there is some uncertainty,” the court stated, “the case more likely than not would have settled much earlier.” Id., at 972. Perhaps sensing thin ice, the District Court also made a “contingent award” in the event that the Court of Appeals reversed its preferred one. App. to Pet. for Cert. 180a. Here, the District Court recognized the possibility that a “linkage between [Goodyear’s] misconduct and [the Haegers’] harm is required.” Ibid. If so, the court stated, its fee award should be reduced to $2 million. The deduction of $700,000, which was based on estimates Goodyear offered, represented fees that the Haegers incurred in developing claims against other defendants and proving their own medical damages. See App. 69. A divided Ninth Circuit panel affirmed the full $2.7 million award. According to the majority, the District Court acted properly in “award[ing] the amount [it] reasonably believed” the Haegers expended in attorney’s fees and costs “during the time when [Goodyear was] acting in bad faith.” 813 F. 3d 1233, 1250 (2016). Or repeated in just slightly different words: The District Court “did not abuse its discretion” in “award[ing] the Haegers all their attorneys’ fees and costs in prosecuting the action once [Goodyear] began flouting [its] discovery obligations.” Id., at 1249. Judge Watford disagreed. He would have demanded a “causal link between Goodyear’s misconduct and the fees awarded.” Id., at 1255 (dissenting opinion). The only part of the District Court’s opinion that might support such a connection, Judge Watford noted, was its hypothesis that disclosure of the test results would have produced an earlier settlement, and thus obviated the need for further legal expenses. But Judge Watford thought that theory unpersuasive: Because Goodyear would still have had plausible defenses to the Haegers’ suit, “[i]t’s anyone’s guess how the litigation would have proceeded” had timely disclosure occurred. Ibid. Accordingly, Judge Watford would have reversed the District Court for awarding fees beyond those “sustained as a result of Goodyear’s misconduct.” Id., at 1256. The Court of Appeals’ decision created a split of authority: Other Circuits have insisted on limiting sanctions like this one to fees or costs that are causally related to a litigant’s misconduct.[3] We therefore granted certiorari. 579 U. S. ___ (2016). II Federal courts possess certain “inherent powers,” not conferred by rule or statute, “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). That authority includes “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32 –45 (1991). And one permissible sanction is an “assessment of attorney’s fees”—an order, like the one issued here, instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other side. Id., at 45. This Court has made clear that such a sanction, when imposed pursuant to civil procedures, must be compensatory rather than punitive in nature. See Mine Workers v. Bagwell, 512 U. S. 821 –830 (1994) (distinguishing compensatory from punitive sanctions and specifying the procedures needed to impose each kind).[4] In other words, the fee award may go no further than to redress the wronged party “for losses sustained”; it may not impose an additional amount as punishment for the sanctioned party’s misbehavior. Id., at 829 (quoting United States v. Mine Workers, 330 U. S. 258, 304 (1947) ). To level that kind of separate penalty, a court would need to provide procedural guarantees applicable in criminal cases, such as a “beyond a reasonable doubt” standard of proof. See id., at 826, 832–834, 838–839. When (as in this case) those criminal-type protections are missing, a court’s shifting of fees is limited to reimbursing the victim. That means, pretty much by definition, that the court can shift only those attorney’s fees incurred because of the misconduct at issue. Compensation for a wrong, after all, tracks the loss resulting from that wrong. So as we have previously noted, a sanction counts as compensatory only if it is “calibrate[d] to [the] damages caused by” the bad-faith acts on which it is based. Id., at 834. A fee award is so calibrated if it covers the legal bills that the litigation abuse occasioned. But if an award extends further than that—to fees that would have been incurred without the misconduct—then it crosses the boundary from compensation to punishment. Hence the need for a court, when using its inherent sanctioning authority (and civil procedures), to establish a causal link—between the litigant’s misbehavior and legal fees paid by the opposing party.[5] That kind of causal connection, as this Court explained in another attorney’s fees case, is appropriately framed as a but-for test: The complaining party (here, the Haegers) may recover “only the portion of his fees that he would not have paid but for” the misconduct. Fox v. Vice, 563 U. S. 826, 836 (2011) ; see Paroline v. United States, 572 U. S. ___, ___ (2014) (slip op., at 12) (“The traditional way to prove that one event was a factual cause of another is to show that the latter would not have occurred ‘but for’ the former”). In Fox, a prevailing defendant sought reimbursement under a fee-shifting statute for legal expenses incurred in defending against several frivolous claims. See 563 U. S., at 830; 42 U. S. C. §1988. The trial court granted fees for all legal work relating to those claims—regardless of whether the same work would have been done (for example, the same depositions taken) to contest the non-frivolous claims in the suit. We made clear that was wrong. When a “defendant would have incurred [an] expense in any event[,] he has suffered no incremental harm from the frivolous claim,” and so the court lacks a basis for shifting the expense. Fox, 563 U. S., at 836. Substitute “discovery abuse” for “frivolous claim” in that sentence, and the same thing goes in this case. Or otherwise said (and again borrowing from Fox), when “the cost[ ] would have been incurred in the absence of” the discovery violation, then the court (possessing only the power to compensate for harm the misconduct has caused) must leave it alone. Id., at 838. This but-for causation standard generally demands that a district court assess and allocate specific litigation expenses—yet still allows it to exercise discretion and judgment. The court’s fundamental job is to determine whether a given legal fee—say, for taking a deposition or drafting a motion—would or would not have been incurred in the absence of the sanctioned conduct. The award is then the sum total of the fees that, except for the misbehavior, would not have accrued. See id., at 837–838 (providing illustrative examples). But as we stressed in Fox, trial courts undertaking that task “need not, and indeed should not, become green-eyeshade accountants” (or whatever the contemporary equivalent is). Id., at 838. “The essential goal” in shifting fees is “to do rough justice, not to achieve auditing perfection.” Ibid. Accordingly, a district court “may take into account [its] overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Ibid. The court may decide, for example,that all (or a set percentage) of a particular category of expenses—say, for expert discovery—were incurred solely because of a litigant’s bad-faith conduct. And such judgments, in light of the trial court’s “superior understanding of the litigation,” are entitled to substantial deference on appeal. Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) . In exceptional cases, the but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some midpoint of a suit, in one fell swoop. Chambers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did—“his entire course of conduct” throughout, and indeed preceding, the litigation—was “part of a sordid scheme” to defeat a valid claim. 501 U. S., at 51, 57 (brackets omitted). Thus, the district court could reasonably conclude that all legal expenses in the suit “were caused . . . solely by [his] fraudulent and brazenly unethical efforts.” Id., at 58. Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is attributable only to sanctioned behavior, the court may again make a blanket award. And similarly, if a court finds that a lawsuit, absent litigation misconduct, would have settled at a specific time—for example, when a party was legally required to disclose evidence fatal to its position—then the court may grant all fees incurred from that moment on. In each of those scenarios, a court escapes the grind of segregating individual expense items (a deposition here, a motion there)—or even categories of such items (again, like expert discovery)—but only because all fees in the litigation, or a phase of it, meet the applicable test: They would not have been incurred except for the misconduct. III It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). See Brief for Petitioner 17, 23–24, 31; Brief for Respondents 17–18, 22–23; Tr. of Oral Arg. 34–35, 46–47. All the parties really argue about here is what that law means for this case. Goodyear contends that it requires throwing out the trial court’s fee award and instructing the court to consider the matter anew. The Haegers maintain, to the contrary, that the award can stand. They initially contend—pointing to a couple of passages from the Ninth Circuit’s opinion—that both courts below articulated and applied the very but-for causation standard we have laid out. See Brief for Respondents 17–18 (highlighting the Ninth Circuit’s statements that Goodyear’s “bad faith conduct caused significant harm” and that the District Court “determine[d] the appropriate amount of fees to award as sanctions to compensate the [Haegers] for the damages they suffered as a result of [Goodyear’s] bad faith”). And even if we reject that view, the Haegers continue, we may uphold the fee award on the ground that it in fact passes a but-for test. That standard is satisfied (so they say) for either of two reasons. First, because the case would have settled as soon as Goodyear disclosed the requested heat-test results, thus putting an end to the Haegers’ legal bills. Or second, because (settlement prospects aside) the withholding of that data so infected the lawsuit as to account for each and every expense the Haegers subsequently incurred. See id., at 14–15, 22, 26. The Haegers’ defense of the lower courts’ reasoning is a non-starter: Neither of them used the correct legal standard. As earlier recounted, the District Court specifically disclaimed the “usual[ ]” need to find a “causal link” between misconduct and fees when the sanctioned party’s behavior was bad enough—in the court’s words, when it “r[ose] to a truly egregious level.” 906 F. Supp. 2d, at 975 (emphasis deleted); see supra, at 3. In such circumstances, the court thought, it could award “all” fees, including those that would have been incurred in the absence of the misconduct. 906 F. Supp. 2d, at 975. And the court confirmed that approach even while conceding that it might be wrong: By issuing a “contingent award” of $2 million, meant to go into effect if the Ninth Circuit demanded a causal “linkage between the misconduct and harm,” the District Court made clear that its primary, $2.7 million award was not so confined. App. to Pet. for Cert. 180a; see supra, at 4. Still, the Court of Appeals left the larger sanction in place, because it too mistook what findings were needed to support that award. In the Ninth Circuit’s view, the trial court could grant all attorney’s fees incurred “during the time when [Goodyear was] acting in bad faith.” 813 F. 3d, at 1250 (emphasis added); see id., at 1249 (permitting an award of fees incurred “once [Goodyear] began flouting [its] discovery obligations” (emphasis added)); supra, at 4. But that is a temporal limitation, not a causal one; and, like the District Court’s “egregiousness” requirement, it is wide of the mark. A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue (however serious, or concurrent with a lawyer’s work, it might have been). No such finding lies behind the $2.7 million award made and affirmed below. Nor are we tempted to fill in that gap, as the Haegers have invited us to do. As an initial matter, the Haegers have not shown that this litigation would have settled as soon as Goodyear divulged the heat-test results (thus justifying an all-fees award from the moment it was supposed to disclose, see supra, at 8–9). Even the District Court did not go quite that far: In attempting to buttress its comprehensive award, it said only (and after expressing “some uncertainty”) that the suit probably would have settled “much earlier.” 906 F. Supp. 2d, at 972. And that more limited finding is itself subject to grave doubt, even taking into account the deference owed to the trial court. As Judge Watford reasoned, the test results, although favorable to the Haegers’ version of events, did not deprive Goodyear of colorable defenses. In particular, Goodyear still could have argued, as it had from the beginning, that “the Haegers’ own tire, which had endured more than 40,000 miles of wear and tear, failed because it struck road debris.” 813 F. 3d, at 1256 (dissenting opinion). And indeed, that is pretty much the course Goodyear took in another suit alleging that the G159 caused a motorhome accident. See Schalmo v. Goodyear, No. 51–2006–CA–2064–WS (Fla. Cir. Ct., 6th Cir., Pasco County). In that case (as Judge Watford again observed), Goodyear produced the very test results at issue here, yet still elected to go to trial. See 813 F. 3d, at 1256. So we do not think the record allows a finding, as would support the $2.7 million award, that disclosure of the heat-test results would have led straightaway to a settlement. Further, the Haegers cannot demonstrate that Goodyear’s non-disclosure so permeated the suit as to make that misconduct a but-for cause of every subsequent legal expense, totaling the full $2.7 million. If nothing else, the District Court’s back-up fee award belies that theory. After introducing a causal element into the equation, the court found that the $700,000 of fees that the Haegers incurred in litigating against other defendants and proving their own medical damages had nothing to do with Goodyear’s discovery decisions. See App. to Pet. for Cert. 180a; supra, at 4. The Haegers have failed to offerany concrete reason for questioning that judgment, and we do not see how they could. At a minimum, then, the sanction order could not force Goodyear to reimburse those expenses—because, again, the Haegers would have paid them even had the company behaved immaculately in every respect. That leaves the question whether the contingent $2 million award should now stand—or, alternatively, whether the District Court must reconsider from scratch which fees to shift. In the absence of any waiver issue, we would insist on the latter course. Although the District Court considered causation in arriving at its back-up award, we cannot tell from its sparse discussion whether its understanding of that requirement corresponds to the standard we have described. That uncertainty points toward demanding a do-over, under the unequivocally right legal rules. But the Haegers contend that Goodyear has waived any ability to challenge the $2 million award. In their view, that sum reflected Goodyear’s own submission—which it may not now amend—that only about $700,000 of the fees sought would have been incurred “regardless of Goodyear’s behavior.” App. 69; see Brief for Respondents 41; supra, at 4. The Court of Appeals did not previously address that issue, and we decline to decide it in the first instance. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). The possibility of waiver should therefore be the initial order of business below. If a waiver is found, that is the end of this case. If not, the District Court must reassess fees in line with a but-for causation requirement. For these 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. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 The additional defendants named in the Haegers’ complaint were Gulf Stream Coach, the manufacturer of the motorhome, and Spartan Motors, the manufacturer of the vehicle’s chassis. In the course of the litigation, the Haegers reached a settlement with Gulf Stream, and the District Court granted Spartan’s motion for summary judgment. 2 The court reasoned that no statute or rule enabled it to reach all the offending behavior. Sanctions under Federal Rule of Civil Procedure 11, the court thought, should not be imposed after final judgment in a case. See 906 F. Supp. 2d 938, 973, n. 24 (D Ariz. 2012). And sanctions under 28 U. S. C. §1927, it noted, could address the wrongdoing of only Goodyear’s attorneys, rather than of Goodyear itself. See 906 F. Supp. 2d, at 973. 3 See, e.g., Plaintiffs’ Baycol Steering Comm. v. Bayer Corp., 419 F. 3d 794, 808 (CA8 2005); Bradley v. American Household, Inc., 378 F. 3d 373, 378 (CA4 2004); United States v. Dowell, 257 F. 3d 694, 699 (CA7 2001). 4 Bagwell also addressed “coercive” sanctions, designed to make a party comply with a court order. 512 U. S., at 829. That kind of sanction is not at issue here. 5 Rule-based and statutory sanction regimes similarly require courts to find such a causal connection before shifting fees. For example, the Federal Rules of Civil Procedure provide that a district court may order a party to pay attorney’s fees “caused by” discovery misconduct, Rule 37(b)(2)(C), or “directly resulting from” misrepresentations in pleadings, motions, and other papers, Rule 11(c)(4). And under 28 U. S. C. §1927, a court may require an attorney who unreasonably multiplies proceedings to pay attorney’s fees incurred “because of” that misconduct. Those provisions confirm the need to establish a causal link between misconduct and fees when acting under inherent authority, given that such undelegated powers should be exercised with especial “restraint and discretion.” Roadway Express, Inc. v. Piper, 447 U. S. 752, 764 (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 GOODYEAR TIRE & RUBBER CO. v. HAEGER et al. certiorari to the united states court of appeals for the ninth circuit No. 15–1406. Argued January 10, 2017—Decided April 18, 2017 Respondents Leroy, Donna, Barry, and Suzanne Haeger sued petitioner Goodyear Tire & Rubber Company, alleging that the failure of a Goodyear G159 tire caused the family’s motorhome to swerve off the road and flip over. After several years of contentious discovery, marked by Goodyear’s slow response to repeated requests for internal G159 test results, the parties settled the case. Some months later, the Haegers’ lawyer learned that, in another lawsuit involving the G159, Goodyear had disclosed test results indicating that the tire got unusually hot at highway speeds. In subsequent correspondence, Goodyear conceded withholding the information from the Haegers, even though they had requested all testing data. The Haegers then sought sanctions for discovery fraud, urging that Goodyear’s misconduct entitled them to attorney’s fees and costs expended in the litigation. The District Court found that Goodyear had engaged in an extended course of misconduct. Exercising its inherent power to sanction bad-faith behavior, the court awarded the Haegers $2.7 million—the entire sum they had spent in legal fees and costs since the moment, early in the litigation, when Goodyear made its first dishonest discovery response. The court said that in the usual case, sanctions ordered pursuant to a court’s inherent power to sanction litigation misconduct must be limited to the amount of legal fees caused by that misconduct. But it determined that in cases of particularly egregious behavior, a court can award a party all of the attorney’s fees incurred in a case, without any need to find a “causal link between [the expenses and] the sanctionable conduct.” 906 F. Supp. 2d 938, 975. As further support for its award, the District Court concluded that full and timely disclosure of the test results would likely have led Goodyear to settle the case much earlier. Acknowledging that the Ninth Circuit might require a link between the misconduct and the harm caused, however, the court also made a contingent award of $2 million. That smaller amount, designed to take effect if the Ninth Circuit reversed the larger award, deducted $700,000 in fees the Haegers incurred in developing claims against other defendants and proving their own medical damages. The Ninth Circuit affirmed the full $2.7 million award, concluding that the District Court had properly awarded the Haegers all the fees they incurred during the time when Goodyear was acting in bad faith. Held: When a federal court exercises its inherent authority to sanction bad-faith conduct by ordering a litigant to pay the other side’s legal fees, the award is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. . (a) Federal courts possess certain inherent powers, including “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32 –45. One permissible sanction is an assessment of attorney’s fees against a party that acts in bad faith. Such a sanction must be compensatory, rather than punitive, when imposed pursuant to civil procedures. See Mine Workers v. Bagwell, 512 U. S. 821 –830. A sanction counts as compensatory only if it is “calibrate[d] to [the] damages caused by” the bad-faith acts on which it is based. Id., at 834. Hence the need for a court to establish a causal link between the litigant’s misbehavior and legal fees paid by the opposing party. That kind of causal connection is appropriately framed as a but-for test, meaning a court may award only those fees that the innocent party would not have incurred in the absence of litigation misconduct. That standard generally demands that a district court assess and allocate specific litigation expenses—yet still allows it to exercise discretion and judgment. Fox v. Vice, 563 U. S. 826 . And in exceptional cases, that standard allows a court to avoid segregating individual expense items by shifting all of a party’s fees, from either the start or some midpoint of a suit. . (b) Here, the parties largely agree about the pertinent law but dispute what it means for this case. Goodyear contends that it requires throwing out the fee award and instructing the trial court to consider the matter anew. The Haegers maintain, to the contrary, that the award can stand because both courts below articulated and applied the appropriate but-for causation standard, or, even if they did not, the fee award in fact passes a but-for test. The Haegers’ defense of the lower courts’ reasoning is a non-starter: Neither court used the correct legal standard. The District Court specifically disclaimed the need for a causal link on the ground that this was a “truly egregious” case. 906 F. Supp. 2d, at 975. And the Ninth Circuit found that the trial court could grant all attorney’s fees incurred “during the time when [Goodyear was] acting in bad faith,” 813 F. 3d 1233, 1249—a temporal, not causal, limitation. A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue, and no such finding lies behind the $2.7 million award made and affirmed below. Nor is this Court inclined to fill in the gap, as the Haegers urge. As an initial matter, the Haegers have not shown that this litigation would have settled as soon as Goodyear divulged the heat-test results (a showing that would justify an all-fees award from the moment Goodyear was supposed to disclose). Further, they cannot demonstrate that Goodyear’s non-disclosure so permeated the suit as to make that misconduct a but-for cause of every subsequent legal expense, totaling the full $2.7 million. Although the District Court considered causation in arriving at its back-up award of $2 million, it is unclear whether its understanding of that requirement corresponds to the appropriate standard—an uncertainty pointing toward throwing out the fee award and instructing the trial court to consider the matter anew. However, the Haegers contend that Goodyear has waived any ability to challenge the contingent award since the $2 million sum reflects Goodyear’s own submission that only about $700,000 of the fees sought would have been incurred regardless of the company’s behavior. The Court of Appeals did not address that issue, and this Court declines to decide it in the first instance. The possibility of waiver should therefore be the initial order of business on remand. . 813 F. 3d 1233, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

Respondents filed suit in Federal District Court against respondent Goodyear Tire & Rubber Co. (Goodyear), alleging that the failure of a defective tire on a motorhome caused the accident. Discovery in the case lasted several years, and itself generated considerable heat. Respondents repeatedly asked Goodyear to turn over internal test results for the tire, but the company was slow in responding. Eventually, the parties finally settled the case (for a still-undisclosed sum) on the eve of trial. Some months later, the Haegers learned from a newspaper article that, in another lawsuit involving the G159, Goodyear had disclosed a set of test results he had never seen. That conduct entitled respondents to attorney's fees and costs expended in the litigation. The District Court agreed to make such an award in the exercise of its inherent power to sanction litigation misconduct. The court found that Goodyear, by withholding the test results at every turn, had engaged in a long course of bad-faith behavior, and that the court and its lawyers had made repeated and deliberate attempts to frustrate the resolution of the case on the merits. But because the case had already settled, the court had limited options. It could not take the measure it most wished: an entry of default judgment against Goodyear. But all it could do was to order him to reimburse respondents for attorney’s fees paid during the suit, which award, in the District Court's view, could be comprehensive, covering both expenses that could be causally tied to Goodyear's misconduct and those that could not. The court calculated that respondents had spent $2.7 million in legal fees since the moment, early in litigation, when Goodyear made its first dishonest discovery response. In the event that the Court of Appeals reversed its preferred award, its fee award should be reduced to $2 million, the deduction of $700,000 representing fees incurred in developing claims against other defendants and proving their own medical damages being affirmed by the court. Held: The judgment is reversed, and the case is remanded. ;. 813 F. 3d 1233 (D Ariz. 2016); 906 F. Supp. 2d 938, affirmed. JUSTICE O'CONNOR, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded that a district court has broad discretion to calculate fee awards under that standard, but that, because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand. . (a) The standard for determining whether a given legal fee would or would not have been incurred in the absence of sanctioned conduct is the sum total of the fees that, except for the misbehavior, would not otherwise have accrued. That standard generally demands that the district court assess and allocate specific litigation expenses, yet still allows it to exercise discretion and judgment. However, when an award, when imposed pursuant to civil procedures, must be compensatory rather than punitive in nature, the fee award may go no further than to redress the wronged party. Mine Workers v. Bagwell, 512 U. S. 821-830 (CA), distinguished. P.. (b) A sanctioning court must determine which fees were incurred because of and solely because of, the misconduct at issue (however serious, or concurrent with a lawyer's work, it might have been). No such finding lies behind the award of fees incurred once Goodyear began flouting its discovery obligations. Nor are respondents tempted to fill in that gap, as they have invited to do. As an initial matter, they have not shown that this litigation would have settled as soon as Goodyear divulged the heat-test results (thus justifying an all-fees award from the moment it was supposed to disclose, see id., at 836). Moreover, since Goodyear would still have had plausible defenses to the suit had the suit gone to trial, the record does not allow a finding, as would support the award, that disclosure of the heat test results would have led straightaway to a settlement. And if nothing else, the back-up fee award belies that theory, since it found that the fees incurred by respondents in litigating against the other defendants had nothing to do with Goodyear discovery decisions. But respondents have failed to offerany concrete reason for questioning the judgment, and, at a minimum, the sanction order could not force goodyear to reimburse those expenses, because, again, they would have paid them even had the company behaved immaculately in every respect. If a waiver is found, that is the end of this case; if not, the Court must reassess fees in line with a but-for causation requirement. See, e.g., 579 U.S. ___ (C.A.O.C.O.,), which is not conferred by rule or statute, but which permits courts to find a causal connection between

2016_16-349

https://www.oyez.org/cases/2016/16-349

. Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices. So perhaps it comes as little surprise that we now face a question about who exactly qualifies as a “debt collector” subject to the Act’s rigors. Everyone agrees that the term embraces the repo man—someone hired by a creditor to collect an outstanding debt. But what if you purchase a debt and then try to collect it for yourself—does that make you a “debt collector” too? That’s the nub of the dispute now before us. The parties approach the question from common ground. The complaint alleges that CitiFinancial Auto loaned money to petitioners seeking to buy cars; that petitioners defaulted on those loans; that respondent Santander then purchased the defaulted loans from CitiFinancial; and that Santander sought to collect in ways petitioners believe troublesome under the Act. The parties agree, too, that in deciding whether Santander’s conduct falls within the Act’s ambit we should look to statutory language defining the term “debt collector” to embrace anyone who “regularly collects or attempts to collect . . . debts owed or due . . . another.” 15 U. S. C. §1692a(6). Even when it comes to that question, the parties agree on at least part of an answer. Both sides accept that third party debt collection agents generally qualify as “debt collectors” under the relevant statutory language, while those who seek only to collect for themselves loans they originated generally do not. These results follow, the parties tell us, because debt collection agents seek to collect debts “owed . . . another,” while loan originators acting on their own account aim only to collect debts owed to themselves. All that remains in dispute is how to classify individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account. Does the Act treat the debt purchaser in that scenario more like the repo man or the loan originator? For their part, the district court and Fourth Circuit sided with Santander. They held that the company didn’t qualify as a debt collector because it didn’t regularly seek to collect debts “owed . . . another” but sought instead only to collect debts that it purchased and owned. At the same time, the Fourth Circuit acknowledged that some circuits faced with the same question have ruled otherwise—and it is to resolve this conflict that we took the case. Compare 817 F. 3d 131, 133–134, 137–138 (2016) (case below); Davidson v. Capital One Bank (USA), N. A., 797 F. 3d 1309, 1315–1316 (CA11 2015), with McKinney v. Caldeway Properties, Inc., 548 F. 3d 496, 501 (CA7 2008); FTC v. Check Investors, Inc., 502 F. 3d 159, 173–174 (CA3 2007). Before attending to that job, though, we pause to note two related questions we do not attempt to answer today. First, petitioners suggest that Santander can qualify as a debt collector not only because it regularly seeks to collect for its own account debts that it has purchased, but also because it regularly acts as a third party collection agent for debts owed to others. Petitioners did not, however, raise the latter theory in their petition for certiorari and neither did we agree to review it. Second, the parties briefly allude to another statutory definition of the term “debt collector”—one that encompasses those engaged “in any business the principal purpose of which is the collection of any debts.” §1692a(6). But the parties haven’t much litigated that alternative definition and in granting certiorari we didn’t agree to address it either. With these preliminaries by the board, we can turn to the much narrowed question properly before us. In doing so, we begin, as we must, with a careful examination of the statutory text. And there we find it hard to disagree with the Fourth Circuit’s interpretive handiwork. After all, the Act defines debt collectors to include those who regularly seek to collect debts “owed . . . another.” And by its plain terms this language seems to focus our attention on third party collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself. Neither does this language appear to suggest that we should care how a debt owner came to be a debt owner—whether the owner originated the debt or came by it only through a later purchase. All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for “another.” And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute, just as the Fourth Circuit explained. Petitioners reply that this seemingly straightforward reading overlooks an important question of tense. They observe that the word “owed” is the past participle of the verb “to owe.” And this, they suggest, means the statute’s definition of debt collector captures anyone who regularly seeks to collect debts previously “owed . . . another.” So it is that, on petitioners’ account, the statute excludes from its compass loan originators (for they never seek to collect debts previously owed someone else) but embraces many debt purchasers like Santander (for in collecting purchased debts they necessarily seek to collect debts previously owed another). If Congress wanted to exempt all present debt owners from its debt collector definition, petitioners submit, it would have used the present participle “owing.” That would have better sufficed to do the job—to make clear that you must collect debts currently “owing . . . another” before implicating the Act. But this much doesn’t follow even as a matter of good grammar, let alone ordinary meaning. Past participles like “owed” are routinely used as adjectives to describe the present state of a thing—so, for example, burnt toast is inedible, a fallen branch blocks the path, and (equally) a debt owed to a current owner may be collected by him or her. See P. Peters, The Cambridge Guide to English Usage 409 (2004) (explaining that the term “past participle” is a “misnomer[ ], since” it “can occur in what is technically a present . . . tense”). Just imagine if you told a friend that you were seeking to “collect a debt owed to Steve.” Doesn’t it seem likely your friend would understand you as speaking about a debt currently owed to Steve, not a debt Steve used to own and that’s now actually yours? In the end, even petitioners find themselves forced to admit that past participles can and regularly do work just this way, as adjectives to describe the present state of the nouns they modify. See Brief for Petitioners 28; see also B. Garner, Modern English Usage 666 (4th ed. 2016) (while “owing . . . is an old and established usage . . . the more logical course is simply to write owed”). Widening our view to take in the statutory phrase in which the word “owed” appears—“owed or due . . . another”—serves to underscore the point. Petitioners acknowledge that the word “due” describes a debt currently due at the time of collection and not a debt that was due only in some previous period. Brief for Petitioners 26–28. So to rule for them we would have to suppose Congress set two words cheek by jowl in the same phrase but meant them to speak to entirely different periods of time. All without leaving any clue. We would have to read the phrase not as referring to “debts that are owed or due another” but as describing “debts that were owed or are due another.” And supposing such a surreptitious subphrasal shift in time seems to us a bit much. Neither are we alone in that assessment, for even petitioners acknowledge that theirs “may not be the most natural interpretation of the phrase standing in isolation.” Id., at 26–27. Given that, you might wonder whether extending our gaze from the narrow statutory provision at issue to take in the larger statutory landscape might offer petitioners a better perspective. But it does not. Looking to other neighboring provisions in the Act, it quickly comes clear that Congress routinely used the word “owed” to refer to present (not past) debt relationships. For example, in one nearby subsection, Congress defined a creditor as someone “to whom a debt is owed.” 15 U. S. C. §1692a(4). In another subsection, too, Congress required a debt collector to identify “the creditor to whom the debt is owed.” §1692g(a)(2). Yet petitioners offer us no persuasive reason why the word “owed” should bear a different meaning here, in the subsection before us, or why we should abandon our usual presumption that “identical words used in different parts of the same statute” carry “the same meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005) . Still other contextual clues add to petitioners’ problems. While they suggest that the statutory definition before us implicitly distinguishes between loan originators and debt purchasers, a pass through the statute shows that when Congress wished to distinguish between originators and purchasers it left little doubt in the matter. In the very definitional section where we now find ourselves working, Congress expressly differentiated between a person “who offers” credit (the originator) and a person “to whom a debt is owed” (the present debt owner). §1692a(4). Elsewhere, Congress recognized the distinction between a debt “originated by” the collector and a debt “owed or due” another. §1692a(6)(F)(ii). And elsewhere still, Congress drew a line between the “original” and “current” creditor. §1692g(a)(5). Yet no similar distinction can be found in the language now before us. To the contrary, the statutory text at issue speaks not at all about originators and current debt owners but only about whether the defendant seeks to collect on behalf of itself or “another.” And, usually at least, when we’re engaged in the business of interpreting statutes we presume differences in language like this convey differences in meaning. See, e.g., Loughrin v. United States, 573 U. S. ___, ___ (2014). Even what may be petitioners’ best piece of contextual evidence ultimately proves unhelpful to their cause. Petitioners point out that the Act exempts from the definition of “debt collector” certain individuals who have “obtained” particular kinds of debt—for example, debts not yet in default or debts connected to secured commercial credit transactions. §§1692a(6)(F)(iii) and (F)(iv). And because these exemptions contemplate the possibility that someone might “obtain” a debt “owed or due . . . another,” petitioners submit, the word “owed” must refer only to a previous owner. Ibid. This conclusion, they say, necessarily follows because, once you have “obtained” a debt, that same debt just cannot be currently “owed or due” another. This last and quite essential premise of the argument, however, misses its mark. As a matter of ordinary English, the word “obtained” can (and often does) refer to taking possession of a piece of property without also taking ownership—so, for example, you might obtain a rental car or a hotel room or an apartment. See, e.g., 10 Oxford English Dictionary 669 (2d ed. 1989) (defining “obtain” to mean, among other things, “[t]o come into the possession or enjoyment of (something) by one’s own effort or by request”); Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519 –533 (2013) (distinguishing between ownership and obtaining possession). And it’s easy enough to see how you might also come to possess (obtain) a debt without taking ownership of it. You might, for example, take possession of a debt for servicing and collection even while the debt formally remains owed another. Or as a secured party you might take possession of a debt as collateral, again without taking full ownership of it. See, e.g., U. C. C. §9–207, 3 U. L. A. 197 (2010). So it simply isn’t the case that the statute’s exclusions imply that the phrase “owed . . . another” must refer to debts previously owed to another. By this point petitioners find themselves in retreat. Unable to show that debt purchasers regularly collecting for their own account always qualify as debt collectors, they now suggest that purchasers sometimes qualify as debt collectors. On their view, debt purchasers surely qualify as collectors at least when they regularly purchase and seek to collect defaulted debts—just as Santander allegedly did here. In support of this narrower and more particular understanding of the Act, petitioners point again to the fact that the statute excludes from the definition of “debt collector” certain persons who obtain debts before default. 15 U. S. C. §1692a(6)(F)(iii). This exclusion, petitioners now suggest, implies that the term “debt collector” must embrace those who regularly seek to collect debts obtained after default. Others aligned with petitioners also suggest that the Act treats everyone who attempts to collect a debt as either a “debt collector” or a “creditor,” but not both. And because the statutory definition of the term “creditor” excludes those who seek to collect a debt obtained “in default,” §1692a(4), they contend it again follows as a matter of necessary inference that these persons must qualify as debt collectors. But these alternative lines of inferential argument bear their own problems. For while the statute surely excludes from the debt collector definition certain persons who acquire a debt before default, it doesn’t necessarily follow that the definition must include anyone who regularly collects debts acquired after default. After all and again, under the definition at issue before us you have to attempt to collect debts owed another before you can ever qualify as a debt collector. And petitioners’ argument simply does not fully confront this plain and implacable textual prerequisite. Likewise, even spotting (without granting) the premise that a person cannot be both a creditor and a debt collector with respect to a particular debt, we don’t see why a defaulted debt purchaser like Santander couldn’t qualify as a creditor. For while the creditor definition excludes persons who “receive an assignment or transfer of a debt in default,” it does so only (and yet again) when the debt is assigned or transferred “solely for the purpose of facilitating collection of such debt for another.” Ibid. (emphasis added). So a company collecting purchased defaulted debt for its own account—like Santander—would hardly seem to be barred from qualifying as a creditor under the statute’s plain terms. Faced with so many obstacles in the text and structure of the Act, petitioners ask us to move quickly on to policy. Indeed, from the beginning that is the field on which they seem most eager to pitch battle. Petitioners assert that Congress passed the Act in large measure to add new incentives for independent debt collectors to treat consumers well. In their view, Congress excluded loan originators from the Act’s demands because it thought they already faced sufficient economic and legal incentives to good behavior. But, on petitioners’ account, Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt. That’s because, petitioners tell us, the “advent” of the market for defaulted debt represents “ ‘one of the most significant changes’ ” to the debt market generally since the Act’s passage in 1977. Brief for Petitioners 8 (quoting Consumer Financial Protection Bureau, Fair Debt Collection Practices Act: CFPB Annual Report 2014, p. 7 (2014)). Had Congress known this new industry would blossom, they say, it surely would have judged defaulted debt purchasers more like (and in need of the same special rules as) independent debt collectors. Indeed, petitioners contend that no other result would be consistent with the overarching congressional goal of deterring untoward debt collection practices. All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original). Even taken on its own terms, too, the speculation petitioners urge upon us is far from unassailable. After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan originators than independent debt collection agencies? About whether other existing incentives (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? Couldn’t a reasonable legislator endorsing the Act as written wonder whether a large financial institution like Santander is any more or less likely to engage in abusive conduct than another large financial institution like CitiFinancial Auto? Especially where (as here) the institution says that its primary business is loan origination and not the purchase of defaulted debt? We do not profess sure answers to any of these questions, but observe only that the parties and their amici manage to present many and colorable arguments both ways on them all, a fact that suggests to us for certain but one thing: that these are matters for Congress, not this Court, to resolve. In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives. 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 HENSON et al. v. SANTANDER CONSUMER USA INC. certiorari to the united states court of appeals for the fourth circuit No. 16–349. Argued April 18, 2017—Decided June 12, 2017 The Fair Debt Collection Practices Act authorizes private lawsuits and weighty fines designed to deter the wayward practices of “debt collector[s],” a term embracing anyone who “regularly collects or attempts to collect . . . debts owed or due . . . another.” 15 U. S. C. §1692a(6). The complaint filed in this case alleges that CitiFinancial Auto loaned money to petitioners seeking to buy cars; that petitioners defaulted on those loans; and that respondent Santander then purchased the defaulted loans from CitiFinancial and sought to collect in ways petitioners believe violated the Act. The district court and Fourth Circuit held that Santander didn’t qualify as a debt collector because it did not regularly seek to collect debts “owed . . . another” but sought instead only to collect debts that it purchased and owned. Held: A company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition in dispute. By defining debt collectors to include those who regularly seek to collect debts “owed . . . another,” the statute’s plain language seems to focus on third party collection agents regularly collecting for a debt owner—not on a debt owner seeking to collect debts for itself. Petitioners’ arguments to the contrary do not dislodge the statute’s plain meaning. Petitioners point out that the word “owed” is the past participle of the verb “to owe,” and so suggest that the debt collector definition must exclude loan originators (who never seek to collect debts previously owed someone else) but embrace debt purchasers like Santander (who necessarily do). But past participles like “owed” are routinely used as adjectives to describe the present state of a thing. Congress also used the word “owed” to refer to present debt relationships in neighboring provisions of the Act, and petitioners have not rebutted the presumption that identical words in the same statute carry the same meaning. Neither would reading the word “owed” to refer to present debt relationships render any of the Act’s provisions surplusage, contrary to what petitioners suggest. Petitioners also contend that their interpretation best furthers the Act’s perceived purposes because, they primarily argue, if Congress had been aware of defaulted debt purchasers like Santander it would have treated them like traditional debt collectors because they pose similar risks of abusive collection practices. But it is not this Court’s job to rewrite a constitutionally valid text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. And neither are petitioners’ policy arguments unassailable, as reasonable legislators might contend both ways on the question of how defaulted debt purchasers should be treated. This fact suggests for certain but one thing: that these are matters for Congress, not this Court, to resolve. . 817 F. 3d 131, affirmed. Gorsuch, J., delivered the opinion for a unanimous Court.

The Fair Debt Collection Practices Act (Act) authorizes private lawsuits and weighty fines designed to deter wayward collection practices. But the question whether third-party debt collection agents generally qualify as a debt collector under the relevant statutory language, while loan originators acting on their own account aim only to collect debts owed to themselves, remains to be determined. The District Court and Fourth Circuit ultimately sided with Santander, holding that the company didn't qualify because it didn't regularly seek to collect for its own account debts that it had purchased, but instead sought instead to collect debt that it purchased and owned. The Court of Appeals affirmed. Held: The Act does not treat the debt purchaser more like the repo man or the loan originator.. (a) In deciding whether Santander's conduct falls within the Act's ambit, it should be looked to statutory language defining the term to embrace anyone who regularly collects or attempts to collect. debts owed or due... another. All that remains in dispute is how to classify individuals and entities like Santander who regularly purchase debts originated by someone else and then seek to collect those debts for their own accounts. P.. (b) Santander is not entitled to the same presumption as other debt purchasers who, in collecting debts before default, may collect them for themselves. While the Act exempts from its definition of debt collectors certain individuals who haveobtained particular kinds of debt, it does so only (and yet again) when the debt is assigned or transferredsolely for the purpose of facilitating collection of such debt for another, and thus cannot be currently said to refer to debts previously owed to another. Pp. 467 U.S. 709-711. (c) There is quite a lot of speculation in the Act, and it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone's account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334. Moreover, it is quite mistaken to assume, as petitioners would have us, that whatever might appear to further the statute's primary objective must be the law. . 817 F. 3d 131, 137-138, affirmed.

2016_16-142

https://www.oyez.org/cases/2016/16-142

. A federal statute— 21 U. S. C. §853—mandates forfeit-ure of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes. This case concerns how §853 operates when two or more defendants act as part of a conspiracy. Specifically, the issue is whether, under §853, a defendant may be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. The Court holds that such liability is inconsistent with the statute’s text and structure. I Terry Michael Honeycutt managed sales and inventory for a Tennessee hardware store owned by his brother, Tony Honeycutt. After observing several “ ‘edgy looking folks’ ” purchasing an iodine-based water-purification product known as Polar Pure, Terry Honeycutt contacted the Chattanooga Police Department to inquire whether the iodine crystals in the product could be used to manufacture methamphetamine. App. to Pet. for Cert. 2a. An officer confirmed that individuals were using Polar Pure for this purpose and advised Honeycutt to cease selling it if the sales made Honeycutt “ ‘uncomfortable.’ ” Ibid. Notwithstanding the officer’s advice, the store continued to sell large quantities of Polar Pure. Although each bottle of Polar Pure contained enough iodine to purify 500 gallons of water, and despite the fact that most people have no legitimate use for the product in large quantities, the brothers sold as many as 12 bottles in a single transaction to a single customer. Over a 3-year period, the store grossed roughly $400,000 from the sale of more than 20,000 bottles of Polar Pure. Unsurprisingly, these sales prompted an investigation by the federal Drug Enforcement Administration along with state and local law enforcement. Authorities exe-cuted a search warrant at the store in November 2010 and seized its entire inventory of Polar Pure—more than 300 bottles. A federal grand jury indicted the Honeycutt brothers for various federal crimes relating to their sale of iodine while knowing or having reason to believe it would be used to manufacture methamphetamine. Pursuant to the Comprehensive Forfeiture Act of 1984, §303, 98Stat. 2045, 21 U. S. C. §853(a)(1), which mandates forfeiture of “any proceeds the person obtained, directly or indirectly, as the result of” drug distribution, the Government sought forfeiture money judgments against each brother in the amount of $269,751.98, which represented the hardware store’s profits from the sale of Polar Pure. Tony Honeycutt pleaded guilty and agreed to forfeit $200,000. Terry went to trial. A jury acquitted Terry Honeycutt of 3 charges but found him guilty of the remaining 11, including conspiring to and knowingly distributing iodine in violation of §§841(c)(2), 843(a)(6), and 846. The District Court sentenced Terry Honeycutt to 60 months in prison. Despite conceding that Terry had no “controlling interest in the store” and “did not stand to benefit personally,” the Government insisted that the District Court “hold [him] jointly liable for the profit from the illegal sales.” App. to Pet. for Cert. 60a–61a. The Government thus sought a money judgment of $69,751.98, the amount of the conspiracy profits outstanding after Tony Honeycutt’s forfeiture payment. The District Court declined to enter a forfeiture judgment, reasoning that Honeycutt was a salaried employee who had not person-ally received any profits from the iodine sales. The Court of Appeals for the Sixth Circuit reversed. As co-conspirators, the court held, the brothers are “ ‘jointly and severally liable for any proceeds of the conspiracy.’ ” 816 F. 3d 362, 380 (2016). The court therefore concluded that each brother bore full responsibility for the entire forfeiture judgment. Ibid. The Court granted certiorari to resolve disagreement among the Courts of Appeals regarding whether joint and several liability applies under §853.[1] 580 U. S. ___ (2016). II Criminal forfeiture statutes empower the Government to confiscate property derived from or used to facilitate criminal activity. Such statutes serve important governmental interests such as “separating a criminal from his ill-gotten gains,” “returning property, in full, to those wrongfully deprived or defrauded of it,” and “lessen[ing] the economic power” of criminal enterprises. Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 –630 (1989). The statute at issue here—§853—mandates forfeiture with respect to persons convicted of certain serious drug crimes. The question presented is whether §853 embraces joint and several liability for forfeiture judgments. A creature of tort law, joint and several liability “applies when there has been a judgment against multiple defendants.” McDermott, Inc. v. AmClyde, 511 U. S. 202 –221 (1994). If two or more defendants jointly cause harm, each defendant is held liable for the entire amount of the harm; provided, however, that the plaintiff recover only once for the full amount. See Restatement (Second) of Torts §875 (1977). Application of that principle in the forfeiture context when two or more defendants conspire to violate the law would require that each defendant be held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator. An example is instructive. Suppose a farmer masterminds a scheme to grow, harvest, and distribute mari-juana on local college campuses. The mastermind recruits a college student to deliver packages and pays the student $300 each month from the distribution proceeds for his services. In one year, the mastermind earns $3 million. The student, meanwhile, earns $3,600. If joint and sev-eral liability applied, the student would face a forfeiture judgment for the entire amount of the conspiracy’s proceeds: $3 million. The student would be bound by that judgment even though he never personally acquired any proceeds beyond the $3,600. This case requires determination whether this form of liability is permitted under §853(a)(1). The Court holds that it is not. A Forfeiture under §853 applies to “any person” convicted of certain serious drug crimes. Section 853(a) limits the statute’s reach by defining the property subject to forfeit-ure in three separate provisions. An understanding of how these three provisions work to limit the operation of the statute is helpful to resolving the question in this case. First, the provision at issue here, §853(a)(1), limits forfeit-ure to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” the crime. Second, §853(a)(2) restricts forfeiture to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of,” the crime. Finally, §853(a)(3) applies to persons “convicted of engaging in a continuing criminal enterprise”—a form of conspiracy—and requires forfeiture of “property described in paragraph (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.” These provisions, by their terms, limit forfeiture under §853 to tainted property; that is, property flowing from (§853(a)(1)), or used in (§853(a)(2)), the crime itself. The limitations of §853(a) thus provide the first clue that the statute does not countenance joint and several liability, which, by its nature, would require forfeiture of untainted property. Recall, for example, the college student from the earlier hypothetical. The $3,600 he received for his part in the marijuana distribution scheme clearly falls within §853(a)(1): It is property he “obtained . . . as the result of” the crime. But if he were held jointly and severally liable for the proceeds of the entire conspiracy, he would owe the Government $3 million. Of the $3 million, $2,996,400 would have no connection whatsoever to the student’s participation in the crime and would have to be paid from the student’s untainted assets. Joint and several liability would thus represent a departure from §853(a)’s restriction of forfeiture to tainted property. In addition to limiting forfeiture to tainted property, §853(a) defines forfeitable property solely in terms of personal possession or use. This is most clear in the specific text of §853(a)(1)—the provision under which the Government sought forfeiture in this case. Section 853(a)(1) limits forfeiture to property the defendant “obtained . . . as the result of” the crime. At the time Congress enacted §853(a)(1), the verb “obtain” was defined as “to come into possession of” or to “get or acquire.” Random House Dictionary of the English Language 995 (1966); see also 7 Oxford English Dictionary 37 (1933) (defining “obtain” as “[t]o come into the possession or enjoyment of (something) by one’s own effort, or by request; to procure or gain, as the result of purpose and effort”). That definition persists today. See Black’s Law Dictionary 1247 (10th ed. 2014) (defining “obtain” as “[t]o bring into one’s own possession; to procure, esp. through effort”); cf. Sekhar v. United States, 570 U. S. ___, ___–___ (2013) (slip op., at 4–5) (“Obtaining property requires ‘. . . the acquisition of property’ ”). Neither the dictionary definition nor the common usage of the word “obtain” supports the conclusion that an individual “obtains” property that was acquired by someone else. Yet joint and several liability would mean just that: The college student would be presumed to have “obtained” the $3 million that the mastermind acquired. Section 853(a)(1) further provides that the forfeitable property may be “obtained, directly or indirectly.” The adverbs “directly” and “indirectly” modify—but do not erase—the verb “obtain.” In other words, these adverbs refer to how a defendant obtains the property; they do not negate the requirement that he obtain it at all. For instance, the marijuana mastermind might receive payments directly from drug purchasers, or he might arrange to have drug purchasers pay an intermediary such as the college student. In all instances, he ultimately “obtains” the property—whether “directly or indirectly.” The other provisions of §853(a) are in accord with the limitation of forfeiture to property the defendant himself obtained. Section 853(a)(2) mandates forfeiture of prop-erty used to facilitate the crime but limits forfeiture to “the person’s property.” Similarly, §853(a)(3) requires forfeit-ure of property related to continuing criminal enterprises, but contrary to joint and several liability principles, requires the defendant to forfeit only “his interest in” the enterprise. Section 853(a)’s limitation of forfeiture to tainted property acquired or used by the defendant, together with the plain text of §853(a)(1), foreclose joint and several liability for co-conspirators. B Joint and several liability is not only contrary to §853(a), it is—for the same reasons—contrary to several other provisions of §853. Two provisions expressly incorporate the §853(a) limitations. First, §853(c) provides that “[a]ll right, title, and interest in property described in subsection (a)”—e.g., tainted property obtained as the result of or used to facilitate the crime—“vests in the United States upon the commission of the act giving rise to forfeiture.” Consistent with its text, the Court has previously acknowledged that §853(c) applies to tainted property only. See Luis v. United States, 578 U. S. ___, ___ (2016) (slip op., at 8). Second, §853(e)(1) authorizes pretrial freezes “to preserve the availability of property described in subsection (a) . . . for forfeiture.” Pretrial restraints on forfeitable property are permitted only when the Government proves, at a hearing, that (1) the defendant has committed an offense triggering forfeiture, and (2) “the property at issue has the requisite connection to that crime.” Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 3); see alsoid., at ___, n. 11 (slip op., at 15, n. 11) (“[F]orfeiture applies only to specific assets”). Another provision, §853(d), does not reference subsection (a) but incorporates its requirements on its own terms. Section 835(d) establishes a “rebuttable presumption” that property is subject to forfeiture only if the Government proves that “such property was acquired by [the defendant] during the period of the violation” and that “there was no likely source for such property other than” the crime. Contrary to all of these provisions, joint and several liability would mandate forfeiture of untainted property that the defendant did not acquire as a result of the crime. It would also render futile one other provision of the statute. Section 853(p)—the sole provision of §853 that permits the Government to confiscate property untainted by the crime—lays to rest any doubt that the statute permits joint and several liability. That provision governs forfeiture of “substitute property” and applies “if any property described in subsection (a), as a result of any act or omission of the defendant” either: “(A) cannot be located upon the exercise of duediligence; “(B) has been transferred or sold to, or deposited with, a third party; “(C) has been placed beyond the jurisdiction of the court; “(D) has been substantially diminished in value; or “(E) has been commingled with other property which cannot be divided without difficulty.” §853(p)(1). Only if the Government can prove that one of these five conditions was caused by the defendant may it seize “any other property of the defendant, up to the value of” the tainted property—rather than the tainted property itself. §853(p)(2). This provision begins from the premise that the defendant once possessed tainted property as “described in subsection (a),” and provides a means for the Government to recoup the value of the property if it has been dissipated or otherwise disposed of by “any act or omission of the defendant.” §853(p)(1). Section 853(p)(1) demonstrates that Congress contemplated situations where the tainted property itself would fall outside the Government’s reach. To remedy that situation, Congress did not authorize the Government to confiscate substitute property from other defendants or co-conspirators; it authorized the Government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation. Permitting the Government to force other co-conspirators to turn over untainted substitute property would allow the Government to circumvent Congress’ carefully constructed statutory scheme, which permits forfeiture of substitute property only when the requirements of §§853(p) and (a) are satisfied. There is no basis to read such an end run into the statute. III Against all of this, the Government asserts the “bedrock principle of conspiracy liability” under which “conspirators are legally responsible for each other’s foreseeable actions in furtherance of their common plan.” Brief for United States 9; see also Pinkerton v. United States, 328 U. S. 640 (1946) . Congress, according to the Government, must be presumed to have legislated against the background principles of conspiracy liability, and thus, “when the traceable proceeds of a conspiracy are unavailable, [§]853 renders conspirators jointly and severally liable for the amount of the proceeds foreseeably obtained by the conspiracy.” Brief for United States 10. Not so. The plain text and structure of §853 leave no doubt that Congress did not incorporate those background principles. Congress provided just one way for the Government to recoup substitute property when the tainted property itself is unavailable—the procedures outlined in §853(p). And, for all the Government makes of the background principles of conspiracy liability, it fails to fully engage with the most important background principles underlying §853: those of forfeiture. Traditionally, forfeiture was an action against the tainted property itself and thus proceeded in rem; that is,proceedings in which “[t]he thing [was] primarily considered as the offender, or rather the offence [was] attached primarily to the thing.” The Palmyra, 12 Wheat. 1, 14 (1827). The forfeiture “proceeding in rem st[ood] independent of, and wholly unaffected by any criminal proceeding in personam” against the defendant. Id., at 15. Congress altered this distinction in enacting §853 by effectively merging the in rem forfeiture proceeding with the in personam criminal proceeding and by expanding forfeiture to include not just the “thing” but “property . . . derived from . . . any proceeds” of the crime. §853(a)(1). But as is clear from its text and structure, §853 maintains traditional in rem forfeiture’s focus on tainted property unless one of the preconditions of §853(p) exists. For those who find it relevant, the legislative history confirms as much: Congress altered the traditional system in order to “improv[e] the procedures applicable in forfeiture cases.” S. Rep. No. 98–225, p. 192 (1983). By adopting an in personam aspect to criminal forfeiture, and providing for substitute-asset forfeiture, Congress made it easier for the Government to hold the defendant who acquired the tainted property responsible. Congress did not, however, enact any “significant expansion of the scope of property subject to forfeiture.” Ibid.[2] IV Forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime. In this case, the Government has conceded that Terry Honeycutt had no ownership interest in his brother’s store and did not personally benefit from the Polar Pure sales. App. to Pet. for Cert. 60a. The District Court agreed. Id., at 40a. Because Honeycutt never obtained tainted property as a result of the crime, §853 does not require any forfeiture. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 Compare United States v. Van Nguyen, 602 F. 3d 886, 904 (CA8 2010) (applying joint and several liability to forfeiture under §853); United States v. Pitt, 193 F. 3d 751, 765 (CA3 1999) (same); United States v. McHan, 101 F. 3d 1027 (CA4 1996) (same); and United States v. Benevento, 836 F. 2d 129, 130 (CA2 1988) (per curiam) (same), with United States v. Cano-Flores, 796 F. 3d 83, 91 (CADC 2015) (declining to apply joint and several liability under §853). 2 Section 853(o) directs that “the provisions of [§853] shall be liberally construed to effectuate its remedial purposes.” The Government points to this as license to read joint and several liability into the statute. But the Court cannot construe a statute in a way that negates its plain text, and here, Congress expressly limited forfeiture to tainted property that the defendant obtained. As explained above, that limitation is incompatible with joint and several liability.

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 HONEYCUTT v. UNITED STATES certiorari to the united states court of appeals for the sixth circuit No. 16–142. Argued March 29, 2017—Decided June 5, 2017 Terry Honeycutt managed sales and inventory for a Tennessee hardware store owned by his brother, Tony Honeycutt. After they were indicted for federal drug crimes including conspiracy to distribute a product used in methamphetamine production, the Government sought judgments against each brother in the amount of $269,751.98 pursuant to the Comprehensive Forfeiture Act of 1984, which mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes, 21 U. S. C. §853(a)(1). Tony pleaded guilty and agreed to forfeit $200,000. Terry went to trial and was convicted. Despite conceding that Terry had no controlling interest in the store and did not stand to benefit personally from the sales of the product, the Government asked the District Court to hold him jointly and severally liable for the profits from the illegal sales and sought a judgment of $69,751.98, the outstanding conspiracy profits. The District Court declined to enter a forfeiture judgment against Terry, reasoning that he was a salaried employee who had not received any profits from the sales. The Sixth Circuit reversed, holding that the brothers, as co-conspirators, were jointly and severally liable for any conspiracy proceeds. Held: Because forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime, that provision does not permit forfeiture with regard to Terry Honeycutt, who had no ownership interest in his brother’s store and did not personally benefit from the illegal sales. . (a) Section 853(a) limits forfeiture to property flowing from, §853(a)(1), or used in, §853(a)(2), the crime itself—providing the first clue that the statute does not countenance joint and several liability, which would require forfeiture of untainted property. It also defines forfeitable property solely in terms of personal possession or use. Section 853(a)(1), the provision at issue, limits forfeiture to property the defendant “obtained, directly or indirectly, as the result of” the crime. Neither the dictionary definition nor the common usage of the word “obtain” supports the conclusion that an individual “obtains” property that was acquired by someone else. And the adverbs “directly” and “indirectly” refer to how a defendant obtains the property; they do not negate the requirement that he obtain it at all. Sections 853(a)(2) and 853(a)(3) are in accord with this reading. . (b) Joint and several liability is also contrary to several other provisions of §853. Section 853(c), which applies to property “described in subsection (a),” applies to tainted property only. See Luis v. United States, 578 U. S. ___, ___. Section §853(e)(1) permits pretrial asset freezes to preserve the availability of property forfeitable under subsection (a), provided there is probable cause to think that a defendant has committed an offense triggering forfeiture and “the property at issue has the requisite connection to that crime.” Kaley v. United States, 571 U. S. ___, ___. Section 853(d) establishes a “rebuttable presumption” that property is subject to forfeiture only if the Government proves that the defendant acquired the property “during the period of the violation” and “there was no likely source for” the property but the crime. These provisions reinforce the statute’s application to tainted property acquired by the defendant and are thus incompatible with joint and several liability. Joint and several liability would also render futile §853(p)—the sole provision of §853 that permits the Government to confiscate property untainted by the crime. . (c) The plain text and structure of §853 leave no doubt that Congress did not, as the Government claims, incorporate the principle that conspirators are legally responsible for each other’s foreseeable actions in furtherance of their common plan. See Pinkerton v. United States, 328 U. S. 640 . Congress provided just one way for the Government to recoup substitute property when the tainted property itself is unavailable—the procedures outlined in §853(p). And as is clear from its text and structure, §853 maintains traditional in rem forfeiture’s focus on tainted property unless one of §853(p)’s preconditions exists. . 816 F. 3d 362, reversed. Sotomayor, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

A federal statute (21 U.S. C. §853) limits forfeiture to "any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of" certain drug crimes. A federal grand jury indicted the Honeycutt brothers for various federal crimes relating to their sale of iodine while knowing or having reason to believe it would be used to manufacture methamphetamine. Pursuant to the statute, the Government sought forfeiture money judgments against each brother in the amount of $269,751.98, which represented the store's profits from the sale of the iodine sales. The jury acquitted each brother, but found him guilty of the remaining 11 charges, including conspiring to and knowingly distributing iodine, in violation of §§841(c)(2), 843(a)(6), and 846. The District Court granted him a 60-month prison sentence, holding him jointly and severally liable for the profit from the illegal sales. The Court of Appeals reversed, reasoning that, as co-conspirators, each brother bore full responsibility for the entire judgment. Held: The judgment is reversed. . (a) Section 853 embraces joint and several liability for forfeiture judgments. A creature of tort law, such liability applies when there has been a judgment against multiple defendants. If two or more defendants jointly cause harm, each defendant is held liable for an entire amount of the harm; provided, however, that the plaintiff recover only once for the full amount. Application of that principle in the forfeiture context would require that each defendant be held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-participator. Here, § 853(a)'s limitation of forfeiture to tainted property acquired or used by the defendant, together with the plain text of the statute (which restricts forfeiture to any property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, the crime), forecloses joint liability for co-ownership of untainted property. This limitation is incompatible with joint liability. Pp. 469 U. S. 617-629. (b) The plain text and structure of §852 leave no doubt that Congress did not incorporate the background principles of conspiracy liability into the statute. Congress provided just one way for the Government to recoup substitute property when the tainted property itself is unavailable. And, for all the Government makes of these background principles, it fails to fully engage with the most important background principles underlying the statute: those of forfeiture. Traditionally, forfeiture was an action against the tainted property itself and thus proceeded in rem; that is,proceeding in rem st[ood] independent of, and wholly unaffected by, any criminal proceeding in personam against the defendant. However, Congress altered this distinction by effectively merging the in rem forfeiture proceeding and expanding forfeiture to include not just the tainted but also the property derived from the crime. In adopting § 192, Congress made it easier for those who are responsible for adopting traditional forfeiture procedures to hold the defendant responsible for an aspect of the forfeiture process responsible for the crime actually acquired, and since the Government conceded that the defendant had no interest in the crime as a result of it. Because the District Court agreed that the respondent never obtained tainted property as result of the crime, § 853 does not require any forfeiture. 816 F. 3d 362, reversed. Justice Gorsuch took no part in the consideration or decision of this case. Reported below: (a) 816, which is vacated and remanded; (b) 823(o), which directs that the provisions of §1853(o) be liberally construed to effectuate its remedial purposes. (c) To remedy the situation where tainted tainted property would fall outside the Government's reach, Congress authorized the Government only to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation, and not from other defendants or co-conpirators. Permitting other co- conspirators to turn over untainted substitute property would allow the Government to circumvent Congress' carefully constructed statutory scheme, which permits forfeiture of substitute property only when §§853(p) and (a)(2) are satisfied. There is no basis to read such an end run into §1833(a). P.. (d) Congress expressly limited forfeiture of tainted property that the defendant obtained.

2016_15-1031

https://www.oyez.org/cases/2016/15-1031

. A federal statute provides that a State may treat as community property, and divide at divorce, a military veteran’s retirement pay. See 10 U. S. C. §1408(c)(1). The statute, however, exempts from this grant of permission any amount that the Government deducts “as a result of a waiver” that the veteran must make “in order to receive” disability benefits. §1408(a)(4)(B). We have held that a State cannot treat as community property, and divide at divorce, this portion (the waived portion) of the veteran’s retirement pay. See Mansell v. Mansell, 490 U. S. 581 –595 (1989). In this case a State treated as community property and awarded to a veteran’s spouse upon divorce a portion of the veteran’s total retirement pay. Long after the divorce, the veteran waived a share of the retirement pay in order to receive nontaxable disability benefits from the Federal Government instead. Can the State subsequently increase, pro rata, the amount the divorced spouse receives each month from the veteran’s retirement pay in order to indemnify the divorced spouse for the loss caused by the veteran’s waiver? The question is complicated, but the answer is not. Our cases and the statute make clear that the answer to the indemnification question is “no.” I A The Federal Government has long provided retirement pay to those veterans who have retired from the Armed Forces after serving, e.g., 20 years or more. It also provides disabled members of the Armed Forces with disability benefits. In order to prevent double counting, however, federal law typically insists that, to receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay. And, since retirement pay is taxable while disability benefits are not, the veteran often elects to waive retirement pay in order to receive disability benefits. See 10 U. S. C. §3911 et seq. (Army retirement benefits); §6321 et seq. (Navy and Marines retirement benefits); §8911 et seq. (Air Force retirement benefits); 38 U. S. C. §5305 (requiring a waiver to receive disability benefits); §5301(a)(1) (exempting disability benefits from taxation). See generally McCarty v. McCarty, 453 U. S. 210 –215 (1981) (describing the military’s nondisability retirement system). In 1981 we considered federal military retirement pay alone, i.e., not in the context of pay waived to receive disability benefits. The question was whether a State could consider any of a veteran’s retirement pay to be a form of community property, divisible at divorce. The Court concluded that the States could not. See McCarty, supra. We noted that the relevant legislative history referred to military retirement pay as a “ ‘personal entitlement.’ ” Id., at 224. We added that other language in the statute as well as its history made “clear that Congress intended that military retired pay ‘actually reach the beneficiary.’ ” Id., at 228. We found a “conflict between the terms of the federal retirement statutes and the [state-conferred] community property right.” Id., at 232. And we concluded that the division of military retirement pay by the States threatened to harm clear and substantial federal interests. Hence federal law pre-empted the state law. Id., at 235. In 1982 Congress responded by passing the Uniformed Services Former Spouses’ Protection Act, 10 U. S. C. §1408. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., community property divisible upon divorce. §1408(c)(1). But the new Act expressly excluded from its definition of “dispos-able retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits. §1408(a)(4)(B). (A recent amendment to the statute renumbered the waiver provision. It now appears at §1408(a)(4)(A)(ii). See Pub. L. 114–328, §641(a), 130Stat. 2164.) In 1989 we interpreted the new federal language in Mansell, 490 U. S. 581 . Major Gerald E. Mansell and his wife had divorced in California. At the time of the divorce, they entered into a “property settlement which provided, in part, that Major Mansell would pay Mrs. Mansell 50 percent of his total military retirement pay, including that portion of retirement pay waived so that Major Mansell could receive disability benefits.” Id., at 586. The divorce decree incorporated this settlement and permitted the division. Major Mansell later moved to modify the decree so that it would omit the portion of the retirement pay that he had waived. The California courts refused to do so. But this Court reversed. It held that federal law forbade California from treating the waived portion as community property divisible at divorce. Justice Thurgood Marshall, writing for the Court, pointed out that federal law, as construed in McCarty, “completely pre-empted the application of state community property law to military retirement pay.” 490 U. S., at 588. He noted that Congress could “overcome” this pre-emption “by enacting an affirmative grant of authority giving the States the power to treat military retirement pay as community property.” Ibid. He recognized that Congress, with its new Act, had done that, but only to a limited extent. The Act provided a “precise and limited” grant of the power to divide federal military retirement pay. Ibid. It did not “gran[t]” the States “the authority to treattotal retired pay as community property.” Id., at 589. Rather, Congress excluded from its grant of authority the disability-related waived portion of military retirement pay. Hence, in respect to the waived portion of retirement pay, McCarty, with its rule of federal pre-emption, still applies. Ibid. B John Howell, the petitioner, and Sandra Howell, the respondent, were divorced in 1991, while John was serving in the Air Force. Anticipating John’s eventual retirement, the divorce decree treated John’s future retirement pay as community property. It awarded Sandra “as her sole and separate property FIFTY PERCENT (50%) of [John’s] military retirement when it begins.” App. to Pet. for Cert. 41a. It also ordered John to pay child support of $585 per month and spousal maintenance of $150 per month until the time of John’s retirement. In 1992 John retired from the Air Force and began to receive military retirement pay, half of which went to Sandra. About 13 years later the Department of Veterans Affairs found that John was 20% disabled due to a service-related shoulder injury. John elected to receive disability benefits and consequently had to waive about $250 per month of the roughly $1,500 of military retirement pay he shared with Sandra. Doing so reduced the amount of retirement pay that he and Sandra received by about $125 per month each. In re Marriage of Howell, 238 Ariz. 407, 408, 361 P. 3d 936, 937 (2015) Sandra then asked the Arizona family court to enforce the original decree, in effect restoring the value of her share of John’s total retirement pay. The court held that the original divorce decree had given Sandra a “vested” interest in the prewaiver amount of that pay, and ordered John to ensure that Sandra “receive her full 50% of the military retirement without regard for the disability.” App. to Pet. for Cert. 28a. The Arizona Supreme Court affirmed the family court’s decision. See 238 Ariz. 407, 361 P. 3d 936. It asked whether the family court could “order John to indemnify Sandra for the reduction” of her share of John’s military retirement pay. Id., at 409, 361 P. 3d, at 938. It wrote that the family court order did not “divide” John’s waived military retirement pay, the order did not require John “to rescind” his waiver, nor did the order “direct him to pay any amount to Sandra from his disability pay.” Id., at 410, 361 P. 3d, at 939. Rather the family court simply ordered John to “reimburse” Sandra for “reducing . . . her share” of military retirement pay. Ibid. The high court concluded that because John had made his waiver after, rather than before, the family court divided his military retirement pay, our decision in Mansell did not control the case, and thus federal law did not preempt the family court’s reimbursement order. 238 Ariz., at 410, 361 P. 3d, at 939. Because different state courts have come to different conclusions on the matter, we granted John Howell’s petition for certiorari. Compare Glover v. Ranney, 314 P. 3d 535, 539–540 (Alaska 2013); Krapf v. Krapf, 439 Mass. 97, 106–107, 786 N. E. 2d 318, 325–326 (2003); and Johnson v. Johnson, 37 S. W. 3d 892, 897–898 (Tenn. 2001), with Mallard v. Burkhart, 95 So. 3d 1264, 1269–1272 (Miss. 2012); and Youngbluth v. Youngbluth, 2010 VT 40, 188 Vt. 53, 62–65, 6 A. 3d 677, 682–685. II This Court’s decision in Mansell determines the outcome here. In Mansell, the Court held that federal law completely pre-empts the States from treating waived military retirement pay as divisible community property. 490 U. S., at 594–595. Yet that which federal law pre-empts is just what the Arizona family court did here. App. to Pet. for Cert. 28a, 35a (finding that the divorce decree gave Sandra a “vested” interest in John’s retirement pay and ordering that Sandra receive her share “without regard for the disability”). The Arizona Supreme Court, the respondent, and the Solicitor General try to distinguish Mansell. But we do not find their efforts convincing. The Arizona Supreme Court, like several other state courts, emphasized the fact that the veteran’s waiver in Mansell took place before the divorce proceeding; the waiver here took place several years after the divorce proceedings. See 238 Ariz., at 410, 361 P. 3d, at 939; see also Abernethy v. Fishkin, 699 So. 2d 235, 240 (Fla. 1997) (noting that a veteran had not yet waived retirement pay at the time of the divorce and permitting indemnification in light of the parties’ “intent to maintain level monthly payments pursuant to their property settlement agreement”). Hence here, as the Solicitor General emphasizes, the nonmilitary spouse and the family court were likely to have assumed that a full share of the veteran’s retirement pay would remain available after the assets were distributed. Nonetheless, the temporal difference highlights only that John’s military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled). The state court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency. The existence of that contingency meant that the value of Sandra’s share of military retirement pay was possibly worth less—perhaps less than Sandra and others thought—at the time of the divorce. So too is an ownership interest in property (say, A’s property interest in Blackacre) worth less if it is subject to defeasance or termination upon the occurrence of a later event (say, B’s death). See generally Restatement (Third) of Property §24.3 (2010) (describing property interests that are defeasible); id., §25.3, and Comment a (describing contingent future interests subject to divestment). We see nothing in this circumstance that makes the reimbursement award to Sandra any the less an award of the portion of military retirement pay that John waived in order to obtain disability benefits. And that is the portion that Congress omitted from the Act’s definition of “disposable retired pay,” namely, the portion that federal law prohibits state courts from awarding to a divorced veteran’s former spouse. Mansell, supra, at 589. That the Arizona courts referred to Sandra’s interest in the waiv-able portion as having “vested” does not help. Statecourts cannot “vest” that which (under governing federal law) they lack the authority to give. Cf. 38 U. S. C. §5301(a)(1) (providing that disability benefits are gener-ally nonassignable). Accordingly, while the divorce decree might be said to “vest” Sandra with an immediate right to half of John’s military retirement pay, that interest is, at most, contingent, depending for its amount on a subsequent condition: John’s possible waiver of that pay. Neither can the State avoid Mansell by describing the family court order as an order requiring John to “reimburse” or to “indemnify” Sandra, rather than an order that divides property. The difference is semantic and nothing more. The principal reason the state courts have given for ordering reimbursement or indemnification is that they wish to restore the amount previously awarded as community property, i.e., to restore that portion of retirement pay lost due to the postdivorce waiver. And we note that here, the amount of indemnification mirrors the waived retirement pay, dollar for dollar. Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. All such orders are thus pre-empted. The basic reasons McCarty gave for believing that Congress intended to exempt military retirement pay from state community property laws apply a fortiori to disability pay. See 453 U. S., at 232–235 (describing the federal interests in attracting and retaining military personnel). And those reasons apply with equal force to a veteran’s postdivorce waiver to receive disability benefits to which he or she has become entitled. We recognize, as we recognized in Mansell, the hardship that congressional pre-emption can sometimes work on divorcing spouses. See 490 U. S., at 594. But we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See Rose v. Rose, 481 U. S. 619 –634, and n. 6 (1987); 10 U. S. C. §1408(e)(6). We need not and do not decide these matters, for here the state courts made clear that the original divorce decree divided the whole of John’s military retirement pay, and their decisions rested entirely upon the need to restore Sandra’s lost portion. Consequently, the determination of the Supreme Court of Arizona must be reversed. See Mansell, supra, at 594. III The judgment of the Supreme Court of Arizona is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch 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 HOWELL v. HOWELL certiorari to the supreme court of arizona No. 15–1031. Argued March 20, 2017—Decided May 15, 2017 The Uniformed Services Former Spouses’ Protection Act authorizes States to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U. S. C. §1408, but expressly excludes from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits, §1408(a)(4)(B). The divorce decree of petitioner John Howell and respondent Sandra Howell awarded Sandra 50% of John’s future Air Force retirement pay, which she began to receive when John retired the following year. About 13 years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, federal law required John to give up an equivalent amount of retirement pay. 38 U. S. C. §5305. By his election, John waived about $250 of his retirement pay, which also reduced the value of Sandra’s 50% share. Sandra petitioned the Arizona family court to enforce the original divorce decree and restore the value of her share of John’s total retirement pay. The court held that the original divorce decree had given Sandra a vested interest in the prewaiver amount of John’s retirement pay and ordered John to ensure that she receive her full 50% without regard for the disability waiver. The Arizona Supreme Court affirmed, holding that federal law did not pre-empt the family court’s order. Held: A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This Court’s decision in Mansell v. Mansell, 490 U. S. 581 , determines the outcome here. There, the Court held that federal law completely pre-empts the States from treating waived military retirement pay as divisible community property. Id., at 594–595. The Arizona Supreme Court attempted to distinguish Mansell by emphasizing the fact that the veteran’s waiver in that case took place before the divorce proceeding while the waiver here took place several years after the divorce. This temporal difference highlights only that John’s military pay at the time it came to Sandra was subject to a future contingency, meaning that the value of Sandra’s share of military retirement pay was possibly worth less at the time of the divorce. Nothing in this circumstance makes the Arizona courts’ reimbursement award to Sandra any the less an award of the portion of military pay that John waived in order to obtain disability benefits. That the Arizona courts referred to her interest in the waivable portion as having “vested” does not help: State courts cannot “vest” that which they lack the authority to give. Neither can the State avoid Mansell by describing the family court order as an order requiring John to “reimburse” or to “indemnify” Sandra, rather than an order dividing property, a semantic difference and nothing more. Regardless of their form, such orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. Family courts remain free to take account of the contingency that some military retirement pay might be waived or take account of reductions in value when calculating or recalculating the need for spousal support. Here, however, the state courts made clear that the original divorce decree divided the whole of John’s military pay, and their decisions rested entirely upon the need to restore Sandra’s lost portion. . 238 Ariz. 407, 361 P. 3d 936, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.

A federal statute provides that a State may treat as community property, and divide at divorce, a military veteran's retirement pay. However, the statute exempts from this grant of permission any amount that the Government deducts "as a result of a waiver" that the veteran must make "in order to receive" disability benefits. 10 U.S. C. §1408(c)(1). In 1982, Congress passed the Uniformed Services Former Spouses' Protection Act (Act), which, however, expressly excluded from its definition of veterans' "disposable retired pay" amounts deducted from that pay as a form of community property divisible upon divorce. The Act also provided that, in order to prevent double counting, a State could treat any of a veteran's retired pay as divisible property. Petitioner and respondent were divorced in 1991, while respondent was serving in the Air Force. Anticipating respondent's eventual retirement, the divorce decree treated respondent's future retirement pay, and ordered respondent to pay child support and spousal maintenance of $150 per month until the time of respondent's retirement. In re Marriage of Howell, 238 Ariz. 407, 408, 361 P. 3d 936, respondent asked the Arizona family court to enforce the original decree, in effect restoring the value of respondent and ordering respondent to ensure that respondent received her full 50% of respondent pay. The family court affirmed, but the Arizona Supreme Court reversed, holding that federal law pre-empted the application of state community property law to the waived portion of retired military pay. Held: The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Mansell v. Mansell, 490 U. S. 581-595. . (a) In view of the temporal difference between the time it came to respondent and respondent that respondent had waived his share of respondent military retirement pay and that respondent was 20% disabled due to a service-related shoulder injury, and respondent elected to receive disability benefits and had to waive about $250 per month of the roughly $1,500 of retired pay he shared with respondent, thus reducing the amount of retirement pay that he and Sandra received by about $125 per month each, respondent could not consider any of respondent, i.e., any of the veteran, pay. Although the relevant legislative history referred to respondent, as a personal entitlement, as well as its history made clear that Congress intended military retired pay to reach the beneficiary, the court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency, and thus was likely to have assumed that a full share would remain available after the assets were distributed. Nor can respondent be said to have acquired an immediate right to respondent's share, since that portion is the portion that Congress omitted from the Act's definition of disability pay, which, under governing federal law, prohibits state courts from awarding to a divorced veteran's former spouse. Moreover, the Arizona courts did not refer to respondent in the waiv-able portion as havingvested. Respondent cannot be avoided by describing the family court order as an order requiring respondent to repay, or to indemnify Sandra, for her possible waiver of that pay, since the state courts have given nothing more than an order to restore respondent and indemnify respondent. Regardless of the reason that they wish to restore the portion of respondent that they have previously awarded to respondent that is given, they have given no reason to order respondent to restore that portion, and nothing in the state court order divides the amount that respondent has previously awarded. Pp. 489. Reversed and remanded. MR. JUSTICE MARSHALL, concurring in the judgment, concluded in part and dissenting in part, that the original divorce decree divided the whole of respondent respondent's military retire pay and their decisions rested entirely upon the need to restore his lost portion. Held: 1. The original decree did not completely preempt federal law preempting the States from treating waived military retiree pay. Because federal law completely preempts the States, it preempts the state provision of the Act. However, federal law is a preemption, and a pre-emption preemption. A State cannot, in the absence of a federal law exception, treat a waived portion (the waived portion) of a veterans' retirement pay divisible community property.. 2. This Court need not decide these matters, for here the Arizona state courts made clear, in their decisions in Mansell and in the State Supreme Court, that it divided respondent, and their decision in the first place, respondent, respondent and the Arizona Solicitor General, their decisions, and in this case rested entirely on the need in the second instance to restore Sandra. Consequently, the determination of the Supreme Court of Arizona must be reversed. See Mansell supra, at 594.

2016_15-1189

https://www.oyez.org/cases/2016/15-1189

. A United States patent entitles the patent holder (the “patentee”), for a period of 20 years, to “exclude others from making, using, offering for sale, or selling [its] invention throughout the United States or importing the invention into the United States.” 35 U. S. C. §154(a). Whoever engages in one of these acts “without authority” from the patentee may face liability for patent infringement. §271(a). When a patentee sells one of its products, however, the patentee can no longer control that item through the patent laws—its patent rights are said to “exhaust.” The purchaser and all subsequent owners are free to use or resell the product just like any other item of personal property, without fear of an infringement lawsuit. This case presents two questions about the scope of the patent exhaustion doctrine: First, whether a patentee that sells an item under an express restriction on the purchaser’s right to reuse or resell the product may enforce that restriction through an infringement lawsuit. And second, whether a patentee exhausts its patent rights by selling its product outside the United States, where American patent laws do not apply. We conclude that a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale. I The underlying dispute in this case is about laser printers—or, more specifically, the cartridges that contain the powdery substance, known as toner, that laser printers use to make an image appear on paper. Respondent Lexmark International, Inc. designs, manufactures, and sells toner cartridges to consumers in the United States and around the globe. It owns a number of patents that cover components of those cartridges and the manner in which they are used. When toner cartridges run out of toner they can be refilled and used again. This creates an opportunity for other companies—known as remanufacturers—to acquire empty Lexmark cartridges from purchasers in the United States and abroad, refill them with toner, and then resell them at a lower price than the new ones Lexmark puts on the shelves. Not blind to this business problem, Lexmark structures its sales in a way that encourages customers to return spent cartridges. It gives purchasers two options: One is to buy a toner cartridge at full price, with no strings attached. The other is to buy a cartridge at roughly 20-percent off through Lexmark’s “Return Program.” A customer who buys through the Return Program still owns the cartridge but, in exchange for the lower price, signs a contract agreeing to use it only once and to refrain from transferring the empty cartridge to anyone but Lexmark. To enforce this single-use/no-resale restriction, Lexmark installs a microchip on each Return Program cartridge that prevents reuse once the toner in the cartridge runs out. Lexmark’s strategy just spurred remanufacturers toget more creative. Many kept acquiring empty Return Program cartridges and developed methods to counteract the effect of the microchips. With that technologicalobstacle out of the way, there was little to prevent the re-manufacturers from using the Return Program cartridges in their resale business. After all, Lexmark’s contractual single-use/no-resale agreements were with the initial customers, not with downstream purchasers like the remanufacturers. Lexmark, however, was not so ready to concede that its plan had been foiled. In 2010, it sued a number of remanufacturers, including petitioner Impression Products, Inc., for patent infringement with respect to two groups of cartridges. One group consists of Return Program cartridges that Lexmark sold within the United States. Lexmark argued that, because it expressly prohibited reuse and resale of these cartridges, the remanufacturers infringed the Lexmark patents when they refurbished and resold them. The other group consists of all toner cartridges that Lexmark sold abroad and that remanufacturers imported into the country. Lexmark claimed that it never gave anyone authority to import these cartridges, so the remanufacturers ran afoul of its patent rights by doing just that. Eventually, the lawsuit was whittled down to one defendant, Impression Products, and one defense: that Lexmark’s sales, both in the United States and abroad, exhausted its patent rights in the cartridges, so Impression Products was free to refurbish and resell them, and to import them if acquired abroad. Impression Products filed separate motions to dismiss with respect to both groups of cartridges. The District Court granted the motion as to the domestic Return Program cartridges, but denied the motion as to the cartridges Lexmark sold abroad. Both parties appealed. The Federal Circuit considered the appeals en banc and ruled for Lexmark with respect to both groups of cartridges. The court began with the Return Program cartridgesthat Lexmark sold in the United States. Relying on its decision in Mallinckrodt, Inc. v. Medipart, Inc., 976 F. 2d 700 (1992), the Federal Circuit held that a patentee may sell an item and retain the right to enforce, through patent infringement lawsuits, “clearly communicated, . . . lawful restriction[s] as to post-sale use or resale.” 816 F. 3d 721, 735 (2016). The exhaustion doctrine, the court reasoned, derives from the prohibition on making, using, selling, or importing items “without authority.” Id., at 734 (quoting 35 U. S. C. §271(a)). When you purchase an item you presumptively also acquire the authority to use or resell the item freely, but that is just a presumption; the same authority does not run with the item when the seller restricts post-sale use or resale. 816 F. 3d, at 742. Because the parties agreed that Impression Products knew about Lexmark’s restrictions and that those restrictions did not violate any laws, the Federal Circuit concluded that Lexmark’s sales had not exhausted all of its patent rights, and that the company could sue for infringement when Impression Products refurbished and resold Return Program cartridges. As for the cartridges that Lexmark sold abroad, the Federal Circuit once again looked to its precedent. In Jazz Photo Corp. v. International Trade Commission, 264 F. 3d 1094 (2001), the court had held that a patentee’s decision to sell a product abroad did not terminate its ability to bring an infringement suit against a buyer that “import[ed] the article and [sold] . . . it in the United States.” 816 F. 3d, at 726–727. That rule, the court concluded, makes good sense: Exhaustion is justified when a patentee receives “the reward available from [selling in] American markets,” which does not occur when the patentee sells overseas, where the American patent offers no protection and therefore cannot bolster the price of the patentee’s goods. Id., at 760–761. As a result, Lexmark was free to exercise its patent rights to sue Impression Products for bringing the foreign-sold cartridges to market in the United States. Judge Dyk, joined by Judge Hughes, dissented. In their view, selling the Return Program cartridges in the United States exhausted Lexmark’s patent rights in those items because any “authorized sale of a patented article . . . free[s] the article from any restrictions on use or sale based on the patent laws.” Id., at 775–776. As for the foreign cartridges, the dissenters would have held that a sale abroad also results in exhaustion, unless the seller “explicitly reserve[s] [its] United States patent rights” at the time of sale. Id., at 774, 788. Because Lexmark failed to make such an express reservation, its foreign sales exhausted its patent rights. We granted certiorari to consider the Federal Circuit’s decisions with respect to both domestic and international exhaustion, 580 U. S. ___ (2016), and now reverse. II A First up are the Return Program cartridges that Lexmark sold in the United States. We conclude that Lexmark exhausted its patent rights in these cartridges the moment it sold them. The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law, but they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude. See Bloomer v. McQuewan, 14 How. 539 (1853). The limit functions automatically: When a patentee chooses to sell an item, that product “is no longer within the limits of the monopoly” and instead becomes the “private, individual property” of the purchaser, with the rights and benefits that come along with ownership. Id., at 549–550. A patentee is free to set the price and negotiate contracts with purchasers, but may not, “by virtue of his patent, control the use or disposition” of the product after ownership passes to the purchaser. United States v. Univis Lens Co., 316 U. S. 241, 250 (1942) (emphasis added). The sale “terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625 (2008) . This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act “promote[s] the progress of science and the useful arts by granting to [inventors] a limited monopoly” that allows them to “secure the financial rewards” for their inventions. Univis, 316 U. S., at 250. But once a patentee sells an item, it has “enjoyed all the rights secured” by that limited monopoly. Keeler v. Standard Folding Bed Co., 157 U. S. 659, 661 (1895) . Because “the purpose of the patent law is fulfilled . . . when the patentee has received his reward for the use of his invention,” that law furnishes “no basis for restraining the use and enjoyment of the thing sold.” Univis, 316 U. S., at 251. We have explained in the context of copyright law that exhaustion has “an impeccable historic pedigree,” tracing its lineage back to the “common law’s refusal to permit restraints on the alienation of chattels.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 538 (2013) . As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628); see J. Gray, Restraints on the Alienation of Prop-erty §27, p. 18 (2d ed. 1895) (“A condition or conditional limitation on alienation attached to a transfer of the entire interest in personalty is as void as if attached to a fee simple in land”). This venerable principle is not, as the Federal Circuit dismissively viewed it, merely “one common-law jurisdiction’s general judicial policy at one time toward anti-alienation restrictions.” 816 F. 3d, at 750. Congress enacted and has repeatedly revised the Patent Act against the backdrop of the hostility toward restraints on alienation. That enmity is reflected in the exhaustion doctrine. The patent laws do not include the right to “restrain[ ] . . . further alienation” after an initial sale; such conditions have been “hateful to the law from Lord Coke’s day to ours” and are “obnoxious to the public interest.” Straus v. Victor Talking Machine Co., 243 U. S. 490, 501 (1917) . “The inconvenience and annoyance to the public that an opposite conclusion would occasion are too obvious to require illustration.” Keeler, 157 U. S., at 667. But an illustration never hurts. Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain. And advances in technology, along with increasingly complex supply chains, magnify the problem. See Brief for Costco Wholesale Corp. et al. as Amici Curiae 7–9; Brief for Intel Corp. et al. as Amici Curiae 17, n. 5 (“A generic smartphone assembled from various high-tech components could practice an estimated 250,000 patents”). This Court accordingly has long held that, even when a patentee sells an item under an express restriction, the patentee does not retain patent rights in that product. In Boston Store of Chicago v. American Graphophone Co., for example, a manufacturer sold graphophones—one of the earliest devices for recording and reproducing sounds—to retailers under contracts requiring those stores to resell at a specific price. 246 U. S. 8 –18 (1918). When the manufacturer brought a patent infringement suit against a retailer who sold for less, we concluded that there was “no room for controversy” about the result: By selling the item, the manufacturer placed it “beyond the confines of the patent law, [and] could not, by qualifying restrictions as to use, keep [it] under the patent monopoly.” Id., at 20, 25. Two decades later, we confronted a similar arrangement in United States v. Univis Lens Co. There, a company that made eyeglass lenses authorized an agent to sell its products to wholesalers and retailers only if they promised to market the lenses at fixed prices. The Government filed an antitrust lawsuit, and the company defended its arrangement on the ground that it was exercising authority under the Patent Act. We held that the initial sales “relinquish[ed] . . . the patent monopoly with respect to the article[s] sold,” so the “stipulation . . . fixing resale prices derive[d] no support from the patent and must stand on the same footing” as restrictions on unpatented goods. 316 U. S., at 249–251. It is true that Boston Store and Univis involved resale price restrictions that, at the time of those decisions, violated the antitrust laws. But in both cases it was the sale of the items, rather than the illegality of the restrictions, that prevented the patentees from enforcing those resale price agreements through patent infringement suits. And if there were any lingering doubt that patent exhaustion applies even when a sale is subject to an express, otherwise lawful restriction, our recent decision in Quanta Computer, Inc. v. LG Electronics, Inc. settled the matter. In that case, a technology company—with authorization from the patentee—sold microprocessors under contracts requiring purchasers to use those processors with other parts that the company manufactured. One buyer disregarded the restriction, and the patentee sued for infringement. Without so much as mentioning the lawfulness of the contract, we held that the patentee could not bring an infringement suit because the “authorized sale . . . took its products outside the scope of the patent monopoly.” 553 U. S., at 638. Turning to the case at hand, we conclude that this well-settled line of precedent allows for only one answer: Lexmark cannot bring a patent infringement suit against Impression Products to enforce the single-use/no-resale provision accompanying its Return Program cartridges. Once sold, the Return Program cartridges passed outside of the patent monopoly, and whatever rights Lexmark retained are a matter of the contracts with its purchasers, not the patent law. B The Federal Circuit reached a different result largely because it got off on the wrong foot. The “exhaustion doctrine,” the court believed, “must be understood as an interpretation of” the infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee. 816 F. 3d, at 734 (quoting 35 U. S. C. §271(a)). Exhaustion reflects a default rule that a patentee’s decision to sell an item “presumptively grant[s] ‘authority’ to the purchaser to use it and resell it.” 816 F. 3d, at 742. But, the Federal Circuit explained, the patentee does not have to hand over the full “bundle of rights” every time. Id., at 741 (internal quotation marks omitted). If the patentee expressly withholds a stick from the bundle—perhaps by restricting the purchaser’s resale rights—the buyer never acquires that withheld authority, and the patentee may continue to enforce its right to exclude that practice under the patent laws. The misstep in this logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is instead a limit on “the scope of the patentee’s rights.” United States v. General Elec. Co., 272 U. S. 476, 489 (1926) (emphasis added). The right to use, sell, or import an item exists independently of the Patent Act. What a patent adds—and grants exclusively to the pat-entee—is a limited right to prevent others from engaging in those practices. See Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U. S. 24, 35 (1923) . Exhaustion extinguishes that exclusionary power. See Bloomer, 14 How., at 549 (the purchaser “exercises no rights created by the act of Congress, nor does he derive title to [the item] by virtue of the . . . exclusive privilege granted to the patentee”). As a result, the sale transfers the right to use, sell, or import because those are the rights that come along with ownership, and the buyer is free and clear of an infringement lawsuit because there is no exclusionary right left to enforce. The Federal Circuit also expressed concern that preventing patentees from reserving patent rights when they sell goods would create an artificial distinction between such sales and sales by licensees. Patentees, the court explained, often license others to make and sell their products, and may place restrictions on those licenses. A computer developer could, for instance, license a manufacturer to make its patented devices and sell them only for non-commercial use by individuals. If a licensee breaches the license by selling a computer for commercial use, the patentee can sue the licensee for infringement. And, in the Federal Circuit’s view, our decision in General Talking Pictures Corp. v. Western Elec. Co., 304 U. S. 175 , aff’d on reh’g, 305 U. S. 124 (1938) , established that—when a patentee grants a license “under clearly stated restrictions on post-sale activities” of those who purchase products from the licensee—the patentee can also sue for infringement those purchasers who knowingly violate the restrictions. 816 F. 3d, at 743–744. If patentees can employ licenses to impose post-sale restrictions on purchasers that are enforceable through infringement suits, the court concluded, it would make little sense to prevent patentees from doing so when they sell directly to consumers. The Federal Circuit’s concern is misplaced. A patentee can impose restrictions on licensees because a license does not implicate the same concerns about restraints on alienation as a sale. Patent exhaustion reflects the principle that, when an item passes into commerce, it should not be shaded by a legal cloud on title as it moves through the marketplace. But a license is not about passing title to a product, it is about changing the contours of the patentee’s monopoly: The patentee agrees not to exclude a licensee from making or selling the patented invention, expanding the club of authorized producers and sellers. See General Elec. Co., 272 U. S., at 489–490. Because the patentee is exchanging rights, not goods, it is free to relinquish only a portion of its bundle of patent protections. A patentee’s authority to limit licensees does not, as the Federal Circuit thought, mean that patentees can use licenses to impose post-sale restrictions on purchasers that are enforceable through the patent laws. So long as a licensee complies with the license when selling an item, the patentee has, in effect, authorized the sale. That licensee’s sale is treated, for purposes of patent exhaustion, as if the patentee made the sale itself. The result: The sale exhausts the patentee’s rights in that item. See Hobbie v. Jennison, 149 U. S. 355 –363 (1893). A license may require the licensee to impose a restriction on purchasers, like the license limiting the computer manufacturer to selling for non-commercial use by individuals. But if the licensee does so—by, perhaps, having each customer sign a contract promising not to use the computers in business—the sale nonetheless exhausts all patent rights in the item sold. See Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502 –507, 516 (1917). The purchasers might not comply with the restriction, but the only recourse for the licensee is through contract law, just as if the patentee itself sold the item with a restriction. General Talking Pictures involved a fundamentally different situation: There, a licensee “knowingly ma[de] . . . sales . . . outside the scope of its license.” 304 U. S., at 181–182 (emphasis added). We treated the sale “as if no license whatsoever had been granted” by the patentee, which meant that the patentee could sue both the licensee and the purchaser—who knew about the breach—for infringement. General Talking Pictures Corp. v. Western Elec. Co., 305 U. S. 124, 127 (1938) . This does not mean that patentees can use licenses to impose post-sale restraints on purchasers. Quite the contrary: The licensee infringed the patentee’s rights because it did not comply with the terms of its license, and the patentee could bring a patent suit against the purchaser only because the purchaser participated in the licensee’s infringement. General Talking Pictures, then, stands for the modest principle that, if a patentee has not given authority for a licensee to make a sale, that sale cannot exhaust the patentee’s rights. In sum, patent exhaustion is uniform and automatic. Once a patentee decides to sell—whether on its own or through a licensee—that sale exhausts its patent rights, regardless of any post-sale restrictions the patentee purports to impose, either directly or through a license. III Our conclusion that Lexmark exhausted its patent rights when it sold the domestic Return Program cartridges goes only halfway to resolving this case. Lexmark also sold toner cartridges abroad and sued Impression Products for patent infringement for “importing [Lexmark’s] invention into the United States.” 35 U. S. C. §154(a). Lexmark contends that it may sue for infringement with respect to all of the imported cartridges—not just those in the Return Program—because a foreign sale does not trigger patent exhaustion unless the patentee “expressly or implicitly transfer[s] or license[s]” its rights. Brief for Respondent 36–37. The Federal Circuit agreed, but we do not. An authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act. This question about international exhaustion of intellectual property rights has also arisen in the context of copyright law. Under the “first sale doctrine,” which is codified at 17 U. S. C. §109(a), when a copyright owner sells a lawfully made copy of its work, it loses the power to restrict the purchaser’s freedom “to sell or otherwise dispose of . . . that copy.” In Kirtsaeng v. John Wiley & Sons, Inc., we held that this “ ‘first sale’ [rule] applies to copies of a copyrighted work lawfully made [and sold] abroad.” 568 U. S., at 525. We began with the text of §109(a), but it was not decisive: The language neither “restrict[s] the scope of [the] ‘first sale’ doctrine geographically,” nor clearly embraces international exhaustion. Id., at 528–533. What helped tip the scales for global exhaustion was the fact that the first sale doctrine originated in “the common law’s refusal to permit restraints on the alienation of chattels.” Id., at 538. That “common-law doctrine makes no geographical distinctions.” Id., at 539. The lack of any textual basis for distinguishing between domestic and international sales meant that “a straightforward application” of the first sale doctrine required the conclusion that it applies overseas. Id., at 540 (internal quotation marks omitted). Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation, see supra, at 6–8, and nothing in the text or history of the Patent Act shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentee’s monopoly. See Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) (“[W]here a common-law principle is well established, . . . courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident” (internal quotation marks omitted)). And differentiating the patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” Bauer & Cie v. O’Donnell, 229 U. S. 1, 13 (1913) , and many everyday products—“automobiles, microwaves, calculators, mobile phones, tablets, and personal computers”—are subject to both patent and copyright protections, see Kirtsaeng, 568 U. S., at 545; Brief for Costco Wholesale Corp. et al. as Amici Curiae 14–15. There is a “historic kinship between patent law and copyright law,” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 439 (1984) , and the bond between the two leaves no room for a rift on the question of international exhaustion. Lexmark sees the matter differently. The Patent Act, it points out, limits the patentee’s “right to exclude others” from making, using, selling, or importing its products to acts that occur in the United States. 35 U. S. C. §154(a). A domestic sale, it argues, triggers exhaustion because the sale compensates the patentee for “surrendering [those] U. S. rights.” Brief for Respondent 38. A foreign sale is different: The Patent Act does not give patentees exclusionary powers abroad. Without those powers, a patentee selling in a foreign market may not be able to sell its product for the same price that it could in the United States, and therefore is not sure to receive “the reward guaranteed by U. S. patent law.” Id., at 39 (internal quotation marks omitted). Absent that reward, says Lexmark, there should be no exhaustion. In short, there is no patent exhaustion from sales abroad because there are no patent rights abroad to exhaust. The territorial limit on patent rights is, however, no basis for distinguishing copyright protections; those protections “do not have any extraterritorial operation” either. 5 M. Nimmer & D. Nimmer, Copyright §17.02, p. 17–26 (2017). Nor does the territorial limit support the premise of Lexmark’s argument. Exhaustion is a separate limit on the patent grant, and does not depend on the patentee receiving some undefined premium for selling the right to access the American market. A purchaser buys an item, not patent rights. And exhaustion is triggered by the patentee’s decision to give that item up and receive whatever fee it decides is appropriate “for the article and the invention which it embodies.” Univis, 316 U. S., at 251. The patentee may not be able to command the same amount for its products abroad as it does in the United States. But the Patent Act does not guarantee a particular price, much less the price from selling to American consumers. Instead, the right to exclude just ensures that the patentee receives one reward—of whatever amount the patentee deems to be “satisfactory compensation,” Keeler, 157 U. S., at 661—for every item that passes outside the scope of the patent monopoly. This Court has addressed international patent exhaustion in only one case, Boesch v. Gräff, decided over 125 years ago. All that case illustrates is that a sale abroad does not exhaust a patentee’s rights when the patentee had nothing to do with the transaction. Boesch—from the days before the widespread adoption of electrical lighting—involved a retailer who purchased lamp burners from a manufacturer in Germany, with plans to sell them in the United States. The manufacturer had authority to make the burners under German law, but there was a hitch: Two individuals with no ties to the German manufacturer held the American patent to that invention. These patentees sued the retailer for infringement when the retailer imported the lamp burners into the United States, and we rejected the argument that the German manufacturer’s sale had exhausted the American patentees’ rights. The German manufacturer had no permission to sell in the United States from the American patentees, and the American patentees had not exhausted their patent rights in the products because they had not sold them to anyone, so “purchasers from [the German manufacturer] could not be thereby authorized to sell the articles in the United States.” 133 U. S. 697, 703 (1890) . Our decision did not, as Lexmark contends, exempt all foreign sales from patent exhaustion. See Brief for Respondent 44–45. Rather, it reaffirmed the basic premise that only the patentee can decide whether to make a sale that exhausts its patent rights in an item. The American patentees did not do so with respect to the German products, so the German sales did not exhaust their rights. Finally, the United States, as an amicus, advocates what it views as a middle-ground position: that “a foreign sale authorized by the U. S. patentee exhausts U. S. pat-ent rights unless those rights are expressly reserved.” Brief for United States 7–8. Its position is largely based on policy rather than principle. The Government thinks that an overseas “buyer’s legitimate expectation” is that a “sale conveys all of the seller’s interest in the patented article,” so the presumption should be that a foreign sale triggers exhaustion. Id., at 32–33. But, at the same time, “lower courts long ago coalesced around” the rule that “a patentee’s express reservation of U. S. patent rights at the time of a foreign sale will be given effect,” so that option should remain open to the patentee. Id., at 22 (emphasis deleted). The Government has little more than “long ago” on its side. In the 1890s, two circuit courts—in cases involving the same company—did hold that patentees may use express restrictions to reserve their patent rights in connection with foreign sales. See Dickerson v. Tinling, 84 F. 192, 194–195 (CA8 1897); Dickerson v. Matheson, 57 F. 524, 527 (CA2 1893). But no “coalesc[ing]” ever took place: Over the following hundred-plus years, only a smattering of lower court decisions mentioned this express-reservation rule for foreign sales. See, e.g., Sanofi, S. A. v. Med-Tech Veterinarian Prods., Inc., 565 F. Supp. 931, 938 (NJ 1983). And in 2001, the Federal Circuit adopted its blanket rule that foreign sales do not trigger exhaustion, even if the patentee fails to expressly reserve its rights. Jazz Photo, 264 F. 3d, at 1105. These sparse and inconsistent decisions provide no basis for any expectation, let alone a settled one, that patentees can reserve patent rights when they sell abroad. The theory behind the Government’s express-reservation rule also wrongly focuses on the likely expectations of the patentee and purchaser during a sale. Exhaustion does not arise because of the parties’ expectations about how sales transfer patent rights. More is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. Instead, exhaustion occurs because, in a sale, the patentee elects to give up title to an item in exchange for payment. Allowing patent rights to stick remora-like to that item as it flows through the market would violate the principle against restraints on alienation. Exhaustion does not depend on whether the patentee receives a premium for selling in the United States, orthe type of rights that buyers expect to receive. As a result, restrictions and location are irrelevant; what matters is the patentee’s decision to make a sale. * * * The judgment of the United States Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1189 _________________ IMPRESSION PRODUCTS, INC., PETITIONER v. LEXMARK INTERNATIONAL, INC. on writ of certiorari to the united states court of appeals for the federal circuit [May 30, 2017] Justice Ginsburg, concurring in part and dissenting in part. I concur in the Court’s holding regarding domestic exhaustion—a patentee who sells a product with an express restriction on reuse or resale may not enforce that restriction through an infringement lawsuit, because the U. S. sale exhausts the U. S. patent rights in the product sold. See ante, at 5–13. I dissent, however, from the Court’s holding on international exhaustion. A foreign sale, I would hold, does not exhaust a U. S. inventor’s U. S. patent rights. Patent law is territorial. When an inventor receives a U. S. patent, that patent provides no protection abroad. See Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 531 (1972) (“Our patent system makes no claim to extraterritorial effect.”). See also 35 U. S. C. §271(a) (establishing liability for acts of patent infringement “within the United States” and for “import[ation] into the United States [of] any patented invention”). A U. S. pat-entee must apply to each country in which she seeks the exclusive right to sell her invention. Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 456 (2007) (“[F]oreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries.”). See also Convention at Brussels, An Additional Act Modifying the Paris Convention for the Protection of Industrial Property of Mar. 20, 1883, Dec. 14, 1900, Art. I, 32Stat. 1940 (“Patents applied for in the different contracting States . . . shall be independent of the patents obtained for the same invention in the other States.”). And patent laws vary by country; each country’s laws “may embody different policy judgments about the relative rights of inventors, competitors, and the public in patented inventions.” Microsoft, 550 U. S., at 455 (internal quotation marks omitted). Because a sale abroad operates independently of the U. S. patent system, it makes little sense to say that such a sale exhausts an inventor’s U. S. patent rights. U. S. patent protection accompanies none of a U. S. patentee’s sales abroad—a competitor could sell the same patented product abroad with no U. S.-patent-law consequence. Accordingly, the foreign sale should not diminish the protections of U. S. law in the United States. The majority disagrees, in part because this Court decided, in Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519, 525 (2013) , that a foreign sale exhausts U. S. copyright protections. Copyright and patent exhaustion, the majority states, “share a strong similarity.” Ante, at 14 (internal quotation marks omitted). I dissented from our decision in Kirtsaeng and adhere to the view that a foreign sale should not exhaust U. S. copyright protections. See 568 U. S., at 557. But even if I subscribed to Kirtsaeng’s reasoning with respect to copyright, that decision should bear little weight in the patent context. Although there may be a “historical kinship” between patent law and copyright law, Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 439 (1984) , the two “are not identical twins,” id, at 439, n. 19. The Patent Act contains no analogue to 17 U. S. C. §109(a), the Copyright Act first-sale provision analyzed in Kirtsaeng. See ante, at 13–14. More importantly, copyright protections, unlike patent protections, are harmonized across countries. Under the Berne Convention, which 174 countries have joined,[1] members “agree to treat authors from other member countries as well as they treat their own.” Golan v. Holder, 565 U. S. 302, 308 (2012) (citing Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Arts. 1, 5(1), 828 U. N. T. S. 225, 231–233). The copyright protections one receives abroad are thus likely to be similar to those received at home, even if provided under each country’s separate copyright regime. For these reasons, I would affirm the Federal Circuit’s judgment with respect to foreign exhaustion.Notes 1 See WIPO-Administered Treaties: Contracting Parties: Berne Convention, www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=5 (as last visited May 25, 2017).

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 IMPRESSION PRODUCTS, INC. v. LEXMARK INTERNATIONAL, INC. certiorari to the united states court of appeals for the federal circuit No. 15–1189. Argued March 21, 2017—Decided May 30, 2017 A United States patent entitles the patent holder to “exclude others from making, using, offering for sale, or selling [its] invention throughout the United States or importing the invention into the United States.” 35 U. S. C. §154(a). Whoever engages in one of these acts “without authority” from the patentee may face liability for patent infringement. §271(a). When a patentee sells one of its products, however, the patentee can no longer control that item through the patent laws—its patent rights are said to “exhaust.” Respondent Lexmark International, Inc. designs, manufactures, and sells toner cartridges to consumers in the United States and abroad. It owns a number of patents that cover components of those cartridges and the manner in which they are used. When Lexmark sells toner cartridges, it gives consumers two options: One option is to buy a toner cartridge at full price, with no restrictions. The other option is to buy a cartridge at a discount through Lexmark’s “Return Program.” In exchange for the lower price, customers who buy through the Return Program must sign a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark. Companies known as remanufacturers acquire empty Lexmark toner cartridges—including Return Program cartridges—from purchasers in the United States, refill them with toner, and then resell them. They do the same with Lexmark cartridges that they acquire from purchasers overseas and import into the United States. Lexmark sued a number of these remanufacturers, including petitioner Impression Products, Inc., for patent infringement with respect to two groups of cartridges. The first group consists of Return Program cartridges that Lexmark had sold within the United States. Lexmark argued that, because it expressly prohibited reuse and resale of these cartridges, Impression Products infringed the Lexmark patents when it refurbished and resold them. The second group consists of all toner cartridges that Lexmark had sold abroad and that Impression Products imported into the country. Lexmark claimed that it never gave anyone authority to import these cartridges, so Impression Products infringed its patent rights by doing just that. Impression Products moved to dismiss on the grounds that Lexmark’s sales, both in the United States and abroad, exhausted its patent rights in the cartridges, so Impression Products was free to refurbish and resell them, and to import them if acquired overseas. The District Court granted the motion to dismiss as to the domestic Return Program cartridges, but denied the motion as to the cartridges sold abroad. The Federal Circuit then ruled for Lexmark with respect to both groups of cartridges. Beginning with the Return Program cartridges that Lexmark sold domestically, the Federal Circuit held that a patentee may sell an item and retain the right to enforce, through patent infringement lawsuits, clearly communicated, lawful restrictions on post-sale use or resale. Because Impression Products knew about Lexmark’s restrictions and those restrictions did not violate any laws, Lexmark’s sales did not exhaust its patent rights, and it could sue Impression Products for infringement. As for the cartridges that Lexmark sold abroad, the Federal Circuit held that, when a patentee sells a product overseas, it does not exhaust its patent rights over that item. Lexmark was therefore free to sue for infringement when Impression Products imported cartridges that Lexmark had sold abroad. Judge Dyk, joined by Judge Hughes, dissented. Held: 1. Lexmark exhausted its patent rights in the Return Program cartridges that it sold in the United States. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. As a result, even if the restrictions in Lexmark’s contracts with its customers were clear and enforceable under contract law, they do not entitle Lexmark to retain patent rights in an item that it has elected to sell. . (a) The Patent Act grants patentees the “right to exclude others from making, using, offering for sale, or selling [their] invention[s].” 35 U. S. C. §154(a). For over 160 years, the doctrine of patent exhaustion has imposed a limit on that right to exclude: When a patentee sells an item, that product “is no longer within the limits of the [patent] monopoly” and instead becomes the “private, individual property” of the purchaser. Bloomer v. McQuewan, 14 How. 539, 549–550. If the patentee negotiates a contract restricting the purchaser’s right to use or resell the item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit. The exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation. The Patent Act promotes innovation by allowing inventors to secure the financial rewards for their inventions. Once a patentee sells an item, it has secured that reward, and the patent laws provide no basis for restraining the use and enjoyment of the product. Allowing further restrictions would run afoul of the “common law’s refusal to permit restraints on the alienation of chattels.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519 . As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man.” 1 E. Coke, Institutes of the Laws of England §360, p. 223 (1628). Congress enacted and has repeatedly revised the Patent Act against the backdrop of this hostility toward restraints on alienation, which is reflected in the exhaustion doctrine. This Court accordingly has long held that, even when a patentee sells an item under an express, otherwise lawful restriction, the patentee does not retain patent rights in that product. See, e.g., Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617 . And that well-settled line of precedent allows for only one answer in this case: Lexmark cannot bring a patent infringement suit against Impression Products with respect to the Return Program cartridges sold in the United States because, once Lexmark sold those cartridges, it exhausted its right to control them through the patent laws. . (b) The Federal Circuit reached a different result because it started from the premise that the exhaustion doctrine is an interpretation of the patent infringement statute, which prohibits anyone from using or selling a patented article “without authority” from the patentee. According to the Federal Circuit, exhaustion reflects a default rule that selling an item “presumptively grant[s] ‘authority’ for the purchaser to use it and resell it.” 816 F. 3d 721, 742. But if a patentee withholds some authority by expressly limiting the purchaser’s rights, the patentee may enforce that restriction through patent infringement lawsuits. See id., at 741. The problem with the Federal Circuit’s logic is that the exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is a limit on the scope of the patentee’s rights. The Patent Act gives patentees a limited exclusionary power, and exhaustion extinguishes that power. A purchaser has the right to use, sell, or import an item because those are the rights that come along with ownership, not because it purchased authority to engage in those practices from the patentee. . 2. Lexmark also sold toner cartridges abroad, which Impression Products acquired from purchasers and imported into the United States. Lexmark cannot sue Impression Products for infringement with respect to these cartridges. An authorized sale outside the United States, just as one within the United States, exhausts all rights under the Patent Act. The question about international exhaustion of intellectual property rights has arisen in the context of copyright law. Under the first sale doctrine, when a copyright owner sells a lawfully made copy of its work, it loses the power to restrict the purchaser’s right “to sell or otherwise dispose of . . . that copy.” 17 U. S. C. §109(a). In Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. 519 , this Court held that the first sale doctrine applies to copies of works made and sold abroad. Central to that decision was the fact that the first sale doctrine has its roots in the common law principle against restraints on alienation. Because that principle makes no geographical distinctions and the text of the Copyright Act did not provide such a distinction, a straightforward application of the first sale doctrine required concluding that it applies overseas. Applying patent exhaustion to foreign sales is just as straightforward. Patent exhaustion, too, has its roots in the antipathy toward restraints on alienation, and nothing in the Patent Act shows that Congress intended to confine that principle to domestic sales. Differentiating between the patent exhaustion and copyright first sale doctrines would also make little theoretical or practical sense: The two share a “strong similarity . . . and identity of purpose,” Bauer & Cie v. O’Donnell, 229 U. S. 1 , and many everyday products are subject to both patent and copyright protections. Lexmark contends that a foreign sale does not exhaust patent rights because the Patent Act limits a patentee’s power to exclude others from making, using, selling, or importing its products to acts that occur in the United States. Because those exclusionary powers do not apply abroad, the patentee may not be able to sell its products overseas for the same price as it could in the United States, and therefore is not sure to receive the reward guaranteed by American patent laws. Without that reward, says Lexmark, there should be no exhaustion. The territorial limit on patent rights is no basis for distinguishing copyright protections; those do not have extraterritorial effect either. Nor does the territorial limit support Lexmark’s argument. Exhaustion is a distinct limit on the patent grant, which is triggered by the patentee’s decision to give a patented item up for whatever fee it decides is appropriate. The patentee may not be able to command the same amount for its products abroad as it does in the United States. But the Patent Act does not guarantee a particular price. Instead, the Patent Act just ensures that the patentee receives one reward—of whatever it deems to be satisfactory compensation—for every item that passes outside the scope of its patent monopoly. This Court’s decision in Boesch v. Gräff, 133 U. S. 697 , is not to the contrary. That decision did not, as Lexmark contends, exempt all foreign sales from patent exhaustion. Instead, it held that a sale abroad does not exhaust a patentee’s rights when the patentee had nothing to do with the transaction. That just reaffirms the basic premise that only the patentee can decide whether to make a sale that exhausts its patent rights in an item. Finally, the United States advocates what it views as a middle-ground position: that a foreign sale exhausts patent rights unless the patentee expressly reserves those rights. This express-reservation rule is based on the idea that overseas buyers expect to be able to use and resell items freely, so exhaustion should be the presumption. But, at the same time, lower courts have long allowed patentees to expressly reserve their rights, so that option should remain open to patentees. The sparse and inconsistent decisions the Government cites, however, provide no basis for any expectation, let alone a settled one, that patentees can reserve rights when they sell abroad. The theory behind the express-reservation rule also wrongly focuses on the expectations of the patentee and purchaser during a sale. More is at stake when it comes to patent exhaustion than the dealings between the parties, which can be addressed through contracts. Instead, exhaustion occurs because allowing patent rights to stick to an already-sold item as it travels through the market would violate the principle against restraints on alienation. As a result, restrictions and location are irrelevant for patent exhaustion; what matters is the patentee’s decision to make a sale. . 816 F. 3d 721, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part. Gorsuch, J., took no part in the consideration or decision of the case.

Respondent designs, manufactures, and sells toner cartridges to consumers in the United States and around the globe. Respondent also owns a number of patents covering components of those cartridges and the manner in which they are used. When toner cartridge run out of toner, they can be refilled and used again. To encourage customers to return the cartridges, respondent structures its sales in a way encouraging them to return spent cartridges. The single-use/no-resale restrictions in respondent's contracts with customers may have been clear and enforceable under contract law, but they do not entitle respondent to retain patent rights in an item that it has elected to sell. Respondent filed suit in Federal District Court against petitioner, a remanufacturer, for patent infringement with respect to two groups of cartridges. One group consists of cartridges that respondent sold within the country and that petitioner imported into that country. Petitioner claimed that, because it expressly prohibited reuse and resale of these cartridges, the remanufacturers infringed its patents when they refurbished and resold them, and that it gave patent authority to import the cartridges abroad by doing so. The District Court granted petitioner a motion to dismiss the patent infringement lawsuits, and the Court of Appeals granted both appeals. The court held that a patentee may sell an item and retain the right to enforce lawful restriction[s] as to post-sale use or resale, but that, when you purchase an item, you presumptively also acquire the authority to use or resell the item freely. Because the parties agreed that the impostor knew about the restrictions and that those restrictions did not violate any laws, the court concluded that respondent had not exhausted all of its patent rights, and could sue for infringement when petitioner refurbished, resold, and refurbished the cartridges. As for the cartridges that Lexmark sold abroad, the Federal Circuit held that the patentee was free to exercise patent rights to sue petitioner for bringing the foreign-sold cartridges to market in the States, because anyauthorized sale of a patented article freees the article from any restrictions on use or sale based on the patent laws. Held: 1. A patentee that sells an item under an express restriction on the purchaser's right to reuse or sell the product may enforce that restriction through an infringement lawsuit. . (a) The exhaustion doctrine of patent exhaustion has imposed a limit on that right to exclude others from making, using, offering for sale, or selling their invention. For over 160 years, the doctrine has imposed an excessive limit on patent exhaustion to exclude patentees from those practices limited to those practices exclusively granted by the Patent Act. This Court has addressed international patent exhaustion in only one case, Boesch v. Gräff, decided over 125 years ago, and nothing in the text or history shows that Congress intended to confine that borderless common law principle to domestic sales. In fact, Congress has not altered patent exhaustion at all; it remains an unwritten limit on the scope of the patentees' monopoly. And differentiating patent exhaustion and copyright first sale doctrines would make little theoretical or practical sense, since the two share a strong similarity and identity and many everyday products that are subject to both patent and copyright protections. Moreover, the patent exhaustion doctrine is not a presumption about the authority that comes along with a sale, but is instead a limit upon the scope and scope of patentee's rights, a limit that limits patentees can use to impose-sale restraints on patentes. Pp. 469 U.S. 623-607. (b) A foreign sale does not exhaust a U. S. inventor's patent rights. Patent exhaustion has its roots in the antipathy toward restraints on alienation, see, e.g., Kirtsaeng v. John Wiley & Sons, Inc., 568 U. N. T. S., 538. Although patent exhaustion is a separate limit on a patent grant, and does not depend on the grantee receiving some undefined premium for selling the patent right to access the American market, more is at stake when it comes to patents than simply the dealings between the parties, which can be addressed through contract law. More importantly, copyright protections, unlike patent protections, are harmonized across countries, and thus the copyright protections one receives abroad are likely to be similar to those received at home, even if provided under each country's separate copyright regime. See WIPO-Administered Treaties: Contracting Parties: Berne Convention, 816 F. 3d 742 (as last visited May 25, 2017). See Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. s. 502-507, 516 (1917)). The territorial limit on patents is no basis for distinguishing copyright protections; those protections do not have any extraterritorial operation either. Nor does the territorial limit support the premise of the Government's express-res

2016_16-32

https://www.oyez.org/cases/2016/16-32

. The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements “on equal footing with all other contracts.” DIRECTV, Inc. v. Imburgia, 577 U. S. ___, ___ (2015) (slip op., at 6) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006) ); see 9 U. S. C. §2. In the decision below, the Kentucky Supreme Court declined to give effect to two arbitration agreements executed by individuals holding “powers of attorney”—that is, authorizations to act on behalf of others. According to the court, a general grant of power (even if seemingly comprehensive) does not permit a legal representative to enter into an arbitration agreement for someone else; to form such a contract, the representative must possess specific authority to “waive his principal’s fundamental constitutional rights to access the courts [and] to trial by jury.” Extendicare Homes, Inc. v. Whisman, 478 S. W. 3d 306, 327 (2015). Because that rule singles out arbitration agreements for disfavored treatment, we hold that it violates the FAA. I Petitioner Kindred Nursing Centers L. P. operates nursing homes and rehabilitation centers. Respondents Beverly Wellner and Janis Clark are the wife and daughter, respectively, of Joe Wellner and Olive Clark, two now-deceased residents of a Kindred nursing home called the Winchester Centre. At all times relevant to this case, Beverly and Janis each held a power of attorney, designating her as an “attorney-in-fact” (the one for Joe, the other for Olive) and affording her broad authority to manage her family member’s affairs. In the Wellner power of attorney, Joe gave Beverly the authority, “in my name, place and stead,” to (among other things) “institute legal proceedings” and make “contracts of every nature in relation to both real and personal property.” App. 10–11. In the Clark power of attorney, Olive provided Janis with “full power . . . to transact, handle, and dispose of all matters affecting me and/or my estate in any possible way,” including the power to “draw, make, and sign in my name any and all . . . contracts, deeds, or agreements.” Id., at 7. Joe and Olive moved into the Winchester Centre in 2008, with Beverly and Janis using their powers of attorney to complete all necessary paperwork. As part of that process, Beverly and Janis each signed an arbitration agreement with Kindred on behalf of her relative. The two contracts, worded identically, provided that “[a]ny and all claims or controversies arising out of or in any way relating to . . . the Resident’s stay at the Facility” would be resolved through “binding arbitration” rather than a lawsuit. Id., at 14, 21. When Joe and Olive died the next year, their estates (represented again by Beverly and Janis) brought separate suits against Kindred in Kentucky state court. The complaints alleged that Kindred had delivered substandard care to Joe and Olive, causing their deaths. Kindred moved to dismiss the cases, arguing that the arbitration agreements Beverly and Janis had signed prohibited bringing their disputes to court. But the trial court denied Kindred’s motions, and the Kentucky Court of Appeals agreed that the estates’ suits could go forward. See App. to Pet. for Cert. 125a–126a, 137a–138a. The Kentucky Supreme Court, after consolidating the cases, affirmed those decisions by a divided vote. See 478 S. W. 3d, at 313. The court began with the language of the two powers of attorney. The Wellner document, the court stated, did not permit Beverly to enter into an arbitration agreement on Joe’s behalf. In the court’s view, neither the provision authorizing her to bring legal proceedings nor the one enabling her to make property-related contracts reached quite that distance. See id., at 325–326; supra, at 2. By contrast, the court thought, the Clark power of attorney extended that far and beyond. Under that document, after all, Janis had the capacity to “dispose of all matters” affecting Olive. See supra, at 2. “Given this extremely broad, universal delegation of authority,” the court acknowledged, “it would be impossible to say that entering into [an] arbitration agreement was not covered.” 478 S. W. 3d, at 327. And yet, the court went on, both arbitration agreements—Janis’s no less than Beverly’s—were invalid. That was because a power of attorney could not entitle a representative to enter into an arbitration agreement without specifically saying so. The Kentucky Constitution, the court explained, protects the rights of access to the courts and trial by jury; indeed, the jury guarantee is the sole right the Constitution declares “sacred” and “inviolate.” Id., at 328–329. Accordingly, the court held, an agent could deprive her principal of an “adjudication by judge or jury” only if the power of attorney “expressly so provide[d].” Id., at 329. And that clear-statement rule—so said the court—complied with the FAA’s demands. True enough that the Act precludes “singl[ing] out arbitration agreements.” Ibid. (internal quotation marks omitted). But that was no problem, the court asserted, because its rule would apply not just to those agreements, but also to some other contracts implicating “fundamental constitutional rights.” Id., at 328. In the future, for example, the court would bar the holder of a “non-specific” power of attorney from entering into a contract “bind[ing] the principal to personal servitude.” Ibid. Justice Abramson dissented, in an opinion joined by two of her colleagues. In their view, the Kentucky Supreme Court’s new clear-statement rule was “clearly not . . . applicable to ‘any contract’ but [instead] single[d] out arbitration agreements for disfavored treatment.” Id., at 344–345. Accordingly, the dissent concluded, the rule “r[a]n afoul of the FAA.” Id., at 353. We granted certiorari. 580 U. S. ___ (2016). II A The FAA makes arbitration agreements “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. That statutory provision establishes an equal-treatment principle: A court may invalidate an arbitration agreement based on “generally applicable contract defenses” like fraud or unconscionability, but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339 (2011) . The FAA thus preempts any state rule discriminating on its face against arbitration—for example, a “law prohibit[ing] outright the arbitration of a particular type of claim.” Id., at 341. And not only that: The Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coinciden-tally) have the defining features of arbitration agreements. In Concepcion, for example, we described a hypothetical state law declaring unenforceable any contract that “disallow[ed] an ultimate disposition [of a dispute] by a jury.” Id., at 342. Such a law might avoid referring to arbitration by name; but still, we explained, it would “rely on the uniqueness of an agreement to arbitrate as [its] basis”—and thereby violate the FAA. Id., at 341 (quoting Perry v. Thomas, 482 U. S. 483 , n. 9 (1987)). The Kentucky Supreme Court’s clear-statement rule, in just that way, fails to put arbitration agreements on an equal plane with other contracts. By the court’s own account, that rule (like the one Concepcion posited) serves to safeguard a person’s “right to access the courts and to trial by jury.” 478 S. W. 3d, at 327; see supra, at 3–4. In ringing terms, the court affirmed the jury right’s unsurpassed standing in the State Constitution: The framers, the court explained, recognized “that right and that right alone as a divine God-given right” when they made it “the only thing” that must be “ ‘held sacred’ ” and “ ‘inviolate.’ ” 478 S. W. 3d, at 328–329 (quoting Ky. Const. §7). So it was that the court required an explicit statement before an attorney-in-fact, even if possessing broad delegated powers, could relinquish that right on another’s behalf. See 478 S. W. 3d, at 331 (“We say only that an agent’s authority to waive his principal’s constitutional right to access the courts and to trial by jury must be clearly expressed by the principal”). And so it was that the court did exactly what Concepcion barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement—namely, a waiver of the right to go to court and receive a jury trial. See 563 U. S., at 341–342; see also 478 S. W. 3d, at 353 (Abramson, J., dissenting) (noting that the jury-trial right at the core of “the majority’s new rule” is “the one right that just happens to be correlative to the right to arbitrate” (emphasis deleted)). Such a rule is too tailor-made to arbitration agreements—subjecting them, by virtue of their defining trait, to uncommon barriers—to survive the FAA’s edict against singling out those contracts for disfavored treatment.[1] And the state court’s sometime-attempt to cast the rule in broader terms cannot salvage its decision. The clear-statement requirement, the court suggested, could also apply when an agent endeavored to waive other “fundamental constitutional rights” held by a principal. 478 S. W. 3d, at 331; see supra, at 4. But what other rights, really? No Kentucky court, so far as we know, has ever before demanded that a power of attorney explicitly confer authority to enter into contracts implicating constitutional guarantees. Nor did the opinion below indicate that such a grant would be needed for the many routine contracts—executed day in and day out by legal representatives—meeting that description. For example, the Kentucky Constitution protects the “inherent and inalienable” rights to “acquir[e] and protect[ ] property” and to “freely communicat[e] thoughts and opinions.” Ky. Const. §1. But the state court nowhere cautioned that an attorney-in-fact would now need a specific authorization to, say, sell her principal’s furniture or commit her principal to a non-disclosure agreement. (And were we in the business of giving legal advice, we would tell the agent not to worry.) Rather, the court hypothesized a slim set of both patently objectionable and utterly fanciful contracts that would be subject to its rule: No longer could a representative lacking explicit authorization waive her “principal’s right to worship freely” or “consent to an arranged marriage” or “bind [her] principal to personal servitude.” 478 S. W. 3d, at 328; see supra, at 4. Placing arbitration agreements within that class reveals the kind of “hostility to arbitration” that led Congress to enact the FAA. Concepcion, 563 U. S., at 339. And doing so only makes clear the arbitration-specific character of the rule, much as if it were made applicable to arbitration agreements and black swans.[2] B The respondents, Janis and Beverly, primarily advance a different argument—based on the distinction between contract formation and contract enforcement—to support the decision below. Kentucky’s clear-statement rule, they begin, affects only contract formation, because it bars agents without explicit authority from entering into arbitration agreements. And in their view, the FAA has “no application” to “contract formation issues.” Supp. Brief for Respondents 1. The Act, to be sure, requires a State to enforce all arbitration agreements (save on generally applicable grounds) once they have come into being. But, the respondents claim, States have free rein to decide—irrespective of the FAA’s equal-footing principle—whether such contracts are validly created in the first instance. See id., at 3 (“The FAA’s statutory framework applies only after a court has determined that a valid arbitration agreement was formed”). Both the FAA’s text and our case law interpreting it say otherwise. The Act’s key provision, once again, states that an arbitration agreement must ordinarily be treated as “valid, irrevocable, and enforceable.” 9 U. S. C. §2; see supra, at 4. By its terms, then, the Act cares not only about the “enforce[ment]” of arbitration agreements, but also about their initial “valid[ity]”—that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. Precedent confirms that point. In Concepcion, we noted the impermissibility of applying a contract defense like duress “in a fashion that disfavors arbitration.” 563 U. S., at 341. But the doctrine of duress, as we have elsewhere explained, involves “unfair dealing at the contract formation stage.” Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527, 547 (2008) . Our discussion of duress would have made no sense if the FAA, as the respondents contend, had nothing to say about contract formation. And still more: Adopting the respondents’ view would make it trivially easy for States to undermine the Act—indeed, to wholly defeat it. As the respondents have acknowledged, their reasoning would allow States to pronounce any attorney-in-fact incapable of signing an arbitration agreement—even if a power of attorney specifically authorized her to do so. See Tr. of Oral Arg. 27. (After all, such a rule would speak to only the contract’s formation.) And why stop there? If the respondents were right, States could just as easily declare everyone incompetent to sign arbitration agreements. (That rule too would address only formation.) The FAA would then mean nothing at all—its provisions rendered helpless to prevent even the most blatant discrimination against arbitration. III As we did just last Term, we once again “reach a conclusion that . . . falls well within the confines of (and goes no further than) present well-established law.” DIRECTV, 577 U. S., at ___ (slip op., at 10). The Kentucky Supreme Court specially impeded the ability of attorneys-in-fact to enter into arbitration agreements. The court thus flouted the FAA’s command to place those agreements on an equal footing with all other contracts. Our decision requires reversing the Kentucky Supreme Court’s judgment in favor of the Clark estate. As noted earlier, the state court held that the Clark power of attorney was sufficiently broad to cover executing an arbitration agreement. See supra, at 3. The court invalidated the agreement with Kindred only because the power of attorney did not specifically authorize Janis to enter into it on Olive’s behalf. In other words, the decision below was based exclusively on the clear-statement rule that we have held violates the FAA. So the court must now enforce the Clark-Kindred arbitration agreement. By contrast, our decision might not require such a result in the Wellner case. The Kentucky Supreme Court began its opinion by stating that the Wellner power of attorney was insufficiently broad to give Beverly the authority to execute an arbitration agreement for Joe. See supra, at 3. If that interpretation of the document is wholly independent of the court’s clear-statement rule, then nothing we have said disturbs it. But if that rule at all influenced the construction of the Wellner power of attorney, then the court must evaluate the document’s meaning anew. The court’s opinion leaves us uncertain as to whether such an impermissible taint occurred. We therefore vacate the judgment below and return the case to the state court for further consideration. See Marmet Health Care Center, Inc. v. Brown, 565 U. S. 530, 534 (2012) (per curiam) (vacating and remanding another arbitration decision because we could not tell “to what degree [an] alternative holding was influenced by” the state court’s erroneous, arbitration-specific rule). On remand, the court should determine whether it adheres, in the absence of its clear-statement rule, to its prior reading of the Wellner power of attorney. For these reasons, we reverse in part and vacate in part the judgment of the Kentucky Supreme Court, and we remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 Making matters worse, the Kentucky Supreme Court’s clear-statement rule appears not to apply to other kinds of agreements relinquishing the right to go to court or obtain a jury trial. Nothing in the decision below (or elsewhere in Kentucky law) suggests that explicit authorization is needed before an attorney-in-fact can sign a settlement agreement or consent to a bench trial on her principal’s behalf. See 478 S. W. 3d, at 325 (discussing the Wellner power of attorney’s provision for “managing a claim in litigation” without insisting that such commitments would require a clearer grant). Mark that as yet another indication that the court’s demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials. 2 We do not suggest that a state court is precluded from announcing a new, generally applicable rule of law in an arbitration case. We simply reiterate here what we have said many times before—that the rule must in fact apply generally, rather than single out arbitration.

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 KINDRED NURSING CENTERS LIMITED PARTNERSHIP, dba WINCHESTER CENTRE FOR HEALTH AND REHABILITATION, nka FOUNTAIN CIRCLE HEALTH AND REHABILITATION, et al. v. CLARK et al. certiorari to the supreme court of kentucky No. 16–32. Argued February 22, 2017—Decided May 15, 2017 Respondents Beverly Wellner and Janis Clark—the wife and daughter, respectively, of Joe Wellner and Olive Clark—each held a power of attorney affording her broad authority to manage her family member’s affairs. When Joe and Olive moved into a nursing home operated by petitioner Kindred Nursing Centers L. P., Beverly and Janis used their powers of attorney to complete all necessary paperwork. As part of that process, each signed an arbitration agreement on her relative’s behalf providing that any claims arising from the relative’s stay at the facility would be resolved through binding arbitration. After Joe and Olive died, their estates (represented by Beverly and Janis) filed suits alleging that Kindred’s substandard care had caused their deaths. Kindred moved to dismiss the cases, arguing that the arbitration agreements prohibited bringing the disputes to court. The trial court denied Kindred’s motions, and the Kentucky Court of Appeals agreed that the suits could go forward. The Kentucky Supreme Court consolidated the cases and affirmed. The court initially found that the language of the Wellner power of attorney did not permit Beverly to enter into an arbitration agreement on Joe’s behalf, but that the Clark document gave Janis the capacity to do so on behalf of Olive. Nonetheless, the court held, both arbitration agreements were invalid because neither power of attorney specifically entitled the representative to enter into an arbitration agreement. Because the Kentucky Constitution declares the rights of access to the courts and trial by jury to be “sacred” and “inviolate,” the court determined, an agent could deprive her principal of such rights only if expressly provided in the power of attorney. Held: The Kentucky Supreme Court’s clear-statement rule violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment. . (a) The FAA, which makes arbitration agreements “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, establishes an equal-treatment principle: A court may invalidate an arbitration agreement based on “generally applicable contract defenses,” but not on legal rules that “apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue,” AT&T Mobility LLC v. Concepcion, 563 U. S. 333 . The Act thus preempts any state rule that discriminates on its face against arbitration or that covertly accomplishes the same objective by disfavoring contracts that have the defining features of arbitration agreements. The Kentucky Supreme Court’s clear-statement rule fails to put arbitration agreements on an equal plane with other contracts. By requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial, the court did exactly what this Court has barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement. . (b) In support of the decision below, respondents argue that the clear-statement rule affects only contract formation, and that the FAA does not apply to contract formation questions. But the Act’s text says otherwise. The FAA cares not only about the “enforce[ment]” of arbitration agreements, but also about their initial “valid[ity]”—that is, about what it takes to enter into them. 9 U. S. C. §2. Precedent confirms the point. In Concepcion, the Court noted the impermissibility of applying a contract defense like duress “in a fashion that disfavors arbitration.” 563 U. S., at 341. That discussion would have made no sense if the FAA had nothing to say about contract formation, because duress involves “unfair dealing at the contract formation stage.” Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U. S. 527 . Finally, respondents’ view would make it trivially easy for States to undermine the Act. . (c) Because the Kentucky Supreme Court invalidated the Clark-Kindred arbitration agreement based exclusively on the clear-statement rule, the court must now enforce that agreement. But because it is unclear whether the court’s interpretation of the Wellner document was wholly independent of its rule, the court should determine on remand whether it adheres, in the absence of the rule, to its prior reading of that power of attorney. . 478 S. W. 3d 306, reversed in part, vacated in part, and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion. Gorsuch, J., took no part in the consideration or decision of the case.

The Federal Arbitration Act (FAA or Act) requires courts to place arbitration agreements on equal footing with all other contracts. The Kentucky Supreme Court declined to give effect to two arbitration agreements executed by individuals holding "powers of attorney," i.e., authorizations to act on behalf of others. Petitioner operates nursing homes and rehabilitation centers, and respondents Beverly Wellner and Janis Clark are the wife and daughter of deceased residents of a nursing home. At all times relevant to this case, respondents each held a power of attorney, designating her as an attorney-in-fact (the one for Joe, the other for Olive) and affording her broad authority to manage her family member's affairs. As part of the process of moving into the home, respondents signed an arbitration agreement with petitioner nursing center, worded identically, providing that claims or controversies arising out of or in any way relating to the resident's stay at the facility would be resolved through binding arbitration rather than a lawsuit. When Joe and Olive Clark died in a Kentucky state court suit, respondents brought separate suits against petitioner in Federal District Court, alleging that Kindred had delivered substandard care to them, causing their deaths. The trial court denied Kindred's motions to dismiss the cases, but the Kentucky Court of Appeals agreed that the estates' suits could go forward. The Supreme Court affirmed the decisions by a divided vote, concluding that the Kentucky clear-statement rule singles out arbitration agreements for disfavored treatment, and thus violates the FAA. Held: The Kentucky rule, which applies only to contract formation, bars agents without explicit authority from entering into arbitration agreements, and has no application to contract enforcement issues. Although the Act requires a State to enforce all arbitration agreements (save on generally applicable grounds) once they have come into being, States have free rein to decide whether such contracts are validly created in the first instance. Both the Act and our case law interpreting it say otherwise. . (a) The court did exactly what Concepcion barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement, namely, a waiver of the right to go to court and receive a jury trial. Such a rule is too tailor-made to arbitration agreements to survive the FAA's edict against singling out those contracts for disordered treatment. No Kentucky court, so far as we know, has ever before demanded that a power-of attorney explicitly confer authority to enter into contracts implicating constitutional guarantees. Nor did the opinion below indicate that such a grant would be needed for the many routine contracts,executed day in and day out by legal representatives,meeting that description. Placing arbitration agreements within that class reveals the kind ofhostility to arbitration that led Congress to enact the FAA, and displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coinciden-tally) have the defining features of arbitration agreements. Here, the court invalidated the Clark-Kindred arbitration agreement only because the power of the attorney did not specifically authorize Janis to enter such an agreement on Joe's behalf. The court must now enforce that agreement. Accordingly, the case must be remanded to the state court for further consideration. (b) The Kentucky court also flouted the FAA by flouting its command to place those agreements on an equal footing with all contracts. If that interpretation of the document is wholly independent of the court-clear-statement rule, then nothing this Court has said disturbs it. And doing so only makes clear the arbitration-specific character of the rule, much as if it were made applicable to arbitration agreements and black swans. Nothing in the decision below (or elsewhere in Kentucky law) suggests that explicit authorization is needed before an attorney can sign a settlement or a bench trial or consent to a trial or bench trial on her bench or to sign a non-guideline agreement. Pp. 478 S. W. 3d 306, 577 U. S. ___. Reversed and remanded. 478 U.S. ___ (C.A.D.C. ___) (CA5, O.J., certiorari) (c) This Court once again finds a conclusion that falls well within the confines of (and goes no further than) present well-established law, and does not require a reversal of the judgment in favor of the Clark estate. The decision below was based exclusively on the rule that violated the FAA; thus the court must enforce that arbitration agreement. So the court now must enforce the Clark Kindred agreement, and the case is remanded so that it can be enforced. But if that interpretation is entirely independent of that rule, or if that rule at all influenced the construction of the Wellner attorney, then the Court must evaluate the document anew. This Court must determine whether such an impermissible taint occurred.

2016_16-529

https://www.oyez.org/cases/2016/16-529

. A 5-year statute of limitations applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise.” 28 U. S. C. §2462. This case presents the question whether §2462 applies to claims for disgorgement imposed as a sanction for violating a federal securities law. The Court holds that it does. Disgorgement in the securities-enforcement context is a “penalty” within the meaning of §2462, and so disgorgement actions must be commenced within five years of the date the claim accrues. I A After rampant abuses in the securities industry led to the 1929 stock market crash and the Great Depression, Congress enacted a series of laws to ensure that “the highest ethical standards prevail in every facet of the securities industry.”[1] SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180 –187 (1963) (internal quotation marks omitted). The second in the series—the Securities Exchange Act of 1934—established the Securities and Exchange Commission (SEC or Commission) to enforce federal securities laws. Congress granted the Com-mission power to prescribe “ ‘rules and regulations . . . as necessary or appropriate in the public interest or for the protection of investors.’ ” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 728 (1975) . In addition to rulemaking, Congress vested the Commission with “broad authority to conduct investigations into possible violations of the federal securities laws.” SEC v. Jerry T. O’Brien, Inc., 467 U. S. 735, 741 (1984) . If an investigation uncovers evidence of wrongdoing, the Commission may initiate enforcement actions in federal district court. Initially, the only statutory remedy available to the SEC in an enforcement action was an injunction barring future violations of securities laws. See 1 T. Hazen, Law of Securities Regulation §1:37 (7th ed., rev. 2016). In the absence of statutory authorization for monetary remedies, the Commission urged courts to order disgorgement as an exercise of their “inherent equity power to grant relief ancillary to an injunction.” SEC v. Texas Gulf Sulphur Co., 312 F. Supp. 77, 91 (SDNY 1970), aff’d in part and rev’d in part, 446 F. 2d 1301 (CA2 1971). Generally, disgorgement is a form of “[r]estitution measured by the defendant’s wrongful gain.” Restatement (Third) of Restitution and Unjust Enrichment §51, Comment a, p. 204 (2010) (Restatement (Third)). Disgorgement requires that the defendant give up “those gains . . . properly attribut-able to the defendant’s interference with the claimant’s legally protected rights.” Ibid. Beginning in the 1970’s, courts ordered disgorgement in SEC enforcement proceedings in order to “deprive . . . defendants of their profits in order to remove any monetary reward for violating” securities laws and to “protect the investing public by providing an effective deterrent to future violations.” Texas Gulf, 312 F. Supp., at 92. In 1990, as part of the Securities Enforcement Remedies and Penny Stock Reform Act, Congress authorized the Commission to seek monetary civil penalties. 104Stat. 932, codified at 15 U. S. C. §77t(d). The Act left the Commission with a full panoply of enforcement tools: It may promulgate rules, investigate violations of those rules and the securities laws generally, and seek monetary penal-ties and injunctive relief for those violations. In the years since the Act, however, the Commission has con-tinued its practice of seeking disgorgement in enforcement proceedings. This Court has already held that the 5-year statute of limitations set forth in 28 U. S. C. §2462 applies when the Commission seeks statutory monetary penalties. See Gabelli v. SEC, 568 U. S. 442, 454 (2013) . The question here is whether §2462, which applies to any “action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise,” also applies when the SEC seeks disgorgement. B Charles Kokesh owned two investment-adviser firms that provided investment advice to business-development companies. In late 2009, the Commission commenced an enforcement action in Federal District Court alleging that between 1995 and 2009, Kokesh, through his firms, misappropriated $34.9 million from four of those development companies. The Commission further alleged that, in order to conceal the misappropriation, Kokesh caused the filing of false and misleading SEC reports and proxy statements. The Commission sought civil monetary penalties, disgorgement, and an injunction barring Kokesh from violating securities laws in the future. After a 5-day trial, a jury found that Kokesh’s actions violated the Investment Company Act of 1940, 15 U. S. C. §80a–36; the Investment Advisers Act of 1940, 15 U. S. C. §§80b–5, 80b–6; and the Securities Exchange Act of 1934, 15 U. S. C. §§78m, 78n. The District Court then turned to the task of imposing penalties sought by the Commission. As to the civil monetary penalties, the District Court determined that §2462’s 5-year limitations period pre-cluded any penalties for misappropriation occurring prior to October 27, 2004—that is, five years prior to the date the Commission filed the complaint. App. to Pet. for Cert. 26a. The court ordered Kokesh to pay a civil penalty of $2,354,593, which represented “the amount of funds that [Kokesh] himself received during the limitations period.” Id., at 31a–32a. Regarding the Commission’s request for a $34.9 million disgorgement judgment—$29.9 million of which resulted from violations outside the limitations period—the court agreed with the Commission that because disgorgement is not a “penalty” within the meaning of §2462, no limitations period applied. The court therefore entered a disgorgement judgment in the amount of $34.9 million and ordered Kokesh to pay an additional $18.1 million in prejudgment interest. The Court of Appeals for the Tenth Circuit affirmed. 834 F. 3d 1158 (2016). It agreed with the District Court that disgorgement is not a penalty, and further found that disgorgement is not a forfeiture. Id., at 1164–1167. The court thus concluded that the statute of limitations in §2462 does not apply to SEC disgorgement claims. This Court granted certiorari, 580 U. S. ___ (2017), to resolve disagreement among the Circuits over whether disgorgement claims in SEC proceedings are subject to the 5-year limitations period of §2462.[2] II Statutes of limitations “se[t] a fixed date when exposure to the specified Government enforcement efforts en[d].” Gabelli, 568 U. S., at 448. Such limits are “ ‘vital to the welfare of society’ ” and rest on the principle that “ ‘even wrongdoers are entitled to assume that their sins may be forgotten.’ ” Id., at 449. The statute of limitations at issue here— 28 U. S. C. §2462—finds its roots in a law enacted nearly two centuries ago. 568 U. S., at 445. In its current form, §2462 establishes a 5-year limitations period for “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture.” This limitations period applies here if SEC disgorgement qualifies as either a fine, penalty, or forfeiture. We hold that SEC disgorgement constitutes a penalty.[3] A A “penalty” is a “punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offen[s]e against its laws.” Huntington v. Attrill, 146 U. S. 657, 667 (1892) . This definition gives rise to two principles. First, whether a sanction represents a penalty turns in part on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.” Id., at 668. Although statutes creating private causes of action against wrongdoers may appear—or even be labeled—penal, in many cases “neither the liability imposed nor the remedy given is strictly penal.” Id., at 667. This is because “[p]enal laws, strictly and properly, are those imposing punishment for an offense committed against the State.” Ibid. Second, a pecuniary sanction operates as a penalty only if it is sought “for the purpose of punishment, and to deter others from offending in like manner”—as opposed to compensating a victim for his loss. Id., at 668. The Court has applied these principles in construing the term “penalty.” In Brady v. Daly, 175 U. S. 148 (1899) , for example, a playwright sued a defendant in Federal Circuit Court under a statute providing that copyright infringers “ ‘shall be liable for damages . . . not less than one hundred dollars for the first [act of infringement], and fifty dollars for every subsequent performance, as to the court shall appear to be just.’ ” Id., at 153. The defendant argued that the Circuit Court lacked jurisdiction on the ground that a separate statute vested district courts with exclusive jurisdiction over actions “to recover a penalty.” Id., at 152. To determine whether the statutory damages represented a penalty, this Court noted first that the statute provided “for a recovery of damages for an act which violates the rights of the plaintiff, and gives the right of action solely to him” rather than the public generally, and second, that “the whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person.” Id., at 154, 156. By providing a compensatory remedy for a private wrong, the Court held, the statute did not impose a “penalty.” Id., at 154. Similarly, in construing the statutory ancestor of §2462, the Court utilized the same principles. In Meeker v. Lehigh Valley R. Co., 236 U. S. 412 –422 (1915), the Interstate Commerce Commission, a now-defunct federal agency charged with regulating railroads, ordered a railroad company to refund and pay damages to a shipping company for excessive shipping rates. The railroad company argued that the action was barred by Rev. Stat. §1047, Comp. Stat. 1913, §1712 (now 28 U. S. C. §2462), which imposed a 5-year limitations period upon any “ ‘suit or prosecution for a penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States.’ ” 236 U. S., at 423. The Court rejected that argument, reasoning that “the words ‘penalty or forfeiture’ in [the statute] refer to something imposed in a punitive way for an infraction of a public law.” Ibid. A penalty, the Court held, does “not include a liability imposed [solely] for the purpose of redressing a private injury.” Ibid. Because the liability imposed was compensatory and paid entirely to a private plaintiff, it was not a “penalty” within the meaning of the statute of limitations. Ibid.; see also Gabelli, 568 U. S., at 451–452 (“[P]enalties” in the context of §2462 “go beyond compensation, are intended to punish, and label defendants wrongdoers”). B Application of the foregoing principles readily demonstrates that SEC disgorgement constitutes a penalty within the meaning of §2462. First, SEC disgorgement is imposed by the courts as a consequence for violating what we described in Meeker as public laws. The violation for which the remedy is sought is committed against the United States rather than an aggrieved individual—this is why, for example, a securities-enforcement action may proceed even if victims do not support or are not parties to the prosecution. As the Government concedes, “[w]hen the SEC seeks disgorgement, it acts in the public interest, to remedy harm to the public at large, rather than standing in the shoes of particular injured parties.” Brief for United States 22. Courts agree. See, e.g., SEC v. Rind, 991 F. 2d 1486, 1491 (CA9 1993) (“[D]isgorgement actions further the Commission’s public policy mission of protecting investors and safeguarding the integrity of the markets”); SEC v. Teo, 746 F. 3d 90, 102 (CA3 2014) (“[T]he SEC pursues [disgorgement] ‘independent of the claims of individual investors’ ” in order to “ ‘promot[e] economic and social policies’ ”). Second, SEC disgorgement is imposed for punitive purposes. In Texas Gulf—one of the first cases requiring disgorgement in SEC proceedings—the court emphasized the need “to deprive the defendants of their profits in order to . . . protect the investing public by providing an effective deterrent to future violations.” 312 F. Supp., at 92. In the years since, it has become clear that deterrence is not simply an incidental effect of disgorgement. Rather, courts have consistently held that “[t]he primary purpose of disgorgement orders is to deter violations of the securities laws by depriving violators of their ill-gotten gains.” SEC v. Fischbach Corp., 133 F. 3d 170, 175 (CA2 1997); see also SEC v. First Jersey Securities, Inc., 101 F. 3d 1450, 1474 (CA2 1996) (“The primary purpose of disgorgement as a remedy for violation of the securities laws is to deprive violators of their ill-gotten gains, thereby effectuating the deterrence objectives of those laws”); Rind, 991 F. 2d, at 1491 (“ ‘The deterrent effect of [an SEC] enforcement action would be greatly undermined if securities law violators were not required to disgorge illicit profits’ ”). Sanctions imposed for the purpose of deterring infractions of public laws are inherently punitive because “deterrence [is] not [a] legitimate nonpunitive governmental objectiv[e].” Bell v. Wolfish, 441 U. S. 520, 539, n. 20 (1979) ; see also United States v. Bajakajian, 524 U. S. 321, 329 (1998) (“Deterrence . . . has traditionally been viewed as a goal of punishment”). Finally, in many cases, SEC disgorgement is not compensatory. As courts and the Government have employed the remedy, disgorged profits are paid to the district court, and it is “within the court’s discretion to determine how and to whom the money will be distributed.” Fischbach Corp., 133 F. 3d, at 175. Courts have required disgorgement “regardless of whether the disgorged funds will be paid to such investors as restitution.” Id., at 176; see id., at 175 (“Although disgorged funds may often go to compensate securities fraud victims for their losses, such compensation is a distinctly secondary goal”). Some disgorged funds are paid to victims; other funds are dispersed to the United States Treasury. See, e.g., id., at 171 (affirming distribution of disgorged funds to Treasury where “no party before the court was entitled to the funds and . . . the persons who might have equitable claims were too dispersed for feasible identification and payment”); SEC v. Lund, 570 F. Supp. 1397, 1404–1405 (CD Cal. 1983) (ordering disgorgement and directing trustee to disperse funds to victims if “feasible” and to disperse any remaining money to the Treasury). Even though district courts may distribute the funds to the victims, they have not identified any statutory command that they do so. When an individual is made to pay a noncompensatory sanction to the Government as a consequence of a legal violation, the payment operates as a penalty. See Porter v. Warner Holding Co., 328 U. S. 395, 402 (1946) (distinguishing between restitution paid to an aggrieved party and penalties paid to the Government). SEC disgorgement thus bears all the hallmarks of a penalty: It is imposed as a consequence of violating a public law and it is intended to deter, not to compensate. The 5-year statute of limitations in §2462 therefore applies when the SEC seeks disgorgement. C The Government’s primary response to all of this is that SEC disgorgement is not punitive but “remedial” in that it “lessen[s] the effects of a violation” by “ ‘restor[ing] the status quo.’ ” Brief for Respondent 17. As an initial matter, it is not clear that disgorgement, as courts have applied it in the SEC enforcement context, simply returns the defendant to the place he would have occupied had he not broken the law. SEC disgorgement sometimes exceeds the profits gained as a result of the violation. Thus, for example, “an insider trader may be ordered to disgorge not only the unlawful gains that accrue to the wrongdoer directly, but also the benefit that accrues to third parties whose gains can be attributed to the wrongdoer’s conduct.” SEC v. Contorinis, 743 F. 3d 296, 302 (CA2 2014). Individuals who illegally provide confidential trading information have been forced to disgorge profits gained by individuals who received and traded based on that information—even though they never received any profits. Ibid; see also SEC v. Warde, 151 F. 3d 42, 49 (CA2 1998) (“A tippee’s gains are attributable to the tipper, regardless whether benefit accrues to the tipper”); SEC v. Clark, 915 F. 2d 439, 454 (CA9 1990) (“[I]t is well settled that a tipper can be required to disgorge his tippees’ profits”). And, as demonstrated by this case, SEC disgorgement sometimes is ordered without consideration of a defendant’s expenses that reduced the amount of illegal profit. App. to Pet. for Cert. 43a; see Restatement (Third) §51, Comment h, at 216 (“As a general rule, the defendant is entitled to a deduction for all marginal costs incurred in producing the revenues that are subject to disgorgement. Denial of an otherwise appropriate deduction, by making the defendant liable in excess of net gains, results in a punitive sanction that the law of restitution normally attempts to avoid”). In such cases, disgorgement does not simply restore the status quo; it leaves the defendant worse off. The justification for this practice given by the court below demonstrates that disgorgement in this context is a punitive, rather than a remedial, sanction: Disgorgement, that court explained, is intended not only to “prevent the wrongdoer’s unjust enrichment” but also “to deter others’ violations of the securities laws.” App. to Pet. for Cert. 43a. True, disgorgement serves compensatory goals in some cases; however, we have emphasized “the fact that sanctions frequently serve more than one purpose.” Austin v. United States, 509 U. S. 602, 610 (1993) . “ ‘A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.’ ” Id., at 621; cf. Bajakajian, 524 U. S., at 331, n. 6 (“[A] modern statutory forfeiture is a ‘fine’ for Eighth Amendment purposes if it constitutes punishment even in part”). Because disgorgement orders “go beyond compensation, are intended to punish, and label defendants wrongdoers” as a consequence of violating public laws, Gabelli, 568 U. S., at 451–452, they represent a penalty and thus fall within the 5-year statute of limitations of §2462. III Disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under §2462. Accordingly, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. The judgment of the Court of Appeals for the Tenth Circuit is reversed. It is so ordered.Notes 1 Each of these statutes—the Securities Act of 1933, 15 U. S. C. §77a et seq.; the Securities Exchange Act of 1934, 15 U. S. C. §78a et seq.; the Public Utility Holding Company Act of 1935, 15 U. S. C. §79 et seq.; the Trust Indenture Act of 1939, 15 U. S. C. §77aaa et seq.; the Investment Company Act of 1940, 15 U. S. C. §80a–1 et seq.; and the Investment Advisers Act of 1940, 15 U. S. C. §80b–1 et seq.—serves the “fundamental purpose” of “substitut[ing] a philosophy of full disclosure for the philosophy of caveat emptor and thus . . . achiev[ing] a high standard of business ethics in the securities industry.” SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 186 (1963) . 2 Compare SEC v. Graham, 823 F. 3d 1357, 1363 (CA11 2016) (holding that §2462 applies to SEC disgorgement claims), with Riordan v. SEC, 627 F. 3d 1230, 1234 (CADC 2010) (holding that §2462 does not apply to SEC disgorgement claims). 3 Nothing in this opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings or on whether courts have properly applied disgorgement principles in this context The sole question presented in this case is whether disgorgement, as applied in SEC enforcement actions, is subject to §2462’s limitations period.

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 KOKESH v. SECURITIES AND EXCHANGE COMMISSION certiorari to the united states court of appeals for the tenth circuit No. 16–529. Argued April 18, 2017—Decided June 5, 2017 The Securities and Exchange Commission (SEC or Commission) possesses authority to investigate violations of federal securities laws and to commence enforcement actions in federal district court if its investigations uncover evidence of wrongdoing. Initially, the Commission’s statutory authority in enforcement actions was limited to seeking an injunction barring future violations. Beginning in the 1970’s, federal district courts, at the request of the Commission, began ordering disgorgement in SEC enforcement proceedings. Although Congress has since authorized the Commission to seek monetary civil penalties, the Commission has continued to seek disgorgement. This Court has held that 28 U. S. C. §2462, which establishes a 5-year limitations period for “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture,” applies when the Commission seeks monetary civil penalties. See Gabelli v. SEC, 568 U. S. 442 . In 2009, the Commission brought an enforcement action, alleging that petitioner Charles Kokesh violated various securities laws by concealing the misappropriation of $34.9 million from four business-development companies from 1995 to 2009. The Commission sought monetary civil penalties, disgorgement, and an injunction barring Kokesh from future violations. After a jury found that Kokesh’s actions violated several securities laws, the District Court determined that §2462’s 5-year limitations period applied to the monetary civil penalties. With respect to the $34.9 million disgorgement judgment, however, the court concluded that §2462 did not apply because disgorgement is not a “penalty” within the meaning of the statute. The Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture. Held: Because SEC disgorgement operates as a penalty under §2462, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. . (a) The definition of “penalty” as a “punishment, whether corporal or pecuniary, imposed and enforced by the State, for a crime or offen[s]e against its laws,” Huntington v. Attrill, 146 U. S. 657 , gives rise to two principles. First, whether a sanction represents a penalty turns in part on “whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.” Id., at 668. Second, a pecuniary sanction operates as a penalty if it is sought “for the purpose of punishment, and to deter others from offending in like manner” rather than to compensate victims. Ibid. This Court has applied these principles in construing the term “penalty,” holding, e.g., that a statute providing a compensatory remedy for a private wrong did not impose a “penalty,” Brady v. Daly, 175 U. S. 148 . . (b) The application of these principles here readily demonstrates that SEC disgorgement constitutes a penalty within the meaning of §2462. First, SEC disgorgement is imposed by the courts as a consequence for violating public laws, i.e., a violation committed against the United States rather than an aggrieved individual. Second, SEC disgorgement is imposed for punitive purposes. Sanctions imposed for the purpose of deterring infractions of public laws are inherently punitive because “deterrence [is] not [a] legitimate nonpunitive governmental objectiv[e].” Bell v. Wolfish, 441 U. S. 520 , n. 20. Finally, SEC disgorgement is often not compensatory. Disgorged profits are paid to the district courts, which have discretion to determine how the money will be distributed. They may distribute the funds to victims, but no statute commands them to do so. When an individual is made to pay a noncompensatory sanction to the government as a consequence of a legal violation, the payment operates as a penalty. See Porter v. Warner Holding Co., 328 U. S. 395 . . (c) The Government responds that SEC disgorgement is not punitive but a remedial sanction that operates to restore the status quo. It is not clear, however, that disgorgement simply returns the defendant to the place he would have occupied had he not broken the law. It sometimes exceeds the profits gained as a result of the violation. And, as demonstrated here, SEC disgorgement may be ordered without consideration of a defendant’s expenses that reduced the amount of illegal profit. In such cases, disgorgement does not simply restore the status quo; it leaves the defendant worse off and is therefore punitive. Although disgorgement may serve compensatory goals in some cases, “sanctions frequently serve more than one purpose.” Austin v. United States, 509 U. S. 602 . Because they “go beyond compensation, are intended to punish, and label defendants wrongdoers” as a consequence of violating public laws, Gabelli, 568 U. S., at 451–452, disgorgement orders represent a penalty and fall within §2462’s 5-year limitations period. . 834 F. 3d 1158, reversed. Sotomayor, J., delivered the opinion for a unanimous Court.

Section 28 U.S. C. §2462 establishes a 5-year limitations period for an action for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, and provides that such an action shall be commenced within five years of the date the claim accrues. Pursuant to that statute, the Securities Enforcement Remedies and Penny Stock Reform Act (SENRA) authorized the Securities and Exchange Commission (SEC) to seek monetary civil penalties. However, in the years since the SENRA, however, the SEC has con-tinued its practice of seeking disgorgement in enforcement proceedings. In a civil forfeiture action brought in Federal District Court by Kokesh, alleging misappropriation of investment firms and investment advisory firms, the District Court imposed penalties sought by the SEC. The court entered a judgment awarding the SEC a civil penalty in the amount of $34.9 million, and ordered the SEC to pay an additional $18.1 million in prejudgment interest. The Court of Appeals affirmed. Held: 1. Section2462 applies to claims for disgorgements imposed as a sanction for violating a federal securities law... (a) The statute of limitations defines a penalty as a punishment, whether a sanction represents a penalty, whether corporal or pecuni, imposed and enforced by the State for a crime or offen[s]e against its laws. Here, the penalty is a form of compensatory, measured by the defendant's wrongful gain, and a penalty is not included in a liability imposedsolely for the purpose of redressing a private injury. . 2. SEC disgorgeement, as it is applied in SEC enforcement proceedings, operates as a penalty within the meaning of § 2462. Cf. Meeker v. Lehigh Valley R. Co., 236 U. S. 412-422. Pp. 442. (b) The SEC, in its enforcement context, has consistently emphasized the primary purpose of deterring violations of securities laws by providing an incidental deterrent to violators of their ill-gotten gains. Rather than providing the defendants with an incidental, incidental, and deterring purpose, the primary purposes of SEC disgorgation are to deter violations of public laws, deterring their violations, and deterring others from violations of the laws.. 3. The SEC is entitled to a deduction for all marginal costs incurred in producing the revenues that are subject to disgorgorgement, and to a penalty deduction for any excess net gains resulting from the defendant being liable in excess of net gains. P.. 834 F. 3d 1158, reversed. THE CHIEF JUSTICE, in an opinion joined by JUSTICE O'CONNOR, MR. JUSTICE POWELL, and JUSTICE REHNQUIST, concluded in Part I of which BURGER, C.J., and JUSTICE BRENNAN and JUSTICE STEVENS, JJ., joined that the judgment is reversed.

2016_16-327

https://www.oyez.org/cases/2016/16-327

. Petitioner Jae Lee was indicted on one count of possessing ecstasy with intent to distribute. Although he has lived in this country for most of his life, Lee is not a United States citizen, and he feared that a criminal conviction might affect his status as a lawful permanent resident. His attorney assured him there was nothing to worry about—the Government would not deport him if he pleaded guilty. So Lee, who had no real defense to the charge, opted to accept a plea that carried a lesser prison sentence than he would have faced at trial. Lee’s attorney was wrong: The conviction meant that Lee was subject to mandatory deportation from this country. Lee seeks to vacate his conviction on the ground that, in accepting the plea, he received ineffective assistance of counsel in violation of the Sixth Amendment. Everyone agrees that Lee received objectively unreasonable representation. The question presented is whether he can show he was prejudiced as a result. I Jae Lee moved to the United States from South Korea in 1982. He was 13 at the time. His parents settled the family in New York City, where they opened a small coffee shop. After graduating from a business high school in Manhattan, Lee set out on his own to Memphis, Tennessee, where he started working at a restaurant. After three years, Lee decided to try his hand at running a business. With some assistance from his family, Lee opened the Mandarin Palace Chinese Restaurant in a Memphis suburb. The Mandarin was a success, and Lee eventually opened a second restaurant nearby. In the 35 years he has spent in the country, Lee has never returned to South Korea. He did not become a United States citizen, living instead as a lawful permanent resident. At the same time he was running his lawful businesses, Lee also engaged in some illegitimate activity. In 2008, a confidential informant told federal officials that Lee had sold the informant approximately 200 ecstasy pills and two ounces of hydroponic marijuana over the course of eight years. The officials obtained a search warrant for Lee’s house, where they found 88 ecstasy pills, three Valium tablets, $32,432 in cash, and a loaded rifle. Lee admitted that the drugs were his and that he had given ecstasy to his friends. A grand jury indicted Lee on one count of possessing ecstasy with intent to distribute in violation of 21 U. S. C. §841(a)(1). Lee retained an attorney and entered into plea discussions with the Government. The attorney advised Lee that going to trial was “very risky” and that, if he pleaded guilty, he would receive a lighter sentence than he would if convicted at trial. App. 167. Lee informed his attorney of his noncitizen status and repeatedly asked him whether he would face deportation as a result of the criminal proceedings. The attorney told Lee that he would not be deported as a result of pleading guilty. Lee v. United States, 825 F. 3d 311, 313 (CA6 2016). Based on that assurance, Lee accepted the plea and the District Court sentenced him to a year and a day in prison, though it deferred commencement of Lee’s sentence for two months so that Lee could manage his restaurants over the holiday season. Lee quickly learned, however, that a prison term was not the only consequence of his plea. Lee had pleaded guilty to what qualifies as an “aggravated felony” under the Immigration and Nationality Act, and a noncitizen convicted of such an offense is subject to mandatory deportation. See 8 U. S. C. §§1101(a)(43)(B), 1227(a)(2)(A)(iii); Calcano-Martinez v. INS, 533 U. S. 348 , n. 1 (2001). Upon learning that he would be deported after serving his sentence, Lee filed a motion under 28 U. S. C. §2255 to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing on Lee’s motion, both Lee and his plea-stage counsel testified that “deportation was the determinative issue in Lee’s decision whether to accept the plea.” Report and Recommendation in No. 2:10–cv–02698 (WD Tenn.), pp. 6–7 (Report and Recommendation). In fact, Lee explained, his attorney became “pretty upset because every time something comes up I always ask about immigration status,” and the lawyer “always said why [are you] worrying about something that you don’t need to worry about.” App. 170. According to Lee, the lawyer assured him that if deportation was not in the plea agreement, “the government cannot deport you.” Ibid. Lee’s attorney testified that he thought Lee’s case was a “bad case to try” because Lee’s defense to the charge was weak. Id., at 218–219. The attorney nonetheless acknowledged that if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial. Id., at 236, 244. Based on the hearing testimony, a Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated because he had received ineffective assistance of counsel. The District Court, however, denied relief. Applying our two-part test for ineffective assistance claims from Strickland v. Washington, 466 U. S. 668 (1984) , the District Court concluded that Lee’s counsel had performed deficiently by giving improper advice about the deportation consequences of the plea. But, “[i]n light of the overwhelming evidence of Lee’s guilt,” Lee “would have almost certainly” been found guilty and received “a significantly longer prison sentence, and subsequent deportation,” had he gone to trial. Order in No. 2:10–cv–02698 (WD Tenn.), p. 24 (Order). Lee therefore could not show he was prejudiced by his attorney’s erroneous advice. Viewing its resolution of the issue as debatable among jurists of reason, the District Court granted a certificate of appealability. The Court of Appeals for the Sixth Circuit affirmed the denial of relief. On appeal, the Government conceded that the performance of Lee’s attorney had been deficient. To establish that he was prejudiced by that deficient performance, the court explained, Lee was required to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 825 F. 3d, at 313 (quoting Hill v. Lockhart, 474 U. S. 52, 59 (1985) ; internal quotation marks omitted). Lee had “no bona fide defense, not even a weak one,” so he “stood to gain nothing from going to trial but more prison time.” 825 F. 3d, at 313, 316. Relying on Circuit precedent holding that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence,” the Court of Appeals concluded that Lee could not show prejudice. Id., at 314 (internal quotation marks omitted). We granted certiorari. 580 U. S. ___ (2016). II The Sixth Amendment guarantees a defendant the effective assistance of counsel at “critical stages of a criminal proceeding,” including when he enters a guilty plea. Lafler v. Cooper, 566 U. S. 156, 165 (2012) ; Hill, 474 U. S., at 58. To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel’s representation “fell below an objective standard of reasonableness” and that he was prejudiced as a result. Strickland, 466 U. S., at 688, 692. The first requirement is not at issue in today’s case: The Government concedes that Lee’s plea-stage counsel provided inadequate representation when he assured Lee that he would not be deported if he pleaded guilty. Brief for United States 15. The question is whether Lee can show he was prejudiced by that erroneous advice. A A claim of ineffective assistance of counsel will often involve a claim of attorney error “during the course of a legal proceeding”—for example, that counsel failed to raise an objection at trial or to present an argument on appeal. Roe v. Flores-Ortega, 528 U. S. 470, 481 (2000) . A defendant raising such a claim can demonstrate prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 482 (quoting Strickland, 466 U. S., at 694; internal quotation marks omitted). But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Flores-Ortega, 528 U. S., at 483. When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial “would have been different” than the result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial proceedings that never took place.” Id., at 482–483 (internal quotation marks omitted). We instead consider whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” Id., at 483. As we held in Hill v. Lockhart, when a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U. S., at 59. The dissent contends that a defendant must also show that he would have been better off going to trial. That is true when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession. Premo v. Moore, 562 U. S. 115, 118 (2011) ; cf., e.g., Hill, 474 U. S., at 59 (discussing failure to investigate potentially exculpatory evidence). Not all errors, however, are of that sort. Here Lee knew, correctly, that his prospects of acquittal at trial were grim, and his attorney’s error had nothing to do with that. The error was instead one that affected Lee’s understanding of the consequences of pleading guilty. The Court confronted precisely this kind of error in Hill. See id., at 60 (“the claimed error of counsel is erroneous advice as to eligibility for parole”). Rather than asking how a hypothetical trial would have played out absent the error, the Court considered whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial. The Court rejected the defendant’s claim because he had “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” Ibid.[1] Lee, on the other hand, argues he can establish prejudice under Hill because he never would have accepted a guilty plea had he known that he would be deported as a result. Lee insists he would have gambled on trial, risking more jail time for whatever small chance there might be of an acquittal that would let him remain in the United States.[2] The Government responds that, since Lee had no viable defense at trial, he would almost certainly have lost and found himself still subject to deportation, with a lengthier prison sentence to boot. Lee, the Government contends, cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to an acquittal. B The Government asks that we, like the Court of Appeals below, adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. Brief for United States 26. As a general matter, it makes sense that a defendant who has no realistic defense to a charge supported by sufficient evidence will be unable to carry his burden of showing prejudice from accepting a guilty plea. But in elevating this general proposition to a per se rule, the Government makes two errors. First, it forgets that categorical rules are ill suited to an inquiry that we have emphasized demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor, 529 U. S. 362, 391 (2000) (internal quotation marks omitted); Strickland, 466 U. S., at 695. And, more fundamentally, the Government overlooks that the inquiry we prescribed in Hill v. Lockhart focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial. A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. See Hill, 474 U. S., at 59. Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one. But common sense (not to mention our precedent) recognizes that there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U. S. 289 –323 (2001). When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution’s plea offer is 18 years. Here Lee alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial. The Government urges that, in such circumstances, the possibility of an acquittal after trial is “irrelevant to the prejudice inquiry,” pointing to our statement in Strickland that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” 466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability we apply to judicial proceedings. As we have explained, that presumption has no place where, as here, a defendant was deprived of a proceeding altogether. Flores-Ortega, 528 U. S., at 483. In a presumptively reliable proceeding, “the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like” must by definition be ignored. Strickland, 466 U. S., at 695. But where we are instead asking what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking.[3] C “Surmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 559 U. S. 356, 371 (2010) , and the strong societal interest in finality has “special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U. S. 780, 784 (1979) . Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, we conclude that Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. There is no question that “deportation was the determinative issue in Lee’s decision whether to accept the plea deal.” Report and Recommendation, at 6–7; see also Order, at 14 (noting Government did not dispute testimony to this effect). Lee asked his attorney repeatedly whether there was any risk of deportation from the proceedings, and both Lee and his attorney testified at the evidentiary hearing below that Lee would have gone to trial if he had known about the deportation consequences. See Report and Recommendation, at 12 (noting “the undisputed fact that had Lee at all been aware that deportation was possible as a result of his guilty plea, he would . . . not have pled guilty”), adopted in relevant part in Order, at 15. Lee demonstrated as much at his plea colloquy: When the judge warned him that a conviction “could result in your being deported,” and asked “[d]oes that at all affect your decision about whether you want to plead guilty or not,” Lee answered “Yes, Your Honor.” App. 103. When the judge inquired “[h]ow does it affect your decision,” Lee responded “I don’t understand,” and turned to his attorney for advice. Ibid. Only when Lee’s counsel assured him that the judge’s statement was a “standard warning” was Lee willing to proceed to plead guilty. Id., at 210.[4] There is no reason to doubt the paramount importance Lee placed on avoiding deportation. Deportation is always “a particularly severe penalty,” Padilla, 559 U. S., at 365 (internal quotation marks omitted), and we have “recognized that ‘preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence,’ ” id., at 368 (quoting St. Cyr, 533 U. S., at 322; alteration and some internal quotation marks omitted); see also Padilla, 559 U. S., at 364 (“[D]eportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (footnote omitted)). At the time of his plea, Lee had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents—both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child. The Government argues, however, that under Padilla v. Kentucky, a defendant “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id., at 372. The Government contends that Lee cannot make that showing because he was going to be deported either way; going to trial would only result in a longer sentence before that inevitable consequence. See Brief for United States 13, 21–23. We cannot agree that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial. But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the “determinative issue” for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. See id., at 6. Not everyone in Lee’s position would make the choice to reject the plea. But we cannot say it would be irrational to do so. Lee’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence. Accordingly we conclude Lee has demonstrated a “reasonable probability that, but for [his] counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U. S., at 59. * * * The judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 The dissent also relies heavily on Missouri v. Frye, 566 U. S. 134 (2012) , and Lafler v. Cooper, 566 U. S. 156 (2012) . Those cases involved defendants who alleged that, but for their attorney’s incompetence, they would have accepted a plea deal—not, as here and as in Hill, that they would have rejected a plea. In both Frye and Lafler, the Court highlighted this difference: Immediately following the sentence that the dissent plucks from Frye, post, at 5 (opinion of Thomas, J.), the Court explained that its “application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill.” 566 U. S., at 148 (“Hill was correctly decided and applies in the context in which it arose”). Lafler, decided the same day as Frye, reiterated that “[i]n contrast to Hill, here the ineffective advice led not to an offer’s acceptance but to its rejection.” 566 U. S., at 163. Frye and Lafler articulated a different way to show prejudice, suited to the context of pleas not accepted, not an additional element to the Hill inquiry. See Frye, 566 U. S., at 148 (“Hill does not . . . provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations”). Contrary to the dissent’s assertion, post, at 8–9, we do not depart from Strickland’s requirement of prejudice. The issue is how the required prejudice may be shown. 2 Lee also argues that he can show prejudice because, had his attorney advised him that he would be deported if he accepted the Government’s plea offer, he would have bargained for a plea deal that did not result in certain deportation. Given our conclusion that Lee can show prejudice based on the reasonable probability that he would have gone to trial, we need not reach this argument. 3 The dissent makes much of the fact that Hill v. Lockhart, 474 U. S. 52 (1985) , also noted that courts should ignore the “idiosyncrasies of the particular decisionmaker.” Post, at 7 (quoting Hill, 474 U. S., at 60; internal quotation marks omitted). But Hill made this statement in discussing how courts should analyze “predictions of the outcome at a possible trial.” Id., at 59–60. As we have explained, assessing the effect of some types of attorney errors on defendants’ decisionmaking involves such predictions: Where an attorney error allegedly affects how a trial would have played out, we analyze that error’s effects on a defendant’s decisionmaking by making a prediction of the likely trial outcome. But, as Hill recognized, such predictions will not always be “necessary.” Id., at 60. Such a prediction is neither necessary nor appropriate where, as here, the error is one that is not alleged to be pertinent to a trial outcome, but is instead alleged to have affected a defendant’s understanding of the consequences of his guilty plea. 4 Several courts have noted that a judge’s warnings at a plea colloquy may undermine a claim that the defendant was prejudiced by his attorney’s misadvice. See, e.g., United States v. Newman, 805 F. 3d 1143, 1147 (CADC 2015); United States v. Kayode, 777 F. 3d 719, 728–729 (CA5 2014); United States v. Akinsade, 686 F. 3d 248, 253 (CA4 2012); Boyd v. Yukins, 99 Fed. Appx. 699, 705 (CA6 2004). The present case involves a claim of ineffectiveness of counsel extending to advice specifically undermining the judge’s warnings themselves, which the defendant contemporaneously stated on the record he did not understand. There has been no suggestion here that the sentencing judge’s statements at the plea colloquy cured any prejudice from the erroneous advice of Lee’s counsel.

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 JAE LEE v. UNITED STATES certiorari to the united states court of appeals for the sixth circuit No. 16–327. Argued March 28, 2017—Decided June 23, 2017 Petitioner Jae Lee moved to the United States from South Korea with his parents when he was 13. In the 35 years he has spent in this country, he has never returned to South Korea, nor has he become a U. S. citizen, living instead as a lawful permanent resident. In 2008, federal officials received a tip from a confidential informant that Lee had sold the informant ecstasy and marijuana. After obtaining a warrant, the officials searched Lee’s house, where they found drugs, cash, and a loaded rifle. Lee admitted that the drugs were his, and a grand jury indicted him on one count of possessing ecstasy with intent to distribute. Lee retained counsel and entered into plea discussions with the Government. During the plea process, Lee repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison. Lee had in fact pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U. S. C. §1101(a)(43)(B), so he was, contrary to his attorney’s advice, subject to mandatory deportation as a result of that plea. See §1227(a)(2)(A)(iii). When Lee learned of this consequence, he filed a motion to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Lee in deciding whether to accept a plea, and Lee’s counsel acknowledged that although Lee’s defense to the charge was weak, if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial. A Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated. The District Court, however, denied relief, and the Sixth Circuit affirmed. Applying the two-part test for ineffective assistance claims from Strickland v. Washington, 466 U. S. 668 , the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice. Held: Lee has demonstrated that he was prejudiced by his counsel’s erroneous advice. . (a) When a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S. 52 . Lee contends that he can make this showing because he never would have accepted a guilty plea had he known the result would be deportation. The Government contends that Lee cannot show prejudice from accepting a plea where his only hope at trial was that something unexpected and unpredictable might occur that would lead to acquittal. . (b) The Government makes two errors in urging the adoption of a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. First, it forgets that categorical rules are ill suited to an inquiry that demands a “case-by-case examination” of the “totality of the evidence.” Williams v. Taylor, 529 U. S. 362 (internal quotation marks omitted); Strickland, 466 U. S., at 695. More fundamentally, it overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. See INS v. St. Cyr, 533 U. S. 289 –323. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial. Pointing to Strickland, the Government urges that “[a] defendant has no entitlement to the luck of a lawless decisionmaker.” 466 U. S., at 695. That statement, however, was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected the defendant’s decisionmaking. . (c) Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. In the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation: Both Lee and his attorney testified that “deportation was the determinative issue” to Lee; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to South Korea. The Government argues that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances,” Padilla v. Kentucky, 559 U. S. 356 , since deportation would almost certainly result from a trial. Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. . 825 F. 3d 311, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined except as to Part I. Gorsuch, J., took no part in the consideration or decision of the case.

Pursuant to a guilty plea to a federal drug charge, petitioner Lee accepted a plea that carried a lesser prison sentence than he would have faced at trial. Upon learning that he would be deported after serving his sentence, he filed a motion under 28 U.S. C. §2255 to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing on the motion, both Lee and his plea-stage counsel testified that deportation was the determinative issue in Lee's decision to accept the plea, and that, if he accepted, he would accept the lesser sentence. However, the District Court denied relief, concluding that Lee could not show he was prejudiced by his attorney's erroneous advice. The Court of Appeals affirmed. Held: Lee can show prejudice from the denial of his right to trial.. (a) To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel's representation fell below an objective standard of reasonableness and that he was prejudiced as a result. Strickland v. Washington, 466 U. S. 668. Here, Lee had no realistic defense to the charge, and his attorney advised him repeatedly that his only hope at trial was that something unexpected and unpredictable might occur that would lead to an acquittal. Lee demonstrated as much at his plea colloquy, when the judge warned him that a conviction "could result in your being deported, and asked [d]oes that at all affect your decision about whether you want to plead guilty or not, but that does not... provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations." The inquiry prescribed in Hill v. Lockhart,, focuses on a defendant's decisionmaking, which may not turn solely on the likelihood of conviction after trial. A defendant without any viable defense will be highly likely to lose at trial, and a defendant facing such long odds will rarely be able to show prejudice. This is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake, but instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. Where a defendant alleges that his guilty plea led to a forfeiture of trial reliability, rather than to trial itself, the result of a trial outcome, is simply that the defendant has gone to trial to bargain for a trial result that is more likely to be different from trial outcome. See, e.g., St. Cyr v. St. Jude,,. Moreover, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking. In the unusual circumstances of this case, Lee has demonstrated a reasonable probability that, had his attorney failed to raise an objection at trial or to present an argument on appeal, Lee would have accepted the plea deal, not, as here and as in Hill, that they would have rejected it. . 825 F. 3d 311, reversed and remanded. Justice Gorsuch took no part in the consideration or decision of the case.

2016_15-1500

https://www.oyez.org/cases/2016/15-1500

. Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immu-nity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal employee in state court under state law. We granted certiorari to resolve whether an Indian tribe’s sovereign immu-nity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe. We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immu-nity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provision does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and remand. I A The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Lenape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7, 11–13 (1995). In 1994, in accordance with the petition procedures established by the Bureau of Indian Affairs, the Tribe attained federal recognition.[1] See 59 Fed. Reg. 12140 (1994); Mohegan Const., Preamble and Art. II. As one means of maintaining its economic self-sufficiency, the Tribe entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act, 102Stat. 2467, 25 U. S. C. §2701 et seq. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions including establishment of the Gaming Disputes Court. See 59 Fed. Reg. 65130 (approving the Tribal-State Compact Between the Mohegan Indian Tribe and the State of Connecticut (May 17, 1994)); Mohegan Const., Art. XIII, §2; Mohegan Tribe Code 3–248(a) (Supp. 2016). The Mohegan Tribal Gaming Authority, an arm of the Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §2–21. Of particular relevance here, Mohegan law sets out sovereign immunity and indemnification policies applicable to disputes arising from gaming activities. The Gaming Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §3–250(b). Neither the Tribe nor the Gaming Authority has consented to suit for claims arising under Connecticut state law. See Mohegan Const., Art. IX, §2(t); Mohegan Tribe Code §3–250(g); see also Blatchford v. Native Village of Noatak, 501 U. S. 775, 782 (1991) (observing that Indian tribes have not surrendered their immunity against suits by States). Further, Mohegan Tribe Code §4–52 provides that the Gaming Authority “shall save harmless and indemnify its Officer or Em-ployee from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence . . . if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Gaming Authority does not indemnify employees who engage in “wanton, reckless or malicious” activity. Mohegan Tribe Code§4–52. B Petitioners Brian and Michelle Lewis were driving down Interstate 95 in Norwalk, Connecticut, when a limousine driven by respondent William Clarke hit their vehicle from behind. Clarke, a Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino to their homes. For purposes of this appeal, it is undisputed that Clarke caused the accident. The Lewises filed suit against Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. See 2014 WL 5354956, *2 (Super. Ct. Conn., Sept. 10, 2014) (Cole-Chu, J.). Clarke argued that because the Gaming Authority, an arm of the Tribe, was entitled to sovereign immunity, he, an employee of the Gaming Authority acting within the scope of his employment at the time of the accident, was similarly entitled to sovereign immunity against suit. According to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity. The trial court denied Clarke’s motion to dismiss. Id., at *8. The court agreed with the Lewises that the sovereign immunity analysis should focus on the remedy sought in their complaint. To that end, the court identified Clarke, not the Gaming Authority or the Tribe, as the real party in interest because the damages remedy sought was solely against Clarke and would in no way affect the Tribe’s ability to govern itself independently. The court therefore concluded that tribal sovereign immunity was not implicated. Id., at *2–*8. It also rejected Clarke’s alternative argument that because the Gaming Authority was obligated to indemnify him pursuant to Mohegan Tribe Code §4–52 and would end up paying the damages, he should prevail under the remedy analysis. Id., at *7. The trial court reasoned that a “voluntary undertaking cannot be used to extend sovereign immunity where it did not otherwise exist.” Ibid. The Supreme Court of Connecticut reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn. 706, 135 A. 3d 677 (2016). The court agreed with Clarke that “because he was acting within the scope of his employment for the Mohegan Tribal Gaming Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan Tribe, tribal sovereign immunity bars the plaintiffs’ claims against him.” Id., at 709, 135 A. 3d, at 680. Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his duties and the complaint does not allege, nor have the plaintiffs offered any other evidence, that he acted outside the scope of his authority.” Id., at 720, 135 A. 3d, at 685. To do otherwise, the court reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. Id., at 717, 135 A. 3d, at 684 (alterations and internal quotation marks omitted). Because the court determined that Clarke was entitled to sovereign immunity on the sole basis that he was acting within the scope of his employment when the accident occurred, id., at 720, 135 A. 3d, at 685–686, it did not consider whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We granted certiorari to consider whether tribal sovereign immunity bars the Lewises’ suit against Clarke, 579 U. S. ___ (2016), and we now reverse the judgment of the Supreme Court of Connecticut. II Two issues require our resolution: (1) whether the sovereign immunity of an Indian tribe bars individual-capacity damages against tribal employees for torts committed within the scope of their employment; and (2) what role, if any, a tribe’s decision to indemnify its employees plays in this analysis. We decide this case under the framework of our precedents regarding tribal immunity. A Our cases establish that, in the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. See Hafer v. Melo, 502 U. S. 21, 25 (1991) . In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte New York, 256 U. S. 490 –502 (1921). If, for example, an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amendment’s protection. For this reason, an arm or instrumentality of the State generally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U. S. 425 –430 (1997). Similarly, lawsuits brought against employees in their official capacity “represent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. Kentucky v. Graham, 473 U. S. 159 –166 (1985) (internal quotation marks omitted). The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989) ; Dugan v. Rank, 372 U. S. 609 –622 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. Hafer, 502 U. S., at 25. The real party in interest is the government entity, not the named official. See Edelman v. Jordan, 415 U. S. 651 –665 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer, 502 U. S., at 25 (emphasis added); see also id., at 27–31 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) . “[O]fficers sued in their personal capacity come to court as individuals,” Hafer, 502 U. S., at 27, and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what immunities may be available. Defendants in an official-capacity action may assert sovereign immunity. Graham, 473 U. S., at 167. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prosecutorial immunity in certain circumstances. Van de Kamp v. Goldstein, 555 U. S. 335 –344 (2009). But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” Hafer, 502 U. S., at 30–31 (internal quotation marks omitted); see Alden v. Maine, 527 U. S. 706, 757 (1996) . B There is no reason to depart from these general rules in the context of tribal sovereign immunity. It is apparent that these general principles foreclose Clarke’s sovereign immunity defense in this case. This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign’s property.” Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682, 687 (1949) . We are cognizant of the Supreme Court of Connecticut’s concern that plaintiffs not circumvent tribal sovereign immunity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest. In ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees. See, e.g., Graham, 473 U. S., at 167–168. The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity. Accordingly, under established sovereign immunity principles, the Gaming Authority’s immunity does not, in these circumstances, bar suit against Clarke.[2] III The conclusion above notwithstanding, Clarke argues that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code §4–52 to indemnify Clarke for any adverse judgment.[3] A We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Our holding follows naturally from the principles discussed above. Indeed, we have applied these same principles to a different question before—whether a state instrumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indemnify that instrumentality against adverse judgments. In Regents of Univ. of Cal., an individual brought suit against the University of California, a public university of the State of California, for breach of contract related to his employment at a laboratory operated by the university pursuant to a contract with the Federal Government. We held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity. 519 U. S., at 426. Our analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Because the lawsuit bound the university, we held, the Eleventh Amendment applied to the litigation even though the damages award would ultimately be paid by the federal Department of Energy. Id., at 429–431. Our reasoning remains the same. The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.[4] Here, the Connecticut courts exercise no jurisdiction over the Tribe or the Gaming Authority, and their judgments will not bind the Tribe or its instrumentalities in any way. The Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individual capacity, he is held responsible only for his individual wrongdoing. Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the Gaming Authority should it determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code §4–52. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter. B Clarke notes that courts have extended sovereign immunity to private healthcare insurance companies under certain circumstances. See, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F. 3d 67, 71–72 (CA2 1998); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F. 2d 1073, 1074–1075 (CADC 1973); Brief for Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal intermediaries are essentially state instrumentalities, as the governing regulations make clear. See 42 CFR §421.5(b) (2016) (providing that the Medicare Administrator “is the real party of interest in any litigation involving the administration of the program”). It is well established in our precedent that a suit against an arm or instrumentality of the State is treated as one against the State itself. See Regents of Univ. of Cal., 519 U. S., at 429. We have not before treated a lawsuit against an individual em-ployee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now. Nor have we ever held that a civil rights suit under 42 U. S. C. §1983 against a state officer in his individual capacity implicates the Eleventh Amendment and a State’s sovereign immunity from suit.[5] Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in §1983 actions. See, e.g., Stoner v. Wisconsin Dept. of Agriculture, Trade and Consumer Protection, 50 F. 3d 481, 482–483 (CA7 1995); Blalock v. Schwinden, 862 F. 2d 1352, 1354 (CA9 1988); Duckworth v. Franzen, 780 F. 2d 645, 650 (CA7 1985). These cases rely on the concern that originally drove the adoption of the Eleventh Amendment—the protection of the States against involuntary liability. See Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30, 39, 48 (1994) . But States institute indemnification policies voluntarily. And so, indemnification provisions do not implicate one of the underlying rationales for state sovereign immunity—a government’s ability to make its own decisions about “the allocation of scarce resources.” Alden, 527 U. S., at 751. Finally, our conclusion that indemnification provisions do not alter the real-party-in-interest analysis for purposes of sovereign immunity is consistent with the practicethat applies in the contexts of diversity of citizenship and joinder. In assessing diversity jurisdiction, courts look to the real parties to the controversy. Navarro Savings Assn. v. Lee, 446 U. S. 458, 460 (1980) . Applying this principle, courts below have agreed that the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis. See, e.g., Corfield v. Dallas Glen Hills LP, 355 F. 3d 853, 865 (CA5 2003); E. R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F. 3d 925, 936–937 (CA2 1998). They have similarly held that a party does not become a required party for joinder purposes under Federal Rule of Civil Procedure 19 simply by virtue of indemnifying one of the named parties. See, e.g., Gardiner v. Virgin Islands Water & Power Auth., 145 F. 3d 635, 641 (CA3 1998); Rochester Methodist Hospital v. Travelers Ins. Co., 728 F. 2d 1006, 1016–1017 (CA8 1984). In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense. IV The judgment of the Supreme Court of Connecticut is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 There are currently 567 federally recognized Indian and Alaska Native entities. 81 Fed. Reg. 26826–26832 (2016); see also Native Hawaiian Law: A Treatise 303–324 (M. MacKenzie ed. 2015) (discussing the existing relationships between the U. S. Government and federally recognized tribes and other indigenous groups in the United States); F. Cohen, Handbook of Federal Indian Law §§1.01–1.07 (2012 and Supp. 2015); V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). 2 There are, of course, personal immunity defenses distinct from sovereign immunity. E.g., Harlow v. Fitzgerald, 457 U. S. 800 –815 (1982). Clarke argues for the first time before this Court that one particular form of personal immunity is available to him here—official immunity. See Westfall v. Erwin, 484 U. S. 292 –297 (1988). That defense is not properly before us now, however, given that Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443, 455 (2007) . 3 As noted above, the Supreme Court of Connecticut did not reach whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We nevertheless consider the issue fairly included within the question presented, as it is a purely legal question that is an integral part of Clarke’s sovereign immunity argument and that was both raised to and passed on by the trial court. See Mitchell v. Forsyth, 472 U. S. 511, 530 (1985) (“[T]he purely legal question on which [petitioner’s] claim of immunity turns is appropriate for our immediate resolution notwithstanding that it was not addressed by the Court of Appeals” (internal quotation marks omitted)). 4 Our holding in Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30 (1994) , is not to the contrary. There the immunity question turned on whether the Port Authority Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment immunity such that any judgment “must be paid out of a State’s treasury.” Id., at 48, 51–52 (emphasis added). Here, unlike in Hess, the damages judgment would not come from the sovereign. 5 A suit against a state officer in his official, rather than individual, capacity might implicate the Eleventh Amendment. See Kentucky v. Graham, 473 U. S. 159 –166 (1985).

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 LEWIS et al. v. CLARKE certiorari to the supreme court of connecticut No. 15–1500. Argued January 9, 2017—Decided April 25, 2017 Petitioners Brian and Michelle Lewis were driving on a Connecticut interstate when they were struck from behind by a vehicle driven by respondent William Clarke, a Mohegan Tribal Gaming Authority employee, who was transporting Mohegan Sun Casino patrons. The Lewises sued Clarke in his individual capacity in state court. Clarke moved to dismiss for lack of subject-matter jurisdiction, arguing that because he was an employee of the Gaming Authority—an arm of the Mohegan Tribe entitled to sovereign immunity—and was acting within the scope of his employment at the time of the accident, he was similarly entitled to sovereign immunity against suit. He also argued, in the alternative, that he should prevail because the Gaming Authority was bound by tribal law to indemnify him. The trial court denied Clarke’s motion, but the Supreme Court of Connecticut reversed, holding that tribal sovereign immunity barred the suit because Clarke was acting within the scope of his employment when the accident occurred. It did not consider whether Clarke should be entitled to sovereign immunity based on the indemnification statute. Held: 1. In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. . (a) In the context of lawsuits against state and federal employees or entities, courts look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit, see Hafer v. Melo, 502 U. S. 21 . A defendant in an official-capacity action—where the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself—may assert sovereign immunity. Kentucky v. Graham, 473 U. S. 159 . But an officer in an individual-capacity action—which seeks “to impose individual liability upon a government officer for actions taken under color of state law,” Hafer, 502 U. S., at 25—may be able to assert personal immunity defenses but not sovereign immunity, id., at 30–31. The Court does not reach Clarke’s argument that he is entitled to the personal immunity defense of official immunity, which Clarke raised for the first time on appeal. . (b) Applying these general rules in the context of tribal sovereign immunity, it is apparent that they foreclose Clarke’s sovereign immunity defense. This action arises from a tort committed by Clarke on a Connecticut interstate and is simply a suit against Clarke to recover for his personal actions. Clarke, not the Gaming Authority, is the real party in interest. The State Supreme Court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federal employees. . 2. An indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. . (a) This conclusion follows naturally from the principles discussed above and previously applied to the different question whether a state instrumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indemnify that instrumentality against adverse judgments, Regents of Univ. of Cal. v. Doe, 519 U. S. 425 . There, this Court held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity, and its analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Here, the Connecticut courts exercise no jurisdiction over the Tribe or Gaming Authority, and their judgments will not bind the Tribe or its instrumentalities in any way. Moreover, indemnification is not a certainty, because Clarke will not be indemnified should the Gaming Authority determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code §4–52. . (b) Courts have extended sovereign immunity to private healthcare insurance companies under certain circumstances, but those cases rest on the proposition that the fiscal intermediaries are essentially state instrumentalities, and Clarke offers no persuasive reason to depart from precedent and treat a lawsuit against an individual employee as one against a state instrumentality. Similarly, this Court has never held that a civil rights suit under 42 U. S. C. §1983 against a state officer in his individual capacity implicates the Eleventh Amendment and a State’s sovereign immunity from suit. Finally, this Court’s conclusion that indemnification provisions do not alter the real-party-in-interest analysis for sovereign immunity purposes is consistent with the practice that applies in the contexts of diversity of citizenship and joinder. . 320 Conn.706, 135 A. 3d 677, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., and Ginsburg, J., filed opinions concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.

As one means of maintaining its economic self-sufficiency, the Mohegan Tribe of Indians of Connecticut entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions, including establishment of the Gaming Disputes Court. The Tribe is an arm of the Tribe, and exercises the Tribe over tribal gaming activities. However, the Tribe has waived its sovereign immunity and consented to be sued in that court. Neither the Tribe nor the Gaming Authority has agreed to suit for claims arising under Connecticut state law. Petitioners Lewis, a limousine driven by respondent Clarke, were driving down Interstate 95 in Connecticut when a vehicle struck and killed petitioners, the patrons of a casino in their homes. The casino patrons filed suit in state court against Clarke on the undisputed basis of sovereign immunity. The trial court denied his motion to dismiss, holding that tribal sovereign immunity was not implicated, and that, because he was acting within the scope of his employment for the Tribe and the tribal Gaming Authority, tribal immunity bars his claims against him. The Connecticut Supreme Court reversed. Held: 1. In the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but must determine in the first instance whether the remedy sought is truly against the sovereign. An indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Cf. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30; Regents of Univ. of Cal. v. Doe, 519 U.S. 430. . 2. An Indian tribe may invoke the State's immunity from suit even when the Federal Government agrees to indemnify that instrumentality against adverse judgments. See, e.g., Hafer v. Melo, 502 U. s. 21, 25 (1991). However, under established sovereign immunity principles, the tribal immunity does not, in these circumstances, bar suit against Clarke.. 3. In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is not implicated in the interest of protecting the tribe from suit. Clarke, who offers no persuasive reason to do so, will not be indemnified by the Tribe should it determine that he engaged in reckless, malicious, or malicious activity. Id., at 709, 135 A. 3d, at 684. Moreover, indemnification is not a certainty here, since Clarke will be held responsible only for his individual wrongdoing, and indemnification is not necessary to the disposition of the petitioners' suit against him in the Connecticut state courts, which is a separate legal matter. P.. 4. Also foreclosed is Clarke, whose sovereign immunity defense is not properly before this Court. This is a negligence action arising from a tort committed by Clarke on an interstate highway within Connecticut, and the suit is brought not against Clarke in his official capacity, but on state lands. The judgment will not operate against the Tribe. Thus, the liability of the petitioner remains at the same level as that brought against Clarke, and his individual claim against him does not avail him as a sovereign defense. See Hafer, supra, at 710.5. Hess also does not alter the real-party-in-interest analysis for purposes of the sovereign immunity analysis, since it is a purely legal question that is an integral part of Clarke's sovereign immunity argument and that was both raised to and passed on by the trial court. See Mitchell v. Forsyth, 472 U.. S. 511, 530... 320 Conn. 706,135 A.3d 677, reversed and remanded. Justice Gorsuch took no part in the consideration or decision of this case. Reported below: 320 Conn 706 (Dec. 5, 2016), 320 Conn.706, 140 A.D 677 (CA2, 2016). (a) The general rules governing the indemnification statute foreclose Clarke, as it is, that suit against an arm or instrumentality of the State is treated as one against the State itself, and Clarke offers no compelling reason why he should be entitled to sovereign immunity on the basis of that immunity. See 42 CFR §421.5(b) (b), which provides that the Medicare Administrator is the Real party of interest in any litigation involving the administration of the Medicare program. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. 881, 455. Pp. 473 U.

2016_14-1538

https://www.oyez.org/cases/2016/14-1538

. This case concerns the intersection of international supply chains and federal patent law. Section 271(f)(1) of the Patent Act of 1952 prohibits the supply from theUnited States of “all or a substantial portion” of the components of a patented invention for combination abroad. 35 U. S. C. §271(f)(1). We granted certiorari to determine whether a party that supplies a single component of a multicomponent invention for manufacture abroad can be held liable for infringement under §271(f)(1). 579 U. S. ___ (2016). We hold that a single component does not constitute a substantial portion of the components that can give rise to liability under §271(f)(1). Because only a single component of the patented invention at issue here was supplied from the United States, we reverse and remand. I A We begin with an overview of the patent in dispute. Although the science behind the patent is complex, a basic understanding suffices to resolve the question presented by this case. The Tautz patent, U. S. Reissue Patent No. RE 37,984, claims a toolkit for genetic testing.[1] The kit is used to take small samples of genetic material—in the form of nucleotide sequences that make up the molecule deoxyribonu-cleic acid (commonly referred to as “DNA”)—and then synthesize multiple copies of a particular nucleotide sequence. This process of copying, known as amplification, generates DNA profiles that can be used by law enforcement agencies for forensic identification and by clinical and research institutions around the world. For purposes of this litigation, the parties agree that the kit covered by the Tautz patent contains five components: (1) a mixture of primers that mark the part of the DNA strand to be copied; (2) nucleotides for forming replicated strands of DNA; (3) an enzyme known as Taq polymerase; (4) a buffer solution for the amplification; and (5) control DNA.[2] Respondent Promega Corporation was the exclusive licensee of the Tautz patent. Petitioner Life Technologies Corporation manufactured genetic testing kits.[3] During the timeframe relevant here, Promega sublicensed the Tautz patent to Life Technologies for the manufacture and sale of the kits for use in certain licensed law enforcement fields worldwide. Life Technologies manufactured all but one component of the kits in the United Kingdom. It manufactured that component—the Taq polymerase—in the United States. Life Technologies shipped the Taq polymerase to its United Kingdom facility, where it was combined with the other four components of the kit. Four years into the agreement, Promega sued Life Technologies on the grounds that Life Technologies had infringed the patent by selling the kits outside the licensed fields of use to clinical and research markets. As relevant here, Promega alleged that Life Technologies’ supply of the Taq polymerase from the United States to its United Kingdom manufacturing facilities triggered liability under §271(f)(1). B At trial, the parties disputed the scope of §271(f)(1)’s prohibition against supplying all or a substantial portion of the components of a patented invention from the United States for combination abroad. Section 271(f)(1)’s full text reads: “Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” The jury returned a verdict for Promega, finding that Life Technologies had willfully infringed the patent. Life Technologies then moved for judgment as a matter of law, contending that §271(f)(1) did not apply to its conduct because the phrase “all or a substantial portion” does not encompass the supply of a single component of a multicomponent invention. The District Court granted Life Technologies’ motion. The court agreed that there could be no infringement under §271(f)(1) because Promega’s evidence at trial “showed at most that one component of all of the accused products, [the Taq] polymerase, was supplied from the United States.” 2012 WL 12862829, *3 (WD Wis., Sept. 13, 2012) (Crabb, J.). Section 271(f)(1)’s reference to “a substantial portion of the components,” the District Court ruled, does not embrace the supply of a single component. Id., at *5. The Court of Appeals for the Federal Circuit reversed and reinstated the jury’s verdict finding Life Technologies liable for infringement.[4] 773 F. 3d 1338, 1353 (2014). As relevant here, the court held that “there are circumstances in which a party may be liable under §271(f)(1) for supplying or causing to be supplied a single component for combination outside the United States.” Ibid. The Federal Circuit concluded that the dictionary definition of “substantial” is “important” or “essential,” which it read to suggest that a single important component can be a “ ‘substantial portion of the components’ ” of a patented invention. Ibid. Relying in part on expert trial testimony that the Taq polymerase is a “ ‘main’ ” and “ ‘major’ ” component of the kits, the court ruled that the single Taq polymerase component was a substantial component as the term is used in §271(f)(1). Id., at 1356. II The question before us is whether the supply of a single component of a multicomponent invention is an infringing act under 35 U. S. C. §271(f)(1). We hold that it is not. A The threshold determination to be made is whether §271(f)(2)’s requirement of “a substantial portion” of the components of a patented invention refers to a quantitative or qualitative measurement. Life Technologies and the United States argue that the text of §271(f)(1) establishes a quantitative threshold, and that the threshold must be greater than one. Promega defends the Federal Circuit’s reading of the statute, arguing that a “substantial portion” of the components includes a single component if that component is sufficiently important to the invention. We look first to the text of the statute. Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6). The Patent Act itself does not define the term “substantial,” and so we turn to its ordinary meaning. Ibid. Here we find little help. All agree the term is ambiguous and, taken in isolation, might refer to an important portion or to a large portion. Brief for Petitioners 16; Brief for Respondent 18; Brief for United States as Amicus Curiae 12. “Substantial,” as it is commonly understood, may refer either to qualitative importance or to quantitatively large size. See, e.g., Webster’s Third New International Dictionary 2280 (defs. 1c, 2c) (1981) (Webster’s Third) (“important, essential,” or “considerable in amount, value, or worth”); 17 Oxford English Dictionary 67 (defs. 5a, 9) (2d ed. 1989) (OED) (“That is, constitutes, or involves an essential part, point, or feature; essential, material,” or “Of ample or considerable amount, quantity, or dimensions”). The context in which “substantial” appears in the statute, however, points to a quantitative meaning here. Its neighboring terms are the first clue. “[A] word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U. S. 285, 294 (2008) . Both “all” and “portion” convey a quantitative meaning. “All” means the entire quantity, without reference to relative importance. See, e.g., Webster’s Third 54 (defs. 1a, 2a, 3) (“that is the whole amount or quantity of,” or “every member or individual component of,” or “the whole number or sum of”); 1 OED 324 (def. 2) (“The entire number of; the individual components of, without exception”). “Portion” likewise refers to some quantity less than all. Webster’s Third 1768 (defs. 1, 3a) (“an individual’s part or share of something,” or “a part of a whole”); 12 OED 154, 155 (def. 1a, 5a) (“The part (of anything) allotted or belonging to one person,” or “A part of any whole”). Conversely, there is nothing in the neighboring text to ground a qualitative interpretation. Moreover, the phrase “substantial portion” is modified by “of the components of a patented invention.” It is the supply of all or a substantial portion “of the components” of a patented invention that triggers liability for infringement. But if “substantial” has a qualitative meaning, then the more natural way to write the opening clause of the provision would be to not reference “the components” at all. Instead, the opening clause of §271(f)(1) could have triggered liability for the supply of “all or a substantial portion of . . . a patented invention, where [its] components are uncombined in whole or in part.” A qualitative reading would render the phrase “of the components” unnecessary the first time it is used in §271(f)(1). Whenever possible, however, we should favor an interpretation that gives meaning to each statutory provision. See Hibbs v. Winn, 542 U. S. 88, 101 (2004) . Only the quantitative approach does so here. Thus, “substantial,” in the context of §271(f)(1), is most reasonably read to connote a quantitative measure. Promega argues that a quantitative approach is too narrow, and invites the Court to instead adopt a “case-specific approach” that would require a factfinder to decipher whether the components at issue are a “substantial portion” under either a qualitative or quantitative test. Brief for Respondent 17, 42. We decline to do so. Having determined the phrase “substantial portion” is ambiguous, our task is to resolve that ambiguity, not to compound it by tasking juries across the Nation with interpreting the meaning of the statute on an ad hoc basis. See, e.g., Robinson v. Shell Oil Co., 519 U. S. 337 –346 (1997). As a more general matter, moreover, we cannot accept Promega’s suggestion that the Court adopt a different analytical framework entirely—one that accounts for both the quantitative and qualitative aspects of the components. Promega reads §271(f)(1) to mean that the answer to whether a given portion of the components is “substantial” depends not only on the number of components involved but also on their qualitative importance to the invention overall. At first blush, there is some appeal to the idea that, in close cases, a subjective analysis of the qualitative importance of a component may help determine whether it is a “substantial portion” of the components of a patent. But, for the reasons discussed above, the statute’s structure provides little support for a qualitative interpretation of the term.[5] Nor would considering the qualitative importance of a component necessarily help resolve close cases. To the contrary, it might just as easily complicate the factfinder’s review. Surely a great many components of an invention (if not every component) are important. Few inventions, including the one at issue here, would function at all without any one of their components. Indeed, Promega has not identified any component covered by the Tautz patent that would not satisfy Promega’s “importance” litmus test.[6] How are courts—or, for that matter, market participants attempting to avoid liability—to determine the relative importance of the components of an invention? Neither Promega nor the Federal Circuit offers an easy way to make this decision. Accordingly, we conclude that a quantitative interpretation hews most closely to the text of the statute and provides an administrable construction. B Having determined that the term “substantial portion” refers to a quantitative measurement, we must next decide whether, as a matter of law, a single component can ever constitute a “substantial portion” so as to trigger liability under §271(f)(1). The answer is no. As before, we begin with the text of the statute. Section 271(f)(1) consistently refers to “components” in the plural. The section is targeted toward the supply of all or a substantial portion “of the components,” where “such components” are uncombined, in a manner that actively induces the combination of “such components” outside the United States. Text specifying a substantial portion of “components,” plural, indicates that multiple components constitute the substantial portion. The structure of §271(f) reinforces this reading. Section 271(f)(2), which is §271(f)(1)’s companion provision, reads as follows: “Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of theUnited States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” Reading §271(f)(1) to refer to more than one component allows the two provisions to work in tandem. Whereas §271(f)(1) refers to “components,” plural, §271(f)(2) refers to “any component,” singular. And, whereas §271(f)(1) speaks to whether the components supplied by a party constitute a substantial portion of the components,§271(f)(2) speaks to whether a party has supplied “any” noncommodity component “especially made or especially adapted for use in the invention.” We do not disagree with the Federal Circuit’s observation that the two provisions concern different scenarios. See 773 F. 3d, at 1354. As this Court has previously observed, §§271(f)(1) and 271(f)(2) “differ, among other things, on the quantity of components that must be ‘supplie[d] . . . from the United States’ for liability to attach.” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454, n. 16 (2007) . But we do not draw the Federal Circuit’s conclusion from these different but related provisions. Reading §271(f)(1) to cover any single component would not only leave little room for §271(f)(2), but would also undermine §271(f)(2)’s express reference to a single component “especially made or especially adapted for use in the invention.”[7] Our conclusion that §271(f)(1) prohibits the supply of components, plural, gives each subsection its unique application.[8] See, e.g., Cloer, 569 U. S., at ___ (slip op.,at 6). Taken alone, §271(f)(1)’s reference to “components” might plausibly be read to encompass “component” in the singular. See 1 U. S. C. §1 (instructing that “words importing the plural include the singular,” “unless the context indicates otherwise”). But §271(f)’s text, context, and structure leave us to conclude that when Congress said “components,” plural, it meant plural, and when it said “component,” singular, it meant singular. We do not today define how close to “all” of the components “a substantial portion” must be. We hold only that one component does not constitute “all or a substantial portion” of a multicomponent invention under §271(f)(1). This is all that is required to resolve the question presented. C The history of §271(f) bolsters our conclusion. The Court has previously observed that Congress enacted §271(f) in response to our decision in Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518 (1972) . See Microsoft Corp., 550 U. S., at 444. In Deepsouth, the Court determined that, under patent law as it existed at the time, it was “not an infringement to make or use a patented product outside of the United States.” 406 U. S., at 527. The new §271(f) “expand[ed] the definition of infringement to include supplying from the United States a patented invention’s components,” as outlined in subsections (f)(1) and (f)(2). Microsoft, 550 U. S., at 444–445. The effect of this provision was to fill a gap in the enforceability of patent rights by reaching components that are manufactured in the United States but assembled overseas and that were beyond the reach of the statute in its prior formulation. Our ruling today comports with Congress’ intent. A supplier may be liable under§271(f)(1) for supplying from the United States all or a substantial portion of the components (plural) of the invention, even when those components are combined abroad. The same is true even for a single component under §271(f)(2) if it is especially made or especially adapted for use in the invention and not a staple article or commodity. We are persuaded, however, that when as in this case a product is made abroad and all components but a single commodity article are supplied from abroad, this activity is outside the scope of the statute. III We hold that the phrase “substantial portion” in 35 U. S. C. §271(f)(1) has a quantitative, not a qualitative, meaning. We hold further that §271(f)(1) does not cover the supply of a single component of a multicomponent invention. The judgment of the Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The Chief Justice took no part in the decision of this case.Notes 1 The Tautz patent expired in 2015. The litigation thus concerns past acts of infringement only. 2 Because the parties here agree that the patented invention is made up of only these five components, we do not consider how to identify the “components” of a patent or whether and how that inquiry relates to the elements of a patent claim. 3 Applied Biosystems, LLC, and Invitrogen IP Holdings, Inc., are also petitioners in this proceeding and are wholly owned subsidiaries of Life Technologies Corporation. The agreement at issue here was originally between Promega and Applied Biosystems. 773 F. 3d 1338, 1344, n. 3 (CA Fed. 2014). 4 Chief Judge Prost dissented from the majority’s conclusion with respect to the “active inducement” element of 35 U. S. C. §271(f )(1). 773 F. 3d, at 1358–1360. Neither that question, nor any of the Federal Circuit’s conclusions regarding Life Technologies’ liability under §271(a) or infringement of four additional Promega patents, see id., at 1341, is before us. See 579 U. S. ___ (2016). 5 The examples Promega provides of other statutes’ use of the terms “substantial” or “significant” are inapposite. See Brief for Respondent 19–20. The text of these statutes, which arise in different statutory schemes with diverse purposes and structures, differs in material ways from the text of §271(f )(1). The Tax Code, for instance, refers to “a substantial portion of a return,” 26 U. S. C. §7701(a)(36)(A), not to “a substantial portion of the entries of a return.” 6 Life Technologies’ expert described the Taq polymerase as a “main” component. App. 160. The expert also described two other components the same way. Ibid. 7 This Court’s opinion in Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 447 (2007) , is not to the contrary. The holding in that case turned not on the number of components involved, but rather on whether the software at issue was a component at all. 8 Promega argues that the important distinction between these provisions is that §271(f )(1), unlike §271(f )(2), requires a showing of specific intent for active inducement. Brief for Respondent 34–41. But cf. Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. 754 –766 (2011) (substantially equating the intent requirements for §§271(b) and 271(c), on which Promega asserts §§271(f )(1) and (f )(2) were modeled). But, to repeat, whatever intent subsection (f )(1) may require, it also imposes liability only on a party who supplies a “substantial portion of the components” of the invention. Thus, even assuming that subsection (f )(1)’s “active inducement” requirement is different from subsection (f )(2)’s “knowing” and “intending” element—a question we do not reach today—that difference between the two provisions does not read the “substantial portion” language out of the statute.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus LIFE TECHNOLOGIES CORP. et al. v. PROMEGA CORP. certiorari to the united states court of appeals for the federal circuit No. 14–1538. Argued December 6, 2016—Decided February 22, 2017 Respondent Promega Corporation sublicensed the Tautz patent, which claims a toolkit for genetic testing, to petitioner Life Technologies Corporation and its subsidiaries (collectively Life Technologies) for the manufacture and sale of the kits for use in certain licensed law enforcement fields worldwide. One of the kit’s five components, an enzyme known as the Taq polymerase, was manufactured by Life Technologies in the United States and then shipped to the United Kingdom, where the four other components were made, for combination there. When Life Technologies began selling the kits outside the licensed fields of use, Promega sued, claiming that patent infringement liability was triggered under §271(f)(1) of the Patent Act, which prohibits the supply from the United States of “all or a substantial portion of the components of a patented invention” for combination abroad. The jury returned a verdict for Promega, but the District Court granted Life Technologies’ motion for judgment as a matter of law, holding that §271(f)(1)’s phrase “all or a substantial portion” did not encompass the supply of a single component of a multicomponent invention. The Federal Circuit reversed. It determined that a single important component could constitute a “substantial portion” of the components of an invention under §271(f)(1) and found the Taq polymerase to be such a component. Held: The supply of a single component of a multicomponent invention for manufacture abroad does not give rise to §271(f)(1) liability. . (a) Section 271(f)(1)’s phrase “substantial portion” refers to a quantitative measurement. Although the Patent Act itself does not define the term “substantial,” and the term’s ordinary meaning may refer either to qualitative importance or to quantitatively large size, the statutory context points to a quantitative meaning. Neighboring words “all” and “portion” convey a quantitative meaning, and nothing in the neighboring text points to a qualitative interpretation. More-over, a qualitative reading would render the modifying phrase “of the components” unnecessary the first time it is used in §271(f)(1). Only the quantitative approach thus gives meaning to each statutory provision. Promega’s proffered “case-specific approach,” which would require a factfinder to decipher whether the components at issue are a “substantial portion” under either a qualitative or a quantitative test, is rejected. Tasking juries with interpreting the statute’s meaning on an ad hoc basis would only compound, not resolve, the statute’s ambiguity. And Promega’s proposal to adopt an analytical framework that accounts for both the components’ quantitative and qualitative aspects is likely to complicate rather than aid the factfinder’s review. . (b) Under a quantitative approach, a single component cannot constitute a “substantial portion” triggering §271(f)(1) liability. This conclusion is reinforced by §271(f)’s text, context, and structure. Section 271(f)(1) consistently refers to the plural “components,” indicating that multiple components make up the substantial portion. Reading §271(f)(1) to cover any single component would also leave little room for §271(f)(2), which refers to “any component,” and would undermine §271(f)(2)’s express reference to a single component “especially made or especially adapted for use in the invention.” The better reading allows the two provisions to work in tandem and gives each provision its unique application. . (c) The history of §271(f) further bolsters this conclusion. Congress enacted §271(f) in response to Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518 , to fill a gap in the enforceability of patent rights by reaching components that are manufactured in the United States but assembled overseas. Consistent with Congress’s intent, a supplier may be liable under §271(f)(1) for supplying from the United States all or a substantial portion of the components of the invention or under §271(f)(2) for supplying a single component if it is especially made or especially adapted for use in the invention and not a staple article or commodity. But, as here, when a product is made abroad and all components but a single commodity article are supplied from abroad, the activity is outside the statute’s scope. . 773 F. 3d. 1338, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined, and in which Thomas and Alito, JJ., joined as to all but Part II–C. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Roberts, C. J., took no part in the decision of the case.

Section 271(f)(1) of the Patent Act of 1952 prohibits the supply from theUnited States of "all or a substantial portion" of the components of a patented invention for combination abroad. Respondent Promega Corporation (promega), the exclusive licensee of the patent, sublicensed the patent to Life Technologies Corporation (life Technologies) for the manufacture and sale of genetic testing kits. Life Technologies manufactured all but one component of the kits in the United Kingdom. Four years into the agreement, Promega sued Life Technologies on the grounds that Life Technologies had infringed the patent by selling the kits outside the licensed fields of use to clinical and research markets. As relevant here, the parties disputed the scope of §271(f)'s prohibition against supplying all or a "substantial portion" (defined as the supply of all or part, in such manner as to actively induce the combination of "such components outside of the United States" in a manner that would infringe the patent if the combination occurred within the country, and Life Technologies moved for judgment as a matter of law. The District Court granted Life Technologies a motion for judgment, holding that there could be no infringement under the statute. The Court of Appeals reversed and reinstated the verdict for Life Technologies. Held: A single component of a multicomponent invention that supplies a single component for manufacture abroad is not an infringing act under 35 U.S. C. §271 (f)( 1). . (a) A quantitative interpretation of the statute is most reasonably read to connote a quantitative measure. The statute's context points to a quantitative meaning here. Its neighboring terms are the first clue to the quantitative meaning of the term. Both the text and the structure of the statutory text indicate that multiple components constitute the substantial portion. Moreover, the statute's structure provides little support for a qualitative interpretation, and would complicate the factfinder's review. A quantitative approach would require a factfinder to decipher whether the components at issue are a sufficiently important component under either a qualitative or quantitative test. Pp. 475 U. S. 516-517. (b) A one component does not constitute a sufficient portion of the component that can give rise to liability under §271 1. One component is not sufficiently important to the invention that it must be supplied outside the country. The structure reinforces this reading, and the word is given more precise content by the neighboring words with which it is associated. . (c) A supplier may be liable for supplying from the United State all or one substantial portion (plural) of an invention, even when those components are combined abroad. However, when a commodity is made in a commodity, as in this case, but made abroad, as here, as a single part of a single product, the phrase phrase has a qualitative and quantitative meaning. Thus, a single element does not cover a quantitative part of the ingredient that is a part of such an invention. It is inconsistent with this Court, however, with the Federal Circuit, which ordered no further action in the past. See, e.g., Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 447, n. 16 (CA Fed. 2014). P.. 73 F. 3d 1338, 1344, reversed 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, and in Parts I, II, III, and IV of which WHITE and O. J., joined. STEWART, J., filed an opinion concurring in part and dissenting in part, post, p..

2016_14-1055

https://www.oyez.org/cases/2016/14-1055

. The corporate charter of the Federal National Mortgage Association, known as Fannie Mae, authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U. S. C. §1723a(a). This case presents the question whether this sue-and-be-sued clause grants federal district courts jurisdiction over cases involving Fannie Mae. We hold that it does not. I A During the Great Depression, the Federal Government worked to stabilize and strengthen the residential mortgage market. Among other things, it took steps to increase liquidity (reasonably available funding) in the mortgage market. These efforts included the creation of the Federal Home Loan Banks, which provide credit to member institutions to finance affordable housing and economic development projects, and the Federal Housing Administration (FHA), which insures residential mort-gages. See Dept. of Housing and Urban Development, Back-ground and History of the Federal National Mortgage Association 1–7, A4 (1966). Also as part of these efforts, Title III of the National Housing Act (1934 Act) authorized the Administrator of the newly created FHA to establish “national mortgage associations” that could “purchase and sell [certain] first mortgages and such other first liens” and “borrow money for such purposes.” §301(a), 48Stat. 1252–1253. The associations were endowed with certain powers, including the power to “sue and be sued, complain and defend, in any court of law or equity, State or Federal.” §301(c), id., at 1253. In 1938, the FHA Administrator exercised that author-ity and chartered the Federal National Mortgage Association. Avoiding a mouthful of an acronym (FNMA), it went by Fannie Mae. See, e.g., Washington Post, July 14, 1940, p. P2 (“ ‘Fanny May’ ”); N. Y. Times, Mar. 23, 1950, p. 48 (“ ‘Fannie Mae’ ”). As originally chartered, Fannie Mae was wholly owned by the Federal Government and had three objectives: to “establish a market for [FHA-insured] first mortgages” covering new housing construction, to “facilitate the construction and financing of economically sound rental housing projects,” and to “make [the bonds it issued] available to . . . investors.” Fed. Nat. Mortgage Assn. Information Regarding the Activities of the Assn. 1 (Circular No. 1, 1938). Fannie Mae was rechartered in 1954. Housing Act of 1954 (1954 Act), §201, 68Stat. 613. No longer wholly Government owned, Fannie Mae had mixed ownership: Private shareholders held its common stock and the Department of the Treasury held its preferred stock. The 1954 Act required the Secretary of the Treasury to allow Fannie Mae to repurchase that stock. See id., at 613–615. It expected that Fannie Mae would repurchase all of its preferred stock and that legislation would then be enacted to turn Fannie Mae over to the private stockholders. From then on, Fannie Mae’s duties would “be carried out by a privately owned and privately financed corporation.” Id., at 615. Along with these structural changes, the 1954 Act replaced Fannie Mae’s initial set of powers with a more detailed list. In doing so, it revised the sue-and-be-sued clause to give Fannie Mae the power “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” Id., at 620. In 1968, Fannie Mae became fully privately owned and relinquished part of its portfolio to its new spinoff, the Government National Mortgage Association (known as Ginnie Mae). See Housing and Urban Development Act of 1968 (1968 Act), 82Stat. 536. Fannie Mae “continue[d] to operate the secondary market operations” but became “a Government-sponsored private corporation.” 12 U. S. C. §1716b. Ginnie Mae “remain[ed] in the Government” and took over “the special assistance functions and management and liquidating functions.” Ibid. Ginnie Mae received the same set of powers as Fannie Mae. See §1723(a); see also 1968 Act, §802(z), 82Stat. 540 (minor revisions to §1723a(a)). This general structure remains in place. Fannie Mae continues to participate in the secondary mortgage market. It purchases mortgages that meet its eligibility criteria, packages them into mortgage-backed securities, and sells those securities to investors, and it invests in mortgage-backed securities itself. One of those mortgage purchases led to Fannie Mae’s entanglement in this case. B Beverly Ann Hollis-Arrington refinanced her mortgage with Cendant Mortgage Corporation (Cendant) in the summer of 1999. Fannie Mae then bought the mortgage, while Cendant continued to service it. Unable to make her payments, Hollis-Arrington pursued a forbearance arrangement with Cendant. No agreement materialized, and the home entered foreclosure. Around this time, Cendant repurchased the mortgage from Fannie Mae because it did not meet Fannie Mae’s credit standards. To stave off the foreclosure, Hollis-Arrington and her daughter, Crystal Lightfoot, pursued bankruptcy and transferred the property between themselves. These ef-forts failed, and the home was sold at a trustee’s sale in 2001. The two then took to the courts to try to undo the foreclosure and sale. After two unsuccessful federal suits, the pair filed this suit in state court. They alleged that deficiencies in the refinancing, foreclosure, and sale of their home entitled them to relief against Fannie Mae. Their claims against other defendants are not relevant here. Fannie Mae removed the case to federal court under 28 U. S. C. §1441(a), which permits a defendant to remove from state to federal court “any civil action” over which the federal district courts “have original jurisdiction.” It relied on its sue-and-be-sued clause as the basis for jurisdiction. The District Court denied a motion to remand the case to state court. The District Court then dismissed the claims against Fannie Mae on claim preclusion grounds. After a series of motions, rulings, and appeals not related to the issue here, the District Court entered final judgment. Hollis-Arrington and Lightfoot immediately moved to set aside the judgment under Federal Rule of Civil Procedure 60(b), alleging “fraud upon the court.” App. 95–110. The District Court denied the motion. The Ninth Circuit affirmed the dismissal of the case and the denial of the Rule 60(b) motion. 465 Fed. Appx. 668 (2012). After Hollis-Arrington and Lightfoot sought rehearing, the Ninth Circuit withdrew its opinion and ordered briefing on the question whether the District Court had jurisdiction over the case under Fannie Mae’s sue-and-be-sued clause. 769 F. 3d 681, 682–683 (2014). A divided panel affirmed the District Court’s judgment. The majority relied on American Nat. Red Cross v. S. G., 505 U. S. 247 (1992) . It read that decision to have established a “rule [that] resolves this case”: When a sue-and-be-sued clause in a federal charter expressly authorizes suit in federal courts, it confers jurisdiction on the federal courts. 769 F. 3d, at 684. The dissent instead read Red Cross as setting out only a “ ‘default rule’ ” that provides a “starting point for [the] analysis.” 769 F. 3d, at 692 (opinion of Stein, J.). It read “any court of competent jurisdiction” in Fannie Mae’s sue-and-be-sued clause to overcome that default rule by requiring an independent source for jurisdiction in cases involving Fannie Mae. Ibid. Two Circuits have likewise concluded that the language in Fannie Mae’s sue-and-be-sued clause grants jurisdiction to federal courts. See Federal Home Loan Bank of Boston v. Moody’s Corp., 821 F. 3d 102 (CA1 2016) (Federal Home Loan Bank of Boston’s identical sue-and-be-sued clause); Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust ex rel. Fed. Nat. Mortgage Assn. v. Raines, 534 F. 3d 779 (CADC 2008) (Fannie Mae’s sue-and-be-sued clause). Four Circuits have disagreed, finding that similar language did not grant jurisdiction. See Western Securities Co. v. Derwinski, 937 F. 2d 1276 (CA7 1991) (Under 38 U. S. C. §1820(a)(1) (1988 ed.), Secretary of Veterans Affairs’ authority to “sue and be sued . . . in any court of competent jurisdiction, State or Federal”); C. H. Sanders Co. v. BHAP Housing Development Fund Co., 903 F. 2d 114 (CA2 1990) (Under 12 U. S. C. §1702 (1988 ed.), Secretary of Housing and Urban Development’s authority “in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal”); Industrial Indemnity, Inc. v. Landrieu, 615 F. 2d 644 (CA5 1980) ( per curiam) (similar); Lindy v. Lynn, 501 F. 2d 1367 (CA3 1974) (similar). We granted certiorari, 579 U. S. ___ (2016), and now reverse. II Fannie Mae’s sue-and-be-sued clause authorizes it “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U. S. C. §1723a(a). As in other federal corporate charters, this language serves the uncontroversial function of clarifying Fannie Mae’s capacity to bring suit and to be sued. See Bank of United States v. Deveaux, 5 Cranch 61, 85–86 (1809). The question here is whether Fannie Mae’s sue-and-be-sued clause goes further and grants federal courts jurisdiction over all cases involving Fannie Mae. A In answering this question, “we do not face a clean slate.” Red Cross, 505 U. S., at 252. This Court has addressed the jurisdictional reach of sue-and-be-sued clauses in five federal charters. Three clauses were held to grant jurisdiction, while two were found wanting. The first discussion of sue-and-be-sued clauses came in a pair of opinions by Chief Justice Marshall. The charter of the first Bank of the United States allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever.’ ” Deveaux, 5 Cranch, at 85. Another provision allowed suits in federal court against certain bank officials, suggesting “the right to sue does not imply a right to sue in the courts of the union, unless it be expressed.” Id., at 86. In light of this language, the Court held that the first Bank of the United States had “no right . . . to sue in the federal courts.” Ibid. The Court con-cluded that the second Bank of the United States was not similarly disabled. Its charter allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all State Courts having competent jurisdiction, and in any Circuit Court of the United States.’ ” Osborn v. Bank of United States, 9 Wheat. 738, 817 (1824). The Court took from Deveaux “that a general capacity in the Bank to sue, without mentioning the Courts of the Union, may not give a right to sue in those Courts.” 9 Wheat., at 818. By contrast, the second Bank’s charter did grant jurisdiction to the federal circuit courts because it used “words expressly conferring a right to sue in those Courts.” Ibid. A mortgage dispute between a railroad and its creditor led to the next consideration of this issue. The Texas and Pacific Railway Company’s federal charter authorized it “ ‘to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States.’ ” Bankers Trust Co. v. Texas & Pacific R. Co., 241 U. S. 295, 302 (1916) . This Court held that the clause had “the same generality and natural import as” the clause in Deveaux. 241 U. S., at 304. Thus, “all that was intended was to render this corporation capable of suing and being sued by its corporate name in any court . . . whose jurisdiction as otherwise competently defined was adequate to the occasion.” Id., at 303. Another lending dispute, involving defaulted bonds, led to the next statement on this issue. The Federal Deposit Insurance Corporation’s (FDIC) sue-and-be-sued clause authorized it “[t]o sue and be sued, complain and defend, in any court of law or equity, State or Federal.” 12 U. S. C. §264(j) (1940 ed.). In D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 455 (1942) , this Court held that federal jurisdiction over the case was based on the FDIC’s sue-and-be-sued clause. See Red Cross, 505 U. S., at 254 (expressing no “doubt that the Court held federal jurisdiction to rest on the” sue-and-be-sued clause). This Court’s most recent discussion of a sue-and-be-sued clause came in Red Cross, which involved a state-law tort suit related to a contaminated blood transfusion. It described the previous quartet of decisions as reflecting this Court’s “best efforts at divining congressional intent retrospectively,” efforts that had put “Congress on prospective notice of the language necessary and sufficient to confer jurisdiction.” Id., at 252. Those decisions “support the rule that a congressional charter’s ‘sue and be sued’ provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts.” Id., at 255. Under that rule, the Court explained, the result was “clear.” Id., at 257. The Red Cross’ sue-and-be-sued clause, which permits it to “sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States,” 36 U. S. C. §300105(a)(5), confers jurisdiction. Red Cross, 505 U. S., at 257. “In expressly authorizing [suits] in federal courts, using language . . . in all relevant respects identical to [the clause in D’Oench] on which [the Court] based a holding of federal jurisdiction just five years before [its enactment], the provision extends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction.” Ibid. Armed with these earlier cases, as synthesized by Red Cross, we turn to the sue-and-be-sued clause at issue here. B Fannie Mae’s sue-and-be-sued clause resembles the clauses this Court has held confer jurisdiction in one important respect. In authorizing Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal,” 12 U. S. C. §1723a(a), it “specifically mentions the federal courts.” Red Cross, 505 U. S., at 255. This mention of the federal courts means that Fannie Mae’s charter clears a hurdle that the clauses in Deveaux and Bankers Trust did not. But Fannie Mae’s clause differs in a material respect from the three clauses the Court has held sufficient to grant federal jurisdiction. Those clauses referred to suits in the federal courts without qualification. In contrast, Fannie Mae’s sue-and-be-sued clause refers to “any court of competent jurisdiction, State or Federal.” §1723a(a) (emphasis added). Because this sue-and-be-sued clause is not “in all relevant respects identical” to a clause already held to grant federal jurisdiction, Red Cross, 505 U. S., at 257, this case cannot be resolved by a simple comparison. The outcome instead turns on the meaning of “court of competent jurisdiction” in Fannie Mae’s sue-and-be-sued clause. A court of competent jurisdiction is a court with the power to adjudicate the case before it. See Black’s Law Dictionary 431 (10th ed. 2014) (“[a] court that has the power and authority to do a particular act; one recognized by law as possessing the right to adjudicate a contro-versy”). And a court’s subject-matter jurisdiction defines its power to hear cases. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (Subject-matter jurisdiction is “the courts’ statutory or constitutional power to adjudicate the case” (emphasis deleted)); Wachovia Bank, N. A. v. Schmidt, 546 U. S. 303, 316 (2006) (“Subject-matter jurisdiction . . . concerns a court’s competence to adjudicate a particular category of cases”). It follows that a court of competent jurisdiction is a court with a grant of subject-matter jurisdiction covering the case before it. Cf. Pennoyer v. Neff, 95 U. S. 714, 733 (1878) (“[T]here must be a tribunal competent by its constitution—that is, by the law of its creation—to pass upon the subject-matter of the suit”). As a result, this Court has understood the phrase “court of competent jurisdiction” as a reference to a court with an existing source of subject-matter jurisdiction. Ex parte Phenix Ins. Co., 118 U. S. 610 (1886) , provides an example. There, the Court explained that a statute “providing for the transfer to a trustee of the interest of the owner in the vessel and freight, provides only that the trustee may ‘be appointed by any court of competent jurisdiction,’ leaving the question of such competency to depend on other provisions of law.” Id., at 617. See also Shoshone Mining Co. v. Rutter, 177 U. S. 505 –507 (1900) (statute authorizing suit “ ‘in a court of competent jurisdiction’ . . . unquestionably meant that the competency of the court should be determined by rules theretofore prescribed in respect to the jurisdiction of the Federal courts”). Califano v. Sanders, 430 U. S. 99 (1977) , provides another. It held that §10 of the Administrative Procedure Act, codified in 5 U. S. C. §§701–704, did not contain “an implied grant of subject-matter jurisdiction to review agency actions.” 430 U. S., at 105. In noting that “the actual text . . . nowhere contains an explicit grant of jurisdiction,” the Court pointed to two clauses requiring “judicial review . . . to proceed ‘in a court specified by statute’ or ‘in a court of competent jurisdiction’ ” and stated that both “seem to look to outside sources of jurisdictional authority.” Id., at 105–106, and n. 6. On this understanding, Fannie Mae’s sue-and-be-sued clause is most naturally read not to grant federal courts subject-matter jurisdiction over all cases involving Fannie Mae. In authorizing Fannie Mae to sue and be sued “in any court of competent jurisdiction, State or Federal,” it permits suit in any state or federal court already endowed with subject-matter jurisdiction over the suit. C Red Cross does not require a different result. Some, including the lower courts here, have understood it to set out a rule that an express reference to the federal courts suffices to make a sue-and-be-sued clause a grant of fed-eral jurisdiction. Red Cross contains no such rule. By its own terms, the rule Red Cross restates is “the basic rule” drawn in Deveaux and Osborn that a sue-and-be-sued clause conferring only a general right to sue does not grant jurisdiction to the federal courts. Red Cross, 505 U. S., at 253. Each mention of a “rule” refers back to this principle. See id., at 255 (reading this Court’s sue-and-be-sued clause cases to “support the rule that a . . . ‘sue and be sued’ provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts” (emphasis added)); id., at 256 (Bankers Trust applied “the rule thus established” to hold that the railroad’s sue-and-be-sued clause did not confer jurisdiction); 505 U. S., at 257 (finding the result “clear” under the “rule established in these cases” because the charter “expressly authoriz[es]” suits in federal courts in a clause “in all relevant respects identical” to one already found to confer jurisdiction). True enough, the dissent thought Red Cross established a broad rule. See 505 U. S., at 271–272 (opinion of Scalia, J.) (describing Red Cross as announcing a “rule . . . that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction” (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red Cross. But Red Cross itself establishes no such rule. And such a rule is hard to square with the opinion’s thorough consideration of the contrary arguments based in text, purpose, and legislative history. See id., at 258–263. Nothing in Red Cross suggests that courts should ignore “the ordinary sense of the language used,” id., at 263, when confronted with a federal charter’s sue-and-be-sued clause that expressly references the federal courts, but only those that are courts “of competent jurisdiction.” III Fannie Mae, preferring to be in federal court, raises several arguments against reading its sue-and-be-sued clause as merely capacity conferring. None are persuasive. A Fannie Mae first offers several alternative readings of “court of competent jurisdiction.” It suggests that the phrase might refer to a court with personal jurisdiction over the parties before it, a court of proper venue, or a court of general, rather than specialized, jurisdiction. Brief for Respondents 41–45. At bottom, Fannie Mae’s efforts on this front are premised on the reading of Red Cross rejected above. In its view, an express reference to the federal courts suffices to confer subject-matter jurisdiction on federal courts. It sees its only remaining task as explaining why that would not render “court of competent jurisdiction” superfluous. See Tr. of Oral Arg. 29–30. But the fact that a sue-and-be-sued clause references the federal courts does not resolve the jurisdictional question. Thus, arguments as to why the phrase “court of competent jurisdiction” could still have meaning if it does not carry its ordinary meaning are beside the point. Moreover, even if the phrase carries additional meaning, that would not further Fannie Mae’s argument. Take its suggestion that a “court of competent jurisdiction” is a court with personal jurisdiction. A court must have the power to decide the claim before it (subject-matter jurisdiction) and power over the parties before it (personal jurisdiction) before it can resolve a case. See Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574 –585 (1999). Recognizing as much, this Court has stated that the phrase “court of competent jurisdiction,” while “usually used to refer to subject-matter jurisdiction, has also been used on occasion to refer to a court’s jurisdiction over the defendant’s person.” United States v. Morton, 467 U. S. 822, 828 (1984) (footnote omitted). See also Blackmar v. Guerre, 342 U. S. 512, 516 (1952) . But nothing in Fannie Mae’s sue-and-be-sued clause suggests that the reference to “court of competent jurisdiction” refers only to a court with personal jurisdiction over the parties before it. At most then, this point might support reading the phrase to refer to both subject-matter and personal jurisdiction. That does not help Fannie Mae. So long as the sue-and-be-sued clause refers to an outside source of subject-matter jurisdiction, it does not confer subject-matter jurisdiction. B Fannie Mae next claims that, by the time its sue-and-be-sued clause was enacted in 1954, courts had interpreted provisions containing the phrase “court of competent jurisdiction” to grant jurisdiction and that Congress was entitled to rely on those interpretations. This argument invokes the prior construction canon of statutory interpretation. The canon teaches that if courts have settled the meaning of an existing provision, the enactment of a new provision that mirrors the existing statutory text indicates, as a general matter, that the new provision has that same meaning. See Bragdon v. Abbott, 524 U. S. 624, 645 (1998) . Fannie Mae points to cases discussing three types of statutory provisions that, in its view, show that the phrase “court of competent jurisdiction” had acquired a settled meaning by 1954. The first pair addresses the FHA’s sue-and-be-sued clause. See 12 U. S. C. §1702 (“sue and be sued in any court of competent jurisdiction, State or Federal”). Two Court of Appeals decisions in the 1940’s concluded that the FHA sue-and-be-sued clause overrode the general rule, today found in 28 U. S. C. §§1346(a)(2), 1491, that monetary claims against the United States exceeding $10,000 must be brought in the Court of Federal Claims, rather than the federal district courts. See Ferguson v. Union Nat. Bank of Clarksburg, 126 F. 2d 753, 755–757 (CA4 1942); George H. Evans & Co. v. United States, 169 F. 2d 500, 502 (CA3 1948). These courts did not state that their jurisdiction was founded on the sue-and-be-sued clause, as opposed to statutes governing the original jurisdiction of the federal district courts. See, e.g., 28 U. S. C. §41(a) (1946 ed.). Thus, even assuming that two appellate court cases can “ ‘settle’ ” an issue, A. Scalia & B. Garner, Reading Law 325 (2012), these two cases did not because they did not speak to the question here. The second set of cases addresses provisions authorizing suit for a violation of a statute. One arose under the Fair Labor Standards Act of 1938, which authorizes employees to sue for violations of the Act in “any . . . court of competent jurisdiction.” §6(d)(1), 88Stat. 61, 29 U. S. C. §216(b). This Court, in its description of the facts, stated that “[j]urisdiction of the action was conferred by . . . 28 U. S. C. §41(8), and . . . 29 U. S. C. §216(b).” Williams v. Jacksonville Terminal Co., 315 U. S. 386, 390 (1942) . This brief, ambiguous statement did not settle the meaning of §216(b), and thus did not settle the meaning of the phrase “court of competent jurisdiction.” The other cases in this set dealt with the Housing and Rent Act of 1947. As enacted, the statute permitted suit in “any Federal, State, or Territorial court of competent jurisdiction.” §206(b), 61Stat. 199. Some courts read §206 not to confer jurisdiction and instead assessed their jurisdiction under the federal-question jurisdiction statute. See, e.g., Schuman v. Greenberg, 100 F. Supp. 187, 189 (NJ 1951) (collecting cases). At the time, that statute carried an amount-in-controversy requirement, 28 U. S. C. §41(1) (1946 ed.), and so some cases were dismissed or remanded to state court for lack of federal jurisdiction. Congress later amended §206 to permit suit “in any Federal court of competent jurisdiction regardless of the amount involved.” Defense Production Act Amendments of 1951, §204, 65Stat. 147. Congress’ elimination of the amount-in-controversy requirement suggests, if anything, it understood that “court of competent jurisdiction” could be read to require an outside source of jurisdiction. The third set of cases interpreted provisions making federal jurisdiction over certain causes of action exclusive. Brief for Respondents 36–37. Those cases confirm that the provisions require suit to be brought in federal courts but do not discuss the basis for federal jurisdiction. In sum, none of the cases on which Fannie Mae relies suggest that Congress in 1954 would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue-and-be-sued clause containing the phrase “court of competent jurisdiction” confers jurisdiction on the federal courts. C Fannie Mae ends with an appeal to congressional purpose, or, more accurately, a lack of congressional purpose. It argues that its original sue-and-be-sued clause, enacted in 1934, granted jurisdiction to federal courts and that there is no indication that Congress wanted to change the status quo in 1954. The addition in 1954 of “court of competent jurisdiction,” a phrase that, as discussed, carries a clear meaning, means that the current sue-and-be-sued clause does not confer jurisdiction. An indication whether that meaning was understood as a change from the 1934 Act is not required.[1]* Fannie Mae next points to its sibling rival, the Federal Home Loan Mortgage Corporation, known as Freddie Mac. The two share parallel authority to compete in the secondary mortgage market. Compare 12 U. S. C. §§1717(b)(2)–(6) (Fannie Mae) with §1454(a) (Freddie Mac). Suits involving Freddie Mac may be brought in federal court. See §1452(c) (“to sue and be sued, complain and defend, in any State, Federal, or other court”); §1452(f) (providing that Freddie Mac is a federal agency under 28 U. S. C. §§1345, 1442, that civil actions to which Freddie Mac is a party arise under federal law, and that Freddie Mac may remove cases to federal district court before trial). Fannie Mae argues there is no good reason to think that Congress gave Freddie Mac fuller access to the federal courts than it has. Leaving aside the clear textual indications suggesting Congress did just that, a plausible reason does exist. In 1970, when Freddie Mac’s sue-and-be-sued clause and related jurisdictional provisions were enacted, Freddie Mac was a Government-owned corporation. See Emergency Home Finance Act of 1970, §304(a), 84Stat. 454. Fannie Mae, on the other hand, had already transitioned into a privately owned corporation. Fannie Mae’s argument on this front, moreover, contains a deeper flaw. The doors to federal court remain open to Fannie Mae through diversity and federal-question jurisdiction. Fannie Mae provides no reason to think that in other cases, involving only state-law claims, access to the federal courts gives Freddie Mac an unintended competitive advantage over Fannie Mae that Congress would have wanted to avoid. Indeed, the usual assumption is that state courts are up to the task of adjudicating their own laws. Cf. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473 –484 (1981). IV The judgment of the Ninth Circuit is reversed. It is so ordered.Notes 1 * The legislative history of the 1934 Act provides some reason to question Fannie Mae’s premise about Congress’ view of the status quo under the 1934 Act. During debate on this provision, Senator Logan asked Senator Bulkley, the chair of the subcommittee with authority over the bill, about the original sue-and-be-sued clause. Senator Bulkley explained that it merely conferred a capacity to sue and be sued “and [did] not confe[r] a right to go into a Federal court where it would not otherwise exist.” 78 Cong. Rec. 12008 (1934).

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 LIGHTFOOT et al. v. CENDANT MORTGAGE CORP., dba PHH MORTGAGE, et al. certiorari to the united states court of appeals for the ninth circuit No. 14–1055. Argued November 8, 2016—Decided January 18, 2017 The Federal National Mortgage Association (Fannie Mae) is a federally chartered corporation that participates in the secondary mortgage market. By statute, Fannie Mae has the power “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U. S. C. §1723a(a). When petitioners Beverly Ann Hollis-Arrington and her daughter Crystal Lightfoot filed suit in state court alleging deficiencies in the refinancing, foreclosure, and sale of their home, Fannie Mae removed the case to federal court, relying on its sue-and-be-sued clause as the basis for jurisdiction. The District Court denied a motion to remand the case to state court and later entered judgment against petitioners. The Ninth Circuit affirmed. In concluding that the District Court had jurisdiction under Fannie Mae’s sue-and-be-sued clause, the court relied on American Nat. Red Cross v. S. G., 505 U. S. 247 , which it read as establishing a rule that when a sue-and-be-sued clause in a federal charter expressly authorizes suit in federal court, it confers jurisdiction on the federal courts. Held: Fannie Mae’s sue-and-be-sued clause does not grant federal courts jurisdiction over all cases involving Fannie Mae. . (a) This Court has addressed the jurisdictional reach of sue-and-be-sued clauses in five federal charters. Three clauses were held to grant jurisdiction—Osborn v. Bank of United States, 9 Wheat. 738; D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447 ; American Nat. Red Cross v. S. G., 505 U. S. 247 —while two were found wanting—Bank of United States v. Deveaux, 5 Cranch 61; Bankers Trust Co. v. Texas & Pacific R. Co., 241 U. S. 295 . Describing the earlier decisions as this Court’s “best efforts at divining congressional intent retrospectively,” 505 U. S., at 252, the Court in Red Cross concluded that those decisions “support the rule that a congressional charter’s ‘sue and be sued’ provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts,” id., at 255. In specifically mentioning the federal courts, Fannie Mae’s sue-and-be-sued clause resembles the three clauses this Court has held confer jurisdiction. But unlike those clauses, Fannie Mae’s clause adds the qualification “any court of competent jurisdiction,” 12 U. S. C. §1723a(a). Thus, the outcome here turns on the meaning of “court of competent jurisdiction.” A court of competent jurisdiction is a court with the power to adjudicate the case before it, Black’s Law Dictionary 431, and a court’s subject-matter jurisdiction defines its power to hear cases, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83 . It follows that a court of competent jurisdiction is a court with a grant of subject-matter jurisdiction covering the case before it. This Court has understood that phrase as a reference to a court with an existing source of subject-matter jurisdiction. See, e.g., Ex parte Phenix Ins. Co., 118 U. S. 610 . On this understanding, Fannie Mae’s sue-and-be-sued clause is most naturally read not to grant federal courts subject-matter jurisdiction over all cases involving Fannie Mae but to permit suit in any state or federal court already endowed with subject-matter jurisdiction. Red Cross does not require a different result. It did not set out a rule that an express reference to the federal courts suffices to make a sue-and-be-sued clause a grant of federal jurisdiction. Rather, it restated “the basic rule” of Deveaux and Osborn that a sue-and-be-sued clause conferring only a general right to sue does not grant jurisdiction to the federal courts. 505 U. S., at 253. . (b) Fannie Mae’s arguments against reading its sue-and-be-sued clause as merely capacity conferring are unpersuasive. Its alternative readings of “court of competent jurisdiction” are premised on the already rejected reading of Red Cross. The prior construction canon of statutory interpretation does not apply because none of the cases on which Fannie Mae relies suggest that Congress in 1954 would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue-and-be-sued clause containing the phrase “court of competent jurisdiction” confers jurisdiction on the federal courts. Finally, Fannie Mae’s appeals to congressional purpose do not call into question the plain text reading of its sue-and-be-sued clause. . 769 F. 3d 681, reversed. Sotomayor, J., delivered the opinion for a unanimous Court.

The corporate charter of the Federal National Mortgage Association (Fannie Mae) authorizes Fannie Mae to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal. The Federal Housing Administration (FHA) acquired the corporate charter in 1954 and rechartered the Federal Home Loan Mortgage Corp., which was wholly owned by the Federal Government and had three objectives: to establish a market for FHA insured first mortgages covering new housing construction, tofacilitate the construction and financing of economically sound rental housing projects, and made the bonds it issued available to investors. In 1968, the FHA became fully privately owned and relinquished part of its portfolio to its new spinoff, Ginnie Mae, which continued to operate as a government-sponsored corporation, but continued to participate in the secondary mortgage market. Thereafter, after two unsuccessful federal suits, the two filed this suit in state court, alleging that deficiencies in the refinancing, foreclosure, and sale of their home entitled them to relief against the FH, and their claims against other defendants are not relevant here. After a series of motions, rulings, and appeals not related to the issue here, the District Court entered judgment, and the two moved to set aside the judgment under Federal Rule of Civil Procedure 60(b), alleging fraud upon the court. The District Court denied a motion to remand the case to state court and then dismissed the claims on claim preclusion grounds. Held: The sue-and-be-sued clause does not grant federal district courts jurisdiction over this case. . (a) As in other federal corporate charters, this language serves the uncontroversial function of clarifying the Fh's capacity to bring suit and be sued. See, e.g., Bank of United States v. Deveaux, 5 Cranch 61, 85. On this understanding, Fannie mae is most naturally read not to grant federal courts subject-matter jurisdiction over all cases involving it, but to authorize suit in any state or federal court already endowed with such jurisdiction over the suit. However, the fact that the clause refers to a court with personal jurisdiction does not suggest that Congress in 1954 would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue-&be-Sued clause containing the phrase confers jurisdiction on the federal courts. Cf. Red Cross, 505 U. S. 624.. Pp. (b) Even assuming, arguendo, that the charter does not have similar language, this case cannot be resolved by a simple comparison. The outcome turns on the meaning of the phrase in Fannie Mere, 12 U.S. C. §1723a(a), which refers to suits in federal courts without qualification, and which is not in all relevant respects identical to a clause already held to confer federal jurisdiction. P.. (c) There is no good reason to think that Congress gave Freddie Mac fuller access to federal courts than it has. A plausible reason exists that, in 1970, when the sue- and be-sues clause and related jurisdictional provisions were enacted, the federal government was a Government-owned corporation. Fannie, on the other hand, had already transitioned into a privately owned corporation, and, moreover, the legislative history of the 1934 Act provides an unintended, unintended, and unintended, flaw in the assumption that Congress wanted to avoid adjudicating state-law claims. Thus, arguments as to why the phrase could still have meaning if it does not carry its ordinary meaning are beside the point. Moreover, even if the phrase carries additional meaning, that would not further Fannie... 769 F. 3d 681, reversed. Reported below: 773 F.2d 617, affirmed. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. DOUGLAS J., filed a dissenting opinion, post, p..

2016_15-7250

https://www.oyez.org/cases/2016/15-7250

. Sentencing courts are required to impose restitution as part of the sentence for specified crimes. But the amount to be imposed is not always known at the time of sentencing. When that is the case, the court may enter an initial judgment imposing certain aspects of a defendant’s sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment. We must decide whether a single notice of appeal, filed between the initial judgment and the amended judgment, is sufficient to invoke appellate review of the later-determined restitution amount. We hold that it is not, at least where, as here, the Government objects to the defendant’s failure to file a notice of appeal following the amended judgment. I After federal agents found more than 300 files containing child pornography on his computer, petitioner Marcelo Manrique pleaded guilty to possessing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U. S. C. §§2252(a)(4)(B) and (b)(2). Under the Mandatory Victims Restitution Act of 1996 (MVRA), the District Court was required to order petitioner to “make restitution to the victim of the offense.” §3663A(a)(1); see §§2259(a), (b)(2) (“An order of restitution under this section shall be issued and enforced in accordance with [§]3664 in the same manner as an order under [§]3663A”). On June 24, 2014, the District Court entered an initial judgment sentencing petitioner to 72 months of imprisonment and a life term of supervised release. At the sentencing hearing, the court acknowledged that restitution was mandatory. But, consistent with the MVRA, the court postponed determining the victims’ damages, which had not yet been ascertained. See, e.g., §3664(d)(5); Dolan v. United States, 560 U. S. 605 –608 (2010). Accordingly, the judgment expressly deferred “determination of restitution” and noted that an “Amended Judgment . . . w[ould] be entered after such determination.” App. 39. On July 8, petitioner filed a notice of appeal “from the final judgment and sentence entered in this action on the 24th day of June, 2014.” Id., at 42. The District Court held a restitution hearing on September 17, 2014. Only one of the victims sought restitution. The court ordered petitioner to pay $4,500 in restitution to her and entered an amended judgment the next day imposing that sentence. Petitioner did not file a second notice of appeal from the court’s order imposing restitution or from the amended judgment. Notwithstanding his failure to file a second notice of appeal, petitioner challenged the restitution amount before the Eleventh Circuit, arguing in his brief that the Government had not shown he was the proximate cause of the victim’s injuries and that the restitution amount bore no rational relationship to the damages she claimed. The Government countered that petitioner had forfeited his right to challenge the restitution amount by failing to file a second notice of appeal. The Court of Appeals agreed that petitioner could not challenge the restitution amount and declined to consider his challenge. 618 Fed. Appx. 579, 583–584 (CA11 2015) ( per curiam). We granted certiorari, 578 U. S. ___ (2016), and now affirm. II A To secure appellate review of a judgment or order, a party must file a notice of appeal from that judgment or order. Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals. The statute that governs appeals of criminal sentences, 18 U. S. C. §3742(a), provides that a “defendant may file a notice of appeal in the district court for review of an otherwise final sentence” in certain specified circumstances. See United States v. Ruiz, 536 U. S. 622 −628 (2002). And Federal Rule of Appellate Procedure 3(a)(1) specifies that “[a]n appeal permitted by law as of right . . . may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4.” (Emphasis added.) Both §3742(a) and Rule 4 contemplate that the defendant will file the notice of appeal after the district court has decided the issue sought to be appealed. Section 3742(a)(1) permits the defendant to file a notice of appeal of a sentence that “was imposed in violation of law.” (Emphasis added.) And Rule 4(b)(1)(A)(i) provides generally that, “[i]n a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed.” (Emphasis added.) Petitioner filed only one notice of appeal, which preceded by many months the sentence and judgment imposing restitution. His notice of appeal could not have been “for review” of the restitution order, §3742(a), and it was not filed within the timeframe allowed by Rule 4. He thus failed to properly appeal under the statute and the Rules the amended judgment imposing restitution. The Government contends that filing a notice of appeal from the judgment imposing restitution is a jurisdictional prerequisite to securing appellate review of the restitution amount. See, e.g., Brief for United States 28–31. This position follows, according to the Government, from many of our cases emphasizing the “jurisdictional significance” of a notice of appeal. E.g., Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) ( per curiam). Because the notice of appeal is jurisdictional, the Government explains, the Court of Appeals was required to dismiss petitioner’s appeal regardless of whether the Government raised the issue. We do not need to decide in this case whether the Government is correct. The requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule. See Greenlaw v. United States, 554 U. S. 237 –253 (2008); see also Rule 3(a)(2) (“An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal” (emphasis added)). Mandatory claim-processing rules “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson v. Shinseki, 562 U. S. 428, 435 (2011) . Unlike jurisdictional rules, mandatory claim-processing rules may be forfeited “if the party asserting the rule waits too long to raise the point.” Eberhart v. United States, 546 U. S. 12, 15 (2005) ( per curiam) (internal quotation marks omitted). If a party “properly raise[s] them,” however, they are “unalterable.” Id., at 15, 19. The Government timely raised petitioner’s failure to file a notice of appeal from the amended judgment imposing restitution before the Court of Appeals. See Brief for United States in No. 14–13029 (CA11), pp. 22–25 (arguing that petitioner “waived his right to appeal the district court’s order of restitution by failing to file a notice of appeal from that order” (capitalization omitted)). Accordingly, “the court’s duty to dismiss the appeal was mandatory.” Eberhart, supra, at 18. B Petitioner disputes this conclusion, arguing that his single notice of appeal sufficed under the Rules to appeal both the initial judgment and the amended judgment imposing restitution. As we understand it, his argument depends on two premises: First, in a deferred restitution case, there is only one “judgment,” as that term is used in Rules 4(b)(1) and (b)(2); and second, so long as a notice of appeal is filed after the initial judgment, it “springs forward” under Rule 4(b)(2) to appeal the amended judgment imposing restitution. We reject each of these premises. 1 Petitioner argues that the initial judgment deferring restitution and the amended judgment imposing a specific restitution amount merge to become “the judgment” referenced in the Federal Rules. See Rule 4(b)(1)(A)(i) (notice of appeal must be filed within 14 days after “the entry of . . . the judgment . . . being appealed”); Rule 4(b)(2) (“Filing Before Entry of Judgment”). He argues that his notice of appeal, which was filed within 14 days of the initial judgment, was therefore sufficient to invoke appellate review of the merged judgment. Petitioner’s approach is inconsistent with our reasoning in Dolan, 560 U. S. 605 . The petitioner in that case argued that the amended judgment imposing restitution is the only final, appealable judgment in a deferred restitution case. See id., at 616. Although we did not decide “whether or when a party can, or must, appeal”—the question presented here—we were not persuaded by the argument that “a sentencing judgment is not ‘final’ until it contains a definitive determination of the amount of restitution.” Id., at 617–618. To the contrary, we recognized “strong arguments” supporting the proposition that both the “initial judgment [that] imposed a sentence of imprisonment and supervised release” and the subsequent “ ‘sentence that impose[d] an order of restitution’ ” were each immediately appealable final judgments. Ibid. (citing 18 U. S. C. §§3582(b) (imprisonment), 3583(a) (supervised release), and 3664(o) (restitution)). Consequently, we were not surprised “to find instances where a defendant ha[d] appealed from the entry of a judgment containing an initial sentence that includes a term of imprisonment” and “subsequently appealed from a later order setting forth the final amount of restitution.” 560 U. S., at 618. Our analysis in Dolan thus makes clear that deferred restitution cases involve two appealable judgments, not one.[1] 2 Petitioner’s reliance on Rule 4(b)(2) is also misplaced. That Rule provides that a “notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” A prematurely filed notice of appeal will become effective under the Rule to challenge a later-entered judgment in some circumstances. As this Court explained in construing Rule 4(a)(2)’s parallel provision for civil cases, the Rule “was intended to protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal from the actual final judgment.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U. S. 269, 276 (1991) . By its own terms, however, Rule 4(b)(2) applies only to a notice of appeal filed after a sentence has been “announce[d]” and before the judgment imposing the sentence is entered on the docket. See Rule 4(b)(6) (“A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket”). If the court has not yet decided the issue that the appellant seeks to appeal, then the Rule does not come into play. Accordingly, it does not apply where a district court enters an initial judgment deferring restitution and subsequently amends the judgment to include the sentence of restitution. By deferring restitution, the court is declining to announce a sentence. When petitioner filed his notice of appeal in this case, the District Court had observed only that restitution was “mandatory.” App. 27. The court did not announce the restitution amount (or even hold a hearing on the issue) until months later. Even if describing restitution as mandatory could qualify as a “sentence” that the District Court “announced” under Rule 4(b)(2), petitioner has never disputed that restitution is mandatory for his offense. Rather, he argued on appeal that the amount of the restitution imposed—an issue the court did not consider until months later—is unlawful. Because petitioner’s notice of appeal was filed well before the District Court announced the sentence imposing $4,500 in restitution, the notice of appeal did not “spring forward” to become effective on the date the court entered its amended judgment imposing that sentence. C Finally, petitioner argues in the alternative that any defect in his notice of appeal should be overlooked as harmless error, citing Lemke v. United States, 346 U. S. 325 (1953) (per curiam). In that case, the petitioner filed a notice of appeal the day after his sentence was announced but three days before the judgment was entered. Id., at 326. His notice of appeal was dismissed as premature under Federal Rule of Criminal Procedure 37(a)(2), which then governed notices of appeal in criminal cases. This Court reversed on the ground that the premature filing was harmless error under Rule 52(a). Ibid. The Court’s holding in Lemke does not apply to petitioner’s failure to file a notice of appeal from the amended judgment. Lemke has been superseded by the Federal Rules of Appellate Procedure in two ways. First, the Lemke petitioner’s notice of appeal would now be timely under Rule 4(b)(2). As discussed in Part II–B–2, supra, petitioner here cannot take advantage of that rule. Second, Rule 3(a)(2) now provides the consequences for litigant errors associated with filing a notice of appeal. The court of appeals may, in its discretion, overlook defects in a notice of appeal other than the failure to timely file a notice. It may not overlook the failure to file a notice of appeal at all. The filing of a notice of appeal from an amended judgment imposing restitution is at least a mandatory claim-processing rule, Part II–A, supra, meaning that the requirement to file such a notice is unalterable, so long as the opposing party raises the issue. By definition, mandatory claim-processing rules, although subject to forfeiture, are not subject to harmless-error analysis. Petitioner in this case did not file a defective notice of appeal from the amended judgment imposing restitution, but rather failed altogether to file a notice of appeal from the amended judgment. Courts do not have discretion to overlook such an error, at least where it is called to their attention. * * * We hold that a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. Because petitioner failed to do so, and the Government objected, the Court of Appeals properly declined to consider his challenge to the amount of restitution imposed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 We do not intend to call into question this Court’s decision in Corey v. United States, 375 U. S. 169, 176 (1963) (holding that a defendant may challenge his conviction after a single notice of appeal filed from a final sentence imposed under §4208(b)).

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus MANRIQUE v. UNITED STATES certiorari to the united states court of appeals for the eleventh circuit No. 15–7250. Argued October 11, 2016—Decided April 19, 2017 After federal agents found child pornography on petitioner’s computer, he pleaded guilty to possessing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U. S. C. §§2252(a)(4)(B) and (b)(2), an offense requiring a district court to “make restitution to the victim of the offense,” §3663A(a)(1). The District Court entered an initial judgment sentencing petitioner to a term of imprisonment. It also acknowledged that restitution was mandatory but deferred determination of the restitution amount. Petitioner filed a notice of appeal from this initial judgment. Months later, the District Court entered an amended judgment, ordering petitioner to pay restitution to one of his victims. Petitioner did not file a second notice of appeal from the amended judgment. When he nonetheless challenged the restitution amount before the Eleventh Circuit, the Government argued that he had forfeited his right to do so by failing to file a second notice of appeal. The Eleventh Circuit agreed, holding that petitioner could not challenge the restitution amount. Held: A defendant wishing to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. If he fails to do so and the Government objects, he may not challenge the restitution order on appeal. . (a) Both 18 U. S. C. §3742(a), which governs criminal appeals, and Federal Rule of Appellate Procedure 3(a)(1) contemplate that a defendant will file a notice of appeal after the district court has decided the issue sought to be appealed. Here, petitioner filed only one notice of appeal, which preceded by many months the sentence and judgment imposing restitution. He therefore failed to properly appeal the amended judgment. Whether or not the requirement that a defendant file a timely notice of appeal from an amended judgment imposing restitution is a jurisdictional prerequisite, it is at least a mandatory claim-processing rule, which is “unalterable” if raised properly by the party asserting a violation of the rule. Eberhart v. United States, 546 U. S. 12 . Because the Government timely raised the issue, “the court’s duty to dismiss the appeal was mandatory.” Id., at 18. . (b) Petitioner’s argument that his single notice of appeal sufficed under the Federal Rules to appeal both judgments depends on two premises: First, in a deferred restitution case, there is only one “judgment,” as that term is used in Rules 4(b)(1) and (b)(2); and second, so long as a notice of appeal is filed after the initial judgment, it “springs forward” under Rule 4(b)(2) to appeal the amended judgment imposing restitution. Each premise is rejected. . (1) This Court’s analysis in Dolan v. United States, 560 U. S. 605 , makes clear that deferred restitution cases involve two appealable judgments, not one. The Dolan Court did not decide the question presented here, but the Court was not persuaded by the argument that “a sentencing judgment is not ‘final’ until it contains a definitive determination of the amount of restitution.” Id., at 617–618. Instead, the Court recognized, “strong arguments” supported the proposition that both the initial judgment and the restitution order were each immediately appealable final judgments. Ibid. . (2) Because petitioner’s notice of appeal was filed well before the District Court announced the sentence imposing restitution, the notice of appeal did not “spring forward” to become effective on the date the court entered its amended restitution judgment. By its own terms, Rule 4(b)(2) applies only to a notice of appeal filed after a sentence has been announced and before the judgment imposing the sentence is entered on the docket. Even if the District Court’s acknowledgment in the initial judgment that restitution was mandatory could qualify as a “sentence” that the District Court “announced” under Rule 4(b)(2), petitioner has never disputed that restitution is mandatory for his offense. Rather, he argued on appeal that the amount imposed is unlawful. . (c) Petitioner’s alternative argument that any defect in his notice of appeal should be overlooked as harmless error is rejected. Lemke v. United States, 346 U. S. 325 , on which he relies, has been superseded by the Federal Rules of Appellate Procedure in two ways. First, the Lemke petitioner’s notice of appeal would now be timely under Rule 4(b)(2). Petitioner in this case cannot take advantage of that Rule. Second, Rule 3(a)(2) now provides the consequences for litigant errors associated with filing a notice of appeal. The court of appeals may, in its discretion, overlook defects in a notice of appeal other than the failure to timely file a notice. It may not overlook the failure to file a notice of appeal at all. . 618 Fed. Appx. 579, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, and Kagan, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.

Under the Mandatory Victims Restitution Act of 1996 (MVRA), a district court may enter an initial judgment imposing certain aspects of a defendant's sentence, such as a term of imprisonment, while deferring a determination of the amount of restitution until entry of a later, amended judgment imposing restitution. Petitioner pleaded guilty to possessing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U. S. C. §§2252(a)(4)(B) and (b)(2). Under the MVRA, the District Court was required to order petitioner to make restitution to the victim of the offense, but, consistent with the MVRA, postponed determining the victims' damages, which had not yet been ascertained. Accordingly, the judgment expressly deferred determination of restitution and noted that an amended judgment would be entered after such determination. On July 8, petitioner filed a notice of appeal from the final judgment and sentence entered in this action. The District Court held a restitution hearing on September 17, 2014, and ordered petitioner to pay $4,500 in restitution, but the court did not announce the restitution amount or hold a hearing on the issue until months later. Petitioner did not file a second notice of appeals from the court's order imposing restitution or from the amended judgment. Notwithstanding his failure to do so, and the Government objected, the Court of Appeals properly declined to consider his challenge to the amount restitution imposed. Held: The judgment is affirmed. ;. 618 Fed. Appx. 579, 583-584 (CA11 2015) (per curiam). (Emphasis added). (a) A defendant who wishes to appeal a judgment or order in a deferred restitution case must file a notice, filed between the initial judgment and amended judgment, from that order. . (b) There is only one defendant, as that term is used in Fed.Rule Civ.Proc. 4(b)(1)(A)(i), and the notice filed after that judgment has been announced and before the judgment imposing the sentence is entered on the docket. If the court has not yet decided the issue that the appellant seeks to appeal, then the Rule does not come into play. By deferring restitution, the court is declining to announce a sentence. Even if describing restitution as mandatory could qualify as a sentencing sentence, petitioner has never disputed that restitution is mandatory for his offense. Rather, he argued on appeal that the restitution issue was unlawful. Because petitioner's notice was filed well before the District Court announced the restitution sentence, the notice did not "spring forward" to become effective on the date the date the court entered its amended judgment imposing that sentence. Pp. 616. (c) Petitioner should not be allowed to file a failure to file timely notice from a judgment, as he failed to file such a notice. Lemke v. United States,, distinguished. As a litigant, he may not take advantage of a timely filing of a notice associated with a failure of a Federal Rule of Criminal Procedure to file an appeal from a mandatory claim-processing rule superseded by Part II of the Federal Rules. P.. (d) Courts do not have discretion to overlook defects associated with filing a notice from an amended notice. Lemke, supra, at least where it is called to their attention. See, e.g., id., at 617. Appellant has now superseded the Lemke rule in two ways: (1) that a notice filed from a timely judgment is superseded in Part II, and (2) that it may not be taken advantage of by a notice filing from a more timely judgment, since, under the amended Rule, it may be taken to overlook at least one defect associated with the filing of an appeal. First, a notice may not overlook all errors associated with failure of the Rule to file at least a timely notice. Second, the Rule may overlook any defect in a notice that should be overlooked as harmless error, since the Rule now provides a superseded notice to litigants with two ways in which to file their notice:1. A failure of an appellate court to file notice from imposing restitution is not a failure associated with timely appeal, since it is at least at least when the opposing party raises the issue, and thus is not subject to harmless-error analysis, so long as it is timely. Cf. Corey v. United States, 375 U.S. 169, 176 (1963). . (e) The failure of petitioner, who filed only one notice, preceded by many months the amended sentence and the subsequent sentence and sentence imposing restitution, does not constitute a jurisdictional prerequisite to securing appellate review of the later-determined restitution amount. This Court makes clear that deferred restitution cases involve two appealable judgments, not one. Here, petitioner failed not only file a defective notice

2016_14-9496

https://www.oyez.org/cases/2016/14-9496

. Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975) . And those constitutional protections apply even after the start of “legal process” in a criminal case—here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below). I Shortly after midnight on March 18, 2011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. See App. 90. According to the complaint in this case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground. See id., at 31–32, 63.[1] The policeman then searched Manuel and found a vitamin bottle containing pills. See id., at 64. Suspecting that the pills were actually illegal drugs, the officers conducted a field test of the bottle’s contents. The test came back negative for any controlled substance, leaving the officers with no evidence that Manuel had committed a crime. See id., at 69. Still, the officers arrested Manuel and took him to the Joliet police station. See id., at 70. There, an evidence technician tested the pills once again, and got the same (negative) result. See ibid. But the technician lied in his report, claiming that one of the pills was “found to be . . . positive for the probable presence of ecstasy.” Id., at 92. Similarly, one of the arresting officers wrote in his report that “[f ]rom [ his] training and experience, [ he] knew the pills to be ecstasy.” Id., at 91. On the basis of those statements, another officer swore out a criminal complaint against Manuel, charging him with unlawful possession of a controlled substance. See id., at 52–53. Manuel was brought before a county court judge later that day for a determination of whether there was probable cause for the charge, as necessary for further detention. See Gerstein, 420 U. S., at 114 (requiring a judicial finding of probable cause following a warrantless arrest to impose any significant pretrial restraint on liberty); Ill. Comp. Stat., ch. 725, §5/109–1 (West 2010) (implementing that constitutional rule). The judge relied exclusively on the criminal complaint—which in turn relied exclusively on the police department’s fabrications—to support a finding of probable cause. Based on that determination, he sent Manuel to the county jail to await trial. In the somewhat obscure legal lingo of this case, Manuel’s subsequent detention was thus pursuant to “legal process”—because it followed from, and was authorized by, the judge’s probable-cause determination.[2] While Manuel sat in jail, the Illinois police laboratory reexamined the seized pills, and on April 1, it issued a report concluding (just as the prior two tests had) that they contained no controlled substances. See App. 51. But for unknown reasons, the prosecution—and, critically for this case, Manuel’s detention—continued for more than another month. Only on May 4 did an Assistant State’s Attorney seek dismissal of the drug charge. See id., at 48, 101. The County Court immediately granted the request, and Manuel was released the next day. In all, he had spent 48 days in pretrial detention. On April 22, 2013, Manuel brought this lawsuit under 42 U. S. C. §1983 against the City of Joliet and several of its police officers (collectively, the City). Section 1983 creates a “species of tort liability,” Imbler v. Pachtman, 424 U. S. 409, 417 (1976) , for “the deprivation of any rights, privileges, or immunities secured by the Constitution,” §1983. Manuel’s complaint alleged that the City violated his Fourth Amendment rights in two ways—first by arresting him at the roadside without any reason, and next by “detaining him in police custody” for almostseven weeks based entirely on made-up evidence. See App. 79–80.[3] The District Court dismissed Manuel’s suit. See 2014 WL 551626 (ND Ill., Feb. 12, 2014). The court first held that the applicable two-year statute of limitations barred Manuel’s claim for unlawful arrest, because more than two years had elapsed between the date of his arrest (March 18, 2011) and the filing of his complaint (April 22, 2013). But the court relied on another basis in rejecting Manuel’s challenge to his subsequent detention (which stretched from March 18 to May 5, 2011). Binding Circuit precedent, the District Court explained, made clear that pretrial detention following the start of legal process could not give rise to a Fourth Amendment claim. See id., at *1 (citing, e.g., Newsome v. McCabe, 256 F. 3d 747, 750 (CA7 2001)). According to that line of decisions, a §1983 plaintiff challenging such detention must allege a breach of the Due Process Clause—and must show, to recover on that theory, that state law fails to provide an adequate remedy. See 2014 WL 551626, at *1–*2. Because Manuel’s complaint rested solely on the Fourth Amendment—and because, in any event, Illinois’s remedies were robust enough to preclude the due process avenue—the District Court found that Manuel had no way to proceed. See ibid. The Court of Appeals for the Seventh Circuit affirmed the dismissal of Manuel’s claim for unlawful detention (the only part of the District Court’s decision Manuel appealed). See 590 Fed. Appx. 641 (2015). Invoking its prior caselaw, the Court of Appeals reiterated that such claims could not be brought under the Fourth Amendment. Once a person is detained pursuant to legal process, the court stated, “the Fourth Amendment falls out of the picture and the detainee’s claim that the detention is improper becomes [one of] due process.” Id., at 643–644 (quoting Llovet v. Chicago, 761 F. 3d 759, 763 (CA7 2014)). And again: “When, after the arrest[,] a person is not let go when he should be, the Fourth Amendment gives way to the due process clause as a basis for challenging his detention.” 590 Fed. Appx., at 643 (quoting Llovet, 761 F. 3d, at 764). So the Seventh Circuit held that Manuel’s complaint, in alleging only a Fourth Amendment violation, rested on the wrong part of the Constitution: A person detained following the onset of legal process could at most (although, the court agreed, not in Illinois) challenge his pretrial confinement via the Due Process Clause. See 590 Fed. Appx., at 643–644. The Seventh Circuit recognized that its position makes it an outlier among the Courts of Appeals, with ten others taking the opposite view. See id., at 643; Hernandez-Cuevas v. Taylor, 723 F. 3d 91, 99 (CA1 2013) (“[T]here is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period”).[4] Still, the court decided, Manuel had failed to offer a sufficient reason for overturning settled Circuit precedent; his argument, albeit “strong,” was “better left for the Supreme Court.” 590 Fed. Appx., at 643. On cue, we granted certiorari. 577 U. S. ___ (2016). II The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures.” Manuel’s complaint seeks just that protection. Government officials, it recounts, detained—which is to say, “seiz[ed]”—Manuel for 48 days following his arrest. See App. 79–80; Brendlin v. California, 551 U. S. 249, 254 (2007) (“A person is seized” whenever officials “restrain[ ] his freedom of movement” such that he is “not free to leave”). And that detention was “unreason-able,” the complaint continues, because it was based solely on false evidence, rather than supported by probable cause. See App. 79–80; Bailey v. United States, 568 U. S. 186, 192 (2013) (“[T]he general rule [is] that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause to believe that the individual has committed a crime”). By their respective terms, then, Manuel’s claim fits the Fourth Amendment, and the Fourth Amendment fits Manuel’s claim, as hand in glove. This Court decided some four decades ago that a claim challenging pretrial detention fell within the scope of the Fourth Amendment. In Gerstein, two persons arrested without a warrant brought a §1983 suit complaining that they had been held in custody for “a substantial period solely on the decision of a prosecutor.” 420 U. S., at 106. The Court looked to the Fourth Amendment to analyze—and uphold—their claim that such a pretrial restraint on liberty is unlawful unless a judge (or grand jury) first makes a reliable finding of probable cause. See id., at 114, 117, n. 19. The Fourth Amendment, we began, establishes the minimum constitutional “standards and procedures” not just for arrest but also for ensuing “detention.” Id., at 111. In choosing that Amendment “as the rationale for decision,” the Court responded to a concurring Justice’s view that the Due Process Clause offered the better framework: The Fourth Amendment, the majority countered, was “tailored explicitly for the criminal justice system, and it[ ] always has been thought to define” the appropriate process “for seizures of person[s] . . . in criminal cases, including the detention of suspects pending trial.” Id., at 125, n. 27. That Amendment, standing alone, guaranteed “a fair and reliable determination of probable cause as a condition for any significant pretrial restraint.” Id., at 125. Accordingly, those detained prior to trial without such a finding could appeal to “the Fourth Amendment’s protection against unfounded invasions of liberty.” Id., at 112; see id., at 114.[5] And so too, a later decision indicates, those objecting to a pretrial deprivation of liberty may invoke the Fourth Amendment when (as here) that deprivation occurs after legal process commences. The §1983 plaintiff in Albright complained of various pretrial restraints imposed after a court found probable cause to issue an arrest warrant, and then bind him over for trial, based on a policeman’s unfounded charges. See 510 U. S., at 268–269 (plurality opinion). For uncertain reasons, Albright ignored the Fourth Amendment in drafting his complaint; instead, he alleged that the defendant officer had infringed his substantive due process rights. This Court rejected that claim, with five Justices in two opinions remitting Albright to the Fourth Amendment. See id., at 271 (plurality opinion) (“We hold that it is the Fourth Amendment . . . under which [ his] claim must be judged”); id., at 290 (Souter, J., concurring in judgment) (“[I]njuries like those [ he] alleges are cognizable in §1983 claims founded upon . . . the Fourth Amendment”). “The Framers,” the plurality wrote, “considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.” Id., at 274. That the deprivations at issue were pursuant to legal process made no difference, given that they were (allegedly) unsupported by probable cause; indeed, neither of the two opinions so much as mentioned that procedural circumstance. Relying on Gerstein, the plurality stated that the Fourth Amendment remained the “relevan[t]” constitutional provision to assess the “deprivations of liberty”—most notably, pretrial detention—“that go hand in hand with criminal prosecutions.” 510 U. S., at 274; see id., at 290 (Souter, J., concurring in judgment) (“[R]ules of recovery for such harms have naturally coalesced under the Fourth Amendment”). As reflected in Albright’s tracking of Gerstein’s analysis, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. See supra, at 6. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it cannot extinguish the detainee’s Fourth Amendment claim—or somehow, as the Seventh Circuit has held, convert that claim into one founded on the Due Process Clause. See 590 Fed. Appx., at 643–644. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.[6] For that reason, and contrary to the Seventh Circuit’s view, Manuel stated a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention.[7] Consider again the facts alleged in this case. Police officers initially arrested Manuel without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance. So (putting timeliness issues aside) Manuel could bring a claim for wrongful arrest under the Fourth Amendment. And the same is true (again, disregarding timeliness) as to a claim for wrongful detention—because Manuel’s subsequent weeks in custody were also unsupported by probable cause, and so also constitutionally unreasonable. No evidence of Manuel’s criminality had come to light in between the roadside arrest and the County Court proceeding initiating legal process; to the contrary, yet another test of Man-uel’s pills had come back negative in that period. Allthat the judge had before him were police fabrications about the pills’ content. The judge’s order holding Manuel for trial therefore lacked any proper basis. And that means Manuel’s ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what that Amendment makes essential for pretrial detention—probable cause to believe he committed a crime.[8] III Our holding—that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process—does not exhaust the disputed legal issues in this case. It addresses only the threshold inquiry in a §1983 suit, which requires courts to “identify the specific constitutional right” at issue. Albright, 510 U. S., at 271. After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation. See, e.g., Carey v. Piphus, 435 U. S. 247 –258 (1978). Here, the parties particularly disagree over the accrual date of Manuel’s Fourth Amendment claim—that is, the date on which the applicable two-year statute of limitations began to run. The timeliness of Manuel’s suit hinges on the choice between their proposed dates. But with the following brief comments, we remand that issue to the court below. In defining the contours and prerequisites of a §1983 claim, including its rule of accrual, courts are to look first to the common law of torts. See ibid. (explaining that tort principles “provide the appropriate starting point” in specifying the conditions for recovery under §1983); Wallace v. Kato, 549 U. S. 384 –390 (2007) (same for accrual dates in particular). Sometimes, that review of common law will lead a court to adopt wholesale the rules that would apply in a suit involving the most analogous tort. See id., at 388–390; Heck v. Humphrey, 512 U. S. 477 –487 (1994). But not always. Common-law principles are meant to guide rather than to control the definition of §1983 claims, serving “more as a source of inspired examples than of prefabricated components.” Hartman v. Moore, 547 U. S. 250, 258 (2006) ; see Rehberg v. Paulk, 566 U. S. 356, 366 (2012) (noting that “§1983 is [not] simply a federalized amalgamation of pre-existing common-law claims”). In applying, selecting among, or adjust-ing common-law approaches, courts must closely attend to the values and purposes of the constitutional right at issue. With these precepts as backdrop, Manuel and the City offer competing views about what accrual rule should govern a §1983 suit challenging post-legal-process pretrial detention. According to Manuel, that Fourth Amendment claim accrues only upon the dismissal of criminal charges—here, on May 4, 2011, less than two years before he brought his suit. See Reply Brief 2; Brief for United States as Amicus Curiae 24–25, n. 16 (taking the same position). Relying on this Court’s caselaw, Manuel analogizes his claim to the common-law tort of malicious prosecution. See Reply Brief 9; Wallace, 549 U. S., at 389–390. An element of that tort is the “termination of the . . . proceeding in favor of the accused”; and accordingly, the statute of limitations does not start to run until that termination takes place. Heck, 512 U. S., at 484, 489. Man-uel argues that following the same rule in suits like his will avoid “conflicting resolutions” in §1983 litigation and criminal proceedings by “preclud[ing] the possibility of the claimant succeeding in the tort action after having been convicted in the underlying criminal prosecution.” Id., at 484, 486; see Reply Brief 10–11; Brief for United States as Amicus Curiae 24–25, n. 16. In support of Manuel’s position, all but two of the ten Courts of Appeals that have recognized a Fourth Amendment claim like his have incorporated a “favorable termination” element and so pegged the statute of limitations to the dismissal of the criminal case. See n. 4, supra.[9] That means in the great majority of Circuits, Manuel’s claim would be timely. The City, however, contends that any such Fourth Amendment claim accrues (and the limitations period starts to run) on the date of the initiation of legal process—here, on March 18, 2011, more than two years before Manuel filed suit. See Brief for Respondents 33. According to the City, the most analogous tort to Manuel’s constitutional claim is not malicious prosecution but false arrest, which accrues when legal process commences. See Tr. of Oral Arg. 47; Wallace, 549 U. S., at 389 (noting accrual rule for false arrest suits). And even if malicious prosecution were the better comparison, the City continues, a court should decline to adopt that tort’s favorable-termination element and associated accrual rule in adjudicating a §1983 claim involving pretrial detention. That element, the City argues, “make[s] little sense” in this context because “the Fourth Amendment is concerned not with the outcome of a prosecution, but with the legality of searches and seizures.” Brief for Respondents 16. And finally, the City contends that Manuel forfeited an alternative theory for treating his date of release as the date of accrual: to wit, that his pretrial detention “constitute[d] a continuing Fourth Amendment violation,” each day of which triggered the statute of limitations anew. Id., at 29, and n. 6; see Tr. of Oral Arg. 36; see also Albright, 510 U. S., at 280 (Ginsburg, J., concurring) (propounding a similar view). So Manuel, the City concludes, lost the opportunity to recover for his pretrial detention by waiting too long to file suit. We leave consideration of this dispute to the Court of Appeals. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005). Because the Seventh Circuit wrongly held that Manuel lacked any Fourth Amendment claim once legal process began, the court never addressed the elements of, or rules applicable to, such a claim. And in particular, the court never confronted the accrual issue that the parties contest here.[10] On remand, the Court of Appeals should decide that question, unless it finds that the City has previously waived its timeliness argument. See Reply to Brief in Opposition 1–2 (addressing the possibility of waiver); Tr. of Oral Arg. 40–44 (same). And so too, the court may consider any other still-live issues relating to the contours of Manuel’s Fourth Amendment claim for unlawful pretrial detention. * * * For the reasons stated, we reverse the judgment of the Seventh Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.Notes 1 Because we here review an order dismissing Manuel’s suit, we accept as true all the factual allegations in his complaint. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993) . 2 Although not addressed in Manuel’s complaint, the police department’s alleged fabrications did not stop at this initial hearing on probable cause. About two weeks later, on March 30, a grand jury indicted Manuel based on similar false evidence: testimony from one of the arresting officers that “[t]he pills field tested positive” for ecstasy. App. 96 (grand jury minutes). 3 Manuel’s allegation of unlawful detention concerns only the period after the onset of legal process—here meaning, again, after the County Court found probable cause that he had committed a crime. See supra, at 3. The police also held Manuel in custody for several hours between his warrantless arrest and his first appearance in court. But throughout this litigation, Manuel has treated that short period as part and parcel of the initial unlawful arrest. See, e.g., Reply Brief 1. 4 See also Singer v. Fulton County Sheriff, 63 F. 3d 110, 114–118 (CA2 1995); McKenna v. Philadelphia, 582 F. 3d 447, 461 (CA3 2009); Lambert v. Williams, 223 F. 3d 257, 260–262 (CA4 2000); Castellano v. Fragozo, 352 F. 3d 939, 953–954, 959–960 (CA5 2003) (en banc); Sykes v. Anderson, 625 F. 3d 294, 308–309 (CA6 2010); Galbraith v. County of Santa Clara, 307 F. 3d 1119, 1126–1127 (CA9 2002); Wilkins v. De-Reyes, 528 F. 3d 790, 797–799 (CA10 2008); Whiting v. Traylor, 85 F. 3d 581, 584–586 (CA11 1996); Pitt v. District of Columbia, 491 F. 3d 494, 510–511 (CADC 2007). 5 The Court repeated the same idea in a follow-on decision to Gerstein. In County of Riverside v. McLaughlin, 500 U. S. 44, 47 (1991) , we considered how quickly a jurisdiction must provide the probable-cause determination that Gerstein demanded “as a prerequisite to an extended pretrial detention.” In holding that the decision should occur within 48 hours of an arrest, the majority understood its “task [as] articulat[ing] more clearly the boundaries of what is permissible under the Fourth Amendment.” 500 U. S., at 56. In arguing for still greater speed, the principal dissent invoked the original meaning of “the Fourth Amendment’s prohibition of ‘unreasonable seizures,’ insofar as it applies to seizure of the person.” Id., at 60 (Scalia, J., dissenting). The difference between the two opinions was significant, but the commonality still more so: All Justices agreed that the Fourth Amendment provides the appropriate lens through which to view a claim involving pretrial detention. 6 The opposite view would suggest an untenable result: that a person arrested pursuant to a warrant could not bring a Fourth Amendment claim challenging the reasonableness of even his arrest, let alone any subsequent detention. An arrest warrant, after all, is a way of initiating legal process, in which a magistrate finds probable cause that a person committed a crime. See Wallace v. Kato, 549 U. S. 384, 389 (2007) (explaining that the seizure of a person was “without legal process” because police officers “did not have a warrant for his arrest”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §119, pp. 871, 886 (5th ed. 1984) (similar). If legal process is the cut-off point for the Fourth Amendment, then someone arrested (as well as later held) under a warrant procured through false testimony would have to look to the Due Process Clause for relief. But that runs counter to our caselaw. See, e.g., Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560 –569 (1971) (holding that an arrest violated the Fourth Amendment because a magistrate’s warrant was not backed by probable cause). And if the Seventh Circuit would reply that arrest warrants are somehow different—that there is legal process and then again there is legal process—the next (and in our view unanswerable) question would be why. 7 Even the City no longer appears to contest that conclusion. On multiple occasions during oral argument in this Court, the City agreed that “a Fourth Amendment right . . . survive[d] the initiation of process” at the hearing in which the county judge found probable cause and ordered detention. Tr. of Oral Arg. 31; see id., at 33 (concurring with the statement that “once [an] individual is brought . . . before a magistrate, and the magistrate using the same bad evidence says, stay here in jail . . . until we get to trial, that that period is a violation of the Fourth Amendment”); id., at 51 (stating that a detainee has “a Fourth Amendment claim” if “misstatements at [such a probable-cause hearing] led to ongoing pretrial seizure”). 8 The dissent goes some way toward claiming that a different kind of pretrial legal process—a grand jury indictment or preliminary examination—does expunge such a Fourth Amendment claim. See post, at 9, n. 4 (opinion of Alito, J.) (raising but “not decid[ing] that question”); post, at 10 (suggesting an answer nonetheless). The effect of that view would be to cut off Manuel’s claim on the date of his grand jury indictment (March 30)—even though that indictment (like the County Court’s probable-cause proceeding) was entirely based on false testi-mony and even though Manuel remained in detention for 36 days longer.See n. 2, supra. Or said otherwise—even though the legal process he received failed to establish the probable cause necessary for his continued confinement. We can see no principled reason to draw that line. Nothing in the nature of the legal proceeding establishing probable cause makes a difference for purposes of the Fourth Amendment: Whatever its precise form, if the proceeding is tainted—as here, by fabricated evidence—and the result is that probable cause is lacking, then the ensuing pretrial detention violates the confined person’s Fourth Amendment rights, for all the reasons we have stated. By contrast (and contrary to the dissent’s suggestion, see post, at 9, n. 3), once a trial has occurred, the Fourth Amendment drops out: A person challenging the sufficiency of the evidence to support both a conviction and any ensuing incarceration does so under the Due Process Clause of the Fourteenth Amendment. See Jackson v. Virginia, 443 U. S. 307, 318 (1979) (invalidating a conviction under the Due Process Clause when “the record evidence could [not] reasonably support a finding of guilt beyond a reasonable doubt”); Thompson v. Louisville, 362 U. S. 199, 204 (1960) (striking a conviction under the same provision when “the record [wa]s entirely lacking in evidence” of guilt—such that it could not even establish probable cause). Gerstein and Albright, as already suggested, both reflected and recognized that constitutional division of labor. See supra, at 6–8. In their words, the Framers “drafted the Fourth Amendment” to address “the matter of pretrial deprivations of liberty,” Albright, 510 U. S., at 274 (emphasis added), and the Amendment thus provides “standards and procedures” for “the detention of suspects pending trial,” Gerstein, 420 U. S., at 125, n. 27 (emphasis added). 9 The two exceptions—the Ninth and D. C. Circuits—have not yet weighed in on whether a Fourth Amendment claim like Manuel’s includes a “favorable termination” element. 10 The dissent would have us address these questions anyway, on the ground that “the conflict on the malicious prosecution question was the centerpiece of Manuel’s argument in favor of certiorari.” Post, at 2. But the decision below did not implicate a “conflict on the malicious prosecution question”—because the Seventh Circuit, in holding that detainees like Manuel could not bring a Fourth Amendment claim at all, never considered whether (and, if so, how) that claim should resemble the malicious prosecution tort. Nor did Manuel’s petition for certiorari suggest otherwise. The principal part of his question presented—mirroring the one and only Circuit split involving the decision below—reads as follows: “[W]hether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process.” Pet. for Cert. i. That is exactly the issue we have resolved. The rest of Manuel’s question did indeed express a view as to what would follow from an affirmative answer (“so as to allow a malicious prosecution claim”). Ibid. (And as the dissent notes, the Seventh Circuit recounted that he made the same argument in that court. See post, at 2, n. 1.) But as to that secondary issue, we think (for all the reasons just stated) that Manuel jumped the gun. See supra, at 11–14. And contra the dissent, his doing so provides no warrant for our doing so too.

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 MANUEL v. CITY OF JOLIET, ILLINOIS, et al. certiorari to the united states court of appeals for the seventh circuit No. 14–9496. Argued October 5, 2016—Decided March 21, 2017 During a traffic stop, police officers in Joliet, Illinois, searched petitioner Elijah Manuel and found a vitamin bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station. There, an evidence technician tested the pills and got the same negative result, but claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” App. 92. An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” Id., at 91. On the basis of those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance. Relying exclusively on that complaint, a county court judge found probable cause to detain Manuel pending trial. While Manuel was in jail, the Illinois police laboratory tested the seized pills and reported that they contained no controlled substances. But Manuel remained in custody, spending a total of 48 days in pretrial detention. More than two years after his arrest, but less than two years after his criminal case was dismissed, Manuel filed a 42 U. S. C. §1983 lawsuit against Joliet and several of its police officers (collectively, the City), alleging that his arrest and detention violated the Fourth Amendment. The District Court dismissed Manuel’s suit, holding, first, that the applicable two-year statute of limitations barred his unlawful arrest claim, and, second, that under binding Circuit precedent, pretrial detention following the start of legal process (here, the judge’s probable-cause determination) could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim; the Seventh Circuit affirmed. Held: 1. Manuel may challenge his pretrial detention on Fourth Amendment grounds. This conclusion follows from the Court’s settled precedent. In Gerstein v. Pugh, 420 U. S. 103 , the Court decided that a pretrial detention challenge was governed by the Fourth Amendment, noting that the Fourth Amendment establishes the minimum constitutional “standards and procedures” not just for arrest but also for “detention,” id., at 111, and “always has been thought to define” the appropriate process “for seizures of person[s] . . . in criminal cases, including the detention of suspects pending trial,” id., at 125, n. 27. And in Albright v. Oliver, 510 U. S. 266 , a majority of the Court again looked to the Fourth Amendment to assess pretrial restraints on liberty. Relying on Gerstein, the plurality reiterated that the Fourth Amendment is the “relevan[t]” constitutional provision to assess the “deprivations of liberty that go hand in hand with criminal prosecutions.” Id., at 274; see id., at 290 (Souter, J., concurring in judgment) (“[R]ules of recovery for such harms have naturally coalesced under the Fourth Amendment”). That the pretrial restraints in Albright arose pursuant to legal process made no difference, given that they were allegedly unsupported by probable cause. As reflected in those cases, pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process. The Fourth Amendment prohibits government officials from detaining a person absent probable cause. And where legal process has gone forward, but has done nothing to satisfy the probable-cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim. That was the case here: Because the judge’s determination of probable cause was based solely on fabricated evidence, it did not expunge Manuel’s Fourth Amendment claim. For that reason, Manuel stated a Fourth Amendment claim when he sought relief not merely for his arrest, but also for his pretrial detention. . 2. On remand, the Seventh Circuit should determine the claim’s accrual date, unless it finds that the City has previously waived its timeliness argument. In doing so, the court should look to the common law of torts for guidance, Carey v. Piphus, 435 U. S. 247 –258, while also closely attending to the values and purposes of the constitutional right at issue. The court may also consider any other still-live issues relating to the elements of and rules applicable to Manuel’s Fourth Amendment claim. . 590 Fed. Appx. 641, reversed and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Thomas, J., joined.

Petitioner, who was riding in the passenger seat of a Dodge Charger with his brother at the wheel, was arrested and taken to the Joliet police station, where an evidence technician tested the pills for any controlled substance. There, an officer lied in his report that one of the pills was found to be positive for the probable presence of ecstasy, and another officer swore out a criminal complaint against him charging him with unlawful possession of a controlled substance, but for unknown reasons the prosecution,and, critically for this case, Manuel, continued detention for more than a month. The Illinois trial judge relied exclusively on the criminal complaint to support a probable cause finding, and, based on that determination, sent Manuel to the county jail to await trial. While he was in jail, the police laboratory reexamined the seized pills, and on April 1, the court issued a report concluding (just as the prior two tests had) that they contained no controlled substances. Only on May 4 did the State Attorney seek dismissal of the pretrial detention charge. On April 22, the next day, he was released on pretrial release, and brought this tort suit under 42 U.S.C. §1983 against police officers for deprivation of his rights under the Constitution. The District Court dismissed the suit, holding that the applicable two-year statute of limitations barred the claim for unlawful arrest, because more than two years had elapsed between the date of his arrest and the filing of his complaint, but that, in any event, Illinois' remedies were robust enough to preclude the due process avenue. The Court of Appeals affirmed. Held: Petitioner may not bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. . (a) The Fourth Amendment, which establishes standards and procedures governing detention, establishes the minimum constitutional standards for arrest, and procedures for ensuing detention. That Amendment, standing alone, guaranteed a fair and reliable determination of probable cause as a condition for any pretrial restraint. Accordingly, those detained prior to trial without such a finding could appeal to the Fourth Amendment's protection against unfounded invasions of liberty. Gerstein v. Pugh, 420 U. S. 103, 111, n. 27. Moreover, a person detained following the onset of legal process could at most (although, not in Illinois) challenge his detention via the Due Process Clause. See, e.g., Gerstein, supra, at 643. P.. (b) A person arrested pursuant to a warrant cannot bring a Fourth Amendment claim challenging the reasonableness of even his arrest, let alone any subsequent detention, because the process he received failed to establish what that Amendment makes essential for pretrial detention,probable cause to believe he committed a crime. Here, the fact that police initially arrested petitioner without probable cause, based solely on his possession of pills that had field tested negative for an illegal substance, and that no evidence of petitioner's criminality had come to light in between the roadside arrest and a County Court proceeding initiating legal process, did not establish the probable cause that petitioner needed to make the arrest. Legal process did not expunge petitioner's Fourth Amendment rights, since the process that he received, not malicious prosecution, but false arrest, which accrues when legal process commences, denied petitioner his opportunity to recover for his detention by waiting too long to file suit. In fact, the decision below did not implicate a Conflict on the malicious prosecution question, because, in holding that detainees like petitioner could not bring such a claim at all, the Seventh Circuit never considered whether (and, if so, how) that claim should resemble the malicious-torture tort. Nor did petitioner petition for certiorari suggest otherwise.. Reversed and remanded. Vacated, 577 F. Supp. 801, and 590 Fed. Appx. 641, in which all other issues, including one about the timeliness of the dismissal of petitioner, are left to the court below. Although the parties particularly disagree over the accrual date of petitioner’s claim (that is, the date on which the applicable 2-year statutory of limitations began to run), the court never addressed the elements of, or rules applicable to, such claim. And in particular, the question whether the City has previously waived its Timeliness argument should be considered on remand. As to the secondary issue, (for all the reasons stated) that petitioner jumped the gun, his doing so provides no warrant for this Court doing too too much of the foregoing. Leatherman v. Tarrant County Narcotics and Intelligence and Criminal Justice Unit, 163 S.W.2d 164 (Holmes, Tr. Tr. Sousa, and Tr. of Oral Arg. 47), held: 1. Petitioner is entitled to challenge the constitutionality of his detention. See Gerstein and Gerstein. supra

2016_16-309

https://www.oyez.org/cases/2016/16-309

. A federal statute, 18 U. S. C. §1425(a), makes it a crime to “knowingly procure[ ], contrary to law, the naturalization of any person.” And when someone is convicted under §1425(a) of unlawfully procuring her own naturalization, her citizenship is automatically revoked. See 8 U. S. C. §1451(e). In this case, we consider what the Government must prove to obtain such a conviction. We hold that the Government must establish that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result. I Petitioner Divna Maslenjak is an ethnic Serb who re-sided in Bosnia during the 1990’s, when a civil war between Serbs and Muslims divided the new country. In 1998, she and her family (her husband Ratko Maslenjak and their two children) met with an American immigration official to seek refugee status in the United States. Interviewed under oath, Maslenjak explained that the family feared persecution in Bosnia from both sides of the national rift. Muslims, she said, would mistreat them because of their ethnicity. And Serbs, she testified, would abuse them because her husband had evaded service in the Bosnian Serb Army by absconding to Serbia—where he remained hidden, apart from the family, for some five years. See App. to Pet. for Cert. 58a–60a. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status, and they immigrated to the United States in 2000. Six years later, Maslenjak applied for naturalization. Question 23 on the application form asked whether she had ever given “false or misleading information” to a government official while applying for an immigration benefit; question 24 similarly asked whether she had ever “lied to a[ ] government official to gain entry or admission into the United States.” Id., at 72a. Maslenjak answered “no” to both questions, while swearing under oath that her replies were true. Id., at 72a, 74a. She also swore that all her written answers were true during a subsequent interview with an immigration official. In August 2007, Maslenjak was naturalized as a U. S. citizen. But Maslenjak’s professions of honesty were false: In fact, she had made up much of the story she told to immigration officials when seeking refuge in this country. Her fiction began to unravel at around the same time she applied for citizenship. In 2006, immigration officials confronted Maslenjak’s husband Ratko with records showing that he had not fled conscription during the Bosnian civil war; rather, he had served as an officer in the Bos-nian Serb Army. And not only that: He had served in a brigade that participated in the Srebrenica massacre—a slaughter of some 8,000 Bosnian Muslim civilians. Within a year, the Government convicted Ratko on charges of making false statements on immigration documents. The newly naturalized Maslenjak attempted to prevent Ratko’s deportation. During proceedings on that matter, Maslenjak admitted she had known all along that Ratko spent the war years not secreted in Serbia but fighting in Bosnia. As a result, the Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The false statements the Government invoked were Maslenjak’s answers to questions 23 and 24 on the citizenship application (stating that she had not lied in seeking refugee status) and her corresponding statements in the citizenship interview. Those statements, the Government argued to the District Court, need not have affected the naturalization decision to support a conviction under §1425(a). The court agreed: Over Maslenjak’s objection, it instructed the jury that a conviction was proper so long as the Government “prove[d] that one of the defendant’s statements was false”—even if the statement was not “material” and “did not influence the decision to approve [her] naturalization.” App. to Pet. for Cert. 86a. The jury returned a guilty verdict; and the District Court, based on that finding, stripped Maslenjak of her citizenship. See 8 U. S. C. §1451(e). The United States Court of Appeals for the Sixth Circuit affirmed the conviction. As relevant here, the Sixth Circuit upheld the District Court’s instructions that Maslenjak’s false statements need not have influenced the naturalization decision. If, the Court of Appeals held, Maslenjak made false statements violating §1015(a) and she procured naturalization, then she also violated §1425(a)—irrespective of whether the false statements played any role in her obtaining citizenship. See 821 F. 3d 675, 685–686 (2016). That decision created a conflict in the Circuit Courts.[1] We granted certiorari to resolve it, 580 U. S. ___ (2017), and we now vacate the Sixth Circuit’s judgment. II A Section 1425(a), the parties agree, makes it a crime to commit some other illegal act in connection with naturalization. But the parties dispute the nature of the required connection. Maslenjak argues that the relationship must be “causal” in kind: A person “procures” her naturalization “contrary to law,” she contends, only if a predicate crime in some way “contribut[ed]” to her gaining citizenship. Brief for Petitioner 21. By contrast, the Government proposes a basically chronological link: Section 1425(a), it urges, “punishes the commission of other violations of law in the course of procuring naturalization”—even if the illegality could not have had any effect on the naturalization decision. Brief for United States 14 (emphasis added). We conclude that Maslenjak has the better of this argument. We begin, as usual, with the statutory text. In ordinary usage, “to procure” something is “to get possession of” it. Webster’s Third New International Dictionary 1809 (2002); accord, Black’s Law Dictionary 1401 (10th ed. 2014) (defining “procure” as “[t]o obtain (something), esp. by special effort or means”). So to “procure . . . naturalization” means to obtain naturalization (or, to use another word, citizenship). The adverbial phrase “contrary to law,” wedged in between “procure” and “naturalization,” then specifies how a person must procure naturalization so as to run afoul of the statute: in contravention of the law—or, in a word, illegally. Putting the pieces together, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. What, then, does that whole phrase mean? The most natural understanding is that the illegal act must have somehow contributed to the obtaining of citizenship. Consider if someone said to you: “John obtained that painting illegally.” You might imagine that he stole it off the walls of a museum. Or that he paid for it with a forged check. Or that he impersonated the true buyer when the auction house delivered it. But in all events, you would imagine illegal acts in some kind of means-end relation—or otherwise said, in some kind of causal relation—to the painting’s acquisition. If someone said to you, “John obtained that painting illegally, but his unlawful acts did not play any role in his obtaining it,” you would not have a clue what the statement meant. You would think it nonsense—or perhaps the opening of a riddle. That is because if no illegal act contributed at all to getting the painting, then the painting would not have been gotten illegally. And the same goes for naturalization. If whatever illegal conduct occurring within the naturalization process was a causal dead-end—if, so to speak, the ripples from that act could not have reached the decision to award citizenship—then the act cannot support a charge that the applicant obtained naturalization illegally. The conduct, though itself illegal, would not also make the obtaining of citizenship so. To get citizenship unlawfully, we understand, is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.[2] The Government’s contrary view—that §1425(a) requires only a “violation[ ] of law in the course of procuring naturalization”—falters on the way language naturally works. Brief for United States 14. Return for a moment to our artwork example. Imagine this time that John made an illegal turn while driving to the auction house to purchase a painting. Would you say that he had “procured the painting illegally” because he happened to violate the law in the course of obtaining it? Not likely. And again, the same is true with respect to naturalization. Suppose that an applicant for citizenship fills out the necessary paperwork in a government office with a knife tucked away in her handbag (but never mentioned or used). She has violated the law—specifically, a statute criminalizing the possession of a weapon in a federal building. See 18 U. S. C. §930. And she has surely done so “in the course of” procuring citizenship. But would you say, using English as you ordinarily would, that she has “procure[d]” her citizenship “contrary to law” (or, as you would really speak, “illegally”)? Once again, no. That is because the violation of law and the acquisition of citizenship are in that example merely coincidental: The one has no causal relation to the other. The Government responds to such examples by seeking to define them out of the statute, but that effort falls short for multiple reasons. According to the Government, the laws to which §1425(a) speaks are only laws “pertaining to naturalization.” Brief for United States 20. But to begin with, that claim fails on its own terms. The Government’s proposed limitation has no basis in §1425(a)’s text (which refers to “law” generally); it is a deus ex machina—rationalized only by calling it “necessary,” Tr. of Oral Arg. 39, and serving only to get the Government out of a tight interpretive spot. Indeed, the Government does not really buy its own argument: At another point, it asserts that an applicant for citizenship can violate §1425(a) by bribing a government official, see Brief for United States 16—even though the law against that conduct has nothing in particular to do with naturalization. See 18 U. S. C. §201(b)(1). And still more important, the Government’s (sometime) carve-out does nothing to alter the linguistic understanding that gives force to the examples the Government would exclude—and that applies just as well to every application that would remain. Laws pertaining to naturalization, in other words, are subject to the same rules of language usage as laws concerning other subjects. And under those rules, as we have shown, §1425(a) demands a means-end connection between a legal violation and naturalization. See supra, at 5–6. Take §1015(a)’s bar on making false statements in connection with naturalization—the prototypical §1425(a) predicate, and the one at issue here. If such a statement (in an interview, say) has no bearing at all on the decision to award citizenship, then it cannot render that award—as §1425(a) requires—illegally gained. The broader statutory context reinforces that point, because the Government’s reading would create a profound mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other. See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991) (“[I]t is our role to make sense rather than nonsense out of the corpus juris”). The immigration statute requires all applicants for citizenship to have “good moral character,” and largely defines that term through a list of unlawful or unethical behaviors. 8 U. S. C. §§1427(a)(3), 1101(f ).[3] On the Government’s theory, some legal violations that do not justify denying citizenship under that definition would nonetheless justify revoking it later. Again, false statements under §1015(a) offer an apt illustration. The statute’s description of “good moral character” singles out a specific class of lies—“false testimony for the purpose of obtaining [immigration] benefits”—as a reason to deny naturalization. 8 U. S. C. §1101(f )(6). By contrast, “[w]illful misrepresentations made for other reasons, such as embarrassment, fear, or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks good moral character”—and so are not generally disqualifying. Kungys v. United States, 485 U. S. 759, 780 (1988) (quoting Supplemental Brief for United States 12). But under the Government’s reading of §1425(a), a lie told in the naturalization process—even out of embarrassment, fear, or a desire for privacy—would always provide a basis for rescinding citizenship. The Government could thus take away on one day what it was required to give the day before. And by so wholly unmooring the revocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which we would need far stronger textual support to believe Congress intended. Consider the kinds of questions a person seeking citizenship confronts on the standard application form. Says one: “Have you EVER been . . . in any way associated with[ ] any organization, association, fund, foundation, party, club, society, or similar group[?]” Form N–400, Application for Naturalization 12 (2016), online at http://www.uscis.gov/n-400 (as last visited June 20, 2017) (bold in original). Asks another: “Have you EVER committed . . . a crime or offense for which you were NOT arrested?” Id., at 14. Suppose, for reasons of embarrassment or what-have-you, a person concealed her membership in an online support group or failed to disclose a prior speeding violation. Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen. That would give prosecutors nearly limitless leverage—and afford newly naturalized Americans precious little security. Small wonder that Congress, in enacting §1425(a), did not go so far as the Government claims. The statute it passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization. B That conclusion leaves us with a more operational question: How should §1425(a)’s requirement of causal influence apply in practice, when charges are brought under that law?[4] Because the proper analysis may vary with the nature of the predicate crime, we confine our discussion of that issue to the kind of underlying illegality alleged here: a false statement made to government officials. Such conduct can affect a naturalization decision in a single, significant way—by distorting the Government’s understanding of the facts when it investigates, and then adjudicates, an application. So the issue a jury must decide in a case like this one is whether a false statement sufficiently altered those processes as to have influenced an award of citizenship. The answer to that question, like the naturalization decision itself, turns on objective legal criteria. Congress has prescribed specific eligibility standards for new citizens, respecting such matters as length of residency and “physical[ ] presen[ce],” understanding of English and American government, and (as previously mentioned) “good moral character,” with all its many specific components. See 8 U. S. C. §§1423(a), 1427(a); supra, at 8. Government officials are obligated to apply that body of law faithfully—granting naturalization when the appli-cable criteria are satisfied, and denying it when they are not. See Kungys, 485 U. S., at 774, n. 9 (opinion of Scalia, J.); id., at 787 (Stevens, J., concurring in judgment). And to ensure right results are reached, a court can reverse such a determination, at an applicant’s request, based on its “own findings of fact and conclusions of law.” 8 U. S. C. §1421(c). The entire system, in other words, is set up to provide little or no room for subjective preferences or personal whims. Because that is so, the question of what any individual decisionmaker might have done with accurate information is beside the point: The defendant in a §1425(a) case should neither benefit nor suffer from a wayward official’s deviations from legal requirements. Accordingly, the proper causal inquiry under §1425(a) is framed in objective terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law. If the facts the defendant misrepresented are themselves disqualifying, the jury can make quick work of that inquiry. In such a case, there is an obvious causal link between the defendant’s lie and her procurement of citizenship. To take an example: An applicant for citizenship must be physically present in the United States for more than half of the five-year period preceding her application. See 8 U. S. C. §1427(a)(1). Suppose a defendant misrepresented her travel history to convey she had met that requirement, when in fact she had not. The Government need only expose that lie to establish that she obtained naturalization illegally—for had she told the truth instead, the official would have promptly denied her application. Or consider another, perhaps more common case stemming from the “good moral character” criterion. See §1427(a)(3); supra, at 8. That phrase is defined to exclude any person who has been convicted of an aggravated fel-ony. See §1101(f )(8). If a defendant falsely denied such a conviction, she too would have gotten her citizenship by means of a lie—for otherwise the outcome would have been different. In short, when the defendant misrepresents facts that the law deems incompatible with citizenship, her lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lie had the requisite bearing on a naturalization decision. For even if the true facts lying behind a false statement would not “in and of themselves justify denial of citizenship,” they could have “led to the discovery of other facts which would” do so. Chaunt v. United States, 364 U. S. 350 –353 (1960). We previously addressed that possibility when considering the civil statute that authorizes the Government to revoke naturalization. See Kungys, 485 U. S., at 774–777 (opinion of Scalia, J.) (interpreting 8 U. S. C. §1451(a)).[5] As we explained in that context, a person whose lies throw investigators off a trail leading to disqualifying facts gets her citizenship by means of those lies—no less than if she had denied the damning facts at the very end of the trail. See ibid. When relying on such an investigation-based theory, the Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Id., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. As to that second link in the causal chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774; see id., at 783 (Brennan, J., concurring). If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires. That standard reflects two real-world attributes of cases premised on what an unhindered investigation would have found. First is the difficulty of proving that a hypothetical inquiry would have led to some disqualifying discovery, often several years after the defendant told her lies. As witnesses and other evidence disappear, the Government’s effort to reconstruct the course of a “could have been” investigation confronts ever-mounting obstacles. See id., at 779 (opinion of Scalia, J.). Second, and critical to our analysis, is that the defendant—not the Government—bears the blame for that evidentiary predicament. After all, the inquiry cannot get this far unless the defendant made an unlawful false statement and, by so doing, obstructed the normal course of an investigation. See id., at 783 (Brennan, J., concurring) (emphasizing that “the citizen’s misrepresentation [in a naturalization proceeding] necessarily frustrated the Government’s investigative efforts”); see also Bigelow v. RKO Radio Pictures, Inc., 327 U. S. 251, 265 (1946) (“The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created”). Section 1425(a) is best read to take those exigencies and equities into account, by enabling the Government (as just described) to rest on disqualifications that a thwarted investigation predictably would have uncovered. A yet-stricter causal requirement, demanding proof positive that a disqualifying fact would have been found, sets the bar so high that “we cannot conceive that Congress intended” that result. Kungys, 485 U. S., at 777 (opinion of Scalia, J.). And nothing in the statutory text requires that approach. While §1425(a) clearly imports some kind of causal or means-end relation, see supra, at 5–9, Congress left that relation’s precise character unspecified. Cf. Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 10) (noting that courts have not always construed criminal statutes to “require[ ] strict but-for causality,” and have greater reason to reject such a reading when the laws do not use language like “results from” or “because of”). The open-endedness of the statutory language allows, indeed supports, our adoption of a demanding but still practicable causal standard. Even when the Government can make its two-part showing, however, the defendant may be able to overcome it. Section 1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained. When addressing the civil denaturalization statute, this Court insisted on a similar point: We provided the defendant with an opportunity to rebut the Government’s case “by showing, through a preponderance of the evidence, that the statutory requirement as to which [a lie] had a natural tendency to produce a favorable decision was in fact met.” Kungys, 485 U. S., at 777 (opinion of Scalia, J.) (emphasis deleted); accord, id., at 783–784 (Brennan, J., concurring). Or said otherwise, we gave the defendant a chance to establish that she was qualified for citizenship, and held that she could not be denaturalized if she did so—even though she concealed or misrepresented facts that suggested the opposite. And indeed, all our denaturalization decisions share this crucial feature: We have never read a statute to strip citizenship from someone who met the legal criteria for acquiring it. See, e.g., Fedorenko v. United States, 449 U. S. 490 –507 (1981); Costello v. United States, 365 U. S. 265 –272 (1961); Schneiderman v. United States, 320 U. S. 118 –123 (1943). We will not start now. Whatever the Government shows with respect to a thwarted investigation, qualification for citizenship is a complete defense to a prosecution brought under §1425(a). III Measured against all we have said, the jury instructions in this case were in error. As earlier noted, the District Court told the jury that it could convict based on any false statement in the naturalization process (i.e., any violation of §1015(a)), no matter how inconsequential to the ultimate decision. See App. to Pet. for Cert. 86a; supra, at 3. But as we have shown, the jury needed to find more than an unlawful false statement. Recall that Maslenjak’s lie in the naturalization process concerned her prior statements to immigration officials: She swore that she had been honest when applying for admission as a refugee, but in fact she had not. See supra, at 2–3. The jury could have convicted if that earlier dishonesty (i.e., the thing she misrepresented when seeking citizenship) were itself a reason to deny naturalization—say, because it counted as “false testimony for the purpose of obtaining [immigration] benefits” and thus demonstrated bad moral character. See supra, at 11–12. Or else, the jury could have convicted if (1) knowledge of that prior dishonesty would have led a reasonable official to make some further investigation (say, into the circumstances of her admission), (2) that inquiry would predictably have yielded a legal basis for rejecting her citizenship application, and (3) Maslenjak failed to show that (notwithstanding such an objective likelihood) she was in fact qualified to become a U. S. citizen. See supra, at 12–15. This jury, however, was not asked to—and so did not—make any of those determinations. Accordingly, Maslenjak was not convicted by a properly instructed jury of “procur[ing], contrary to law, [her] naturalization.” The Government asserts that any instructional error in this case was harmless. “Had officials known the truth,” the Government asserts, “it would have affected their decision to grant [Maslenjak] citizenship.” Brief for United States 12. Unsurprisingly, Maslenjak disagrees. See Tr. of Oral Arg. 6–8; Reply to Brief in Opposition 9–10. In keeping with our usual practice, we leave that dispute for resolution on remand. See, e.g., Skilling v. United States, 561 U. S. 358, 414 (2010) . 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.Notes 1 Compare 821 F. 3d 675, 685–686 (CA6 2016) (case below), with United States v. Munyenyezi, 781 F. 3d 532, 536 (CA1 2015) (requiring the Government to make some showing that a misrepresentation mattered to the naturalization decision); United States v. Latchin, 554 F. 3d 709, 712–715 (CA7 2009) (same); United States v. Alferahin, 433 F. 3d 1148, 1154–1156 (CA9 2006) (same); United States v. Aladekoba, 61 Fed. Appx. 27, 28 (CA4 2003) (same). 2 To be fair, the idea of “obtaining citizenship illegally” has one other possible meaning, but no one defends it here because it does not fit with the rest of §1425. On this alternative reading, a person would violate §1425(a) by obtaining citizenship without the requisite legal qualifications—regardless of whether she committed another illegal act in the naturalization process. To vary our earlier example, suppose someone told you that John procured a gun illegally. You might think that meant John got the gun through independently unlawful conduct (e.g., he held up a gun store), as in the case of the painting. But you might instead think that John was just not legally qualified to take possession of a gun—because, for example, he once committed a felony. That alternative interpretation is plausible with respect to goods that not everyone is eligible to obtain, like guns—or like naturalization. And indeed, we have interpreted a civil statute closely resembling §1425(a)—which authorizes denaturalization when, inter alia, citizenship is “illegally procured,” 8 U. S. C. §1451(a)—to cover that qualifications-based species of illegality. See Fedorenko v. United States, 449 U. S. 490, 506 (1981). But neither party urges that reading here, and for good reason. Unlike its civil analogue, §1425(a) has a companion provision—§1425(b)—that makes it a crime to “procure or obtain naturalization” for “[one]self or another person not entitled thereto.” If obtaining citizenship without legal entitlement were enough to violate §1425(a), then that highly specific language in §1425(b) would be superfluous. Rather than reading those words to do no work, in violation of ordinary canons of statutory construction, we understand Congress to have defined two separate crimes in §1425: Assuming the appropriate mens rea, subsection (a) covers illegal means of procurement, as described above, while subsection (b) covers simple lack of qualifications. As we will explain, however, questions relating to citizenship qualifications play a significant role when applying §1425(a)’s causal standard in cases (like this one) predicated on false statements. See infra, at 10–11. 3 The list of disqualifying conduct is wide-ranging. See, e.g., 8 U. S. C. §1101(f)(4) (illegal gambling); §1101(f)(8) (aggravated felony conviction); §1101(f)(9) (participation in genocide). 4 Justice Gorsuch would stop before answering that question, see post, at 2 (opinion concurring in part and concurring in judgment), but we think that such a halfway-decision would fail to fulfill our responsibility to both parties and courts. The Government needs to know what prosecutions to bring; defendants need to know what defenses to offer; and district courts need to know how to instruct juries. Telling them only “§1425(a) has something to do with causation” would not much help them make those decisions. And we are well-positioned to provide further guidance. The parties have had every opportunity to address the nature of the statute’s causal standard, and both gave us considered views about how the law should work in practice. See, e.g., Brief for Petitioner 23–24, 30; Brief for United States 17–18, 48; Tr. of Oral Arg. 14–16, 23–25, 39–46. Moreover, many lower courts have already addressed those same issues—including one that has called this Court’s failure to provide clear guidance “maddening[ ].” Latchin, 554 F. 3d, at 713; see, e.g., id., at 713–714; Munyenyezi, 781 F. 3d, at 536–538; Alferahin, 433 F. 3d, at 1155; Aladekoba, 61 Fed. Appx., at 27–28; United States v. Acheampong, 2015 WL 926113, *2–*3 (D Kan., Mar. 3, 2015); United States v. Odeh, 2014 WL 5473042, *7–*8 (ED Mich., Oct. 27, 2014). 5 Kungys concerned the part of that statute providing for the revocation of citizenship “procured by concealment of a material fact or by willful misrepresentation.” §1451(a). As noted earlier, the same statute includes a prong covering citizenship that is “illegally procured.” See n. 2, supra.

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 MASLENJAK v. UNITED STATES certiorari to the united states court of appeals for the sixth circuit No. 16–309. Argued April 26, 2017—Decided June 22, 2017 Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. Interviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mistreat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government official while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. citizen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army. The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction under §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the conviction, holding that if Maslenjak made false statements violating §1015(a) and procured naturalization, then she also violated §1425(a). Held: 1. The text of §1425(a) makes clear that, to secure a conviction, the Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” specifies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtaining of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition. The Government’s contrary view—that §1425(a) requires only a violation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Government attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understanding that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturalization. The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally disqualifying under the statutory requirement of “good moral character.” Kungys v. United States, 485 U. S. 759 ; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what it was required to give the day before. And by so unmooring the revocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The statute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturalization process, but only when that act played some role in her naturalization. . 2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective preferences or personal whims, that inquiry is properly framed in objective terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law. If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was sufficiently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investigation would have unearthed a disqualifying fact. It need only establish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found. When the Government can make its two-part showing, the defendant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). . 3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. . 821 F. 3d 675, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Gorsuch, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Alito, J., filed an opinion concurring in the judgment.

Petitioner Divna Maslenjak, an ethnic Serb who resided in Bosnia during the 1990’s, was granted refugee status in the United States under 18 U.S.C. §1425(a), which makes it a crime toknowingly procure[ ], contrary to law, the naturalization of any person. But while she was naturalized as a U. S. citizen, her professions of honesty were false: In fact, she had made up much of the story she told to immigration officials when seeking refuge in this country. She then applied for citizenship, but her husband Ratko, a Bosnian Serb Army officer, was convicted in a Federal District Court of knowingly making false statements in connection with naturalization. The court instructed the jury that the defendant had not lied in support of her naturalization decision, and that, if the jury returned a guilty verdict for the defendant, the court would approve the conviction. The Court of Appeals affirmed. Held: The Government must prove that an illegal act by the defendant played some role in her acquisition of citizenship. When the illegal act is a false statement, that means demonstrating that the accused lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result. See 821 F. 3d 675, 685–686. . (a) The most natural understanding of the term naturalization must be that the unlawful act must have contributed to the obtaining of citizenship, and thus must constitute a means-end connection between a legal violation and naturalization in order to enable the Government to rest on disqualifications that a thwarted investigation predictably would have uncovered. Accordingly, the proper causal inquiry is framed in objective terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law. Here, the jury needed to find more than an unlawful false statement. See §1015(a)(4) of the Immigration and Nationalization Act, which requires all applicants for citizenship to have "good moral character," and largely defines that term through a list of unlawful or unethical behavior. The jury could have convicted if (1) knowledge of that prior dishonesty would have led a reasonable official to make some further investigation (say, into the circumstances of her admission), or (2) that inquiry would have yielded a legal basis for rejecting her citizenship application, and (3) since this jury was not asked to make any of those determinations, it was not convicted by a properly instructed jury of curtailing contrary to the law, and hence Maslenjenak was not a naturalization applicant. This Court leaves that dispute for resolution on remand. In the meantime, the case is remanded for further proceedings. (b) A false statement made to government officials can affect naturalization decisions in a single, significant way. The Government need not show definitively that its investigation would have unearthed a disqualifying fact (though it may), but it need only establish that the investigation "would predictably have disclosed" some legal disqualification. If that is so, the defendant contributes to the citizenship award in the way §14 25(a). That standard reflects two real-world attributes of cases premised on naturalization: the difficulty of proving that a hypothetical inquiry would lead to some disqualifying discovery, often several years after the defendant told her lies; and the defendant (not the Government) bearing the blame for that evidentiary predicament. Pp. 485 U. s. 775. See, e.g., Kungys v. United States, 485 774, n. 9 (opinion of Scalia, J., concurring in judgment). Moreover, a defendant who misunderstands facts that the law deems incompatible with citizenship may be able to overcome it on the alternative reading. On this alternative reading, a person would violate the statute by obtaining citizenship without the requisite legal qualifications, even though she concealed or misrepresented facts that suggested the opposite. While the Government responds to such examples by seeking to define them out of the statute, it has never read a statute to strip citizenship from someone who met the legal criteria for acquiring it. Congress has defined two separate crimes in the statute: Assuming the appropriate mens rea, subsection (a) covers illegal means of procurement, as described above, while subsection (b) covers simple lack of qualifications. See infra, at 10–11. However, the question of what any individual decisionmaker might have done with accurate information is beside the point: Section 1425 (a)'s causal standard in cases (like this one) predicated on false statements. A yet-stricter causal requirement, demanding proof positive that a disqualified fact would have been found, sets the bar so high that it cannot conceive that Congress intended

2016_15-1293

https://www.oyez.org/cases/2016/15-1293

with respect to Parts I, II, and III–A, and an opinion with respect to Parts III–B, III–C, and IV, in which The Chief Justice, Justice Thomas, and Justice Breyer join. This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force. The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. I A “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.” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. ___, ___ (2015) (slip op., at 3); see also Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205, 212 (2000) . A trademark “designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the sale of another’s product as his.” United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90, 97 (1918) ; see also Hanover Star Milling Co. v. Metcalf, 240 U. S. 403 –413 (1916). It helps consumers identify goods and services that they wish to purchase, as well as those they want to avoid. See Wal-Mart Stores, supra, at 212–213; Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985) . “[F]ederal law does not create trademarks.” B&B Hardware, supra, at ___ (slip op., at 3). Trademarks and their precursors have ancient origins, and trademarks were protected at common law and in equity at the time of the founding of our country. 3 J. McCarthy, Trademarks and Unfair Competition §19:8 (4th ed. 2017) (hereinafter McCarthy); 1 id., §§5:1, 5:2, 5:3; Pattishal, The Constitutional Foundations of American Trademark Law, 78 Trademark Rep. 456, 457–458 (1988); Pattishall, Two Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 121–123 (1978); see Trade-Mark Cases, 100 U. S. 82, 92 (1879) . For most of the 19th century, trademark protection was the province of the States. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763 –782 (1992) (Stevens, J., concurring in judgment); id., at 785 (Thomas, J., concurring in judgment). Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal legislation protecting trademarks in 1870. See Act of July 8, 1870, §§77–84, 16Stat. 210–212. The foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of July 5, 1946, ch. 540, 60Stat. 427. By that time, trademark had expanded far beyond phrases that do no more than identify a good or service. Then, as now, trademarks often consisted of catchy phrases that convey a message. Under the Lanham Act, trademarks that are “used in commerce” may be placed on the “principal register,” that is, they may be federally registered. 15 U. S. C. §1051(a)(1). And some marks “capable of distinguishing [an] applicant’s goods or services and not registrable on the principal register . . . which are in lawful use in commerce by the owner thereof” may instead be placed on a different federal register: the supplemental register. §1091(a). There are now more than two million marks that have active federal certificates of registration. PTO Performance and Accountability Report, Fiscal Year 2016, p. 192 (Table 15), https://www.uspto.gov/sites/default/files/documents/USPTOFY16PAR.pdf (all Internet materials as last visited June 16, 2017). This system of federal registration helps to ensure that trademarks are fully protected and supports the free flow of commerce. “[N]ational protection of trademarks is desirable,” we have explained, “because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 531 (1987) (internal quotation marks omitted); see also Park ’N Fly, Inc., supra, at 198 (“The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers”). B Without federal registration, a valid trademark may still be used in commerce. See 3 McCarthy §19:8. And an unregistered trademark can be enforced against would-be infringers in several ways. Most important, even if a trademark is not federally registered, it may still be enforceable under §43(a) of the Lanham Act, which creates a federal cause of action for trademark infringement. See Two Pesos, supra, at 768 (“Section 43(a) prohibits a broader range of practices than does §32, which applies to registered marks, but it is common ground that §43(a) protects qualifying unregistered trademarks” (internal quotation marks and citation omitted)).[1] Unregistered trademarks may also be entitled to protection under other federal statutes, such as the Anticybersquatting Consumer Protection Act, 15 U. S. C. §1125(d). See 5 McCarthy §25A:49, at 25A–198 (“[T]here is no requirement [in the Anticybersquatting Act] that the protected ‘mark’ be registered: unregistered common law marks are protected by the Act”). And an unregistered trademark can be enforced under state common law, or if it has been registered in a State, under that State’s registration system. See 3 id., §19:3, at 19–23 (explaining that “[t]he federal system of registration and protection does not preempt parallel state law protection, either by state common law or state registration” and “[i]n the vast majority of situations, federal and state trademark law peacefully coexist”); id., §22:1 (discussing state trademark registration systems). Federal registration, however, “confers important legal rights and benefits on trademark owners who register their marks.” B&B Hardware, 575 U. S., at ___ (slip op., at 3) (internal quotation marks omitted). Registration on the principal register (1) “serves as ‘constructive notice of the registrant’s claim of ownership’ of the mark,” ibid. (quoting 15 U. S. C. §1072); (2) “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,’ ” B & B Hardware, 575 U. S. ___ (slip op., at 3) (quoting §1057(b)); and (3) can make a mark “ ‘incontestable’ ” once a mark has been registered for five years,” ibid. (quoting §§1065, 1115(b)); see Park ’N Fly, 469 U. S., at 193. Registration also enables the trademark holder “to stop the importation into the United States of articles bearing an infringing mark.” 3 Mc-Carthy §19:9, at 19–38; see 15 U. S. C. §1124. C The Lanham Act contains provisions that bar certain trademarks from the principal register. For example, a trademark cannot be registered if it is “merely descriptive or deceptively misdescriptive” of goods, §1052(e)(1), or if it is so similar to an already registered trademark or trade name that it is “likely . . . to cause confusion, or to cause mistake, or to deceive,” §1052(d). At issue in this case is one such provision, which we will call “the disparagement clause.” This provision prohibits the registration of a trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” §1052(a).[2] This clause appeared in the original Lanham Act and has remained the same to this day. See §2(a), 60Stat. 428. When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a “two-part test.” The examiner first considers “the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services.” Trademark Manual of Examining Procedure §1203.03(b)(i) (Apr. 2017), p. 1200–150, http://tmep.uspto.gov. “If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols,” the examiner moves to the second step, asking “whether that meaning may be disparaging to a substantial composite[3] of the referenced group.” Ibid. If the examiner finds that a “substantial composite, although not necessarily a majority, of the referenced group would find the proposed mark . . . to be disparaging in the context of contemporary attitudes,” a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that the trademark is not disparaging. Ibid. What is more, the PTO has specified that “[t]he fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the referenced group would find the term objectionable.” Ibid. D Simon Tam is the lead singer of “The Slants.” In re Tam, 808 F. 3d 1321, 1331 (CA Fed. 2015) (en banc), as corrected (Feb. 11, 2016). He chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks omitted). The group “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes” and has given its albums names such as “The Yellow Album” and “Slanted Eyes, Slanted Hearts.” Ibid. Tam sought federal registration of “THE SLANTS,” on the principal register, App. 17, but an examining attorney at the PTO rejected the request, applying the PTO’s two-part framework and finding that “there is . . . a substantial composite of persons who find the term in the applied-for mark offensive.” Id., at 30. The examining attorney relied in part on the fact that “numerous dictionaries define ‘slants’ or ‘slant-eyes’ as a derogatory or offensive term.” Id., at 29. The examining attorney also relied on a finding that “the band’s name has been found offensive numerous times”—citing a performance that was canceled because of the band’s moniker and the fact that “several bloggers and commenters to articles on the band have indicated that they find the term and the applied-for mark offensive.” Id., at 29–30. Tam contested the denial of registration before the examining attorney and before the PTO’s Trademark Trial and Appeal Board (TTAB) but to no avail. Eventually, he took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. The majority found that the clause en-gages in viewpoint-based discrimination, that the clause regulates the expressive component of trademarks and consequently cannot be treated as commercial speech, and that the clause is subject to and cannot satisfy strict scrutiny. See 808 F. 3d, at 1334–1339. The majority also rejected the Government’s argument that registered trademarks constitute government speech, as well as the Government’s contention that federal registration is a form of government subsidy. See id., at 1339–1355. And the majority opined that even if the disparagement clause were analyzed under this Court’s commercial speech cases, the clause would fail the “intermediate scrutiny” that those cases prescribe. See id., at 1355–1357. Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O’Malley agreed with the majority’s reasoning but added that the disparagement clause is unconstitutionally vague. See id., at 1358–1363. Judge Dyk concurred in part and dissented in part. He argued that trademark registration is a government subsidy and that the disparagement clause is facially constitutional, but he found the clause unconstitutional as applied to THE SLANTS because that mark constitutes “core expression” and was not adopted for the purpose of disparaging Asian-Americans. See id., at 1363–1374. In dissent, Judge Lourie agreed with Judge Dyk that the clause is facially constitutional but concluded for a variety of reasons that it is also constitutional as applied in this case. See id., at 1374–1376. Judge Reyna also dissented, maintaining that trademarks are commercial speech and that the disparagement clause survives intermediate scrutiny because it “directly advances the government’s substantial interest in the orderly flow of commerce.” See id., at 1376–1382. The Government filed a petition for certiorari, which we granted in order to decide whether the disparagement clause “is facially invalid under the Free Speech Clause of the First Amendment.” Pet. for Cert. i; see sub. nom. Lee v. Tam, 579 U. S. ___ (2016). II Before reaching the question whether the disparagement clause violates the First Amendment, we consider Tam’s argument that the clause does not reach marks that disparage racial or ethnic groups. The clause prohibits the registration of marks that disparage “persons,” and Tam claims that the term “persons” “includes only natural and juristic persons,” not “non-juristic entities such as racial and ethnic groups.” Brief for Respondent 46. Tam never raised this argument before the PTO or the Federal Circuit, and we declined to grant certiorari on this question when Tam asked us to do so, see Brief Responding to Petition for Certiorari, pp. i, 17–21. Normally, that would be the end of the matter in this Court. See, e.g., Yee v. Escondido, 503 U. S. 519 –538 (1992); Freytag v. Commissioner, 501 U. S. 868 –895 (1991) (Scalia, J., concurring in part and concurring in judgment). But as the Government pointed out in connection with its petition for certiorari, accepting Tam’s statutory interpretation would resolve this case and leave the First Amendment question for another day. See Reply Brief 9. “[W]e have often stressed” that it is “importan[t] [to] avoid[d] the premature adjudication of constitutional questions,” Clinton v. Jones, 520 U. S. 681, 690 (1997) , and that “we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable,” Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944) . See also Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945) ; Burton v. United States, 196 U. S. 283, 295 (1905) . We thus begin by explaining why Tam’s argument about the definition of “persons” in the Lanham Act is meritless. As noted, the disparagement clause prohibits the registration of trademarks “which may disparage . . . persons, living or dead.” 15 U. S. C. §1052(a). Tam points to a definition of “person” in the Lanham Act, which provides that “[i]n the construction of this chapter, unless the contrary is plainly apparent from the context . . . [t]he term ‘person’ and any other word or term used to designate the applicant or other entitled to a benefit or privilege or rendered liable under the provisions of this chapter includes a juristic person as well as a natural person.” §1127. Because racial and ethnic groups are neither natural nor “juristic” persons, Tam asserts, these groups fall outside this definition. Brief for Respondent 46–48. Tam’s argument is refuted by the plain terms of the disparagement clause. The clause applies to marks that disparage “persons.” A mark that disparages a “substantial” percentage of the members of a racial or ethnic group, Trademark Manual §1203.03(b)(i), at 1200–150, necessar-ily disparages many “persons,” namely, members of that group. Tam’s argument would fail even if the clause used the singular term “person,” but Congress’ use of the plural “persons” makes the point doubly clear.[4] Tam’s narrow reading of the term “persons” also clashes with the breadth of the disparagement clause. By its terms, the clause applies to marks that disparage, not just “persons,” but also “institutions” and “beliefs.” 15 U. S. C. §1052(a). It thus applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “institutions,” and on Tam’s reading, it also reaches “juristic” persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person. If Congress had wanted to confine the reach of the disparagement clause in the way that Tam suggests, it would have been easy to do so. A neighboring provision of the Lanham Act denies registration to any trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” §1052(c) (emphasis added). Tam contends that his interpretation of the disparagement clause is supported by its legislative history and by the PTO’s willingness for many years to register marks that plainly denigrated African-Americans and Native Americans. These arguments are unpersuasive. As always, our inquiry into the meaning of the statute’s text ceases when “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (internal quotation marks omitted). Here, it is clear that the prohibition against registering trademarks “which may disparage . . . persons,” §1052(a), prohibits registration of terms that disparage persons who share a common race or ethnicity. Even if resort to legislative history and early enforcement practice were appropriate, we would find Tam’s arguments unconvincing. Tam has not brought to our attention any evidence in the legislative history showing that Congress meant to adopt his interpretation. And the practice of the PTO in the years following the enactment of the disparagement clause is unenlightening. The admitted vagueness of the disparagement test[5] and the huge volume of applications have produced a haphazard record of enforcement. (Even today, the principal register is replete with marks that many would regard as disparaging to racial and ethnic groups.[6]) Registration of the offensive marks that Tam cites is likely attributable not to the acceptance of his interpretation of the clause but to other factors—most likely the regrettable attitudes and sensibilities of the time in question. III Because the disparagement clause applies to marks that disparage the members of a racial or ethnic group, we must decide whether the clause violates the Free Speech Clause of the First Amendment. And at the outset, we must consider three arguments that would either eliminate any First Amendment protection or result in highly permissive rational-basis review. Specifically, the Government contends (1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new “government-program” doctrine. We address each of these arguments below. A The First Amendment prohibits Congress and other government entities and actors from “abridging the freedom of speech”; the First Amendment does not say that Congress and other government entities must abridge their own ability to speak freely. And our cases recognize that “[t]he Free Speech Clause . . . does not regulate government speech.” Pleasant Grove City v. Summum, 555 U. S. 460, 467 (2009); see Johanns v. Livestock Marketing Assn., 544 U. S. 550, 553 (2005) (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000) . As we have said, “it is not easy to imagine how government could function” if it were subject to the restrictions that the First Amendment imposes on private speech. Summum, supra, at 468; see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 5–7). “ ‘[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,’ ” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 394 (1993) , but imposing a requirement ofviewpoint-neutrality on government speech would be para-lyzing. When a government entity embarks on a courseof action, it necessarily takes a particular viewpointand rejects others. The Free Speech Clause does not re-quire government to maintain viewpoint neutrality when its officers and employees speak about that venture. Here is a simple example. During the Second World War, the Federal Government produced and distributed millions of posters to promote the war effort.[7] There were posters urging enlistment, the purchase of war bonds, and the conservation of scarce resources.[8] These posters expressed a viewpoint, but the First Amendment did not demand that the Government balance the message of these posters by producing and distributing posters encouraging Americans to refrain from engaging in these activities. But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents. At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal Government. The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. Instead, if the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that “[n]o trademark . . . shall be refused registration on the principal register on account of its nature unless” it falls within an enumerated statutory exception). And if an examiner finds that a mark is eligible for placement on the principal register, that decision is not reviewed by any higher official unless the registration is challenged. See §§1062(a), 1071; 37 CFR §41.31(a) (2016). Moreover, once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. See 15 U. S. C. §§1058(a), 1059, 1064; 37 CFR §§2.111(b), 2.160. In light of all this, it is far-fetched to suggest that the content of a registered mark is government speech. If the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. See App. to Brief for Pro-Football, Inc., as Amicus Curiae. It is expressing contradictory views.[9] It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public. For example, if trademarks represent government speech, what does the Government have in mind when it advises Americans to “make.believe” (Sony),[10] “Think different” (Apple),[11] “Just do it” (Nike),[12] or “Have it your way” (Burger King)[13]? Was the Government warning about a coming disaster when it registered the mark “EndTime Ministries”[14]? The PTO has made it clear that registration does not constitute approval of a mark. See In re Old Glory Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) (“[I]ssuance of a trademark registration . . . is not a government imprimatur”). And it is unlikely that more than a tiny fraction of the public has any idea what federal registration of a trademark means. See Application of National Distillers & Chemical Corp., 49 C. C. P. A. (Pat.) 854, 863, 297 F. 2d 941, 949 (1962) (Rich, J., concurring) (“The purchasing public knows no more about trademark registrations than a man walking down the street in a strange city knows about legal title to the land and buildings he passes” (emphasis deleted)). None of our government speech cases even remotely supports the idea that registered trademarks are government speech. In Johanns, we considered advertisements promoting the sale of beef products. A federal statute called for the creation of a program of paid advertising “ ‘to advance the image and desirability of beef and beef products.’ ” 544 U. S., at 561 (quoting 7 U. S. C. § 2902(13)). Congress and the Secretary of Agriculture provided guidelines for the content of the ads, Department of Agriculture officials attended the meetings at which the content of specific ads was discussed, and the Secretary could edit or reject any proposed ad. 544 U. S., at 561. Noting that “[t]he message set out in the beef promotions [was] from beginning to end the message established by the Federal Government,” we held that the ads were government speech. Id., at 560. The Government’s involvement in the creation of these beef ads bears no resemblance to anything that occurs when a trademark is registered. Our decision in Summum is similarly far afield. A small city park contained 15 monuments. 555 U. S., at 464. Eleven had been donated by private groups, and one of these displayed the Ten Commandments. Id., at 464–465. A religious group claimed that the city, by accepting donated monuments, had created a limited public forum for private speech and was therefore obligated to place in the park a monument expressing the group’s religious beliefs. Holding that the monuments in the park represented government speech, we cited many factors. Governments have used monuments to speak to the public since ancient times; parks have traditionally been selective in accepting and displaying donated monuments; parks would be overrun if they were obligated to accept all monuments offered by private groups; “[p]ublic parks are often closely identified in the public mind with the government unit that owns the land”; and “[t]he monuments that are accepted . . . are meant to convey and have the effect of conveying a government message.” Id., at 472. Trademarks share none of these characteristics. Trademarks have not traditionally been used to convey a Government message. With the exception of the enforcement of 15 U. S. C. §1052(a), the viewpoint expressed by a mark has not played a role in the decision whether to place it on the principal register. And there is no evidence that the public associates the contents of trademarks with the Federal Government. This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. 576 U. S., at ___–___ (slip op., at 7–8). First, license plates have long been used by the States to convey state messages. Id., at ___–___ (slip op., at 9–10). Second, license plates “are often closely identified in the public mind” with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of “government ID.” Id., at ___ (slip op., at 10) (internal quotation marks omitted). Third, Texas “maintain[ed] direct control over the mes-sages conveyed on its specialty plates.” Id., at ___ (slip op., at 11). As explained above, none of these factors are present in this case. In sum, the federal registration of trademarks is vastly different from the beef ads in Johanns, the monuments in Summum, and even the specialty license plates in Walker. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine. For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way. Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation? See 808 F. 3d, at 1346 (explaining that if trademark registration amounts to government speech, “then copyright registration” which “has identical accoutrements” would “likewise amount to government speech”). The Government attempts to distinguish copyright on the ground that it is “ ‘the engine of free expression,’ ” Brief for Petitioner 47 (quoting Eldred v. Ashcroft, 537 U. S. 186, 219 (2003) ), but as this case illustrates, trademarks often have an expressive content. Companies spend huge amounts to create and publicize trademarks that convey a message. It is true that the necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be conveyed in just a few words. Trademarks are private, not government, speech. B We next address the Government’s argument that this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint. These cases implicate a notoriously tricky question of constitutional law. “[W]e have held that the Government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.’ ” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. ___, ___ (2013) (slip op., at 8) (some internal quotation marks omitted). But at the same time, government is not required to subsidize activities that it does not wish to promote. Ibid. Determining which of these principles applies in a particular case “is not always self-evident,” id., at ___ (slip op., at 11), but no difficult question is presented here. Unlike the present case, the decisions on which the Government relies all involved cash subsidies or their equivalent. In Rust v. Sullivan, 500 U. S. 173 (1991) , a federal law provided funds to private parties for family planning services. In National Endowment for Arts v. Finley, 524 U. S. 569 (1998) , cash grants were awarded to artists. And federal funding for public libraries was at issue in United States v. American Library Assn., Inc., 539 U. S. 194 (2003) . In other cases, we have regarded tax benefits as comparable to cash subsidies. See Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983) ; Cammarano v. United States, 358 U. S 498 (1959). The federal registration of a trademark is nothing like the programs at issue in these cases. The PTO does not pay money to parties seeking registration of a mark. Quite the contrary is true: An applicant for registration must pay the PTO a filing fee of $225–$600. 37 CFR §2.6(a)(1). (Tam submitted a fee of $275 as part of his application to register THE SLANTS. App. 18.) And to maintain federal registration, the holder of a mark must pay a fee of $300–$500 every 10 years. §2.6(a)(5); see also 15 U. S. C. §1059(a). The Federal Circuit concluded that these fees have fully supported the registration system for the past 27 years. 808 F. 3d, at 1353. The Government responds that registration provides valuable non-monetary benefits that “are directly trace-able to the resources devoted by the federal government to examining, publishing, and issuing certificates of registration for those marks.” Brief for Petitioner 27. But just about every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. Trademark registration is not the only government registration scheme. For example, the Federal Government registers copyrights and patents. State governments and their subdivisions register the title to real property and security interests; they issue driver’s licenses, motor vehicle registrations, and hunting, fishing, and boating licenses or permits. Cases like Rust and Finley are not instructive in analyzing the constitutionality of restrictions on speech imposed in connection with such services. C Finally, the Government urges us to sustain the disparagement clause under a new doctrine that would apply to “government-program” cases. For the most part, this argument simply merges our government-speech cases and the previously discussed subsidy cases in an attempt to construct a broader doctrine that can be applied to the registration of trademarks. The only new element in this construct consists of two cases involving a public employer’s collection of union dues from its employees. Butthose cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks. In Davenport v. Washington Ed. Assn., 551 U. S. 177 –182 (2007), a Washington law permitted a public employer automatically to deduct from the wages of employees who chose not to join the union the portion of union dues used for activities related to collective bargaining. But unless these employees affirmatively consented, the law did not allow the employer to collect the portion of union dues that would be used in election activities. Id., at 180–182. A public employee union argued that this law unconstitutionally restricted its speech based on its con-tent; that is, the law permitted the employer to assist union speech on matters relating to collective bargaining but made it harder for the union to collect money to support its election activities. Id., at 188. Upholding this law, we characterized it as imposing a “modest limitation” on an “extraordinary benefit,” namely, taking money from the wages of non-union members and turning it over to the union free of charge. Id., at 184. Refusing to confer an even greater benefit, we held, did not upset the marketplace of ideas and did not abridge the union’s free speech rights. Id., at 189–190. Ysursa v. Pocatello Ed. Assn., 555 U. S. 353 (2009) , is similar. There, we considered an Idaho law that allowed public employees to elect to have union dues deducted from their wages but did not allow such a deduction for money remitted to the union’s political action committee. Id., at 355. We reasoned that the “the government . . . [was] not required to assist others in funding the expression of particular ideas.” Id., at 358; see also id., at 355 (“The First Amendment . . . does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression”). Davenport and Ysursa are akin to our subsidy cases. Although the laws at issue in Davenport and Ysursa did not provide cash subsidies to the unions, they conferred a very valuable benefit—the right to negotiate a collective-bargaining agreement under which non-members would be obligated to pay an agency fee that the public employer would collect and turn over to the union free of charge. As in the cash subsidy cases, the laws conferred this benefit because it was thought that this arrangement served important government interests. See Abood v. Detroit Bd. of Ed., 431 U. S. 209 –226 (1977). But the challenged laws did not go further and provide convenient collection mechanisms for money to be used in political activities. In essence, the Washington and Idaho lawmakers chose to confer a substantial non-cash benefit for the purpose of furthering activities that they particularly desired to promote but not to provide a similar benefit for the purpose of furthering other activities. Thus, Davenport and Ysursa are no more relevant for present purposes than the subsidy cases previously discussed.[15] Potentially more analogous are cases in which a unit of government creates a limited public forum for private speech. See, e.g., Good News Club v. Milford Central School, 533 U. S. 98 –107 (2001); Rosenberger v. Rec-tor and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995) ; Lamb’s Chapel, 508 U. S., at 392–393. See also Legal Services Corporation v. Velazquez, 531 U. S. 533 –544 (2001). When government creates such a forum, in either a literal or “metaphysical” sense, see Rosenberger, 515 U. S., at 830, some content- and speaker-based restrictions may be allowed, see id., at 830–831. However, even in such cases, what we have termed “viewpoint discrimination” is forbidden. Id., at 831. Our cases use the term “viewpoint” discrimination in a broad sense, see ibid., and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint. We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969) . See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 –56 (1988); Coates v. Cincinnati, 402 U. S. 611, 615 (1971) ; Bachellar v. Maryland, 397 U. S. 564, 567 (1970) ; Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 –514 (1969); Cox v. Louisiana, 379 U. S. 536, 551 (1965) ; Edwards v. South Carolina, 372 U. S. 229 –238 (1963); Terminiello v. Chicago, 337 U. S. 1 –5 (1949); Cantwell v. Connecticut, 310 U. S. 296, 311 (1940) ; Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939) ; De Jonge v. Oregon, 299 U. S. 353, 365 (1937) . For this reason, the disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted.[16] IV Having concluded that the disparagement clause cannot be sustained under our government-speech or subsidy cases or under the Government’s proposed “government-program” doctrine, we must confront a dispute between the parties on the question whether trademarks are commercial speech and are thus subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) . The Government and amici supporting its position argue that all trademarks are commercial speech. They note that the central purposes of trademarks are commercial and that federal law regulates trademarks to promote fair and orderly interstate commerce. Tam and his amici, on the other hand, contend that many, if not all, trademarks have an expressive component. In other words, these trademarks do not simply identify the source of a product or service but go on to say something more, either about the product or service or some broader issue. The trademark in this case illustrates this point. The name “The Slants” not only identifies the band but expresses a view about social issues. We need not resolve this debate between the parties because the disparagement clause cannot withstand even Central Hudson review.[17] Under Central Hudson, a restriction of speech must serve “a substantial interest,” and it must be “narrowly drawn.” Id., at 564–565 (internal quotation marks omitted). This means, among other things, that “[t]he regulatory technique may extend only as far as the interest it serves.” Id., at 565. The disparagement clause fails this requirement. It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing “ ‘underrepresented groups’ ” from being “ ‘bombarded with demeaning messages in commercial advertising.’ ” Brief for Petitioner 48 (quoting 808 F. 3d, at 1364 (Dyk, J., concurring in part and dissenting in part)). An amicus supporting the Government refers to “encouraging racial tolerance and protecting the privacy and welfare of individuals.” Brief for Native American Organizations as Amici Curiae 21. But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting). The second interest asserted is protecting the orderly flow of commerce. See 808 F. 3d, at 1379–1381 (Reyna, J., dissenting); Brief for Petitioner 49; Brief for Native American Organizations as Amicus Curiae 18–21. Commerce, we are told, is disrupted by trademarks that “involv[e] disparagement of race, gender, ethnicity, national origin, religion, sexual orientation, and similar demographic classification.” 808 F. 3d, at 1380–1381 (opinion of Reyna, J.). Such trademarks are analogized to discriminatory conduct, which has been recognized to have an adverse effect on commerce. See ibid.; Brief for Petitioner 49;Brief for Native American Organizations as Amici Curiae 18–20. A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted. The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying: “James Buchanan was a disastrous president” or “Slavery is an evil institution”? There is also a deeper problem with the argument that commercial speech may be cleansed of any expression likely to cause offense. The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered. * * * For these reasons, we hold that the disparagement clause violates the Free Speech Clause of the First Amendment. The judgment of the Federal Circuit is affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 In the opinion below, the Federal Circuit opined that although “Section 43(a) allows for a federal suit to protect an unregistered trademark,” “it is not at all clear” that respondent could bring suit under §43(a) because “there is no authority extending §43(a) to marks denied under §2(a)’s disparagement provision.” In re Tam, 808 F. 3d 1321, 1344–1345, n.11 (en banc), as corrected (Feb. 11, 2016). When drawing this conclusion, the Federal Circuit relied in part on our statement in Two Pesos that “the general principles qualifying a mark for registration under §2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under §43(a).” 505 U. S., at 768. We need not decide today whether respondent could bring suit under §43(a) if his application for federal registration had been lawfully denied under the disparagement clause. 2 The disparagement clause also prevents a trademark from being registered on the supplemental register. §1091(a). 3 By “composite,” we assume the PTO means component. 4 Tam advances a convoluted textual argument that goes as follows. The definition of a “person” in 15 U. S. C. §1127 does not include a “non-juristic person,” i.e., a group that cannot sue or be sued in its own right. Brief for Respondent 46–47. Such groups consist of multiple natural persons. Therefore, the members of such groups are not “persons” under the disparagement clause. Id., at 46–48. 5 The PTO has acknowledged that the guidelines “for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.” In re In Over Our Heads, Inc., 16 USPQ 2d 1653, 1654 (TTAB 1990) (brackets and internal quotation marks omitted). The PTO has similarly observed that whether a mark is disparaging “is highly subjective and, thus, general rules are difficult to postulate.” Harjo v. Pro-Football Inc., 50 USPQ 2d 1705, 1737 (TTAB 1999), rev’d, 284 F. Supp. 2d 96 (DC 2003), rev’d and remanded in part, 415 F. 3d 44 (CADC 2005) (per curiam). 6 See, e.g., App. to Brief for Pro-Football, Inc., as Amicus Curiae. 7 See, e.g., D. Nelson, The Posters That Won the War (1991). 8 Ibid. 9 Compare “Abolish Abortion,” Registration No. 4,935,774 (Apr. 12, 2016), with “I Stand With Planned Parenthood,” Registration No. 5,073,573 (Nov. 1, 2016); compare “Capitalism Is Not Moral, Not Fair, Not Freedom,” Registration No. 4,696,419 (Mar. 3, 2015), with “Capitalism Ensuring Innovation,” Registration No. 3,966,092 (May 24, 2011); compare “Global Warming Is Good,” Registration No. 4,776,235 (July 21, 2015), with “A Solution to Global Warming,” Registration No. 3,875,271 (Nov. 10, 2010). 10 “make.believe,” Registration No. 4,342,903 (May 28, 2013). 11 “Think Different,” Registration No. 2,707,257 (Apr. 15, 2003). 12 “Just Do It,” Registration No. 1,875,307 (Jan. 25, 1995). 13 “Have It Your Way,” Registration No. 0,961,016. (June 12, 1973) 14 “EndTime Ministries,” Registration No. 4,746,225 (June 2, 2015). 15 While these cases resemble subsidy cases insofar as the free speech rights of unions and their members are concerned, arrangements like those in these cases also implicate the free speech rights of non-union members. Our decision here has no bearing on that issue. 16 We leave open the question whether this is the appropriate framework for analyzing free speech challenges to provisions of the Lanham Act. 17 As with the framework discussed in Part III–C of this opinion, we leave open the question whether Central Hudson provides the appropriate test for deciding free speech challenges to provisions of the Lanham Act. And nothing in our decision should be read to speak to the validity of state unfair competition provisions or product libel laws that are not before us and differ from §1052(d)’s disparagement clause. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1293 _________________ JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM on writ of certiorari to the united states court of appeals for the federal circuit [June 19, 2017] Justice Kennedy, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, concurring in part and concurring in the judgment. The Patent and Trademark Office (PTO) has denied the substantial benefits of federal trademark registration to the mark THE SLANTS. The PTO did so under the mandate of the disparagement clause in 15 U. S. C. §1052(a), which prohibits the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead, institutions, beliefs, or national symbols.” As the Court is correct to hold, §1052(a) constitutes viewpoint discrimination—a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny. The Government’s action and the statute on which it is based cannot survive this scrutiny. The Court is correct in its judgment, and I join Parts I, II, and III–A of its opinion. This separate writing explains in greater detail why the First Amendment’s protections against viewpoint discrimination apply to the trademark here. It submits further that the viewpoint discrimination rationale renders unnecessary any extended treatment of other questions raised by the parties. I Those few categories of speech that the government can regulate or punish—for instance, fraud, defamation, or incitement—are well established within our constitutional tradition. See United States v. Stevens, 559 U. S. 460, 468 (2010) . Aside from these and a few other narrow exceptions, it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 –829 (1995). The First Amendment guards against laws “targeted at specific subject matter,” a form of speech suppression known as content based discrimination. Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 12). This category includes a subtype of laws that go further, aimed at the suppression of “particular views . . . on a subject.” Rosenberger, 515 U. S., at 829. A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” Id., at 829–830. At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 806 (1985) (“[T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”). In the instant case, the disparagement clause the Government now seeks to implement and enforce identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols.” 15 U. S. C. §1052(a). Within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination. The Government disputes this conclusion. It argues, to begin with, that the law is viewpoint neutral because it applies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is first defined by content and then regulated or censored by mandating only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Cf. Rosenberger, supra, at 831–832 (“The . . . declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways”). The logic of the Government’s rule is that a law would be viewpoint neutral even if it provided that public officials could be praised but not condemned. The First Amendment’s viewpoint neutrality principle protects more than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the marketplace of ideas. The Government next suggests that the statute is viewpoint neutral because the disparagement clause applies to trademarks regardless of the applicant’s personal views or reasons for using the mark. Instead, registration is denied based on the expected reaction of the applicant’s audience. In this way, the argument goes, it cannot be said that Government is acting with hostility toward a particular point of view. For example, the Government does not dispute that respondent seeks to use his mark in a positive way. Indeed, respondent endeavors to use The Slants to supplant a racial epithet, using new insights, musical talents, and wry humor to make it a badge of pride. Respondent’s application was denied not because the Government thought his object was to demean or offend but because the Government thought his trademark would have that effect on at least some Asian-Americans. The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs, Reed, supra, at ___–___ (slip op., at 11–12), but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. For reasons like these, the Court’s cases have long prohibited the government from justifying a First Amendment burden by pointing to the offensiveness of the speech to be suppressed. See ante, at 23 (collecting examples). The Government’s argument in defense of the statute assumes that respondent’s mark is a negative comment. In addressing that argument on its own terms, this opinion is not intended to imply that the Government’s interpretation is accurate. From respondent’s submissions, it is evident he would disagree that his mark means what the Government says it does. The trademark will have the effect, respondent urges, of reclaiming an offensive term for the positive purpose of celebrating all that Asian-Americans can and do contribute to our diverse Nation. Brief for Respondent 1–4, 42–43. While thoughtful persons can agree or disagree with this approach, the dissonance between the trademark’s potential to teach and the Government’s insistence on its own, opposite, and negative interpretation confirms the constitutional vice of the statute. II The parties dispute whether trademarks are commercial speech and whether trademark registration should be considered a federal subsidy. The former issue may turn on whether certain commercial concerns for the protection of trademarks might, as a general matter, be the basis for regulation. However that issue is resolved, the viewpoint based discrimination at issue here necessarily invokes heightened scrutiny. “Commercial speech is no exception,” the Court has explained, to the principle that the First Amendment “requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys.” Sorrell v. IMS Health Inc., 564 U. S. 552, 566 (2011) (internal quotation marks omitted). Unlike content based discrimination, discrimination based on viewpoint, including a regulation that targets speech for its offensiveness, remains of serious concern in the commercial context. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60 –72 (1983). To the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. Justice Holmes’ reference to the “free trade in ideas” and the “power of . . . thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion), was a metaphor. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. Here that real marketplace exists as a matter of state law and our common-law tradition, quite without regard to the Federal Government. See ante, at 2. These marks make up part of the expression of everyday life, as with the names of entertainment groups, broadcast networks, designer clothing, newspapers, automobiles, candy bars, toys, and so on. See Brief for Pro-Football, Inc., as Amicus Curiae 8 (collecting examples). Nonprofit organizations—ranging from medical-research charities and other humanitarian causes to political advocacy groups—also have trademarks, which they use to compete in a real economic sense for funding and other resources as they seek to persuade others to join their cause. See id., at 8–9 (collecting examples). To permit viewpoint discrimination in this context is to permit Government censorship. This case does not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment. It is well settled, for instance, that to the extent a trademark is confusing or misleading the law can protect consumers and trademark owners. See, e.g., FTC v. Winstead Hosiery Co., 285 U. S. 483, 493 (1922) (“The labels in question are literally false, and . . . palpably so. All are, as the Commission found, calculated to deceive and do in fact deceive a substantial portion of the purchasing public”). This case also does not involve laws related to product labeling or otherwise designed to protect consumers. See Sorrell, supra, at 579 (“[T]he government’s legitimate interest in protecting consumers from commercial harms explains why commercial speech can be subject to greater governmental regulation than noncommercial speech” (internal quotation marks omitted)). These considerations, however, do not alter the speech principles that bar the viewpoint discrimination embodied in the statutory provision at issue here. It is telling that the Court’s precedents have recognized just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to communicate a message on its behalf. See Legal Services Corporation v. Velazquez, 531 U. S. 533 –542 (2001); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000) ; Rosenberger, 515 U. S., at 833. The exception is necessary to allow the government to stake out positions and pursue policies. See Southworth, supra, at 235; see also ante, at 13–14. But it is also narrow, to prevent the government from claiming that every government program is exempt from the First Amendment. These cases have identified a number of factors that, if present, suggest the government is speaking on its own behalf; but none are present here. See ante, at 14–18. There may be situations where private speakers are selected for a government program to assist the government in advancing a particular message. That is not this case either. The central purpose of trademark registration is to facilitate source identification. To serve that broad purpose, the Government has provided the benefits of federal registration to millions of marks identifying every type of product and cause. Registered trademarks do so by means of a wide diversity of words, symbols, and mes-sages. Whether a mark is disparaging bears no plausible relation to that goal. While defining the purpose and scope of a federal program for these purposes can be complex, see, e.g., Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. ___, ___ (2013) (slip op., at 8), our cases are clear that viewpoint discrimination is not permitted where, as here, the Government “expends funds to encourage a diversity of views from private speakers,” Velazquez, supra, at 542 (internal quotation marks omitted). * * * A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. For these reasons, I join the Court’s opinion in part and concur in the judgment. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1293 _________________ JOSEPH MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE, PETITIONER v. SIMON SHIAO TAM on writ of certiorari to the united states court of appeals for the federal circuit [June 19, 2017] Justice Thomas, concurring in part and concurring in the judgment. I join the opinion of Justice Alito, except for Part II. Respondent failed to present his statutory argument either to the Patent and Trademark Office or to the Court of Appeals, and we declined respondent’s invitation to grant certiorari on this question. Ante, at 9. I see no reason to address this legal question in the first instance. See Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017) (slip op., at 6). I also write separately because “I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as ‘commercial.’ ” Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 572 (2001) (Thomas, J., concurring in part and concurring in judgment); see also, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (same). I nonetheless join Part IV of Justice Alito’s opinion because it correctly concludes that the disparagement clause, 15 U. S. C. §1052(a), is unconstitutional even under the less stringent test announced in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (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 MATAL, INTERIM DIRECTOR, UNITED STATES PATENT AND TRADEMARK OFFICE v. TAM certiorari to the united states court of appeals for the federal circuit No. 15–1293. Argued January 18, 2017—Decided June 19, 2017 Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. Held: The judgment is affirmed. 808 F. 3d 1321, affirmed. Justice Alito delivered the opinion of the Court with respect to Parts I, II, and III–A, concluding: 1. The disparagement clause applies to marks that disparage the members of a racial or ethnic group. Tam’s view, that the clause applies only to natural or juristic persons, is refuted by the plain terms of the clause, which uses the word “persons.” A mark that disparages a “substantial” percentage of the members of a racial or ethnic group necessarily disparages many “persons,” namely, members of that group. Tam’s narrow reading also clashes with the breadth of the disparagement clause, which by its terms applies not just to “persons,” but also to “institutions” and “beliefs.” §1052(a). Had Congress wanted to confine the reach of the clause, it could have used the phrase “particular living individual,” which it used in neighboring §1052(c). Tam contends that his interpretation is supported by legislative history and by the PTO’s practice for many years of registering marks that plainly denigrated certain groups. But an inquiry into the meaning of the statute’s text ceases when, as here, “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U. S. 438 (internal quotation marks omitted). Even if resort to legislative history and early enforcement practice were appropriate, Tam has presented nothing showing a congressional intent to adopt his interpretation, and the PTO’s practice in the years following the disparagement clause’s enactment is unenlightening. . 2. The disparagement clause violates the First Amendment’s Free Speech Clause. Contrary to the Government’s contention, trademarks are private, not government speech. Because the “Free Speech Clause . . . does not regulate government speech,” Pleasant Grove City v. Summum, 555 U. S. 460 , the government is not required to maintain viewpoint neutrality on its own speech. This Court exercises great caution in extending its government-speech precedents, for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. The Federal Government does not dream up the trademarks registered by the PTO. Except as required by §1052(a), an examiner may not reject a mark based on the viewpoint that it appears to express. If the mark meets the Lanham Act’s viewpoint-neutral requirements, registration is mandatory. And once a mark is registered, the PTO is not authorized to remove it from the register unless a party moves for cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based on certain grounds. It is thus far-fetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently. And none of this Court’s government-speech cases supports the idea that registered trademarks are government speech. Johanns v. Livestock Marketing Assn., 544 U. S. 550 ; Pleasant Grove City v. Summum, 555 U. S. 460 ; and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U. S. ___, distinguished. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine, for other systems of government registration (such as copyright) could easily be characterized in the same way. . Justice Alito, joined by The Chief Justice, Justice Thomas, and Justice Breyer, concluded in Parts III–B, III–C, and IV: (a) The Government’s argument that this case is governed by the Court’s subsidized-speech cases is unpersuasive. Those cases all involved cash subsidies or their equivalent, e.g., funds to private parties for family planning services in Rust v. Sullivan, 500 U. S. 173 , and cash grants to artists in National Endowment for Arts v. Finley, 524 U. S. 569 . The federal registration of a trademark is nothing like these programs. The PTO does not pay money to parties seeking registration of a mark; it requires the payment of fees to file an application and to maintain the registration once it is granted. The Government responds that registration provides valuable non-monetary benefits traceable to the Government’s resources devoted to registering the marks, but nearly every government service requires the expenditure of government funds. This is true of services that benefit everyone, like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication of private lawsuits and the use of public parks and highways. . (b) Also unpersuasive is the Government’s claim that the disparagement clause is constitutional under a “government-program” doctrine, an argument which is based on a merger of this Court’s government-speech cases and subsidy cases. It points to two cases involving a public employer’s collection of union dues from its employees, Davenport v. Washington Ed. Assn., 551 U. S. 177 , and Ysursa v. Pocatello Ed. Assn., 555 U. S. 353 , but these cases occupy a special area of First Amendment case law that is far removed from the registration of trademarks. Cases in which government creates a limited public forum for private speech, thus allowing for some content- and speaker-based restrictions, see, e.g., Good News Club v. Milford Central School, 533 U. S. 98 –107; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , are potentially more analogous. But even in those cases, viewpoint discrimination is forbidden. The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group. That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint. The “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576 . . (c) The dispute between the parties over whether trademarks are commercial speech subject to the relaxed scrutiny outlined in Central Hudson Gas & Elect. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 , need not be resolved here because the disparagement clause cannot withstand even Central Hudson review. Under Central Hudson, a restriction of speech must serve “a substantial interest” and be “narrowly drawn.” Id., at 564–565 (internal quotation marks omitted). One purported interest is in preventing speech expressing ideas that offend, but that idea strikes at the heart of the First Amendment. The second interest asserted is protecting the orderly flow of commerce from disruption caused by trademarks that support invidious discrimination; but the clause, which reaches any trademark that disparages any person, group, or institution, is not narrowly drawn. . Justice Kennedy, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, agreed that 15 U. S. C. §1052(a) constitutes viewpoint discrimination, concluding: (a) With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 –829. The test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed. Here, the disparagement clause identifies the relevant subject as “persons, living or dead, institutions, beliefs, or national symbols,” §1052(a); and within that category, an applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the Government’s disapproval of a subset of messages it finds offensive, the essence of viewpoint discrimination. The Government’s arguments in defense of the statute are unpersuasive. . (b) Regardless of whether trademarks are commercial speech, the viewpoint based discrimination here necessarily invokes heightened scrutiny. See Sorrell v. IMS Health Inc., 564 U. S. 552 . To the extent trademarks qualify as commercial speech, they are an example of why that category does not serve as a blanket exemption from the First Amendment’s requirement of viewpoint neutrality. In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality. To permit viewpoint discrimination in this context is to permit Government censorship. . Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined, and in which Thomas, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which Roberts, C. J., and Thomas and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.

The Lanham Act prohibits the registration of trademarks that may disparage, or bring into contemp[t] or disrepute, any persons, living or dead. The Patent and Trademark Office (PTO) denied a trademark application based on a provision of the Act prohibiting registration of marks that may disparage persons. Without federal registration, a valid trademark may still be used in commerce. A trademark may also be enforceable under other federal statutes, such as the Anticybersquatting Consumer Protection Act, which creates a federal cause of action for trademark infringement. Trademarks share none of the characteristics of trademarks, but use a variety of methods to convey their messages. Petitioner Tam, the lead singer of a popular dance-rock band, sought federal registration of the band on the principal register, but an examining attorney at the PTO rejected the request, applying the two-part framework and finding that there was a substantial composite of persons who found the applied-for mark offensive. The examining attorney relied in part on the fact that numerous dictionaries define the term as a derogatory or offensive term. Tam contested the denial of registration before the examining attorney, but ultimately took the case to the Federal Circuit, which ultimately found the clause facially unconstitutional under the First Amendment's Free Speech Clause. Held: The disparagement clause violates the First and First Amendments. . (a) Trademark registration is not a form of speech suppression so potent that it must be subject to rigorous constitutional scrutiny. Although the Government may not insulate a trademark registration scheme from charges of viewpoint discrimination by tying censorship to the reaction of the speaker, viewpoint discrimination need not take that form in every instance. Here, the federal registration is vastly different from the beef ads in Johanns, the monuments in Summum, and even the specialty license plates in Walker. While the Federal Government does not pay money to parties seeking registration of a mark, it does not edit marks submitted for registration, and the Act prohibits registration of terms that plainly denigrate persons who share a common race or ethnicity. Even if resort to legislative history and early enforcement practice were appropriate, Tam has not brought to this Court any evidence in the legislative history showing that Congress meant to adopt his interpretation of the clause. Moreover, the admitted vagueness of the disparagement test and the huge volume of applications have produced a haphazard record of enforcement. Thus, it is far-fetched to suggest that the content of a registered mark is government speech. See, e.g., Davenport and Ysursa v. Pocatello Ed. Comm'n of N. Y., 447 U. S. 557. Pp. 475 U.S. 475-486. 808 F. 3d 1321, affirmed. Justice Alito, joined by Justice Thomas, concurring in part and dissenting in part, concluded that: 1. The First Amendment prohibits Congress and other government entities and actors from abridging the freedom of speech, but the Clause does not re-quire government to maintain viewpoint neutrality when its officers and employees speak about that venture. To permit viewpoint discrimination in this context is to permit Government censorship. This case does not present the question of how other provisions of the Lanham Act should be analyzed under the First Amendment. Rather, the only narrow situation in which viewpoint discrimination is permissible is where the government itself is speaking or recruiting others to communicate a message on its behalf. With respect to trademarks, the restriction of speech must serve a substantial interest, and it is the Government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive.. 2. Although the federal trademark registration is nothing like the programs at issue here, the prohibition against registering trademarks makes the mark government speech, and thus constitutes viewpoint discrimination. It is far different from state unfair competition provisions or product libel laws that are not before this Court and differ from §1052(d) disparagement clauses. That clause evenhandedly prohibits disparagement of all groups, but denies registration to any mark that is offensive to a substantial percentage of the members of any group. Nor is it distinguishable from the free speech rights of other groups simply because the trademark is so broad. There is no merit to the argument that the statute is viewpoint neutral because it applies in equal measure to any trademark that demeans or offends, since, by its terms, the clause applies to marks that disparage, not just a particular natural person, but also corporations, unions, and other unincorporated associations. In any event, the statute does not purport to prohibit all sides from criticizing their opponents, since the commercial market is well stocked with merchandise that disparages prominent figures and groups and the line between commercial and noncommercial speech is not always clear. However, if private speech could be passed off as government speech by simply affixing a government seal of approval

2016_15-1248

https://www.oyez.org/cases/2016/15-1248

. Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute autho-rizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion. I A Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” §703(a), 78Stat. 255, 42 U. S. C. §2000e–2(a). The statute entrusts the enforcement of that prohibition to the EEOC. See §2000e–5(a); EEOC v. Shell Oil Co., 466 U. S. 54 –62 (1984). The EEOC’s responsibilities “are triggered by the filing of a specific sworn charge of discrimination,” University of Pa. v. EEOC, 493 U. S. 182, 190 (1990) , which can be filed either by the person alleging discrimination or by the EEOC itself, see §2000e–5(b). When it receives a charge, the EEOC must first notify the employer, ibid., and must then investigate “to determine whether there is reasonable cause to believe that the charge is true,” University of Pa., 493 U. S., at 190 (internal quotation marks omitted). This case is about one of the tools the EEOC has at its disposal in conducting its investigation: a subpoena. In order “[t]o enable the [EEOC] to make informed decisions at each stage of the enforcement process,” Title VII “confers a broad right of access to relevant evidence.” Id., at 191. It provides that the EEOC “shall . . . have access to, for the purposes of examination, . . . any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by” Title VII and “is relevant to the charge under investigation.” 42 U. S. C. §2000e–8(a). And the statute enables the EEOC to obtain that evidence by “authoriz[ing] [it] to issue a subpoena and to seek an order enforcing [the subpoena].” University of Pa., 493 U. S., at 191; see §2000e–9.[1] Under that authority, the EEOC may issue “subp[o]enas requiring the attendance and testimony of witnesses or the production of any evidence.” 29 U. S. C. §161(1). An employer may petition the EEOC to revoke the subpoena, see ibid., but if the EEOC rejects the petition and the employer still “refuse[s] to obey [the] subp[o]ena,” the EEOC may ask a district court to issue an order enforcing it, see §161(2). A district court’s role in an EEOC subpoena enforcement proceeding, we have twice explained, is a straightforward one. See University of Pa., 493 U. S., at 191; Shell Oil, 466 U. S., at 72, n. 26. A district court is not to use an enforcement proceeding as an opportunity to test the strength of the underlying complaint. Ibid. Rather, a district court should “ ‘satisfy itself that the charge is valid and that the material requested is “relevant” to the charge.’ ” University of Pa., 493 U. S., at 191. It should do so cognizant of the “generou[s]” construction that courts have given the term “relevant.” Shell Oil, 466 U. S., at 68–69 (“virtually any material that might cast light on the allegations against the employer”). If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome. Id., at 72, n. 26. See United States v. Morton Salt Co., 338 U. S. 632 –653 (1950) (“The gist of the protection is in the requirement . . . that the disclosure sought shall not be unreasonable” (internal quotation marks omitted)). B This case arises out of a Title VII suit filed by a woman named Damiana Ochoa. Ochoa worked for eight years as a “cigarette selector” for petitioner McLane Co., a supply-chain services company. According to McLane, the job is a demanding one: Cigarette selectors work in distribution centers, where they are required to lift, pack, and move large bins containing products. McLane requires employees taking physically demanding jobs—both new employees and employees returning from medical leave—to take a physical evaluation. According to McLane, the evaluation “tests . . . range of motion, resistance, and speed”and “is designed, administered, and validated by a third party.” Brief for Petitioner 6. In 2007, Ochoa took threemonths of maternity leave. When she attempted to return to work, McLane asked her to take the evaluation. Ochoa attempted to pass the evaluation three times, but failed. McLane fired her. Ochoa filed a charge of discrimination, alleging (among other things) that she had been fired on the basis of her gender. The EEOC began an investigation, and—at its request—McLane provided it with basic information about the evaluation, as well as a list of anonymous employees that McLane had asked to take the evaluation. McLane’s list included each employee’s gender, role at the company, and evaluation score, as well as the reason each employee had been asked to take the evaluation. But the company refused to provide what the parties call “pedigree information”: the names, Social Security numbers, last known addresses, and telephone numbers of the employees who had been asked to take the evaluation. Upon learning that McLane used the evaluation nationwide, the EEOC expanded the scope of its investigation, both geographi-cally (to focus on McLane’s nationwide operations) and sub-stantively (to investigate whether McLane had discriminated against its employees on the basis of age). It issued subpoenas requesting pedigree information as it related to its new investigation. But McLane refused to providethe pedigree information, and so the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of a separate age-discrimination charge the EEOC itself had filed—seeking enforcement of its subpoenas. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought the pedigree information. See EEOC v. McLane Co., 2012 WL 1132758, *5 (D Ariz., Apr. 4, 2012) (age discrimination charge); Civ. No. 12–2469 (D Ariz., Nov. 19, 2012), App. to Pet. for Cert. 28–30 (Title VII charge).[2] In the District Court’s view, the pedigree information was not “relevant” to the charges because “ ‘an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . discrimination.’ ” App. to Pet. for Cert. 29 (quoting 2012 WL 1132758, at *5; some internal quotation marks omitted). The Ninth Circuit reversed. See 804 F. 3d 1051 (2015). Consistent with Circuit precedent, the panel reviewed the District Court’s decision to quash the subpoena de novo, and concluded that the District Court had erred in finding the pedigree information irrelevant. Id., at 1057. But the panel questioned in a footnote why de novo review applied, observing that its sister Circuits “appear[ed] to review issues related to enforcement of administrative subpoenas for abuse of discretion.” Id., at 1056, n. 3; see infra, at 7 (reviewing Court of Appeals authority). This Court granted certiorari to resolve the disagreement between the Courts of Appeals over the appropriate standard of review for the decision whether to enforce an EEOC subpoena. 579 U. S. ___ (2016). Because the United States agrees with McLane that such a decision shouldbe reviewed for abuse of discretion, Stephen B. Kinnard was appointed as amicus curiae to defend the judgment below. 580 U. S. ___ (2016). He has ably discharged his duties. II A When considering whether a district court’s decision should be subject to searching or deferential appellate review—at least absent “explicit statutory command”—we traditionally look to two factors. Pierce v. Underwood, 487 U. S. 552, 558 (1988) . First, we ask whether the “history of appellate practice” yields an answer. Ibid. Second, at least where “neither a clear statutory prescription nor a historical tradition exists,” we ask whether, “ ‘as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.’ ” Id., at 558, 559–560 (quoting Miller v. Fenton, 474 U. S. 104, 114 (1985) ). Both factors point toward abuse-of-discretion review here. First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion. That practice predates even Title VII itself. As noted, Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). See n. 1, supra. During the three decades between the enactment of the NLRA and the incorporation of the NLRA’s subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court’s decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion. See NLRB v. Consolidated Vacuum Corp., 395 F. 2d 416, 419–420 (CA2 1968); NLRB v. Friedman, 352 F. 2d 545, 547 (CA3 1965); NLRB v. Northern Trust Co., 148 F. 2d 24, 29 (CA7 1945); Goodyear Tire & Rubber Co. v. NLRB, 122 F. 2d 450, 453–454 (CA6 1941). By the time Congress amended Title VII to authorize EEOC subpoenas in 1972, it did so against this uniform backdrop of deferential appellate review. Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena. Almost every Court of Appeals reviews such a decision for abuse of discretion. See, e.g., EEOC v. Kronos Inc., 620 F. 3d 287, 295–296 (CA3 2010); EEOC v. Randstad, 685 F. 3d 433, 442 (CA4 2012); EEOC v. Roadway Express, Inc., 261 F. 3d 634, 638 (CA6 2001); EEOC v. United Air Lines, Inc., 287 F. 3d 643, 649 (CA7 2002); EEOC v. Technocrest Systems, Inc., 448 F. 3d 1035, 1038 (CA8 2006); EEOC v. Dillon Companies, Inc., 310 F. 3d 1271, 1274 (CA10 2002); EEOC v. Royal Caribbean Cruises, Ltd., 771 F. 3d 757, 760 (CA11 2014) (per curiam). As Judge Watford—writing for the panel below—recognized, the Ninth Circuit alone applies a more searching form of review. See 804 F. 3d, at 1056, n. 3 (“Why we review questions of relevance and undue burden de novo is unclear”); see also EPA v. Alyeska Pipeline Serv. Co., 836 F. 2d 443, 445–446 (CA9 1988) (holding that de novo review applies). To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise. But the “long his-tory of appellate practice” here, Pierce, 487 U. S., at 558, carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on “a neat set of legal rules,” Illinois v. Gates, 462 U. S. 213, 232 (1983) , but instead on the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization,” Pierce, 487 U. S., at 561–562 (internal quotation marks omitted). In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn either on whether the evidence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district judge’s expertise. The decision whether evidence sought is relevant requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis “variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209 (1946) . Similarly, the decision whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. These inquiries are “generally not amenable to broad per se rules,” Sprint/United Management Co. v. Mendelsohn, 552 U. S. 379, 387 (2008) ; rather, they are the kind of “fact-intensive, close calls” better suited to resolution by the district court than the court of appeals, Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 404 (1990) (internal quotation marks omitted).[3] Other functional considerations also show that abuse-of-discretion review is appropriate here. For one, district courts have considerable experience in other contexts making decisions similar—though not identical—to those they must make in this one. See Buford v. United States, 532 U. S. 59, 66 (2001) (“[T]he comparatively greater expertise” of the district court may counsel in favor of deferential review). District courts decide, for instance, whether evidence is relevant at trial, Fed. Rule Evid. 401; whether pretrial criminal subpoenas are unreasonable in scope, Fed. Rule Crim. Proc. 16(c)(2); and more. These decisions are not the same as the decisions a district court must make in enforcing an administrative subpoena. But they are similar enough to give the district court the “institutional advantag[e],” Buford, 532 U. S., at 64, that comes with greater experience. For another, as we noted in Cooter & Gell, deferential review “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” 496 U. S., at 404—a particularly important consideration in a “satellite” proceeding like this one, ibid., designed only to facilitate the EEOC’s investigation. B Amicus’ arguments to the contrary have aided our consideration of this case. But they do not persuade us that de novo review is appropriate. Amicus’ central argument is that the decision whether a subpoena should be enforced does not require the exercise of discretion on the part of the district court, and so it should not be reviewed for abuse of discretion. On amicus’ view, the district court’s primary role is to test the legal sufficiency of the subpoena, not to weigh whether it should be enforced as a substantive matter. Cf. Shell Oil, 466 U. S., at 72, n. 26 (rejecting the argument that the district court should assess the validity of the underlying claim in a proceeding to enforce a subpoena). Even accepting amicus’ view of the district court’s task, however, this understanding of abuse-of-discretion review is too narrow. As commentators have observed, abuse-of-discretion review is employed not only where a decisionmaker has “a wide range of choice as to what he decides, free from the constraints which characteristically attach whenever legal rules enter the decision[making] process”; it is also employed where the trial judge’s decision is given “an unu-sual amount of insulation from appellate revision” for func-tional reasons. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 637 (1971); see also 22 C. Wright & K. Graham, Federal Practice and Procedure §5166.1 (2d ed. 2012). And as we have explained, it is in large part due to functional concerns that we conclude the district court’s decision should be reviewed for abuse of discretion. Even if the district court’s decision can be characterized in the way that amicus suggests, that characterization would not be inconsistent with abuse-of-discretion review. Nor are we persuaded by amicus’ remaining arguments. Amicus argues that affording deferential review to a district court’s decision would clash with Court of Appeals decisions instructing district courts to defer themselves to the EEOC’s determination that evidence is relevant to the charge at issue. See Director, Office of Thrift Supervision, v. Vinson & Elkins, LLP, 124 F. 3d 1304, 1307 (CADC 1997) (district courts should defer to agency appraisals of relevance unless they are “obviously wrong”); EEOC v. Lockheed Martin Corp., Aero & Naval Systems, 116 F. 3d 110, 113 (CA4 1997) (same). In amicus’ view, it is “analytically impossible” for the court of appeals to defer to the district court if the district court must itself defer to the agency. Tr. of Oral Arg. 29. We think the better reading of those cases is that they rest on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” Shell Oil, 466 U. S., at 68–69. A district court deciding whether evidence is “relevant” under Title VII need not defer to the EEOC’s decision on that score; it must simply answer the question cognizant of the agency’s broad authority to seek and obtain evidence. Because the statute does not set up any scheme of double deference, amicus’ arguments as to the infirmities of such a scheme are misplaced. Nor do we agree that, as amicus suggests, the constitutional underpinnings of the Shell Oil standard require a different result. To be sure, we have described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U. S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” Morton Salt, 338 U. S., at 652. But not every decision that touches on the Fourth Amendment is subject to searching review. Subpoenas in a wide variety of other contexts also implicate the privacy interests protected by the Fourth Amendment, but courts routinely review the enforcement of such subpoenas for abuse of discretion. See, e.g., United States v. Nixon, 418 U. S. 683, 702 (1974) (pretrial subpoenas duces tecum); In re Grand Jury Subpoena, 696 F. 3d 428, 432 (CA5 2012) (grand jury subpoenas); In re Grand Jury Proceedings, 616 F. 3d 1186, 1201 (CA10 2010) (same). And this Court has emphasized that courts should pay “great deference” to a magistrate judge’s determination of probable cause, Gates, 462 U. S., at 236 (internal quotation marks omitted)—a decision more akin to a district court’s preenforcement review of a subpoena than the warrantless searches and seizures we considered in Ornelas v. United States, 517 U. S. 690 (1996) , on which amicus places great weight. The constitutional pedigree of Shell Oil does not change our view of the correct standard of review. III For these reasons, a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The United States also argues that the judgment below can be affirmed because it is clear that the District Court abused its discretion. But “we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005), and the Court of Appeals has not had the chance to review the District Court’s decision under the appropriate standard. That task is for the Court of Appeals in the first instance. As part of its analysis, the Court of Appeals may also consider, as and to the extent it deems appropriate, any arguments made by McLane regarding the burdens imposed by the subpoena. The judgment of the Court of Appeals is hereby vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 The statute does so by conferring on the EEOC the same authority given to the National Labor Relations Board to conduct investigations. See 42 U. S. C. §2000e–9 (“For the purpose of all . . . investigations conducted by the Commission . . . section 161 of title 29 shall apply”). 2 The District Court also refused to enforce the subpoena to the extent that it sought a second category of evidence: information about when and why those employees who had been fired after taking the test had been fired. The District Court provided no explanation for not enforcing the subpoena to the extent it sought this information, and the Court of Appeals reversed on that ground. 804 F. 3d 1051, 1059 (CA9 2015). McLane does not challenge this aspect of the Court of Appeals’ decision. See Tr. of Oral Arg. 8. 3 To be sure, there are pure questions of law embedded in a district court’s decision to enforce or quash a subpoena. Whether a charge is “valid,” EEOC v. Shell Oil Co., 466 U. S. 54, 72, n. 26 (1984) —that is, legally sufficient—is a pure question of law. And the question whether a district court employed the correct standard of relevance, see id., at 68–69—as opposed to how it applied that standard to the facts of a given case—is a question of law. But “applying a unitary abuse-of-discretion standard” does not shelter a district court that makes an error of law, because “[a] district 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, 403, 405 (1990) .

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 McLANE CO., INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION certiorari to the united states court of appeals for the ninth circuit No. 15–1248. Argued February 21, 2017—Decided April 3, 2017 Damiana Ochoa worked for eight years in a physically demanding job for petitioner McLane Co., a supply-chain services company. McLane requires employees in those positions—both new employees and those returning from medical leave—to take a physical evaluation. When Ochoa returned from three months of maternity leave, she failed the evaluation three times and was fired. She then filed a sex discrimination charge under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity (EEOC) began an investigation, but McLane declined its request for so-called “pedigree information”: names, Social Security numbers, addresses, and telephone numbers of employees asked to take the evaluation. After the EEOC expanded the investigation’s scope both geographically (to cover McLane’s national operations) and substantively (to investigate possible age discrimination), it issued subpoenas, as authorized by 42 U. S. C. §2000e–9, requesting pedigree information relating to its new investigation. When McLane refused to provide the information, the EEOC filed two actions in Federal District Court—one arising out of Ochoa’s charge and one arising out of the EEOC’s own age-discrimination charge—seeking enforcement of its subpoenas. The District Judge declined to enforce the subpoenas, finding that the pedigree information was not relevant to the charges, but the Ninth Circuit reversed. Reviewing the District Court’s decision to quash the subpoena de novo, the court concluded that the lower court erred in finding the pedigree information irrelevant. Held: A district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. . (a) Both factors that this Court examines when considering whether such decision should be subject to searching or deferential appellate review point toward abuse-of-discretion review. First, the longstanding practice of the courts of appeals is to review a district court’s decision to enforce or quash an administrative subpoena for abuse of discretion. Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA) confers on the National Labor Relations Board (NLRB). During the three decades between the NLRA’s enactment and the incorporation of its subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court’s decision on enforcement of an NLRB subpoena is subject to abuse-of-discretion review. Congress amended Title VII to authorize EEOC subpoenas against this uniform backdrop of deferential appellate review, and today, nearly every Court of Appeals reviews a district court’s decision whether to enforce an EEOC subpoena for abuse of discretion. This “long history of appellate practice,” Pierce v. Underwood, 487 U. S. 552 , carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. In most cases, the district court’s enforcement decision will turn either on whether the evidence sought is relevant to the specific charge or whether the subpoena is unduly burdensome in light of the circumstances. Both of these tasks are well suited to a district judge’s expertise. The first requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis “variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 . And whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them—“ ‘fact-intensive, close calls’ ” better suited to resolution by the district court than the court of appeals. Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 . Other functional considerations also show the appropriateness of abuse-of-discretion review. For one, the district courts’ considerable experience in making similar decisions in other contexts, see Buford v. United States, 532 U. S. 59 , gives them the “institutional advantag[e],” id., at 64, that comes with greater experience. Deferential review also “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” Cooter & Gell, 496 U. S., at 404, something particularly important in a proceeding designed only to facilitate the EEOC’s investigation. . (b) Court-appointed amicus’ arguments in support of de novo review are not persuasive. Amicus claims that the district court’s primary task is to test a subpoena’s legal sufficiency and thus requires no exercise of discretion. But that characterization is not inconsistent with abuse-of-discretion review, which may be employed to insulate the trial judge’s decision from appellate review for the same kind of functional concerns that underpin the Court’s conclusion that abuse of discretion is the appropriate standard. It is also unlikely that affording deferential review to a district court’s subpoena decision would clash with Court of Appeals decisions that instructed district courts to defer to the EEOC’s determination about the relevance of evidence to the charge at issue. Such decisions are better read as resting on the established rule that the term “relevant” be understood “generously” to permit the EEOC “access to virtually any material that might cast light on the allegations against the employer.” EEOC v. Shell Oil Co., 466 U. S. 54 –69. Nor do the constitutional underpinnings of the Shell Oil standard require a different result. While this Court has described a subpoena as a “ ‘constructive’ search,” Oklahoma Press, 327 U. S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be “too indefinite,” United States v. Morton Salt Co., 338 U. S. 632 , not every decision touching on the Fourth Amendment is subject to searching review. See, e.g., United States v. Nixon, 418 U. S. 683 . Cf. Illinois v. Gates, 462 U. S. 213 ; Ornelas v. United States, 517 U. S. 690 , distinguished. . (c) The case is remanded so that the Court of Appeals can review the District Court’s decision under the appropriate standard in the first instance. In doing so, the Court of Appeals may consider, as and to the extent it deems appropriate, any of McLane’s arguments regarding the burdens imposed by the subpoena. . 804 F. 3d 1051, vacated and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part.

Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation, and the statute autho-rizes a district court to issue an order enforcing such a subpoena. Title VII authorizes the EEOC to obtain such evidence by authoriz[ing] the subpoena and seeking an order enforcement it. The EEOC issued subpoenas requesting pedigree information as it related to its new investigation, but the company refused to providethe pedigree information. Upon learning that the company had used the evaluation nationwide, the Equal Opportunity Commission expanded its scope of its investigation both geographi-cally (to focus on the employer and substantively (to investigate whether the employer had discriminated against its employees on the basis of age) and (as authorized by the statute) subpoenas seeking such information. The enforcement actions were assigned to the same District Judge, who, after a hearing, declined to enforce the subpoenas to the extent that they sought pedigree information, holding that the pedigree information was not relevant to the charges because an individual's name, or even an interview he could provide if contacted, could not shed light on whether the evaluation represented a tool of discrimination. The Court of Appeals reversed. Held: A court of appeals should review the district court's decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. . (a) The longstanding practice of the courts of appeals in reviewing a federal district court decision to enjoin an administrative subpoena predates even Title VII itself. During the three decades between the enactment of the NLRA and the incorporation of the subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that such a decision should be reviewed for abuse of discretion, see, e.g., NLRB v. Consolidated Vacuum Corp., 395 F. 2d 416, 419-420; EEOC v. Shell Oil Co., 466 U. S. 54-62; ibid., at 190. In contrast, Title VII confers the same authority to issue subpoenas on the National Labor Relations Board (NLRB), see n. 1, n. 6. By the time Title VII was amended in 1972, it did so against a uniform backdrop of deferential appellate review. Today, nearly as uniformly, the Courts of Appeals apply the same deferential review to a district court district court decision as to whether to enforce a subpoena, see supra, at 191. The Ninth Circuit reversed, holding, inter alia, that the District Court had erred in finding pedigree information irrelevant. Pp. 462 U.S. 563. (b) The constitutional pedigree of Shell Oil does not change the correct standard of review.. 804 F. 3d 1051, vacated and remanded. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, JJ., joined, concurring in the judgment. REHNQUIST, C.J., filed a dissenting opinion, post, p..

2016_16-5294

https://www.oyez.org/cases/2016/16-5294

. Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death. McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. We now consider, in this habeas corpus case, whether the Alabama courts’ refusal was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). We hold that it was. Our decision in Ake v. Oklahoma, 470 U. S. 68 (1985) , clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83. Petitioner in this case did not receive that assistance. I McWilliams and the State of Alabama agree that Ake (which this Court decided in February 1985) sets forth the applicable constitutional standards. Before turning to the circumstances of McWilliams’ case, we describe what the Court held in Ake. We put in italics language that we find particularly pertinent here. The Court began by stating that the “issue in this case is whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.” Id., at 70 (emphasis added). The Court said it would consider that issue within the framework of earlier cases granting “an indigent defendant . . . a fair opportunity to present his defense” and “to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Id., at 76. “Meaningful access to justice,” the Court added, “has been the consistent theme of these cases.” Id., at 77. The Court then wrote that “when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.” Id., at 80. A psychiatrist may, among other things, “gather facts,” “analyze the information gathered and from it draw plausible conclusions,” and “know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.” Ibid. These and related considerations “lea[d] inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.” Id., at 82 (emphasis added). The Court concluded: “We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. . . . Our concern is that the indigent defendant have access to a competent psychiatrist for the[se] purpose[s].” Id., at 83 (emphasis added). Ake thus clearly establishes that when its threshold criteria are met, a State must provide a mental health professional capable of performing a certain role: “conduct[ing] an appropriate examination and assist[ing] in evaluation, preparation, and presentation of the defense.” Ibid. Unless a defendant is “assure[d]” the assistance of someone who can effectively perform these functions, he has not received the “minimum” to which Ake entitles him. Ibid. II A One month after this Court decided Ake, the State of Alabama charged McWilliams with rape and murder. The trial court found McWilliams indigent and provided him with counsel. It also granted counsel’s pretrial motion for a psychiatric evaluation of McWilliams’ sanity, including aspects of his mental condition relevant to “mitigating circumstances to be considered in a capital case in the sentencing stage.” T. 1526. (“T.” refers to the certified trial record; “P. C. T.” refers to the certified court reporter’s state postconviction proceedings transcript.) The court ordered the State to convene a “Lunacy Commission,” which would examine McWilliams and file a report with the court. See id., at 1528–1529. Subsequently a three-member Lunacy Commission examined McWilliams at a state hospital, the Taylor Hardin Secure Medical Facility. The three members, all psychiatrists, concluded that McWilliams was competent to stand trial and that he had not been suffering from mental illness at the time of the alleged offense. Id., at 1544–1546. One of them, Dr. Kamal Nagi, wrote that “Mr. McWilliams is grossly exaggerating his psychological symptoms to mimic mental illness.” Id., at 1546. Dr. Nagi noted that McWilliams’ performance on one of the tests “suggested that [McWilliams] had exaggerated his endorsement of symptoms of illness and the profile was considered a ‘fake bad.’ ” Ibid. McWilliams’ trial took place in late August 1986. On August 26 the jury convicted him of capital murder. The prosecution sought the death penalty, which under then-applicable Alabama law required both a jury recommendation (with at least 10 affirmative votes) and a later determination by the judge. See Ala. Code §13A–5–46(f) (1986). The jury-related portion of the sentencing proceeding took place the next day. The prosecution reintroduced evidence from the guilt phase and called a police officer to testify that McWilliams had a prior conviction. T. 1297, 1299–1303. The defense called McWilliams and his mother. Both testified that McWilliams, when a child, had suffered multiple serious head injuries. Id., at 1303–1318, 1320–1335. McWilliams also described his history of psychiatric and psychological evaluations, reading from the prearrest report of one psychologist, who concluded that McWilliams had a “blatantly psychotic thought disorder” and needed inpatient treatment. Id., at 1329–1332. When the prosecutor, cross-examining McWilliams, asked about the neurological effects of his head injuries, McWilliams replied, “I am not a psychiatrist.” Id., at 1328. Similarly, when the prosecutor asked McWilliams’ mother whether her son was “crazy,” she answered, “I am no expert: I don’t know whether my son is crazy or not. All I know, that my son do need help.” Id., at 1317. The prosecution then called two of the mental health professionals who had signed the Lunacy Commission’s report, Dr. Kamal Nagi and Dr. Norman Poythress. Dr. Nagi testified that he had found no evidence of psychosis, but did not appear to be aware of McWilliams’ history of head trauma. See id., at 1351–1352. Dr. Poythress testified that one of the tests that McWilliams took was “clinically invalid” because the test’s “validity scales” indicated that McWilliams had exaggerated or faked his symptoms. Id., at 1361–1363. Although McWilliams’ counsel had subpoenaed further mental health records from Holman State Prison, where McWilliams was being held, the jury did not have the opportunity to consider them, for, though subpoenaed on August 13, the records had not arrived by August 27, the day of the jury hearing. After the hearing, the jury recommended the death penalty by a vote of 10 to 2, the minimum required by Alabama law. The court scheduled its judicial sentencing hearing for October 9, about six weeks later. B Five weeks before that hearing, the trial court ordered the Alabama Department of Corrections to respond to McWilliams’s subpoena for mental health records. Id., at 1619. The court also granted McWilliams’ motion for neurological and neuropsychological exams. Id., at 1615–1617. That motion (apparently filed at the suggestion of a University of Alabama psychologist who had “volunteer[ed]” to help counsel “in her spare time,” P. C. T. 251–252) asked the court to “issue an order requiring the State of Alabama to do complete neurological and neuropsychological testing on the Defendant in order to have the test results available for his sentencing hearing.” T. 1615. Consequently, Dr. John Goff, a neuropsychologist employed by the State’s Department of Mental Health, examined McWilliams. On October 7, two days before the judicial sentencing hearing, Dr. Goff filed his report. The report concluded that McWilliams presented “some diagnostic dilemmas.” Id., at 1635. On the one hand, he was “obviously attempting to appear emotionally disturbed” and “exaggerating his neuropsychological problems.” Ibid. But on the other hand, it was “quite apparent that he ha[d] some genuine neuropsychological problems.” Ibid. Tests revealed “cortical dysfunction attributable to right cerebral hemisphere dysfunction,” shown by “left hand weakness, poor motor coordination of the left hand, sensory deficits including suppressions of the left hand and very poor visual search skills.” Id., at 1636. These deficiencies were “suggestive of a right hemisphere lesion” and “compatible with the injuries [McWilliams] sa[id] he sustained as a child.” Id., at 1635. The report added that McWilliams’ “obvious neuropsychological deficit” could be related to his “low frustration tolerance and impulsivity,” and suggested a diagnosis of “organic personality syndrome.” Ibid. The day before the sentencing hearing defense counsel also received updated records from Taylor Hardin hospital, and on the morning of the hearing he received the records (subpoenaed in mid-August) from Holman Prison. The prison records indicated that McWilliams was taking an assortment of psychotropic medications including Desyrel, Librium, and an antipsychotic, Mellaril. See App. 190a–193a. C The judicial sentencing hearing began on the morning of October 9. Defense counsel told the trial court that the eleventh-hour arrival of the Goff report and the mental health records left him “unable to present any evidence today.” Id., at 194a. He said he needed more time to go over the new information. Furthermore, since he was “not a psychologist or a psychiatrist,” he needed “to have someone else review these findings” and offer “a second opinion as to the severity of the organic problems discovered.” Id., at 192a–196a. The trial judge responded, “All right. Well, let’s proceed.” Id., at 197a. The prosecution then presented its case. Once it had finished, defense counsel moved for a continuance in order “to allow us to go through the material that has been provided to us in the last 2 days.” Id., at 204a. The judge offered to give defense counsel until 2 p.m. that afternoon. He also stated that “[a]t that time, The Court will entertain any motion that you may have with some other person to review” the new material. Id., at 205a. Defense counsel protested that “there is no way that I can go through this material,” but the judge immediately added, “Well, I will give you the opportunity. . . . If you do not want to try, then you may not.” Id., at 206a. The court then adjourned until 2 p.m. During the recess, defense counsel moved to withdraw. He said that “the abritrary [sic] position taken by this Court regarding the Defendant’s right to present mitigating circumstances is unconscionable resulting in this proceeding being a mockery.” T. 1644. He added that “further participation would be tantamount to exceptance [sic] of the Court’s ruling.” Ibid. The trial court denied the motion to withdraw. When the proceedings resumed, defense counsel renewed his motion for a continuance, explaining, “It is the position of the Defense that we have received these records at such a late date, such a late time that it has put us in a position as laymen, with regard to psychological matters, that we cannot adequately make a determination as what to present to The Court with regards to the particular deficiencies that the Defendant has. We believe that he has the type of diagnosed illness that we pointed out earlier for The Court and have mentioned for The Court. But we cannot determine ourselves from the records that we have received and the lack of receiving the test and the lack of our own expertise, whether or not such a condition exists; whether the reports and tests that have been run by Taylor Hardin, and the Lunacy Commission, and at Holman are tests that should be challenged in some type of way or the results should be challenged, we really need an opportunity to have the right type of experts in this field, take a look at all of those records and tell us what is happening with him. And that is why we renew the Motion for a Continuance.” App. 207a. The trial court denied the motion. The prosecutor then offered his closing statement, in which he argued that there were “no mitigating circumstances.” Id., at 209a. Defense counsel replied that he “would be pleased to respond to [the prosecutor’s] remarks that there are no mitigating circumstances in this case if I were able to have time to produce . . . any mitigating circumstances.” Id., at 210a. But, he said, since neither he nor his co-counsel were “doctors,” neither was “really capable of going through those records on our own.” Ibid. The court had thus “foreclosed by structuring this hearing as it has, the Defendant from presenting any evidence of mitigation in psychological—psychiatric terms.” Id., at 211a. The trial judge then said that he had reviewed the records himself and found evidence that McWilliams was faking and manipulative. Ibid. Defense counsel attempted to contest that point, which led to the following exchange: “MR. SOGOL: I told Your Honor that my looking at those records was not of any value to me; that I needed to have somebody look at those records who understood them, who could interpret them for me. Did I not tell Your Honor that? THE COURT: As I said, on the record earlier, Mr. Sogol, and I don’t want to argue or belabor this, but I would have given you the opportunity to make a motion to present someone to evaluate that. MR. SOGOL: Your Honor gave me no time in which to do that. Your Honor told me to be here at 2 o’clock this afternoon. Would Your Honor have wanted me to file a Motion for Extraordinary Expenses to get someone? THE COURT: I want you to approach with your client, please.” Id., at 211a–212a. The court then sentenced McWilliams to death. The court later issued a written sentencing order. It found three aggravating circumstances and no mitigating circumstances. It found that McWilliams “was not and is not psychotic,” and that “the preponderance of the evidence from these tests and reports show [McWilliams] to be feigning, faking, and manipulative.” Id., at 188a. The court wrote that even if McWilliams’ mental health issues “did rise to the level of a mitigating circumstance, the aggravating circumstances would far outweigh this as a mitigating circumstance.” Ibid. D McWilliams appealed, arguing that the trial court had denied him the right to meaningful expert assistance guaranteed by Ake. The Alabama Court of Criminal Appeals rejected his argument. It wrote that Ake’s requirements “are met when the State provides the [defendant] with a competent psychiatrist.” McWilliams v. State, 640 So. 2d 982, 991 (1991). And Alabama, by “allowing Dr. Goff to examine” McWilliams, had satisfied those requirements. Ibid. The court added that “[t]here is no indication in the record that [McWilliams] could not have called Dr. Goff as a witness to explain his findings or that he even tried to contact the psychiatrist to discuss his findings,” ibid.; that “the trial court indicated that it would have considered a motion to present an expert to evaluate this report” had one been made, ibid.; and that there was “no prejudice by the trial court’s denial of [McWilliams’] motion for continuance,” id., at 993. The appeals court therefore affirmed McWilliams’ conviction and sentence. The Alabama Supreme Court, in turn, affirmed the appeals court (without addressing the Ake issue). Ex parte McWilliams, 640 So. 2d 1015 (1993). After McWilliams failed to obtain postconviction relief from the state courts, he sought a federal writ of habeas corpus. See 28 U. S. C. §2254. E In federal habeas court McWilliams argued before a Magistrate Judge that he had not received the expert assistance that Ake required. The Magistrate Judge recommended against issuing the writ. He wrote that McWilliams had “received the assistance required by Ake” because Dr. Goff “completed the testing” that McWilliams requested. App. 88a. Hence, the decision of the Alabama Court of Criminal Appeals was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U. S. C. §2254(d)(1). The District Court adopted the Magistrate Judge’s report and recommendation and denied relief. A divided panel of the Eleventh Circuit Court of Appeals affirmed. See McWilliams v. Commissioner, Ala. Dept. of Corrections, 634 Fed. Appx. 698 (2015) ( per curiam); id., at 711 (Jordan, J., concurring); id., at 712 (Wilson, J., dissenting). McWilliams filed a petition for certiorari. We granted the petition. III A The question before us is whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). Before turning to the heart of that question, we resolve three preliminary issues. First, no one denies that the conditions that trigger application of Ake are present. McWilliams is and was an “indigent defendant,” 470 U. S., at 70. See supra, at 3. His “mental condition” was “relevant to . . . the punishment he might suffer,” 470 U. S., at 80. See supra, at 4–5. And, that “mental condition,” i.e., his “sanity at the time of the offense,” was “seriously in question,” 470 U. S., at 70. See supra, at 4–5. Consequently, the Constitution, as interpreted in Ake, required the State to provide McWilliams with “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U. S., at 83. Second, we reject Alabama’s claim that the State was exempted from its obligations because McWilliams already had the assistance of Dr. Rosenszweig, the psychologist at the University of Alabama who “volunteer[ed]” to help defense counsel “in her spare time” and suggested the defense ask for further testing, P. C. T. 251–252. Even if the episodic assistance of an outside volunteer could relieve the State of its constitutional duty to ensure an indigent defendant access to meaningful expert assistance, no lower court has held or suggested that Dr. Rosenszweig was available to help, or might have helped, McWilliams at the judicial sentencing proceeding, the proceeding here at issue. Alabama does not refer to any specific record facts that indicate that she was available to the defense at this time. Third, Alabama argues that Ake’s requirements are irrelevant because McWilliams “never asked for more expert assistance” than he got, “even though the trial court gave him the opportunity to do so.” Brief for Respondent 50–51. The record does not support this contention. When defense counsel requested a continuance at the sentencing hearing, he repeatedly told the court that he needed “to have someone else review” the Goff report and medical records. App. 193a. See, e.g., id., at 196a (“[I]t is just incumbent upon me to have a second opinion as to the severity of the organic problems discovered”); id., at 207a (“[W]e really need an opportunity to have the right type of experts in this field, take a look at all of these records and tell us what is happening with him”); id., at 211a (“I told Your Honor that my looking at these records was not of any value to me; that I needed to have somebody look at those records who understood them, who could interpret them for me”). Counsel also explicitly asked the trial court what else he was supposed to ask for to obtain an expert: “Would Your Honor have wanted me to file a Motion for Extraordinary Expenses to get someone?” Id., at 212a. We have reproduced a lengthier account of the exchanges, supra, at 7–9. They make clear that counsel wanted additional expert assistance to review the report and records—that was the point of asking for a continuance. In response, the court told counsel to approach the bench and sentenced McWilliams to death. Thus the record, in our view, indicates that McWilliams did request additional help from mental health experts. B We turn to the main question before us: whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance that Ake requires was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). McWilliams would have us answer “yes” on the ground that Ake clearly established that a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties. He points to language in Ake that seems to foresee that consequence. See, e.g., 470 U. S., at 81 (“By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them” (emphasis added)). We need not, and do not, decide, however, whether this particular McWilliams claim is correct. As discussed above, Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Id., at 83. As a practical matter, the simplest way for a State to meet this standard may be to provide a qualified expert retained specifically for the defense team. This appears to be the approach that the overwhelming majority of jurisdictions have adopted. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 8–35 (describing practice in capital-active jurisdictions); Tr. of Oral Arg. 40 (respondent conceding that “this issue really has been mooted over the last 30-some-odd years because of statutory changes”). It is not necessary, however, for us to decide whether the Constitution requires States to satisfy Ake’s demands in this way. That is because Alabama here did not meet even Ake’s most basic requirements. The dissent calls our unwillingness to resolve the broader question whether Ake clearly established a right to an ex-pert independent from the prosecution a “most unseemly maneuver.” Post, at 1–2 (opinion of Alito, J.). We do not agree. We recognize that we granted petitioner’s first question presented—which addressed whether Ake clearly established a right to an independent expert—and not his second, which raised more case-specific concerns. See Pet. for Cert. i. Yet that does not bind us to issue a sweeping ruling when a narrow one will do. As we explain below, our determination that Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense,” 470 U. S., at 83, is sufficient to resolve the case. We therefore need not decide whether Ake clearly established more. (Nor do we agree with the dissent that our approach is “acutely unfair to Alabama” by not “giv[ing] the State a fair chance to respond.” Post, at 12. In fact, the State devoted an entire section of its merits brief to explaining why it thought that “[n]o matter how the Court resolves the [independent expert] question, the court of appeals correctly denied the habeas petition.” Brief for Respondent 50. See also id., at 14, 52 (referring to the lower courts’ case-specific determinations that McWilliams got all the assistance Ake requires).) The Alabama appeals court held that “the requirements of Ake v. Oklahoma . . . are met when the State provides the [defendant] with a competent psychiatrist. The State met this requirement in allowing Dr. Goff to examine [McWilliams].” McWilliams, 640 So. 2d, at 991. This was plainly incorrect. Ake does not require just an examination. Rather, it requires the State to provide the defense with “access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” Ake, supra, at 83 (emphasis added). We are willing to assume that Alabama met the examination portion of this requirement by providing for Dr. Goff’s examination of McWilliams. See supra, at 6. But what about the other three parts? Neither Dr. Goff nor any other expert helped the defense evaluate Goff’s report or McWilliams’ extensive medical records and translate these data into a legal strategy. Neither Dr. Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that McWilliams’ purported malingering was not necessarily inconsistent with mental illness (as an expert later testified in postconviction proceedings, see P. C. T. 936–943). Neither Dr. Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself. The dissent emphasizes that Dr. Goff was never ordered to do any of these things by the trial court. See post, at 13, n. 5. But that is precisely the point. The relevant court order did not ask Dr. Goff or anyone else to provide the defense with help in evaluating, preparing, and presenting its case. It only required “the Department of Corrections” to “complete neurological and neuropsychological testing on the Defendant . . . and send all test materials, results and evaluations to the Clerk of the Court.” T. 1612. Nor did the short time frame allow for more expert assistance. (Indeed, given that timeframe, we do not see how Dr. Goff or any other expert could have satisfied the latter three portions of Ake’s requirements even had he been instructed to do so.) Then, when McWilliams asked for the addi-tional assistance to which he was constitutionally entitled at the sentencing hearing, the judge rebuffed his requests. See supra, at 7–9. Since Alabama’s provision of mental health assistance fell so dramatically short of what Ake requires, we must conclude that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). IV The Eleventh Circuit held in the alternative that, even if the Alabama courts clearly erred in their application of federal law, their “error” nonetheless did not have the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, Davis v. Ayala, 576 U. S. ___, ___ (2015) (slip op., at 10) (internal quotation marks omitted). See 634 Fed. Appx., at 707. In reaching this conclusion, however, the Eleventh Circuit only considered whether “[a] few additional days to review Dr. Goff’s findings” would have made a difference. Ibid. It did not specifically consider whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered. There is reason to think that it could have. For example, the trial judge relied heavily on his belief that McWilliams was malingering. See App. 188a, 211a. If McWilliams had the assistance of an expert to explain that “[m]alingering is not inconsistent with serious mental illness,” Brief for American Psychiatric Association et al. as Amici Curiae 20, he might have been able to alter the judge’s perception of the case. Since “we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005), we do not now resolve this question. Rather we leave it to the lower courts to decide in the first instance. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus McWILLIAMS v. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al. certiorari to the united states court of appeals for the eleventh circuit No. 16–5294. Argued April 24, 2017—Decided June 19, 2017 Ake v. Oklahoma, 470 U. S. 68 , clearly established that when an indigent “defendant demonstrates . . . that his sanity at the time of the offense is to be a significant fact at trial, the State must” provide the defendant with “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” One month after Ake was decided, Alabama charged petitioner McWilliams with rape and murder. Finding him indigent, the trial court appointed counsel, who requested a psychiatric evaluation of McWilliams. The court granted the motion and the State convened a commission, which concluded that McWilliams was competent to stand trial and had not been suffering from mental illness at the time of the alleged offense. A jury convicted McWilliams of capital murder and recommended a death sentence. Later, while the parties awaited McWilliams’ judicial sentencing hearing, McWilliams’ counsel asked for neurological and neuropsychological testing of McWilliams. The court agreed and McWilliams was examined by Dr. Goff. Dr. Goff filed a report two days before the judicial sentencing hearing. He concluded that McWilliams was likely exaggerating his symptoms, but nonetheless appeared to have some genuine neuropsychological problems. Just before the hearing, counsel also received updated records from the commission’s evaluation and previously subpoenaed mental health records from the Alabama Department of Corrections. At the hearing, defense counsel requested a continuance in order to evaluate all the new material, and asked for the assistance of someone with expertise in psychological matters to review the findings. The trial court denied defense counsel’s requests. At the conclusion of the hearing, the court sentenced McWilliams to death. On appeal, McWilliams argued that the trial court denied him the right to meaningful expert assistance guarantee by Ake. The Alabama Court of Criminal Appeals affirmed McWilliams’ conviction and sentence, holding that Dr. Goff’s examination satisfied Ake’s requirements. The State Supreme Court affirmed, and McWilliams failed to obtain state postconviction relief. On federal habeas review, a Magistrate Judge also found that the Goff examination satisfied Ake and, therefore, that the State Court of Criminal Appeals’ decision was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U. S. C. §2254(d)(1). Adopting the Magistrate Judge’s report and recommendation, the District Court denied relief. The Eleventh Circuit affirmed. Held: 1. Ake clearly established that when certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U. S., at 83. The Alabama courts’ determination that McWilliams received all the assistance to which Ake entitled him was contrary to, or an unreasonable application of, clearly established federal law. . (a) Three preliminary issues require resolution. First, the conditions that trigger Ake’s application are present. McWilliams is and was an “indigent defendant,” 470 U. S., at 70, and his “mental condition” was both “relevant to . . . the punishment he might suffer,” id., at 80, and “seriously in question,” id., at 70. Second, this Court rejects Alabama’s claim the State was relieved of its Ake obligations because McWilliams received brief assistance from a volunteer psychologist at the University of Alabama. Even if the episodic help of an outside volunteer could satisfy Ake, the State does not refer to any specific record facts that indicate that the volunteer psychologist was available to the defense at the judicial sentencing proceeding. Third, contrary to Alabama’s suggestion, the record indicates that McWilliams did not get all the mental health assistance that he requested. Rather, he asked for additional help at the judicial sentencing hearing, but was rebuffed. . (b) This Court does not have to decide whether Ake requires a State to provide an indigent defendant with a qualified mental health expert retained specifically for the defense team. That is because Alabama did not meet even Ake’s most basic requirements in this case. Ake requires more than just an examination. It requires that the State provide the defense with “access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.” 470 U. S., at 83. Even assuming that Alabama met the examination requirement, it did not meet any of the other three. No expert helped the defense evaluate the Goff report or McWilliams’ extensive medical records and translate these data into a legal strategy. No expert helped the defense prepare and present arguments that might, e.g., have explained that McWilliams’ purported malingering was not necessarily inconsistent with mental illness. No expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing. Since Alabama’s provision of mental health assistance fell so dramatically short of Ake’s requirements, the Alabama courts’ decision affirming McWilliams’ sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). . 2. The Eleventh Circuit should determine on remand whether the Alabama courts’ error had the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, Davis v. Ayala, 576 U. S. ___, ___, specifically considering whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires could have made a difference. P. 16. 634 Fed. Appx. 698, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Gorsuch, JJ., joined.

Petitioner McWilliams was convicted of capital murder and sentenced to death in an Alabama state court. He challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant relief. The Alabama Court of Criminal Appeals affirmed the conviction and sentence, holding that, when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Held: The Alabama court decision affirming McWilliams' death was contrary to, or involved an unreasonable application of, clearly established Federal law. 28 U. S. C. §2254(d)(1). . (a) The Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition. When the State has made the defendant a mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshal his defense. Here, the record does not support the contention that the requirements of Ake v. Oklahoma, 470 U.S. 68 (1985), are met when the State provides the defendant with competent psychiatrists capable of performing a certain role, and that the Alabama court erred in not allowing McWilliams more expert assistance than he got, even though the trial court gave him the opportunity to do so. Moreover, there is reason to think that it could have made a difference, since the court repeatedly told the court that he needed to have someone else review the report and medical records. In response, the court told the defense counsel to approach the bench and sentence McWilliams to death. After McWilliams failed to obtain postconviction relief from the state courts, he sought a federal writ of habeas corpus, which was denied by the court. He also sought a writ of certiorari from the Alabama Supreme Court, which affirmed the court, without addressing the Ake issue. Subsequently, McWilliams filed a petition for relief in Federal District Court, claiming, inter alia, that he had not received the expert assistance that Ake required, and requesting that the court grant him a continuance. That court denied the motion to withdraw, and the Court of Appeals adopted a recommendation that the Magistrate Judge recommend against issuing the writ. Applying that decision, the District Court denied relief, concluding that McWilliams had received the assistance required by Ake because Dr. Goff completed the testing that he requested. Rejecting the claim that the state court had deprived the State of its constitutional obligation to provide McWilliams with meaningful expert assistance guaranteed by the Constitution, the Court held in the alternative that, even if Alabama had clearly erred, their error nonetheless did not have the substantial and injurious effect or influence required to warrant a grant of relief. Reversed and remanded. Reported below: 640 So. 2d 982. PER CURIAM. The Alabama court denied McWilliams the assistance he was entitled to, and denied his petition for a writ for a full report and report. On the basis of the record, no one denies that the conditions that trigger application of Ake are present. McWilliams is and was an indigent defendant. His mental condition was relevant to and relevant to, the punishment his might suffer. And, since neither he nor his co-counsel were doctors, neither was really capable of going through the records on their own, and thus the Constitution required the State to provide McKWilliams with access to an expert who is sufficiently available to the defense and independent from the prosecution to effectively assist in evaluating, preparing, and presenting the defense.. (b) Alabama did not meet even Ake's most basic requirements. Although the Eleventh Circuit only considered whether a few additional days to review the expert report or medical records would have been sufficient to resolve the case, that does not bind this Court to issue a sweeping ruling when a narrow one will do. See, e.g., Cutter v. Wilkinson,, n. 7. This Court is a court of review, not of first view, and should leave it to the lower courts to decide in the first instance. Pp. 634 Fed. Appx., 7. (c) Alabama failed to satisfy its most basic requirement of providing a qualified expert retained specifically for the defense team, and Alabama here did not satisfy even the most basic of that standard. Nor did the Alabama appellate court, in reaching its conclusion, decide whether the State was exempted from its obligations because McWilliams already had the assistance of Dr. Rosenszweig, the psychologist at the University of Alabama who volunteered to help defense counsel in

2016_15-457

https://www.oyez.org/cases/2016/15-457

. This case concerns options open to plaintiffs, when denied class-action certification by a district court, to gain appellate review of the district court’s order. Orders granting or denying class certification, this Court has held, are “inherently interlocutory,” Coopers & Lybrand v. Livesay, 437 U. S. 463, 470 (1978) , hence not immediately reviewable under 28 U. S. C. §1291, which provides for appeals from “final decisions.” Pursuant to Federal Rule of Civil Procedure 23(f), promulgated in 1998, however, orders denying or granting class certification may be appealed immediately if the court of appeals so permits. Absent such permission, plaintiffs may pursue their individual claims on the merits to final judgment, at which point the denial of class-action certification becomes ripe for review. The plaintiffs in the instant case, respondents here, were denied Rule 23(f) permission to appeal the District Court’s refusal to grant class certification. Instead of pursuing their individual claims to final judgment on the merits, respondents stipulated to a voluntary dismissal of their claims “with prejudice,” but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial. We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders. I A Under §1291 of the Judicial Code, federal courts of appeals are empowered to review only “final decisions of the district courts.” 28 U. S. C. §1291.[1] Two guides, our decision in Coopers & Lybrand v. Livesay, 437 U. S. 463 (1978) , and Federal Rule of Civil Procedure 23(f), control our application of that finality rule here. 1 In Coopers & Lybrand, this Court considered whether a plaintiff in a putative class action may, under certain circumstances, appeal as of right a district court order striking class allegations or denying a motion for class certification. We held unanimously that the so-called “death-knell” doctrine did not warrant mandatory appellate jurisdiction of such “inherently interlocutory” orders. 437 U. S., at 470, 477. Courts of Appeals employing the doctrine “regarded [their] jurisdiction as depending on whether [rejection of class-action status] had sounded the ‘death knell’ of the action.” Id., at 466. These courts asked whether the refusal to certify a class would end a lawsuit for all practical purposes because the value of the named plaintiff’s individual claims made it “economically imprudent to pursue his lawsuit to a final judgment and [only] then seek appellate review of [the] adverse class determination.” Id., at 469–470. If, in the court of appeals’ view, the order would terminate the litigation, the court deemed the order an appealable final decision under §1291. Id., at 471. If, instead, the court determined that the plaintiff had “adequate incentive to continue [litigating], the order [was] considered interlocutory.” Ibid. Consequently, immediate appeal would be denied. The death-knell theory likely “enhance[d] the quality of justice afforded a few litigants,” we recognized. Id., at 473. But the theory did so, we observed, at a heavy cost to §1291’s finality requirement, and therefore to “the judicial system’s overall capacity to administer justice.” Id., at 473; see id., at 471 (Section 1291 “evinces a legislative judgment that ‘restricting appellate review to final decisions prevents the debilitating effect on judicial administration caused by piecemeal appeal disposition.’ ” (quoting Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 170 (1974) (alterations and internal quotation marks omitted))). First, the potential for multiple interlocutory appeals inhered in the doctrine: When a ruling denying class certification on one ground was reversed on appeal, a death-knell plaintiff might again claim “entitle[ment] to an appeal as a matter of right” if, on remand, the district court denied class certification on a different ground. Coopers & Lybrand, 437 U. S., at 474. Second, the doctrine forced appellate courts indiscriminately into the trial process, thereby defeating a “vital purpose of the final-judgment rule—that of maintaining the appropriate relationship between the respective courts.” Id., at 476 (internal quotation marks omitted); see id., at 474. The Interlocutory Appeals Act of 1958, 28 U. S. C. §1292(b), we explained, had created a two-tiered “screening procedure” to preserve this relationship and to restrict the availability of interlocutory review to “appropriate cases.” 437 U. S., at 474. For a party to obtain review under §1292(b), the district court must certify that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The court of appeals may then, “in its discretion, permit an appeal to be taken from such order.” The death-knell doctrine, we stressed, “circumvent[ed] [§1292(b)’s] restrictions.” Id., at 475. Finally, we observed, the doctrine was one sided: It “operate[d] only in favor of plaintiffs,” even though the class-certification question is often “of critical importance to defendants as well.” Id., at 476. Just as a denial of class certification may sound the death knell for plaintiffs, “[c]ertification of a large class may so increase the defendant’s potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense.” Ibid.[2] In view of these concerns, the Court reached this conclusion in Coopers & Lybrand: “The fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering [the order] a ‘final decision’ within the meaning of §1291.” Id., at 477.[3] 2 After Coopers & Lybrand, a party seeking immediate review of an adverse class-certification order had no easy recourse. The Federal Rules of Civil Procedure did not then “contain any unique provisions governing appeals” in class actions, id., at 470, so parties had to survive §1292(b)’s two-level inspection, see id., at 474–475, and n. 27; supra, at 3–4, or satisfy the extraordinary-circumstances test applicable to writs of mandamus, see Will v. United States, 389 U. S. 90, 108 (1967) (Black, J., concurring) (“[In] extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means ‘final’ and thus appealable under federal statutes.”); cf. Coopers & Lybrand, 437 U. S., at 466, n. 6. Another avenue opened in 1998 when this Court approved Federal Rule of Civil Procedure 23(f). Seen as a response to Coopers & Lybrand, see, e.g., Blair v. Equifax Check Services, Inc., 181 F. 3d 832, 834 (CA7 1999); Solimine & Hines, Deciding To Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f), 41 Wm. & Mary L. Rev. 1531, 1568 (2000), Rule 23(f) authorizes “permissive interlocutory appeal” from adverse class-certification orders in the discretion of the court of appeals, Advisory Committee’s 1998 Note on subd. (f) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 815 (hereinafter Committee Note on Rule 23(f)). The Rule was adopted pursuant to §1292(e), see Committee Note on Rule 23(f), which empowers this Court, in accordance with the Rules Enabling Act, 28 U. S. C. §2072, to promulgate rules “to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for [in §1292].” §1292(e).[4] Rule 23(f) reads: “A court of appeals may permit an appeal from an order granting or denying class-action certification . . . if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”[5] Courts of appeals wield “unfettered discretion” under Rule 23(f), akin to the discretion afforded circuit courts under §1292(b). Committee Note on Rule 23(f). But Rule 23(f) otherwise “departs from the §1292(b) model,” for it requires neither district court certification nor adherence to §1292(b)’s other “limiting requirements.” Committee Note on Rule 23(f); see supra, at 3–4. This resolution was the product of careful calibration. By “[r]emoving the power of the district court to defeat any opportunity to appeal,” the drafters of Rule 23(f) sought to provide “significantly greater protection against improvident certification decisions than §1292(b)” alone offered. Judicial Conference of the United States, Advisory Committee on Civil Rules, Minutes of November 9–10, 1995. But the drafters declined to go further and provide for appeal as a matter of right. “[A] right to appeal would lead to abuse” on the part of plaintiffs and defendants alike, the drafters apprehended, “increas[ing] delay and expense” over “routine class certification decisions” unworthy of immediate appeal. Ibid. (internal quotation marks omitted). See also Brief for Civil Procedure Scholars as Amici Curiae 6–7, 11–14 (“Rule 23(f) was crafted to balance the benefits of immediate review against the costs of interlocutory appeals.” (capitalization omitted)). Rule 23(f ) therefore commits the decision whether to permit interlocutory appeal from an adverse certification decision to “the sole discretion of the court of appeals.” Committee Note on Rule 23(f); see Federal Judicial Center, T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 86 (1996) (hereinafter Federal Judicial Center Study) (“The discretionary nature of the proposed rule . . . is designed to be a guard against abuse of the appellate process.”).[6] The Rules Committee offered some guidance to courts of appeals considering whether to authorize appeal under Rule 23(f). “Permission is most likely to be granted,” the Committee Note states, “when the certification decision turns on a novel or unsettled question of law,” or when “the decision on certification is likely dispositive of the litigation,” as in a death-knell or reverse death-knell situation. Committee Note on Rule 23(f); see supra, at 4, and n. 2. Even so, the Rule allows courts of appeals to grant or deny review “on the basis of any consideration.” Committee Note on Rule 23(f) (emphasis added). B With this background in mind, we turn to the putative class action underlying our jurisdictional inquiry. The lawsuit is not the first of its kind. A few years after petitioner Microsoft Corporation released its popular videogame console, the Xbox 360, a group of Xbox owners brought a putative class action against Microsoft based on an alleged design defect in the device. See In re Microsoft Xbox 360 Scratched Disc Litigation, 2009 WL 10219350, *1 (WD Wash., Oct. 5, 2009). The named plaintiffs, advised by some of the same counsel representing respondents in this case, asserted that the Xbox scratched (and thus destroyed) game discs during normal game-playing conditions. See ibid. The District Court denied class certification, holding that individual issues of damages and causation predominated over common issues. See id., at *6–*7. The plaintiffs petitioned the Ninth Circuit under Rule 23(f) for leave to appeal the class-certification denial, but the Ninth Circuit denied the request. See 851 F. Supp. 2d 1274, 1276 (WD Wash. 2012). Thereafter, the Scratched Disc plaintiffs settled their claims individually. 851 F. Supp. 2d, at 1276. Two years later, in 2011, respondents filed this lawsuit in the same Federal District Court. They proposed a nationwide class of Xbox owners based on the same design defect alleged in Scratched Disc Litigation. See 851 F. Supp. 2d, at 1275–1276. The class-certification analysis in the earlier case did not control, respondents urged, because an intervening Ninth Circuit decision constituted a change in law sufficient to overcome the deference ordinarily due, as a matter of comity, the previous certification denial. Id., at 1277–1278. The District Court disagreed. Concluding that the relevant Circuit decision had not undermined Scratched Disc Litigation’s causation analysis, the court determined that comity required adherence to the earlier certification denial and therefore struck respondents’ class allegations. 851 F. Supp. 2d, at 1280–1281. Invoking Rule 23(f), respondents petitioned the Ninth Circuit for permission to appeal that ruling.[7] Interlocu-tory review was appropriate in this case, they argued, be-cause the District Court’s order striking the class allegations created a “death-knell situation”: The “small size of [their] claims ma[de] it economically irrational to bear the cost of litigating th[e] case to final judgment,” they asserted, so the order would “effectively kil[l] the case.” Pet. for Permission To Appeal Under Rule 23(f) in No. 12–80085 (CA9), App. 118. The Ninth Circuit denied the petition. Order in No. 12–80085 (CA9, June 12, 2012), App. 121. Respondents then had several options. They could have settled their individual claims like their Scratched Disc predecessors or petitioned the District Court, pursuant to §1292(b), to certify the interlocutory order for appeal, see supra, at 3–4. They could also have proceeded to litigate their case, mindful that the District Court could later reverse course and certify the proposed class. See Fed. Rule Civ. Proc. 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”); Coopers & Lybrand, 437 U. S., at 469 (a certification order “is subject to revision in the District Court”). Or, in the event the District Court did not change course, respondents could have litigated the case to final judgment and then appealed. Id., at 469 (“an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff”). Instead of taking one of those routes, respondents moved to dismiss their case with prejudice. “After the [c]ourt has entered a final order and judgment,” respondents explained, they would “appeal the . . . order striking [their] class allegations.” Motion To Dismiss in No. 11–cv–00722 (WD Wash., Sept. 25, 2012), App. 122–123. In respondents’ view, the voluntary dismissal enabled them “to pursue their individual claims or to pursue relief solely on behalf of the class, should the certification decision be reversed.” Brief for Respondents 15. Microsoft stipulated to the dismissal, but maintained that respondents would have “no right to appeal” the order striking the class allegations after thus dismissing their claims. App. to Pet. for Cert. 35a–36a. The District Court granted the stipulated motion to dismiss, id., at 39a, and respondents appealed. They challenged only the District Court’s interlocutory order striking their class allegations, not the dismissal order which they invited. See Brief for Plaintiffs-Appellants in No. 12–35946 (CA9). The Ninth Circuit held it had jurisdiction to entertain the appeal under §1291. 797 F. 3d 607, 612 (2015). The Court of Appeals rejected Microsoft’s argument that respondents’ voluntary dismissal, explicitly engineered to appeal the District Court’s interlocutory order striking the class allegations, impermissibly circumvented Rule 23(f). Ibid., n. 3. Because the stipulated dismissal “did not involve a settlement,” the court reasoned, it was “ ‘a sufficiently adverse—and thus appealable—final decision’ ” under §1291. Id., at 612 (quoting Berger v. Home Depot USA, Inc., 741 F. 3d 1061, 1065 (CA9 2014)); see id., at 1065 (relying on 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1802, pp. 297–298 (3d ed. 2005), for the proposition “that finality for appeal purposes can be achieved in this manner”). Satisfied of its jurisdiction, the Ninth Circuit held that the District Court had abused its discretion in striking respondents’ class allegations. 797 F. 3d, at 615. The Court of Appeals “express[ed] no opinion on whether” respondents “should prevail on a motion for class certification,” ibid., concluding only that the District Court had misread recent Circuit precedent, see id., at 613–615, and therefore misapplied the comity doctrine, id., at 615. Whether a class should be certified, the court said, was a question for remand, “better addressed if and when [respondents] move[d] for class certification.” Ibid. We granted certiorari to resolve a Circuit conflict over this question: Do federal courts of appeals have jurisdiction under §1291 and Article III of the Constitution to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice?[8] 577 U. S. ___ (2016). Because we hold that §1291 does not countenance jurisdiction by these means, we do not reach the constitutional question, and therefore do not address the arguments and analysis discussed in the opinion concurring in the judgment. II “From the very foundation of our judicial system,” the general rule has been that “the whole case and every matter in controversy in it [must be] decided in a single appeal.” McLish v. Roff, 141 U. S. 661 –666 (1891). This final-judgment rule, now codified in §1291, preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. See Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981) . Construing §1291 in line with these reasons for the rule, we have recognized that “finality is to be given a practical rather than a technical construction.” Eisen, 417 U. S., at 171 (internal quotation marks omitted). Repeatedly we have resisted efforts to stretch §1291 to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 112 (2009) ; Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863 –879, 884 (1994); Cobbledick v. United States, 309 U. S. 323 –325, 330 (1940) (construing §1291’s predecessor statute). Attempts to secure appeal as of right from adverse class-certification orders fit that bill. See supra, at 2–4. Because respondents’ dismissal device subverts the final-judgment rule and the process Congress has established for refining that rule and for determining when nonfinal orders may be immediately appealed, see §§2072(c) and 1292(e), the tactic does not give rise to a “final decisio[n]” under §1291. A Respondents’ voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals. Under the death-knell doctrine, a court of appeals could decline to hear an appeal if it determined that the plaintiff “ha[d] adequate incentive to continue” despite the denial of class certification. Coopers & Lybrand, 437 U. S., at 471. Appellate courts lack even that authority under respondents’ theory. Instead, the decision whether an immediate appeal will lie resides exclusively with the plaintiff; she need only dismiss her claims with prejudice, whereupon she may appeal the district court’s order denying class certification. And, as under the death-knell doctrine, she may exercise that option more than once, stopping and starting the district court proceedings with repeated interlocutory appeals. See id., at 474 (death-knell doctrine offered “no assurance that the trial process [would] not again be disrupted by interlocutory review”). Consider this case. The Ninth Circuit reviewed and rejected only the District Court’s application of comity as a basis for striking respondents’ class allegations. 797 F. 3d, at 615. The appeals court declined to reach Microsoft’s other arguments against class certification. See ibid. It remained open to the District Court, in the Court of Appeals’ view, to deny class certification on a differ-ent ground, and respondents would be free, under their theory, to force appellate review of any new order denying certification by again dismissing their claims. In designing Rule 23(f)’s provision for discretionary review, the Rules Committee sought to prevent such disruption and delay. See supra, at 6–8.[9] Respondents nevertheless maintain that their position promotes efficiency, observing that after dismissal with prejudice the case is over if the plaintiff loses on appeal. Brief for Respondents 38–39. Their way, they say, means prompt resolution of many lawsuits and infrequent use of the voluntary-dismissal tactic, for “most appeals lose” and few plaintiffs will “take th[e] risk” of losing their claims for good. Id., at 35–36. Respondents overlook the prospect that plaintiffs with weak merits claims may readily assume that risk, mindful that class certification often leads to a hefty settlement. See Coopers & Lybrand, 437 U. S., at 476 (defendant facing the specter of classwide liability may “abandon a meritorious defense”). Indeed, the same argument—that the case was over if the plaintiff lost on appeal—was evident in the death-knell context, yet this Court determined that the potential for piecemeal litigation was “apparent and serious.” Id., at 474.[10] And that potential is greater still under respondents’ theory, where plaintiffs alone determine whether and when to appeal an adverse certification ruling. B Another vice respondents’ theory shares with the death-knell doctrine, both allow indiscriminate appellate review of interlocutory orders. Ibid. Beyond disturbing the “appropriate relationship between the respective courts,” id., at 476 (internal quotation marks omitted), respondents’ dismissal tactic undercuts Rule 23(f)’s discretionary regime. This consideration is “[o]f prime significance to the jurisdictional issue before us.” Swint v. Chambers County Comm’n, 514 U. S. 35, 46 (1995) (pendent appellate jurisdiction in collateral-order context would undermine §1292(b)); see supra, at 3–4 (death-knell doctrine impermissibly circumvented §1292(b)). In the Rules Enabling Act, as earlier recounted, Congress authorized this Court to determine when a decision is final for purposes of §1291, and to provide for appellate review of interlocutory orders not covered by statute. See supra, at 5–6, and n. 4. These changes are to come from rulemaking, however, not judicial decisions in particular controversies or inventive litigation ploys. See Swint, 514 U. S., at 48. In this case, the rulemaking process has dealt with the matter, yielding a “measured, practical solutio[n]” to the questions whether and when adverse certification orders may be immediately appealed. Mohawk Industries, 558 U. S., at 114. Over years the Advisory Committee on the Federal Rules of Civil Procedure studied the data on class-certification rulings and appeals, weighed various proposals, received public comment, and refined the draft rule and Committee Note. See Solimine & Hines, 41 Wm. & Mary L. Rev., at 1564–1566, and nn. 178–189; Federal Judicial Center Study 80–87. Rule 23(f) reflects the rulemakers’ informed assessment, permitting, as explained supra, at 5–7, interlocutory appeals of adverse certification orders, whether sought by plaintiffs or defendants, solely in the discretion of the courts of appeals. That assessment “warrants the Judiciary’s full respect.” Swint, 514 U. S., at 48; see Mohawk Industries, 558 U. S., at 118–119 (Thomas, J., concurring in part and concurring in judgment). Here, however, the Ninth Circuit, after denying respondents permission to appeal under Rule 23(f), nevertheless assumed jurisdiction of their appeal challenging only the District Court’s order striking the class allegations. See supra, at 9–10. According to respondents, even plaintiffs who altogether bypass Rule 23(f) may force an appeal by dismissing their claims with prejudice. See Tr. of Oral Arg. 34. Rule 23(f), respondents say, is irrelevant, for it “address[es] interlocutory orders,” whereas this case involves “an actual final judgment.” Brief for Respondents 26, 28. We are not persuaded. If respondents’ voluntary-dismissal tactic could yield an appeal of right, Rule 23(f)’s careful calibration—as well as Congress’ designation of rulemaking “as the preferred means for determining whether and when prejudgment orders should be immediately appealable,” Mohawk Industries, 558 U. S., at 113 (majority opinion)—“would be severely undermined,” Swint, 514 U. S., at 47. Respondents, after all, “[sought] review of only the [inherently interlocutory] orde[r]” striking their class allegations; they “d[id] not complain of the ‘final’ orde[r] that dismissed their cas[e].” Camesi v. University of Pittsburgh Medical Center, 729 F. 3d 239, 244 (CA3 2013). Plaintiffs in putative class actions cannot transform a tentative interlocutory order, see supra, at 9, into a final judgment within the meaning of §1291 simply by dismissing their claims with prejudice—subject, no less, to the right to “revive” those claims if the denial of class certification is reversed on appeal, see Brief for Respondents 45; Tr. of Oral Arg. 31 (assertion by respondents’ counsel that, if the appeal succeeds, “everything would spring back to life” on remand). Were respondents’ reasoning embraced by this Court, “Congress[’] final decision rule would end up a pretty puny one.” Digital Equipment Corp., 511 U. S., at 872. Contrary to respondents’ argument, §1291’s firm final-judgment rule is not satisfied whenever a litigant persuades a district court to issue an order purporting to end the litigation. Finality, we have long cautioned, “is not a technical concept of temporal or physical termination.” Cobbledick, 309 U. S., at 326. It is one “means [geared to] achieving a healthy legal system,” ibid., and its contours are determined accordingly, see supra, at 12.[11] C The one-sidedness of respondents’ voluntary-dismissal device “reinforce[s] our conclusion that [it] does not support appellate jurisdiction of prejudgment orders denying class certification.” Coopers & Lybrand, 437 U. S., at 476; see supra, at 4. Respondents’ theory permits plaintiffs only, never defendants, to force an immediate appeal of an adverse certification ruling. Yet the “class issue” may be just as important to defendants, Coopers & Lybrand, 437 U. S., at 476, for “[a]n order granting certification . . . may force a defendant to settle rather than . . . run the risk of potentially ruinous liability,” Committee Note on Rule 23(f); see supra, at 4, and n. 2 (defendants may face a “reverse death knell”). Accordingly, we recognized in Coopers & Lybrand that “[w]hatever similarities or differences there are between plaintiffs and defendants in this context involve questions of policy for Congress.” 437 U. S., at 476. Congress chose the rulemaking process to settle the matter, and the rulemakers did so by adopting Rule 23(f)’s evenhanded prescription. It is not the prerogative of litigants or federal courts to disturb that settlement. See supra, at 14–15. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 Section 1292, which authorizes review of certain interlocutory decisions, does not include among those decisions class-action certifications. See 28 U. S. C. §1292. 2 This scenario has been called a “reverse death knell,” Sullivan & Trueblood, Rule 23(f): A Note on Law and Discretion in the Courts of Appeals, 246 F. R. D. 277, 280 (2008), or “inverse death knell,” 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1802, p. 299 (3d ed. 2005), for it too ends the litigation as a practical matter. 3 Coopers & Lybrand also rejected the collateral-order doctrine as a basis for invoking §1291 to appeal an order denying class certification. The collateral-order doctrine applies only to a “small class” of decisions that are conclusive, that resolve important issues “completely separate from the merits,” and that are “effectively unreviewable on appeal from a final judgment.” 437 U. S., at 468. An order concerning class certification, we explained, fails each of these criteria. See id., at 469. 4 Congress amended the Rules Enabling Act, 28 U. S. C. §2071 et seq., in 1990 to authorize this Court to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291.” §2072(c). Congress enacted §1292(e) two years later, and that same year the Advisory Committee on the Federal Rules of Civil Procedure began to review proposals for what would become Rule 23(f). See Solimine & Hines, Deciding To Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f), 41 Wm. & Mary L. Rev. 1531, 1563–1564, 1566, n. 189 (2000). 5 Rule 23(f) has changed little since its adoption in 1998. See Ad-visory Committee’s 2007 and 2009 Notes on subd. (f) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 820 (deleting a redundancy and increas-ing the time to petition for permission to appeal from ten to 14 days, respectively). 6 Legislation striking this balance was also introduced in Congress. See H. R. 660, 105th Cong., 1st Sess. (1997). The bill, which would have amended §1292(b) to provide for interlocutory appeal of adverse class determinations, likewise committed the decision whether an immediate appeal would lie exclusively to the courts of appeals: “The court of appeals may, in its discretion, permit the appeal to be taken from such determination.” Ibid. Upon learning that “proposed Rule 23(f) [was] well advanced,” the bill’s sponsor, Representative Charles Canady, joined forces with the Rules Committee. See Judicial Conference of the United States, Advisory Committee on Civil Rules, Minutes of May 1–2, 1997. 7 An order striking class allegations is “functional[ly] equivalent” to an order denying class certification and therefore appealable under Rule 23(f). Scott v. Family Dollar Stores, Inc., 733 F. 3d 105, 110–111, n. 2 (CA4 2013) (quoting In re Bemis Co., 279 F. 3d 419, 421 (CA7 2002)). See also United Airlines, Inc. v. McDonald, 432 U. S. 385 , and n. 4 (1977) (equating order striking class allegations with “a denial of class certification”). 8 Compare Berger v. Home Depot USA, Inc., 741 F. 3d 1061, 1065 (CA9 2014) (assuming jurisdiction under these circumstances); Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F. 2d 176, 179 (CA2 1990) (assuming jurisdiction after dismissal for failure to prosecute), with Camesi v. University of Pittsburgh Medical Center, 729 F. 3d 239, 245–247 (CA3 2013) (no jurisdiction under §1291 or Article III in this situation); Rhodes v. E. I. du Pont de Nemours & Co., 636 F. 3d 88, 100 (CA4 2011) (no jurisdiction under Article III). 9 Rule 23(f) avoids delay not only by limiting class-certification appeals to those permitted by the federal courts of appeals, but also by specifying that “[a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” See Blair v. Equifax Check Services, Inc., 181 F. 3d 832, 835 (CA7 1999) (“Rule 23(f) is drafted to avoid delay.”). Respondents’ dismissal tactic, by contrast, halts district court proceedings whenever invoked. 10 The very premise of the death-knell doctrine was that plaintiffs “would not pursue their claims individually.” Coopers & Lybrand, 437 U. S., at 466. Having pressed such an argument for the benefit of immediate review, a death-knell plaintiff who lost on appeal would encounter the general proposition, long laid down, that “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” Davis v. Wakelee, 156 U. S. 680, 689 (1895) . 11 Respondents also invoke our decision in United States v. Procter & Gamble Co., 356 U. S. 677 (1958) , but that case—a civil antitrust enforcement action—involved neither class-action certification nor the sort of dismissal tactic at issue here. See id., at 681 (the Government “did not consent to a judgment against [it]” (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 MICROSOFT CORP. v. BAKER et al. certiorari to the united states court of appeals for the ninth circuit No. 15–457. Argued March 21, 2017—Decided June 12, 2017 Orders granting or denying class certification are inherently interlocutory, hence not immediately reviewable under 28 U. S. C. §1291, which empowers federal courts of appeals to review only “final decisions of the district courts.” In Coopers & Lybrand v. Livesay, 437 U. S. 463 , a 1978 decision, this Court held that the death-knell doctrine—which rested on courts’ recognition that a denial of class certification would sometimes end a lawsuit for all practical purposes—did not warrant mandatory appellate jurisdiction of certification orders. Id., at 470, 477. Although the death-knell theory likely “enhanced the quality of justice afforded a few litigants,” it did so at a heavy cost to §1291’s finality requirement. Id., at 473. First, the potential for multiple interlocutory appeals inhered in the doctrine. See id., at 474. Second, the death-knell theory forced appellate courts indiscriminately into the trial process, circumventing the two-tiered “screening procedure” Congress established for interlocutory appeals in 28 U. S. C. §1292(b). Id., at 474, 476. Finally, the doctrine “operat[ed] only in favor of plaintiffs,” even though the class-certification question may be critically important to defendants as well. Id., at 476. Two decades later, in 1998, after Congress amended the Rules Enabling Act, 28 U. S. C. §2071 et seq., to empower this Court to promulgate rules providing for interlocutory appeal of orders “not otherwise provided for [in §1292],” §1292(e), this Court approved Federal Rule of Civil Procedure 23(f). Rule 23(f) authorizes “permissive interlocutory appeal” from adverse class-certification orders in “the sole discretion of the court of appeals.” 28 U. S. C. App., p. 815. This discretionary arrangement was the product of careful calibration on the part of the rulemakers. Respondents, owners of Microsoft’s videogame console, the Xbox 360, filed this putative class action alleging a design defect in the device. The District Court struck respondents’ class allegations from the complaint, and the Court of Appeals denied respondents permission to appeal that order under Rule 23(f). Instead of pursuing their individual claims to final judgment on the merits, respondents stipulated to a voluntary dismissal of their claims with prejudice, but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial. Respondents then appealed, challenging only the interlocutory order striking their class allegations. The Ninth Circuit held it had jurisdiction to entertain the appeal under §1291. It then held that the District Court’s rationale for striking respondents’ class allegations was an impermissible one, but refused to opine on whether class certification was inappropriate for a different reason, leaving that question for the District Court on remand. Held: Federal courts of appeals lack jurisdiction under §1291 to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice. . (a) Section 1291’s final-judgment rule preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. This Court has resisted efforts to stretch §1291 to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100 . Attempts to secure appeal as of right from adverse class certification orders fit that bill. . (b) Respondents’ voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals. Under the death-knell doctrine, a court of appeals could decline to hear an appeal if it determined that the plaintiff “ha[d] adequate incentive to continue” despite the denial of class certification. Coopers & Lybrand, 437 U. S., at 471. Under respondents’ theory, however, the decision whether an immediate appeal will lie resides exclusively with the plaintiff, who need only dismiss her claims with prejudice in order to appeal the district court’s order denying class certification. And she may exercise that option more than once, interrupting district court proceedings with an interlocutory appeal again, should the court deny class certification on a different ground. Respondents contend that their position promotes efficiency, observing that after dismissal with prejudice the case is over if the plaintiff loses on appeal. But plaintiffs with weak merits claims may readily assume that risk, mindful that class certification often leads to a hefty settlement. And the same argument was evident in the death-knell context, yet this Court determined that the potential for piecemeal litigation was “apparent and serious.” Id., at 474. That potential is greater still under respondents’ theory, where plaintiffs alone determine whether and when to appeal an adverse certification ruling. . (c) Also like the death-knell doctrine, respondents’ theory allows indiscriminate appellate review of interlocutory orders. Beyond disturbing the “ ‘appropriate relationship between the respective courts,’ ” Coopers & Lybrand, 437 U. S., at 476, respondents’ dismissal tactic undercuts Rule 23(f)’s discretionary regime. This consideration is “[o]f prime significance to the jurisdictional issue” in this case, Swint v. Chambers County Comm’n, 514 U. S. 35 , because Congress has established rulemaking as the means for determining when a decision is final for purposes of §1291 and for providing for appellate review of interlocutory orders not covered by statute, see §§2072(c) and 1292(e). Respondents maintain that Rule 23(f) is irrelevant, for it concerns interlocutory orders, whereas this case involves an actual final judgment. Yet permitting respondents’ voluntary-dismissal tactic to yield an appeal of right would seriously undermine Rule 23(f)’s careful calibration, as well as Congress’ designation of rulemaking “as the preferred means for determining whether and when prejudgment orders should be immediately appealable,” Mohawk Industries, 558 U. S., at 113. Plaintiffs in putative class actions cannot transform a tentative interlocutory order into a final judgment within the meaning of §1291 simply by dismissing their claims with prejudice. Finality “is not a technical concept of temporal or physical termination.” Cobbledick v. United States, 309 U. S. 323 . It is one “means [geared to] achieving a healthy legal system,” ibid., and its contours are determined accordingly. . (d) The one-sidedness of respondents’ voluntary-dismissal device reinforces the conclusion that it does not support mandatory appellate jurisdiction of refusals to grant class certification. The tactic permits only plaintiffs, never defendants, to force an immediate appeal of an adverse certification ruling. Yet the “class issue” may be just as important to defendants, Coopers & Lybrand, 437 U. S., at 476, for class certification may force a defendant to settle rather than run the risk of ruinous liability. P. 17. 797 F. 3d 607, reversed 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, in which Roberts, C. J., and Alito, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.

Federal courts of appeals are empowered to review only "final decisions of the district courts," 28 U. S. C. §1291, and, Pursuant to Federal Rule of Civil Procedure 23(f), orders denying or granting class certification may be appealed immediately if the court of appeals so permits. However, orders granting or denying class certification are inherently interlocutory, Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 (1978), and hence not immediately reviewable under that provision. Respondents, who had been denied class certification because of the value of their individual claims, stipulated that they would have no right to appeal the District Court-certification denial. The District Court granted the stipulated motion to dismiss, and respondents appealed. The Court of Appeals held that it had jurisdiction to entertain the appeal under §1294. Held: The voluntary dismissal of respondents' individual claims does not qualify as a final decision within the compass of § 1291. . (a) The so-called "death-knell" doctrine, which did not warrant mandatory appellate jurisdiction of such orders in class actions, does not warrant such jurisdiction by these means. The fact that the refusal to certify a class would end a lawsuit for all practical purposes would make iteconomically imprudent to pursue his lawsuit to a final judgment and only then seek appellate review of the adverse class certification order is not a sufficient reason for considering an adverse certification order a "final decision" within the meaning of §1292. Moreover, since the final-judgment rule, now codified in the Rule, preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlutory appeals, and promotes the efficient administration of justice, it is not the prerogative of litigants or federal courts to disturb that settlement. Coopers Lybrand, supra, at 4, and n. 2. A voluntary-dismissal tactic, even more than that suggested by respondents, invites protracted litigation and piecemeal appeals. Appellate courts lack even that authority under respondents' theory. Instead, the decision whether an immediate appeal will lie resides exclusively with the plaintiff; she need only dismiss her claims with prejudice, whereupon she may appeal the district court's order denying certification, and she may exercise that option more than once. Even plaintiffs who altogether bypass the rulemaking process may force an appeal by dismissing their claims with prejudice. Thus, even plaintiffs who bypass the Rule may force such an appeal. Pp. 469. (b) The collateral-order doctrine applies only to a small class of decisions that are conclusive, that resolve important issues that are completely separate from the merits, and that areeffectively unreviewable on appeal from a final judgment. See id., at 476. Here, the Ninth Circuit, after denying respondents permission to appeal under the rule, nevertheless assumed jurisdiction of their appeal challenging only the order striking the class allegations, for it too ends the litigation as a practical matter. Although the court declined to reach the other arguments in the opinion concurring in the judgment, the court held that the court abused its discretion in striking respondents' class allegations. It remanded the case for certiorari to resolve the question whether respondents should prevail over the class certification doctrine. (c) Another vice respondents have in common with the death-Knell doctrine shares with the latter rule, which allows indiscriminate appellate review. Beyond disturbing the appropriate relationship between the respective courts, respondents' dismissal tactic undercuts the Rulemaker Rules Enabling Act, which authorizes this Court to determine when a decision is final and to provide for appellate review, which is to be given a practical rather than a technical construction... 797 F. 3d 607, reversed 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..

2016_16-348

https://www.oyez.org/cases/2016/16-348

. The Fair Debt Collection Practices Act, 91Stat. 874, 15 U. S. C. §1692 et seq., prohibits a debt collector from asserting any “false, deceptive, or misleading representation,” or using any “unfair or unconscionable means” to collect, or attempt to collect, a debt, §§1692e, 1692f. In this case, a debt collector filed a written statement in a Chapter 13 bankruptcy proceeding claiming that the debtor owed the debt collector money. The statement made clear, however, that the 6-year statute of limitations governing collection of the claimed debt had long since run. The question before us is whether the debt collector’s filing of that statement falls within the scope of the aforementioned provisions of the Fair Debt Collection Practices Act. We conclude that it does not. I In March 2014, Aleida Johnson, the respondent, filed for personal bankruptcy under Chapter 13 of the Bankruptcy Code (or Code), 11 U. S. C. §1301 et seq, in the Federal District Court for the Southern District of Alabama. Two months later, Midland Funding, LLC, the petitioner, filed a “proof of claim,” a written statement asserting that Johnson owed Midland a credit-card debt of $1,879.71. The statement added that the last time any charge appeared on Johnson’s account was in May 2003, more than 10 years before Johnson filed for bankruptcy. The relevant statute of limitations is six years. See Ala. Code §6–2–34 (2014). Johnson, represented by counsel, objected to the claim; Midland did not respond to the objection; and the Bankruptcy Court disallowed the claim. Subsequently, Johnson brought this lawsuit against Midland seeking actual damages, statutory damages, attorney’s fees, and costs for a violation of the Fair Debt Collection Practices Act. See 15 U. S. C. §1692k. The District Court decided that the Act did not apply and therefore dismissed the action. The Court of Appeals for the Eleventh Circuit disagreed and reversed the District Court. 823 F. 3d 1334 (2016). Midland filed a petition for certiorari, noting a division of opinion among the Courts of Appeals on the question whether the conduct at issue here is “false,” “deceptive,” “misleading,” “unconscionable,” or “unfair” within the meaning of the Act. Compare ibid. (finding the Fair Debt Collection Practices Act applicable) with In re Dubois, 834 F. 3d 522 (CA4 2016) (finding the Act inapplicable); Owens v. LVNV Funding, LLC, 832 F. 3d 726 (CA7 2016) (same); and Nelson v. MidlandCredit Management, Inc., 828 F. 3d 749 (CA8 2016) (same). We granted the petition. We now reverse the Court of Appeals. II Like the majority of Courts of Appeals that have considered the matter, we conclude that Midland’s filing of a proof of claim that on its face indicates that the limitations period has run does not fall within the scope of any of the five relevant words of the Fair Debt Collection Practices Act. We believe it reasonably clear that Midland’s proof of claim was not “false, deceptive, or misleading.” Midland’s proof of claim falls within the Bankruptcy Code’s definition of the term “claim.” A “claim” is a “right to payment.” 11 U. S. C. §101(5)(A). State law usually determines whether a person has such a right. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443 –451 (2007). The relevant state law is the law of Alabama. And Alabama’s law, like the law of many States, provides that a creditor has the right to payment of a debt even after the limitations period has expired. See Ex parte HealthSouth Corp., 974 S. 2d 288, 296 (Ala. 2007) (passage of time extinguishes remedy but the right remains); see also, e.g., Sallaz v. Rice, 161 Idaho 223, ___, 384 P. 3d 987, 992–993 (2016) (similar); Notte v. Merchants Mut. Ins. Co., 185 N. J. 490, 499–500, 888 A. 2d 464, 469 (2006) (similar); Potterton v. Ryland Group, Inc., 289 Md. 371, 375–376, 424 A. 2d 761, 764 (1981) (similar); Summers v. Connolly, 159 Ohio St. 396, 400–402, 112 N. E. 2d 391, 394 (1953) (similar); DeVries v. Secretary of State, 329 Mich. 68, 75, 44 N. W. 2d 872, 876 (1950) (similar); Fleming v. Yeazel, 379 Ill. 343, 344–346, 40 N. E. 2d 507, 508 (1942) (similar); Fidelity & Cas. Co. of N. Y. v. Lackland, 175 Va. 178, 185–187, 8 S. E. 2d 306, 309 (1940) (similar); Insurance Co. v. Dunscomb, 108 Tenn. 724, 728–731, 69 S. W. 345, 346 (1902) (similar); but see, e.g., Miss. Code Ann. §15–1–3(1) (2012) (expiration of the limitations period extinguishes the remedy and the right); Wis. Stat. §893.05 (2011–2012) (same). Johnson argues that the Code’s word “claim” means “enforceable claim.” She notes that this Court once referred to a bankruptcy “claim” as “an enforceable obligation.” Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 559 (1990) . And, she concludes, Midland’s “proof of claim” was false (or deceptive or misleading) because its “claim” was not enforceable. Brief for Respondent 22; Brief for United States as Amicus Curiae 18–20 (making a similar argument). But we do not find this argument convincing. The word “enforceable” does not appear in the Code’s definition of “claim.” See 11 U. S. C. §101(5). The Court in Davenport likely used the word “enforceable” descriptively, for that case involved an enforceable debt. 495 U. S., at 559. And it is difficult to square Johnson’s interpretation with our later statement that “Congress intended . . . to adopt the broadest available definition of ‘claim.’ ” Johnson v. Home State Bank, 501 U. S. 78, 83 (1991) . It is still more difficult to square Johnson’s interpretation with other provisions of the Bankruptcy Code. Section 502(b)(1) of the Code, for example, says that, if a “claim” is “unenforceable,” it will be disallowed. It does not say that an “unenforceable” claim is not a “claim.” Similarly, §101(5)(A) says that a “claim” is a “right to payment,” “whether or not such right is . . . fixed, contingent, . . . [or] disputed.” If a contingency does not arise, or if a claimant loses a dispute, then the claim is unenforce-able. Yet this section makes clear that the unenforceable claim is nonetheless a “right to payment,” hence a “claim,” as the Code uses those terms. Johnson looks for support to other provisions that govern bankruptcy proceedings, including §502(a) of the Bankruptcy Code, which states that a claim will be allowed in the absence of an objection, and Rule 3001(f) of the Federal Rules of Bankruptcy Procedure, which states that a properly filed “proof of claim . . . shall constitute prima facie evidence of the validity and amount of the claim.” But these provisions do not discuss the scope of the term “claim.” Rather, they restate the Bankruptcy Code’s system for determining whether a claim will be allowed. Other provisions make clear that the running of a limitations period constitutes an affirmative defense, a defense that the debtor is to assert after a creditor makes a “claim.” §§502, 558. The law has long treated unenforceability of a claim (due to the expiration of the limitations period) as an affirmative defense. See, e.g., Fed. Rule Civ. Proc. 8(c)(1); 13 Encyclopaedia of Pleading and Practice 200 (W. McKinney ed. 1898). And we see nothing misleading or deceptive in the filing of a proof of claim that, in effect, follows the Code’s similar system. Indeed, to determine whether a statement is misleading normally “requires consideration of the legal sophistication of its audience.” Bates v. State Bar of Ariz., 433 U. S. 350 , n. 37 (1977). The audience in Chapter 13 bankruptcy cases includes a trustee, 11 U. S. C. §1302(a), who must examine proofs of claim and, where appropriate, pose an objection, §§704(a)(5), 1302(b)(1) (including any timeliness objection, §§502(b)(1), 558). And that trustee is likely to understand that, as the Code says, a proof of claim is a statement by the creditor that he or she has a right to payment subject to disallowance (includingdisallowance based upon, and following, the trustee’s objection for untimeliness). §§101(5)(A), 502(b), 704(a)(5), 1302(b)(1). (We do not address the appropriate standard in ordinary civil litigation.) III Whether Midland’s assertion of an obviously time-barred claim is “unfair” or “unconscionable” (within the terms of the Fair Debt Collection Practices Act) presents a closer question. First, Johnson points out that several lower courts have found or indicated that, in the context of an ordinary civil action to collect a debt, a debt collector’s assertion of a claim known to be time barred is “unfair.” See, e.g., Phillips v. Asset Acceptance, LLC, 736 F. 3d 1076, 1079 (CA7 2013) (holding as much); Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1487 (MD Ala. 1987) (same); Huertas v. Galaxy Asset Management, 641 F. 3d 28, 32–33 (CA3 2011) (indicating as much); Castro v. Collecto, Inc., 634 F. 3d 779, 783 (CA5 2011) (same); Freyermuth v. Credit Bureau Servs., Inc., 248 F. 3d 767, 771 (CA8 2001) (same). We are not convinced, however, by this precedent. It considers a debt collector’s assertion in a civil suit of a claim known to be stale. We assume, for argument’s sake, that the precedent is correct in that context (a matter this Court itself has not decided and does not now decide). But the context of a civil suit differs significantly from the present context, that of a Chapter 13 bankruptcy proceeding. The lower courts rested their conclusions upon their concern that a consumer might unwittingly repay a time-barred debt. Thus the Seventh Circuit pointed out that “ ‘few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts.’ ” Phillips, supra, at 1079 (quoting Kimber, supra, at 1487). The “ ‘passage of time,’ ” the Circuit wrote, “ ‘dulls the consumer’s memory of the circumstances and validity of the debt’ ” and the consumer may no longer have “ ‘personal records.’ ” 736 F. 3d, at 1079 (quoting Kimber, supra, at 1487). Moreover, a consumer might pay a stale debt simply to avoid the cost and embarrassment of suit. 736 F. 3d, at 1079. These considerations have significantly diminished force in the context of a Chapter 13 bankruptcy. The consumer initiates such a proceeding, see 11 U. S. C. §§301, 303(a), and consequently the consumer is not likely to pay a stale claim just to avoid going to court. A knowledgeable trustee is available. See §1302(a). Procedural bankruptcyrules more directly guide the evaluation of claims. See Fed. Rule Bkrtcy. Proc. 3001(c)(3)(A); Advisory Committee’s Notes on Rule 3001–2011 Amdt., 11 U. S. C. App., p. 678. And, as the Eighth Circuit Bankruptcy Appellate Panel put it, the claims resolution process is “generally a more streamlined and less unnerving prospect for a debtor than facing a collection lawsuit.” In re Gatewood, 533 B. R. 905, 909 (2015); see also, e.g., 11 U. S. C. §502 (outlining generally the claims resolution process). These features of a Chapter 13 bankruptcy proceeding make it considerably more likely that an effort to collect upon a stale claim in bankruptcy will be met with resistance, objection, and disallowance. Second, Johnson argues that the practice at least risks harm to the debtor and that there is not “a single legitimate reason” for allowing this kind of behavior. Brief for Respondent 32. Would it not be obviously “unfair,” she asks, for a debt collector to adopt a practice of buying up stale claims cheaply and asserting them in bankruptcy knowing they are stale and hoping for careless trustees? The United States, supporting Johnson, adds its view that the Federal Rules of Bankruptcy Procedure make the practice open to sanction, and argues that sanctionable conduct is unfair conduct. Brief for United States as Amicus Curiae 20. See Fed. Rule Bkrtcy. Proc. 9011(b)(2) (sanction possible if party violates the Rule that by “presenting to the [bankruptcy] court” any “paper,” a “party is certifying that to the best of” his or her “knowledge, . . . the claims . . . therein are warranted by existing law”). We are ultimately not persuaded by these arguments. The bankruptcy system, as we have already noted, treats untimeliness as an affirmative defense. The trustee normally bears the burden of investigating claims and pointing out that a claim is stale. See supra, at 4–5. Moreover, protections available in a Chapter 13 bankruptcy proceeding minimize the risk to the debtor. See supra, at 6. And, at least on occasion, the assertion of even a stale claim can benefit a debtor. Its filing and disallowance “discharge[s]” the debt. 11 U. S. C. §1328(a). And that discharge means that the debt (even if unenforceable) will not remain on a credit report potentially affecting an individual’s ability to borrow money, buy a home, and perhaps secure employment. See 15 U. S. C. §1681c(a)(4) (debt may remain on a credit report for seven years); cf. Ala. Code §6–2–34 (6-year statute of limitations); Md. Cts. & Jud. Proc. Code Ann. §5–101 (2013) (3-year statute of limitations); cf. 16 CFR pt. 600, App. §607, ¶6 (1991) (a credit report may include discharged debt only if “the debt [is reported] as having a zero balance due to reflect the fact that the consumer is no longer liable for the discharged debt”); FTC, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations 66 (2011) (similar). More importantly, a change in the simple affirmative-defense approach, carving out an exception, itself would require defining the boundaries of the exception. Does it apply only where (as Johnson alleged in the complaint) a claim’s staleness appears “on [the] face” of the proof of claim? Does it apply to other affirmative defenses or only to the running of a limitations period? At the same time, we do not find in either the Fair Debt Collection Practices Act or the Bankruptcy Code good reason to believe that Congress intended an ordinary civil court applying the Act to determine answers to these bankruptcy-related questions. The Act and the Code have different purposes and structural features. The Act seeks to help consumers, not necessarily by closing what Johnson and the United States characterize as a loophole inthe Bankruptcy Code, but by preventing consumer bankruptcies in the first place. See, e.g., 15 U. S. C. §1692(a) (recognizing the “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices [which] contribute to the number of personal bankruptcies”); see also §1692(b) (“Existing laws and procedures . . . are inadequate to protect consumers”); §1692(e) (statute seeks to “eliminate abusive debt collection practices”). The Bankruptcy Code, by way of contrast, creates and maintains what we have called the “delicate balance of a debtor’s protections and obligations.” Kokoszka v. Belford, 417 U. S. 642, 651 (1974) . To find the Fair Debt Collection Practices Act applicable here would upset that “delicate balance.” From a sub-stantive perspective it would authorize a new significant bankruptcy-related remedy in the absence of language in the Code providing for it. Administratively, it would permit postbankruptcy litigation in an ordinary civil court concerning a creditor’s state of mind—a matter often hard to determine. See 15 U. S. C. §1692k(c) (safe harbor for any debt collector who “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error”). Procedurally, it would require creditors (who assert a claim) to investigate the merits of an affirmative defense (typically the debtor’s job to assert and prove) lest the creditor later be found to have known the claim was untimely. The upshot could well be added complexity, changes in settlement incentives, and a shift from the debtor to the creditor the obligation to investigate the staleness of a claim. Unlike the United States, we do not believe that the Advisory Committee on Rules of Bankruptcy Procedure settled the issue when it promulgated Bankruptcy Rule 9011. The Committee, in considering amendments to the Federal Rules of Bankruptcy Procedure in 2009, specifically rejected a proposal that would have required a creditor to certify that there is no valid statute of limitations defense. See Agenda Book for Meeting 86–87 (Mar. 26–27, 2009). It did so in part because the working group did not want to impose an affirmative obligation on a creditor to make a prefiling investigation of a potential time-bar defense. Ibid. In rejecting that proposal, the Committee did note that Rule 9011 imposes a general “obligation on a claimant to undertake an inquiry reasonable under the circumstances to determine . . . that a claim is warranted by existing law and that factual contentions have evidentiary support,” and to certify as much on the proof of claim. Id., at 87. The Committee also acknowledged, however, that this requirement would “not addres[s] the statute of limitation issue,” but would only ensure “the accuracy of the information provided.” Ibid. We recognize that one Bankruptcy Court has held that filing a time-barred claim without a prefiling investigation of a potential time-bar defense merits sanctions under Rule 9011. In re Sekema, 523 B. R. 651, 654 (Bkrtcy. Ct. ND Ind. 2015). But others have held to the contrary. See, e.g., In re Freeman, 540 B. R. 129, 143–144 (Bkrtcy. Ct. ED Pa. 2015); In re Jenkins, 538 B. R. 129, 134–136 (Bkrcty. Ct. ND Ala. 2015); In re Keeler, 440 B. R. 354, 366–369 (Bkrtcy. Ct. ED Pa. 2009); see also In re Andrews, 394 B. R. 384, 387–388 (Bkrtcy. Ct. EDNC 2008) (recognizing that “[m]any courts have . . . found that sanctions [under Rule 9011] were not warranted for filing stale claims”). These circumstances, taken together, convince us that we cannot find the practice at issue here “unfair” or “unconscionable” within the terms of the Fair Debt Collection Practices Act. IV For these reasons, we conclude that filing (in a Chapter 13 bankruptcy proceeding) a proof of claim that is obviously time barred is not a false, deceptive, misleading, unfair,or unconscionable debt collection practice within the meaning of the Fair Debt Collection Practices Act. The judgment of the Eleventh Circuit is reversed. It is so ordered. JUSTICE GORSUCH 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 MIDLAND FUNDING, LLC v. JOHNSON certiorari to the united states court of appeals for the eleventh circuit No. 16–348. Argued January 17, 2017—Decided May 15, 2017 Petitioner Midland Funding filed a proof of claim in respondent Johnson’s Chapter 13 bankruptcy case, asserting that Johnson owed Midland credit-card debt and noting that the last time any charge appeared on Johnson’s account was more than 10 years ago. The relevant statute of limitations under Alabama law is six years. Johnson objected to the claim, and the Bankruptcy Court disallowed it. Johnson then sued Midland, claiming that its filing a proof of claim on an obviously time-barred debt was “false,” “deceptive,” “misleading,” “unconscionable,” and “unfair” within the meaning of the Fair Debt Collection Practices Act, 15 U. S. C. §§1692e, 1692f. The District Court held that the Act did not apply and dismissed the suit. The Eleventh Circuit reversed. Held: The filing of a proof of claim that is obviously time barred is not a false, deceptive, misleading, unfair, or unconscionable debt collection practice within the meaning of the Fair Debt Collection Practices Act. . (a) Midland’s proof of claim was not “false, deceptive, or misleading.” The Bankruptcy Code defines the term “claim” as a “right to payment,” 11 U. S. C. §101(5)(A), and state law usually determines whether a person has such a right, see Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443 –451. The relevant Alabama law provides that a creditor has the right to payment of a debt even after the limitations period has expired. Johnson argues that the word “claim” means “enforceable claim.” But the word “enforceable” does not appear in the Code’s definition, and Johnson’s interpretation is difficult to square with Congress’s intent “to adopt the broadest available definition of ‘claim,’ ” Johnson v. Home State Bank, 501 U. S. 78 . Other Code provisions are still more difficult to square with Johnson’s interpretation. For example, §502(b)(1) says that if a “claim” is “unenforceable” it will be disallowed, not that it is not a “claim.” Other provisions make clear that the running of a limitations period constitutes an affirmative defense that a debtor is to assert after the creditor makes a “claim.” §§502, 558. The law has long treated unenforceability of a claim (due to the expiration of the limitations period) as an affirmative defense, and there is nothing misleading or deceptive in the filing of a proof of claim that follows the Code’s similar system. Indeed, to determine whether a statement is misleading normally “requires consideration of the legal sophistication of its audience,” Bates v. State Bar of Ariz., 433 U. S. 350 , which in a Chapter 13 bankruptcy includes a trustee who is likely to understand that a proof of claim is a statement by the creditor that he or she has a right to payment that is subject to disallowance, including disallowance based on untimeliness. . (b) Several circumstances, taken together, lead to the conclusion that Midland’s proof of claim was not “unfair” or “unconscionable” within the terms of the Fair Debt Collection Practices Act. Johnson points out that several lower courts have found or indicated that, in the context of an ordinary civil action to collect a debt, a debt collector’s assertion of a claim known to be time barred is “unfair.” But those courts rested their conclusions upon their concern that a consumer might unwittingly repay a time-barred debt. Such considerations have significantly diminished force in a Chapter 13 bankruptcy, where the consumer initiates the proceeding, see §§301, 303(a); where a knowledgeable trustee is available, see §1302(a); where procedural rules more directly guide the evaluation of claims, see Fed. Rule Bkrtcy. Proc. 3001(c)(3)(A); and where the claims resolution process is “generally a more streamlined and less unnerving prospect for a debtor than facing a collection lawsuit,” In re Gatewood, 533 B. R. 905, 909. Also unpersuasive is Johnson’s argument that there is no legitimate reason for allowing a practice like this one that risks harm to the debtor. The bankruptcy system treats untimeliness as an affirmative defense and normally gives the trustee the burden of investigating claims to see if one is stale. And, at least on occasion, the assertion of even a stale claim can benefit the debtor. More importantly, a change in the simple affirmative-defense approach, carving out an exception, would require defining the exception’s boundaries. Does it apply only where a claim’s staleness appears on the face of the proof of claim? Does it apply to other affirmative defenses or only to the running of the limitations period? Neither the Fair Debt Collection Practices Act nor the Bankruptcy Code indicates that Congress intended an ordinary civil court applying the Act to determine answers to such bankruptcy-related questions. The Act and the Code have different purposes and structural features. The Act seeks to help consumers by preventing consumer bankruptcies in the first place, while the Code creates and maintains the “delicate balance of a debtor’s protections and obligations,” Kokoszka v. Belford, 417 U. S. 642 . Applying the Act in this context would upset that “delicate balance.” Contrary to the argument of the United States, the promulgation of Bankruptcy Rule 9011 did not resolve this issue. . 823 F. 3d 1334, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg and Kagan, JJ., joined. Gorsuch, J., took no part in the consideration or decision of the case.

In March 2014, respondent filed for personal bankruptcy under Chapter 13 of the Bankruptcy Code in the Federal District Court for the Southern District of Alabama. Two months later, petitioner filed a written statement in a Chapter 13 bankruptcy proceeding claiming that respondent owed respondent money. However, the statement made clear that the 6-year statute of limitations governing collection of the claimed debt had long since run. Subsequently, respondent brought this suit against petitioner under the Fair Debt Collection Practices Act (Act), seeking actual damages, statutory damages, attorney's fees, and costs for a violation of the Act. The District Court dismissed the action, holding that the Act did not apply, and the Court of Appeals disagreed and reversed. Held: Petitioner filed a statement in Chapter 13 that fell within the scope of the applicable provisions. . (a) The Act prohibits a debt collector from asserting any "false, deceptive, or misleading representation," or using any unfair or unconscionable means to collect, or attempt to collect a debt, §§1692e, 1692f. In this case, the filing of a statement that on its face indicates that the limitations period has run does not fall within the meaning of any of the five relevant words of §1692b. P.. (b) Petitioner is not entitled to the relief sought by respondent. The Act treats untimeliness as an affirmative defense. Its filing and disallowance discharge the debt, and that discharge means that the debt (even if unenforceable) will not remain on a credit report potentially affecting an individual's ability to borrow money, buy a home, and perhaps secure employment. Moreover, protections available in a bankruptcy proceeding minimize the risk to the debtor. And, at least on occasion, the assertion of even a stale claim can benefit a debtor. Although § 502(b)(1) of the Code states that a claim will be disallowed if a claim's staleness appears on the face of the proof of claim, it does not say that an unenable claim is not a claim. Similarly, §101(5)(A) says that a right to payment is a "right to payment" whether or not such right is fixed, contingent, or disputed. However, this section makes clear that a unencourable claim (which is a claim) is nonetheless a right to payment, hence a claim, as the Code uses those terms. Johnson v. Home State Bank, 501 U. S. 78, 83. These circumstances, taken together, make it reasonably clear that respondent's statement falls within the definition of the term "claim.” Pp. 467 U.S. 609-611. (c) There is no merit to respondent's argument that filing a time-barred claim without a prefiling investigation of a potential time-bond defense is unfair conduct. The bankruptcy system, as treated by the trustee, normally bears the burden of investigating claims and pointing out that they are stale, and protections available there minimize the debtor's risk to him or her. And a change in the simple affirmative-defense approach, carving out an exception, itself would require defining the boundaries of the exception. Moreover, a consumer might pay a stale debt simply to avoid the cost and embarrassment of suit. Cf. In re Sekema, 523 B. R. 651, 654. 823 F. 3d 1334, reversed. GORSUCH, J., took no part in the consideration or decision of this case.

2016_15-797

https://www.oyez.org/cases/2016/15-797

. Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U. S. 304 (2002) , and Hall v. Florida, 572 U. S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief. The Texas Court of Criminal Appeals (CCA)[1] declined to adopt the judgment recommended by the state habeas court.[2] In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S. W. 3d 1 (2004). See Ex parte Moore, 470 S. W. 3d 481, 486–487 (2015). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S. W. 3d, at 526. We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U. S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7). That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual dis-ability will be executed,” 572 U. S., at ___ (slip op., at 1). Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled. I In April 1980, then-20-year-old Bobby James Moore and two others were engaged in robbing a grocery store. Ex parte Moore, 470 S. W. 3d 481, 490–491 (Tex. Crim. App. 2015); App. 58. During the episode, Moore fatally shot a store clerk. 470 S. W. 3d, at 490. Some two months later, Moore was convicted and sentenced to death. See id., at 492. A federal habeas court later vacated that sentence based on ineffective assistance of trial counsel, see Moore v. Collins, 1995 U. S. Dist. LEXIS 22859, *35 (SD Tex., Sept. 29, 1995), and the Fifth Circuit affirmed, see Moore v. Johnson, 194 F. 3d 586, 622 (1999). Moore was resentenced to death in 2001, and the CCA affirmed on direct appeal. See Moore v. State, 2004 WL 231323, *1 (Jan. 14, 2004), cert. denied, 543 U. S. 931 (2004) . Moore subsequently sought state habeas relief. In 2014, the state habeas court conducted a two-day hearing on whether Moore was intellectually disabled. See Ex parte Moore, No. 314483–C (185th Jud. Dist., Harris Cty., Tex., Feb. 6, 2015), App. to Pet. for Cert. 129a. The court received affidavits and heard testimony from Moore’s family members, former counsel, and a number of court-appointed mental-health experts. The evidence revealed that Moore had significant mental and social difficulties beginning at an early age. At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. Id., at 187a. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Id., at 146a, 182a–183a. Often, he was separated from the rest of the class and told to draw pictures. Ibid. Moore’s father, teachers, and peers called him “stupid” for his slow reading and speech. Id., at 146a, 183a. After failing every subject in the ninth grade, Moore dropped out of high school. Id., at 188a. Cast out of his home, he survived on the streets, eating from trash cans, even after two bouts of food poisoning. Id., at 192a–193a. In evaluating Moore’s assertion of intellectual disability, the state habeas court consulted current medical diagnostic standards, relying on the 11th edition of the American Association on Intellectual and Developmental Disabilities (AAIDD) clinical manual, see AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports (2010) (hereinafter AAIDD–11), and on the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (APA), see APA, Diagnostic and Statistical Manual of Mental Disorders (2013) (hereinafter DSM–5). App. to Pet. for Cert. 150a–151a, 202a. The court followed the generally accepted, uncontroversial intellectual-disability diagnos-tic definition, which identifies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score “approximately two standard deviations below the mean”—i.e., a score of roughly 70—adjusted for “the standard error of measurement,” AAIDD–11, at 27); (2) adaptive deficits (“the inability to learn basic skills and adjust behavior to changing circumstances,” Hall v. Flor-ida, 572 U. S. ___, ___ (2014) (slip op., at 8)); and (3) the onset of these deficits while still a minor. See App. to Pet. for Cert. 150a (citing AAIDD–11, at 1). See also Hall, 572 U. S., at ___ (slip op., at 8).[3] Moore’s IQ scores, the habeas court determined, established subaverage intellectual functioning. The court credited six of Moore’s IQ scores, the average of which (70.66) indicated mild intellectual disability. App. to Pet. for Cert. 167a–170a.[4] And relying on testimony from several mental-health experts, the habeas court found significant adaptive deficits. In determining the significance of adaptive deficits, clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical). See AAIDD–11, at 43. Moore’s performance fell roughly two standard deviations below the mean in all three skill categories. App. to Pet. for Cert. 200a–201a. Based on this evidence, the state habeas court recommended that the CCA reduce Moore’s sentence to life in prison or grant him a new trial on intellectual disability. See id., at 203a. The CCA rejected the habeas court’s recommendations and denied Moore habeas relief. See 470 S. W. 3d 481. At the outset of its opinion, the CCA reaffirmed Ex parte Briseno, 135 S. W. 3d 1 (Tex. Crim. App. 2004), as paramount precedent on intellectual disability in Texas capital cases. See 470 S. W. 3d, at 486–487. Briseno adopted the definition of, and standards for assessing, intellectual disability contained in the 1992 (ninth) edition of the American Association on Mental Retardation (AAMR) manual, predecessor to the current AAIDD–11 manual. See 135 S. W. 3d, at 7 (citing AAMR, Mental Retardation: Definition, Classification, and Systems of Supports (9th ed. 1992) (hereinafter AAMR–9)). Briseno incorporated the AAMR–9’s requirement that adaptive deficits be “related” to intellectual-functioning deficits. 135 S. W. 3d, at 7 (quoting AAMR–9, at 25).[5] To determine whether a defendant has satisfied the relatedness requirement, the CCA instructed in this case, Texas courts should attend to the “seven evidentiary factors” first set out in Briseno. 470 S. W. 3d, at 489.[6] No citation to any authority, medical or judicial, accompanied the Briseno court’s recitation of the seven factors. See 135 S. W. 3d, at 8–9. The habeas judge erred, the CCA held, by “us[ing] the most current position, as espoused by AAIDD, regarding the diagnosis of intellectual disability rather than the test . . . in Briseno.” 470 S. W. 3d, at 486. This Court’s decision in Atkins v. Virginia, 536 U. S. 304 (2002) , the CCA emphasized, “left it to the States to develop appropriate ways to enforce the constitutional restriction” on the execution of the intellectually disabled. 470 S. W. 3d, at 486. Thus, even though “[i]t may be true that the AAIDD’s and APA’s positions regarding the diagnosis of intellectual disability have changed since Atkins and Briseno,” the CCA retained Briseno’s instructions, both because of “the subjectivity surrounding the medical diagnosis of intellectual disability” and because the Texas Legislature had not displaced Briseno with any other guideposts. 470 S. W. 3d, at 486–487. The Briseno inquiries, the court said, “remai[n] adequately ‘informed by the medical community’s diagnostic framework.’ ” 470 S. W. 3d, at 487 (quoting Hall, 572 U. S., at ___ (slip op., at 19–20)). Employing Briseno, the CCA first determined that Moore had failed to prove significantly subaverage intellectual functioning. 470 S. W. 3d, at 514–519. Rejecting as unreliable five of the seven IQ tests the habeas court had considered, the CCA limited its appraisal to Moore’s scores of 78 in 1973 and 74 in 1989. Id., at 518–519. The court then discounted the lower end of the standard-error range associated with those scores. Id., at 519; see infra, at 10–11 (describing standard error of measurement). Regarding the score of 74, the court observed that Moore’s history of academic failure, and the fact that he took the test while “exhibit[ing] withdrawn and depressive behavior” on death row, might have hindered his performance. 470 S. W. 3d, at 519. Based on the two scores, but not on the lower portion of their ranges, the court concluded that Moore’s scores ranked “above the intellectually disabled range” (i.e., above 70). Ibid.; see id., at 513. “Even if [Moore] had proven that he suffers from significantly sub-average general intellectual functioning,” the court continued, he failed to prove “significant and related limitations in adaptive functioning.” Id., at 520. True, the court acknowledged, Moore’s and the State’s experts agreed that Moore’s adaptive-functioning test scores fell more than two standard deviations below the mean. Id., at 521; see supra, at 4. But the State’s expert ultimately discounted those test results because Moore had “no exposure” to certain tasks the testing included, “such as writing a check and using a microwave oven.” 470 S. W. 3d, at 521–522. Instead, the expert emphasized Moore’s adaptive strengths in school, at trial, and in prison. Id., at 522–524. The CCA credited the state expert’s appraisal. Id., at 524. The habeas court, the CCA concluded, had erred by concentrating on Moore’s adaptive weaknesses. Id., at 489. Moore had demonstrated adaptive strengths, the CCA spelled out, by living on the streets, playing pool and mowing lawns for money, committing the crime in a sophisticated way and then fleeing, testifying and representing himself at trial, and developing skills in prison. Id., at 522–523. Those strengths, the court reasoned, undercut the significance of Moore’s adaptive limitations. Id., at 524–525. The habeas court had further erred, the CCA determined, by failing to consider whether any of Moore’s adaptive deficits were related to causes other than his intellectual-functioning deficits. Id., at 488, 526. Among alterna-tive causes for Moore’s adaptive deficits, the CCA suggested, were an abuse-filled childhood, undiagnosed learning disorders, multiple elementary-school transfers, racially motivated harassment and violence at school, and a his-tory of academic failure, drug abuse, and absenteeism. Ibid. Moore’s significant improvement in prison, in the CCA’s view, confirmed that his academic and social difficulties were not related to intellectual-functioning deficits. Ibid. The court then examined each of the seven Briseno evidentiary factors, see supra, at 5–6, and n. 6, concluding that those factors “weigh[ed] heavily” against finding that Moore had satisfied the relatedness requirement. 470 S. W. 3d, at 526–527. Judge Alcala dissented. Atkins and Hall, she would have held, require courts to consult current medical standards to determine intellectual disability. 470 S. W. 3d, at 530. She criticized the majority for relying on manuals superseded in the medical community, id., at 530–534, 536–539, and for disregarding the habeas court’s credibility determinations, id., at 535–536, 538–539. Judge Alcala questioned the legitimacy of the seven Briseno factors, recounting wide criticism of the factors and explaining how they deviate from the current medical consensus. See 470 S. W. 3d, at 529–530, and n. 5. Most emphatically, she urged, the CCA “must consult the medical community’s current views and standards in determining whether a defendant is intellectually disabled”; “reliance on . . . standard[s] no longer employed by the medical community,” she objected, “is constitutionally unaccept-able.” Id., at 533. We granted certiorari to determine whether the CCA’s adherence to superseded medical standards and its reliance on Briseno comply with the Eighth Amendment and this Court’s precedents. 578 U. S. ___ (2016). II The Eighth Amendment prohibits “cruel and unusual punishments,” and “reaffirms the duty of the government to respect the dignity of all persons,” Hall, 572 U. S., at ___ (slip op., at 5) (quoting Roper v. Simmons, 543 U. S. 551, 560 (2005) ). “To enforce the Constitution’s protection of human dignity,” we “loo[k] to the evolving standards of decency that mark the progress of a maturing society,” recognizing that “[t]he Eighth Amendment is not fastened to the obsolete.” Hall, 572 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). In Atkins v. Virginia, we held that the Constitution “restrict[s] . . . the State’s power to take the life of” any intellectually disabled individual. 536 U. S., at 321. See also Hall, 572 U. S., at ___ (slip op., at 6); Roper, 543 U. S., at 563–564. Executing intellectually disabled individuals, we concluded in Atkins, serves no penological purpose, see 536 U. S., at 318–320; runs up against a national consensus against the practice, see id., at 313–317; and creates a “risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty,” id., at 320 (internal quotation marks omitted); see id., at 320–321. In Hall v. Florida, we held that a State cannot refuse to entertain other evidence of intellectual disability when a defendant has an IQ score above 70. 572 U. S., at ___–___ (slip op., at 21–22). Although Atkins and Hall left to the States “the task of developing appropriate ways to enforce” the restriction on executing the intellectually disabled, 572 U. S., at ___ (slip op., at 17) (quoting Atkins, 536 U. S., at 317), States’ discretion, we cautioned, is not “unfettered,” 572 U. S., at ___ (slip op., at 17). Even if “the views of medical experts” do not “dictate” a court’s intellectual-disability determination, id., at ___ (slip op., at 19), we clarified, the determination must be “informed by the medical community’s diagnostic framework,” id., at ___–___ (slip op., at 19–20). We relied on the most recent (and still current) versions of the leading diagnostic manuals—the DSM–5 and AAIDD–11. Id., at ___, ___, ___–___, ___–___ (slip op., at 3, 8, 10–11, 20–21). Florida, we concluded, had violated the Eighth Amendment by “disregard[ing] established medical practice.” Id., at ___ (slip op., at 10). We further noted that Florida had parted ways with practices and trends in other States. Id., at ___–___ (slip op., at 12–16). Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does our precedent license disregard of current medical standards. III The CCA’s conclusion that Moore’s IQ scores established that he is not intellectually disabled is irreconcilable with Hall. Hall instructs that, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” See id., at ___–___, ___–___ (slip op., at 10–11, 21–22). See also Brumfield v. Cain, 576 U. S. ___, ___ (2015) (slip op., at 10) (relying on Hall to find unreasonable a state court’s conclusion that a score of 75 precluded an intellectual-disability finding). As we explained in Hall, the standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” 572 U. S., at ___ (slip op., at 10). “For purposes of most IQ tests,” this imprecision in the testing instrument “means that an individual’s score is best understood as a range of scores on either side of the recorded score . . . within which one may say an individual’s true IQ score lies.” Id., at ___ (slip op., at 11). A test’s standard error of measurement “reflects the reality that an individual’s intellectual functioning cannot be reduced to a single numerical score.” Ibid. See also id., at ___–___ (slip op., at 10–12); DSM–5, at 37; AAIDD, User’s Guide: Intellectual Disability: Definition, Classification, and Systems of Supports 22–23 (11th ed. 2012) (hereinafter AAIDD–11 User’s Guide). Moore’s score of 74, adjusted for the standard error of measurement, yields a range of 69 to 79, see 470 S. W. 3d, at 519, as the State’s retained expert acknowledged, see Brief for Petitioner 39, n. 18; App. 185, 189–190. Because the lower end of Moore’s score range falls at or below 70, the CCA had to move on to consider Moore’s adaptive functioning. See Hall, 572 U. S., at ___–___ (slip op., at 21–22); 470 S. W. 3d, at 536 (Alcala, J., dissenting) (even if the majority correctly limited the scores it would consider, “current medical standards . . . would still require [the CCA] to examine whether [Moore] has adaptive deficits”). Both Texas and the dissent maintain that the CCA properly considered factors unique to Moore in disregarding the lower end of the standard-error range. Post, at 14–15; Brief for Respondent 41–42; see supra, at 6–7; 470 S. W. 3d, at 519. But the presence of other sources of imprecision in administering the test to a particular individual, see post, at 14–16, and n. 3, cannot narrow the test-specific standard-error range.[7] In requiring the CCA to move on to consider Moore’s adaptive functioning in light of his IQ evidence, we do not suggest that “the Eighth Amendment turns on the slightest numerical difference in IQ score,” post, at 15–16. Hall invalidated Florida’s strict IQ cutoff because the cutoff took “an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.” 572 U. S., at ___ (slip op., at 10). Here, by contrast, we do not end the intellectual-disability inquiry, one way or the other, based on Moore’s IQ score. Rather, in line with Hall, we require that courts continue the inquiry and consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits. IV The CCA’s consideration of Moore’s adaptive functioning also deviated from prevailing clinical standards and from the older clinical standards the court claimed to apply. A In concluding that Moore did not suffer significant adaptive deficits, the CCA overemphasized Moore’s perceived adaptive strengths. The CCA recited the strengths it perceived, among them, Moore lived on the streets, mowed lawns, and played pool for money. See 470 S. W. 3d, at 522–523, 526–527. Moore’s adaptive strengths, in the CCA’s view, constituted evidence adequate to overcome the considerable objective evidence of Moore’s adaptive deficits, see supra, at 4; App. to Pet. for Cert. 180a–202a. See 470 S. W. 3d, at 522–524, 526–527. But the medical community focuses the adaptive-functioning inquiry on adaptive deficits. E.g., AAIDD–11, at 47 (“significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”); DSM–5, at 33, 38 (inquiry should focus on “[d]eficits in adaptive functioning”; deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits); see Brumfield, 576 U. S., at ___ (slip op., at 15) (“[I]ntellectually disabled persons may have ‘strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.’ ” (quoting AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 8 (10th ed. 2002)).[8] In addition, the CCA stressed Moore’s improved behavior in prison. 470 S. W. 3d, at 522–524, 526–527. Clinicians, however, caution against reliance on adaptive strengths developed “in a controlled setting,” as a prison surely is. DSM–5, at 38 (“Adaptive functioning may be difficult to assess in a controlled setting (e.g., prisons, detention centers); if possible, corroborative information reflecting functioning outside those settings should be obtained.”); see AAIDD–11 User’s Guide 20 (counseling against reliance on “behavior in jail or prison”). B The CCA furthermore concluded that Moore’s record of academic failure, along with the childhood abuse and suffering he endured, detracted from a determination that his intellectual and adaptive deficits were related. See 470 S. W. 3d, at 488, 526; supra, at 5, 7–8. Those traumatic experiences, however, count in the medical community as “risk factors” for intellectual disability. AAIDD–11, at 59–60 (emphasis added). Clinicians rely on such factors as cause to explore the prospect of intellectual disability further, not to counter the case for a disability determination. See id., at 60 (“[A]t least one or more of the risk factors [described in the manual] will be found in every case of” intellectual disability.). The CCA also departed from clinical practice by requiring Moore to show that his adaptive deficits were not related to “a personality disorder.” 470 S. W. 3d, at 488; see id., at 526 (Moore’s problems in kindergarten were “more likely cause[d]” by “emotional problems” than by intellectual disability). As mental-health professionals recognize, how-ever, many intellectually disabled people also have other mental or physical impairments, for example, attention-deficit/hyperactivity disorder, depressive and bipolar dis-orders, and autism. DSM–5, at 40 (“[c]o-occurring men-tal, neurodevelopmental, medical, and physical conditions are frequent in intellectual disability, with rates of some conditions (e.g., mental disorders, cerebral palsy, and epilepsy) three to four times higher than in the general population”); see AAIDD–11, at 58–63. Coexisting conditions frequently encountered in intellectually disabled individ-uals have been described in clinical literature as “[c]omorbidit[ies].” DSM–5, at 40. See also Brief for AAIDD et al. as Amici Curiae 20, and n. 25. The existence of a personality disorder or mental-health issue, in short, is “not evidence that a person does not also have intellectual disability.” Brief for American Psychological Association, APA, et al. as Amici Curiae 19. C The CCA’s attachment to the seven Briseno evidentiary factors further impeded its assessment of Moore’s adaptive functioning. 1 By design and in operation, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual dis-ability will be executed,” Hall, 572 U. S., at ___ (slip op., at 1). After observing that persons with “mild” intellectual disability might be treated differently under clinical standards than under Texas’ capital system, the CCA defined its objective as identifying the “consensus of Texas citizens” on who “should be exempted from the death penalty.” Briseno, 135 S. W. 3d, at 6 (emphasis added). Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities, see Hall, 572 U. S., at ___–___ (slip op., at 17–18); Atkins, 536 U. S., at 308, and n. 3; AAIDD–11, at 153, and States may not execute anyone in “the entire category of [intellectually disabled] offenders,” Roper, 543 U. S., at 563–564 (emphasis added); see supra, at 9. Skeptical of what it viewed as “exceedingly subjective” medical and clinical standards, the CCA in Briseno advanced lay perceptions of intellectual disability. 135 S. W. 3d, at 8; see supra, at 5–6, and n. 6. Briseno asks, for example, “Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?” 135 S. W. 3d, at 8. Addressing that question here, the CCA referred to Moore’s education in “normal classrooms during his school career,” his father’s reactions to his academic challenges, and his sister’s perceptions of Moore’s intellectual abilities. 470 S. W. 3d, at 526–527. But the medical profession has endeavored to counter lay stereotypes of the intellectually disabled. See AAIDD–11 User’s Guide 25–27; Brief for AAIDD et al. as Amici Cu-riae 9–14, and nn. 11–15. Those stereotypes, much more than medical and clinical appraisals, should spark skepticism.[9] 2 The Briseno factors are an outlier, in comparison both to other States’ handling of intellectual-disability pleas and to Texas’ own practices in other contexts. See Hall, 572 U. S., at ___ (slip op., at 12) (consensus in the States provides “objective indicia of society’s standards in the context of the Eighth Amendment” (internal quotation marks omitted)). No state legislature has approved the use of the Briseno factors or anything similar. In the 12 years since Texas adopted the factors, only one other state high court and one state intermediate appellate court have authorized their use. See, e.g., Commonwealth v. Bracey, 632 Pa. 75, ___–___, 117 A. 3d 270, 286–287 (2015); Howell v. State, 2011 WL 2420378, *18 (Tenn. Crim. App., June 14, 2011). Indeed, Texas itself does not follow Briseno in contexts other than the death penalty. See Brief for Constitution Project as Amicus Curiae 14–17. For example, the related-ness requirement Texas defends here, see supra, at 5–6, is conspicuously absent from the standards the State uses to assess students for intellectual disabilities. See 19 Tex. Admin. Code §89.1040(c)(5) (2015). And even within Texas’ criminal-justice system, the State requires the intellectual-disability diagnoses of juveniles to be based on “the latest edition of the DSM.” 37 Tex. Admin. Code §380.8751(e)(3) (2016). Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.[10] V As noted supra, at 9, States have some flexibility, but not “unfettered discretion,” in enforcing Atkins’ holding. Hall, 572 U. S., at ___ (slip op., at 17). “If the States were to have complete autonomy to define intellectual disability as they wished,” we have observed, “Atkins could become a nullity, and the Eighth Amendment’s protection of human dignity would not become a reality.” Id., at ___–___ (slip op., at 18–19). The medical community’s current standards supply one constraint on States’ leeway in this area. Reflecting improved understanding over time, see DSM–5, at 7; AAIDD–11, at xiv–xv, current manuals offer “the best available description of how mental disorders are expressed and can be recognized by trained clinicians,” DSM–5, at xli. See also Hall, 572 U. S., at ___, ___, ___, ___–___, ___–___ (slip op., at 2, 3, 8, 10–11, 20–21) (employing current clinical standards); Atkins, 536 U. S., at 308, n. 3, 317, n. 22 (relying on then-current standards). In Moore’s case, the habeas court applied current medical standards in concluding that Moore is intellectually disabled and therefore ineligible for the death penalty. See, e.g., App. to Pet. for Cert. 150a–151a, 200a–203a. The CCA, however, faulted the habeas court for “disregarding [the CCA’s] case law and employing the definition of intellectual disability presently used by the AAIDD.” 470 S. W. 3d, at 486. The CCA instead fastened its intellectual-disability determination to “the AAMR’s 1992 definition of intellectual disability that [it] adopted in Briseno for Atkins claims presented in Texas death-penalty cases.” Ibid. By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in Briseno, including the wholly nonclinical Briseno factors, the CCA failed adequately to inform itself of the “medical community’s diagnostic framework,” Hall, 572 U. S., at ___–___ (slip op., at 19–20). Because Briseno pervasively infected the CCA’s analysis, the decision of that court cannot stand. * * * For the reasons stated, the judgment of the Texas Court of Criminal Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.Notes 1 The CCA is Texas’ court of last resort in criminal cases. See Tex. Const., Art. 5, §5. 2 Under Texas law, the CCA, not the court of first instance, is “the ultimate factfinder” in habeas corpus proceedings. Ex parte Reed, 271 S. W. 3d 698, 727 (Tex. Crim. App. 2008); see Ex parte Moore, 470 S. W. 3d 481, 489 (Tex. Crim. App. 2015). 3 The third element is not at issue here. 4 The habeas court considered a seventh score (of 59 on a WAIS–IV test administered in 2013) elsewhere in its opinion, see App. to Pet. for Cert. 170a–172a, but did not include that score in the calculation of Moore’s average IQ score, see id., at 170a. 5 This relatedness requirement, the CCA noted, is retained in the DSM–5. See 470 S. W. 3d, at 487, n. 5 (citing DSM–5, at 38). 6 The seven “Briseno factors” are: 7 The dissent suggests that Hall tacitly approved Idaho’s approach to capital sentencing, which the dissent characterizes as “grant[ing] trial courts discretion to draw ‘reasonable inferences’ about IQ scores and, where appropriate, decline to consider the full range of the [standard error of measurement].” Post, at 14–15 (quoting Hall, 572 U. S., at ___ (slip op., at 15) (quoting Pizzuto v. State, 146 Idaho 720, 729, 202 P. 3d 642, 651 (2008))). We referred in Hall to Idaho’s capital-sentencing scheme, however, only to note that the State had “passed legislation allowing a defendant to present additional evidence of intellectual disability even when an IQ test score is above 70.” 572 U. S., at ___ (slip op., at 15). 8 The dissent suggests that disagreement exists about the precise role of adaptive strengths in the adaptive-functioning inquiry. See post, at 11–12. But even if clinicians would consider adaptive strengths alongside adaptive weaknesses within the same adaptive-skill domain, neither Texas nor the dissent identifies any clinical authority permitting the arbitrary offsetting of deficits against unconnected strengths in which the CCA engaged, see 470 S. W. 3d, at 520–526. 9 As elsewhere in its opinion, the CCA, in its deployment of the Briseno factors, placed undue emphasis on adaptive strengths, see supra, at 12–13; 470 S. W. 3d, at 527, and regarded risk factors for intellectual disability as evidence of the absence of intellectual disability, see supra, at 13–14; 470 S. W. 3d, at 526–527. 10 Given the Briseno factors’ flaws, it is unsurprising that scholars and experts have long criticized the factors. See, e.g., American Bar Assn., Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report 395 (2013) (“The Briseno factors create an especially high risk that [an intellectually disabled defendant] will be executed because, in many ways, they contradict established methods for diagnosing [intellectual disability].”); Blume, Johnson, & Seeds, Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases (footnote omitted), 18 Cornell J. L. & Pub. Pol’y 689, 710–712 (2009) (“The Briseno factors present an array of divergences from the clinical definitions.”); Macvaugh & Cunningham, Atkins v. Virginia: Implications and Recommendations for Forensic Practice, 37 J. Psychiatry & L. 131, 136 (2009) (“The seven criteria of the Briseno opinion operationalize an Atkins interpretation that [exempts only] a subcategory of persons with [intellectual disabilities] from execution.”). See also 470 S. W. 3d, at 529–530, and n. 5 (Alcala, J., dissenting) (summarizing, in this case, scholarly criticism of Briseno).

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 MOORE v. TEXAS certiorari to the court of criminal appeals of texas No. 15–797. Argued November 29, 2016—Decided March 28, 2017 Petitioner Moore was convicted of capital murder and sentenced to death for fatally shooting a store clerk during a botched robbery that occurred when Moore was 20 years old. A state habeas court subsequently determined that, under Atkins v. Virginia, 536 U. S. 304 , and Hall v. Florida, 572 U. S. ___, Moore qualified as intellectually disabled and that his death sentence therefore violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The court consulted current medical diagnostic standards—the 11th edition of the American Association on Intellectual and Developmental Disabilities clinical manual (AAIDD–11) and the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. The habeas court followed the generally accepted intellectual-disability definition, which identifies three core elements: (1) intellectual-functioning deficits, (2) adaptive deficits, and (3) the onset of these deficits while still a minor. Moore’s IQ scores, the court determined, established subaverage intellectual functioning. The court credited six scores, the average of which (70.66) indicated mild intellectual disability. And relying on testimony from mental-health professionals, the court found significant adaptive deficits in all three skill sets (conceptual, social, and practical). Based on its findings, the habeas court recommended to the Texas Court of Criminal Appeals (CCA) that Moore be granted relief. The CCA declined to adopt the judgment recommended by the habeas court. The CCA held instead that the habeas court erred by not following the CCA’s 2004 decision in Ex parte Briseno, 135 S. W. 3d 1, which adopted the definition of, and standards for assessing, intellectual disability contained in the 1992 (ninth) edition of the American Association on Mental Retardation manual (AAMR–9), predecessor to the current AAIDD–11 manual. Briseno also incorporated the AAMR–9’s requirement that adaptive deficits must be “related” to intellectual-functioning deficits, and it recited, without citation to any medical or judicial authority, seven evidentiary factors relevant to the intellectual-disability inquiry. Based on only two of Moore’s IQ scores (of 74 and 78), the CCA concluded that Moore had not shown significantly subaverage intellectual functioning. And even if he had, the CCA continued, his adaptive strengths undercut any adaptive weaknesses. The habeas court also failed, the CCA determined, to inquire into relatedness. Among alternative causes for Moore’s adaptive deficits, the CCA suggested, were an abuse-filled childhood, undiagnosed learning disorders, multiple elementary-school transfers, racially motivated harassment and violence at school, and a history of academic failure, drug abuse, and absenteeism. Briseno’s seven evidentiary factors, the CCA further determined, weighed against finding that Moore had satisfied the relatedness requirement. Held: By rejecting the habeas court’s application of medical guidance and by following the Briseno standard, including the nonclinical Briseno factors, the CCA’s decision does not comport with the Eighth Amendment and this Court’s precedents. . (a) The Eighth Amendment, which “ ‘reaffirms the duty of the government to respect the dignity of all persons,’ ” Hall, 572 U. S., at ___, prohibits the execution of any intellectually disabled individual, Atkins, 536 U. S., at 321. While Atkins and Hall left to the States “the task of developing appropriate ways to enforce” the restriction on executing the intellectually disabled, Hall, 572 U. S., at ___ (internal quotation marks omitted), States’ discretion is not “unfettered,” id., at ___, and must be “informed by the medical community’s diagnostic framework,” id., at ___–___. Relying on the most recent (and still current) versions of the leading diagnostic manuals, the Court concluded in Hall that Florida had “disregard[ed] established medical practice,” id., at ___, and had parted ways with practices and trends in other States, id., at ___–___. Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does precedent license disregard of current medical standards. . (b) The CCA’s conclusion that Moore’s IQ scores established that he is not intellectually disabled is irreconcilable with Hall, which instructs that, where an IQ score is close to, but above, 70, courts must account for the test’s “standard error of measurement.” See 572 U. S., at ___–___, ___–___. Because the lower range of Moore’s adjusted IQ score of 74 falls at or below 70, the CCA had to move on to consider Moore’s adaptive functioning. . (c) The CCA’s consideration of Moore’s adaptive functioning also deviated from prevailing clinical standards and from the older clinical standards the CCA deemed applicable. . (1) The CCA overemphasized Moore’s perceived adaptive strengths—living on the streets, mowing lawns, and playing pool for money—when the medical community focuses the adaptive-functioning inquiry on adaptive deficits. The CCA also stressed Moore’s improved behavior in prison, but clinicians caution against reliance on adaptive strengths developed in controlled settings. . (2) The CCA further concluded that Moore’s record of academic failure, along with a history of childhood abuse and suffering, detracted from a determination that his intellectual and adaptive deficits were related. The medical community, however, counts traumatic experiences as risk factors for intellectual disability. The CCA also departed from clinical practice by requiring Moore to show that his adaptive deficits were not related to “a personality disorder.” Mental-health professionals recognize that intellectually disabled people may have other co-existing mental or physical impairments, including, e.g., attention-deficit/hyperactivity disorder, depressive and bipolar disorders, and autism. . (3) The CCA’s attachment to the seven Briseno evidentiary factors further impeded its assessment of Moore’s adaptive functioning. By design and in operation, the lay perceptions advanced by Briseno “creat[e] an unacceptable risk that persons with intellectual disability will be executed.” Hall, 572 U. S., at ___. The medical profession has endeavored to counter lay stereotypes, and the Briseno factors are an outlier, in comparison both to other States’ handling of intellectual-disability pleas and to Texas’ own practices in contexts other than the death penalty. . (d) States have some flexibility, but not “unfettered discretion,” in enforcing Atkins’ holding, Hall, 572 U. S., at ___, and the medical community’s current standards, reflecting improved understanding over time, constrain States’ leeway in this area. Here, the habeas court applied current medical standards in reaching its conclusion, but the CCA adhered to the standard it laid out in Briseno, including the nonclinical Briseno factors. The CCA therefore failed adequately to inform itself of the “medical community’s diagnostic framework,” Hall, 572 U. S., at ___–___. Because Briseno pervasively infected the CCA’s analysis, the decision of that court cannot stand. . 470 S. W. 3d 481, vacated and remanded. 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 Thomas and Alito, JJ., joined.

In April 1980, then-20-year-old Bobby Moore was convicted of capital murder and sentenced to death. Moore sought state habeas relief after a two-day hearing on whether he was intellectually disabled. The court made detailed factfindings and determined that, under this Court's decisions in Atkins v. Virginia, 536 U. S. 304 (2002) and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled, and that his death sentence violated the Eighth Amendment's proscription of cruel and unusual punishments. The Texas Court of Criminal Appeals (CCA) declined to adopt the CCA judgment, holding that the evidentiary factors announced in Briseno, 135 S. W. 3d 1 (Brig.Comm. 2004), were erroneously employed. The CCA first determined that Moore had failed to prove significantly subaverage intellectual functioning. Based on his IQ scores, the court discounted the lower end of the standard-error range associated with those scores, and concluded that the scores ranked above the intellectually disabled range (i.e., above 70). The court also concluded that Moore failed to show significant and related limitations in adaptive functioning. Based on this evidence, the state court recommended that he be granted relief. The court rejected the recommendation and denied relief. At the outset of its opinion, however, the Court reaffirmed Ex parte Brisene as paramount precedent on intellectual disability in Texas capital cases. Moore was resentenced to death in 2001, and affirmed on direct appeal. Moore subsequently sought state court relief, and in 2014, the Texas court conducted a second hearing on the same subject. The state court held that Moore was not intellectually disabled and therefore exempt from execution, and the court therefore recommended that the death sentence be reduced to life imprisonment or grant him a new trial on the basis of his intellectual-functioning deficits. Finding that the assessment of his ability to learn basic skills and to adjust behavior to changing circumstances was untied to any acknowledged source, and drew no strength from this Court precedent, and thus could not be used to restrict qualification of an individual as an intellectual disabled. Accordingly, they may not be used, as the court used them, in restricting qualification of a person as an intellectually disabled person. Held: The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion. ;;. 470 S.. 3d 481, vacated and remanded. PER CURIAM. (a) The Texas court, which is the ultimate factfinder, is in the ultimate position to determine whether a defendant has satisfied the relatedness requirement of the Texas Medical Community, and, in requiring the court to move on to consider Moore's adaptive functioning in light of his IQ evidence, does not end the intellectual-disability inquiry, one way or the other, based on Moore's IQ score. Rather, in line with Hall, this Court requires that courts continue the inquiry and consider other evidence of intellectual disability where an individual, adjusted for the test’s standard error, falls within the clinically established range for intellectual disability. . (b) Moore, whose IQ score was found to be 74, deviated from prevailing clinical standards and from the older clinical standards of the medical community. By failing to apply current medical standards to Moore, his score recited considerable evidence of an inability to overcome perceived flaws in his perceived strengths, and recited evidence that he lived and worked on the streets of the capital because of his mental illness. Moreover, by rejecting the court, its application of medical guidance and clinging to the standard it laid out in the Brisenov standard, including the wholly nonclinical Brisenos factors, failed adequately to inform itself of the Medical Community's diagnostic framework.. 470 s. W.. 3d 470 (Tex. Crim. App. 2004) (Texas) (CCA), which is Texas' court of last resort in criminal cases, is not the court of first instance, and its reliance on BRiseno pervasively infected the analysis of that court. See Hall, supra, at ___ (slip op., at 5). The factfinder is Texas, and not first instance. Although States have some flexibility, but not unfettered discretion, in enforcing Atkins, the determination must be informed by the physician community. See, e.g., ibid., at ___. P.. (c) The fact that Moore has a history of academic failure, along with the childhood abuse and suffering he endured, detracted from a determination that his intellectual and adaptive deficits were related does not bar the court from considering Moore.. Pp. 462 U. N.C. (Holmes, J., concurring in judgment) and n. 5. See id., at 14. 5; Hall invalidated Florida's strict IQ cutoff because the cutoff took an IQ score as final and conclusive evidence of a defendant's intellectual capacity, when

2016_15-214

https://www.oyez.org/cases/2016/15-214

. The classic example of a property taking by the government is when the property has been occupied or otherwise seized. In the case now before the Court, petition-ers contend that governmental entities took their real property—an undeveloped residential lot—not by some physical occupation but instead by enacting burdensome regulations that forbid its improvement or separate sale because it is classified as substandard in size. The relevant governmental entities are the respondents. Against the background justifications for the challenged restrictions, respondents contend there is no regulatory taking because petitioners own an adjacent lot. The regulations, in effecting a merger of the property, permit the continued residential use of the property including for a single improvement to extend over both lots. This retained right of the landowner, respondents urge, is of sufficient offsetting value that the regulation is not severe enough to be a regulatory taking. To resolve the issue whether the landowners can insist on confining the analysis just to the lot in question, without regard to their ownership of the adjacent lot, it is necessary to discuss the background principles that define regulatory takings. I A The St. Croix River originates in northwest Wisconsin and flows approximately 170 miles until it joins the Mississippi River, forming the boundary between Minnesota and Wisconsin for much of its length. The lower portion of the river slows and widens to create a natural water area known as Lake St. Croix. Tourists and residents of the region have long extolled the picturesque grandeur of the river and surrounding area. E.g., E. Ellett, Summer Rambles in the West 136–137 (1853). Under the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal protection. §3(a)(6), 82Stat. 908, 16 U. S. C. §1274(a)(6) (designating Upper St. Croix River); Lower Saint Croix River Act of 1972, §2, 86Stat. 1174, 16 U. S. C. §1274(a)(9) (adding Lower St. Croix River). The law required the States of Wisconsin and Minnesota to develop “a management and development program” for the river area. 41 Fed. Reg. 26237 (1976). In compliance, Wisconsin authorized the State Department of Natural Resources to promulgate rules limiting development in order to “guarantee the protection of the wild, scenic and recreational qualities of the river for present and future generations.” Wis. Stat. §30.27(l) (1973). Petitioners are two sisters and two brothers in the Murr family. Petitioners’ parents arranged for them to receive ownership of two lots the family used for recreation along the Lower St. Croix River in the town of Troy, Wisconsin. The lots are adjacent, but the parents purchased them separately, put the title of one in the name of the family business, and later arranged for transfer of the two lots, on different dates, to petitioners. The lots, which are referred to in this litigation as Lots E and F, are described in more detail below. For the area where petitioners’ property is located, the Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development. Wis. Admin. Code §§ NR 118.04(4), 118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grand-father clause relaxes this restriction for substandardlots which were “in separate ownership from abutting lands” on January 1, 1976, the effective date of the regulation. § NR 118.08(4)(a)(1). The clause permits the use of qualifying lots as separate building sites. The rules also include a merger provision, however, which provides that adjacent lots under common ownership may not be “sold or developed as separate lots” if they do not meet the size requirement. § NR 118.08(4)(a)(2). The Wisconsin rules require localities to adopt parallel provisions, see § NR 118.02(3), so the St. Croix County zoning ordinance contains identical restrictions, see St. Croix County, Wis., Ordinance §17.36I.4.a (2005). The Wisconsin rules also authorize the local zoning authority to grant variances from the regulations where enforcement would create “unnecessary hardship.” § NR 118.09(4)(b); St. Croix County Ordinance §17.09.232. B Petitioners’ parents purchased Lot F in 1960 and built a small recreational cabin on it. In 1961, they transferred title to Lot F to the family plumbing company. In 1963, they purchased neighboring Lot E, which they held in their own names. The lots have the same topography. A steep bluff cuts through the middle of each, with level land suitable for development above the bluff and next to the water below it. The line dividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing the blufftop along the way. Lot E has approximately 60 feet of river frontage, and Lot F has approximately 100 feet. Though each lot is approximately 1.25 acres in size, because of the waterline and the steep bank they each have less than one acre of land suitable for development. Even when combined, the lots’ buildable land area is only 0.98 acres due to the steep terrain. The lots remained under separate ownership, with Lot F owned by the plumbing company and Lot E owned by petitioners’ parents, until transfers to petitioners. Lot F was conveyed to them in 1994, and Lot E was conveyed to them in 1995. Murr v. St. Croix County Bd. of Adjustment, 2011 WI App 29, 332 Wis. 2d 172, 177–178, 184–185, 796 N. W. 2d 837, 841, 844 (2011); 2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished opinion), App. to Pet. for Cert. A–3, ¶¶4–5. (There are certain ambiguities in the record concerning whether the lots had merged earlier, but the parties and the courts below appear to have assumed the merger occurred upon transfer to petitioners.) A decade later, petitioners became interested in moving the cabin on Lot F to a different portion of the lot and selling Lot E to fund the project. The unification of the lots under common ownership, however, had implicated the state and local rules barring their separate sale or development. Petitioners then sought variances from the St. Croix County Board of Adjustment to enable their building and improvement plan, including a variance to allow the separate sale or use of the lots. The Board denied the requests, and the state courts affirmed in relevant part. In particular, the Wisconsin Court of Appeals agreed with the Board’s interpretation that the local ordinance “effectively merged” Lots E and F, so petitioners “could only sell or build on the single larger lot.” Murr, supra, at 184, 796 N. W. 2d, at 844. Petitioners filed the present action in state court, alleging that the state and county regulations worked a regulatory taking by depriving them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” App. 9. The parties each submitted appraisal numbers to the trial court. Respondents’ appraisal included values of $698,300 for the lots together as regulated; $771,000 for the lots as two distinct build-able properties; and $373,000 for Lot F as a single lot with improvements. Record 17–55, 17–56. Petitioners’ appraisal included an unrebutted, estimated value of $40,000 for Lot E as an undevelopable lot, based on the counterfactual assumption that it could be sold as a separate property. Id., at 22–188. The Circuit Court of St. Croix County granted summary judgment to the State, explaining that petitioners retained “several available options for the use and enjoyment of their property.” Case No. 12–CV–258 (Oct. 31, 2013), App. to Pet. for Cert. B–9. For example, they could preserve the existing cabin, relocate the cabin, or eliminate the cabin and build a new residence on Lot E, on Lot F, or across both lots. The court also found petitioners had not been deprived of all economic value of their property. Considering the valuation of the property as a single lot versus two separate lots, the court found the market value of the property was not significantly affected by the regulations because the decrease in value was less than 10 percent. Ibid. The Wisconsin Court of Appeals affirmed. The court explained that the regulatory takings inquiry required it to “ ‘first determine what, precisely, is the property at issue.’ ” Id., at A–9, ¶17. Relying on Wisconsin Supreme Court precedent in Zealy v. Waukesha, 201 Wis. 2d 365, 548 N. W. 2d 528 (1996), the Court of Appeals rejected petitioners’ request to analyze the effect of the regulations on Lot E only. Instead, the court held the takings analysis “properly focused” on the regulations’ effect “on the Murrs’ property as a whole”—that is, Lots E and F together. App. to Pet. for Cert. A–12, ¶22. Using this framework, the Court of Appeals concluded the merger regulations did not effect a taking. In particular, the court explained that petitioners could not reasonably have expected to use the lots separately because they were “ ‘charged with knowledge of the existing zoning laws’ ” when they acquired the property. Ibid. (quoting Murr, supra, at 184, 796 N. W. 2d, at 844). Thus, “even if [petitioners] did intend to develop or sell Lot E separately, that expectation of separate treatment became unreasonable when they chose to acquire Lot E in 1995, after their having acquired Lot F in 1994.” App. to Pet. for Cert. A–17, ¶30. The court also discounted the severity of the economic impact on petitioners’ property, recognizing the Circuit Court’s conclusion that the regulations diminished the property’s combined value by less than 10 percent. The Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari, 577 U. S. ___ (2016). II A The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” The Clause is made applicable to the States through the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897) . As this Court has recognized, the plain language of the Takings Clause “requires the payment of compensation whenever the government acquires private property for a public purpose,” see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 321 (2002) , but it does not address in specific terms the imposition of regulatory burdens on private property. Indeed, “[p]rior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922) , it was generally thought that the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of the owner’s possession,” like the permanent flooding of property. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citation, brackets, and internal quotation marks omitted); accord, Horne v. Department of Agriculture, 576 U. S. ___, ___ (2015) (slip op., at 7); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427 (1982) . Mahon, however, initiated this Court’s regulatory takings jurisprudence, declaring that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U. S., at 415. A regulation, then, can be so burdensome as to become a taking, yet the Mahon Court did not formulate more detailed guidance for determining when this limit is reached. In the near century since Mahon, the Court for the most part has refrained from elaborating this principle through definitive rules. This area of the law has been characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra, supra, at 322 (citation and internal quotation marks omitted). The Court has, however, stated two guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking. First, “with certain qualifications . . . a regulation which ‘denies all economically beneficial or productive use of land’ will require compensation under the Takings Clause.” Palazzolo v. Rhode Island, 533 U. S. 606, 617 (2001) (quoting Lucas, supra, at 1015). Second, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on “a complex of factors,” including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Palazzolo, supra, at 617 (citing Penn Central Transp. Co. v. New York City, 438 U. S. 104, 124 (1978) ). By declaring that the denial of all economically beneficial use of land constitutes a regulatory taking, Lucas stated what it called a “categorical” rule. See 505 U. S., at 1015. Even in Lucas, however, the Court included a ca-veat recognizing the relevance of state law and land-use customs: The complete deprivation of use will not re-quire compensation if the challenged limitations “inhere . . . in the restrictions that background principles of the State’s law of property and nuisance already placed upon land ownership.” Id., at 1029; see also id., at 1030–1031 (listing factors for courts to consider in making thisdetermination). A central dynamic of the Court’s regulatory takings jurisprudence, then, is its flexibility. This has been and remains a means to reconcile two competing objectives central to regulatory takings doctrine. One is the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership. Cf. id., at 1028 (“[T]he notion . . . that title is somehow held subject to the ‘implied limitation’ that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture”). Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them. The other persisting interest is the government’s well-established power to “adjus[t] rights for the public good.” Andrus v. Allard, 444 U. S. 51, 65 (1979) . As Justice Holmes declared, “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Mahon, supra, at 413. In adjudicating regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics of the case. In all instances, the analysis must be driven “by the purpose of the Takings Clause, which is to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Palazzolo, supra, at 617–618 (quoting Armstrong v. United States, 364 U. S. 40, 49 (1960) ). B This case presents a question that is linked to the ultimate determination whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, “[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’ ” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 497 (1987) (quoting Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165, 1992 (1967)). As commentators have noted, the answer to this question may be outcome determinative. See Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 631 (2014); see also Wright, A New Time for Denominators, 34 Env. L. 175, 180 (2004). This Court, too, has explained that the question is important to the regulatory takings inquiry. “To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question.” Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 644 (1993) . Defining the property at the outset, however, should not necessarily preordain the outcome in every case. In some, though not all, cases the effect of the challenged regulation must be assessed and understood by the effect on the entire property held by the owner, rather than just some part of the property that, considered just on its own, has been diminished in value. This demonstrates the contrast between regulatory takings, where the goal is usually to determine how the challenged regulation affects the property’s value to the owner, and physical takings, where the impact of physical appropriation or occupation of the property will be evident. While the Court has not set forth specific guidance on how to identify the relevant parcel for the regulatory taking inquiry, there are two concepts which the Court has indicated can be unduly narrow. First, the Court has declined to limit the parcel in an artificial manner to the portion of property targeted by the challenged regulation. In Penn Central, for example, the Court rejected a challenge to the denial of a permit to build an office tower above Grand Central Terminal. The Court refused to measure the effect of the denial only against the “air rights” above the terminal, cautioning that “ ‘[t]aking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.” 438 U. S., at 130. In a similar way, in Tahoe-Sierra, the Court refused to “effectively sever” the 32 months during which petitioners’ property was restricted by temporary moratoria on development “and then ask whether that segment ha[d] been taken in its entirety.” 535 U. S., at 331. That was because “defining the property interest taken in terms of the very regulation being challenged is circular.” Ibid. That approach would overstate the effect of regulation on property, turning “every delay” into a “total ban.” Ibid. The second concept about which the Court has expressed caution is the view that property rights under the Takings Clause should be coextensive with those under state law. Although property interests have their foundations in state law, the Palazzolo Court reversed a state- court decision that rejected a takings challenge to regulations that predated the landowner’s acquisition of title. 533 U. S., at 626–627. The Court explained that States do not have the unfettered authority to “shape and define property rights and reasonable investment-backed expectations,” leaving landowners without recourse against unreasonable regulations. Id., at 626. By the same measure, defining the parcel by reference to state law could defeat a challenge even to a state enactment that alters permitted uses of property in ways inconsistent with reasonable investment-backed expectations. For example, a State might enact a law that consolidates nonadjacent property owned by a single person or entity in different parts of the State and then imposes development limits on the aggregate set. If a court defined the parcel according to the state law requiring consolidation, this improperly would fortify the state law against a takings claim, because the court would look to the retained value in the property as a whole rather than considering whether individual holdings had lost all value. III A As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Cf. Lucas, 505 U. S., at 1035 (Kennedy, J., concurring) (“The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved”). First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law. The reasonable expectations of an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property. See Ballard v. Hunter, 204 U. S. 241, 262 (1907) (“Of what concerns or may concern their real estate men usually keep informed, and on that probability the law may frame its proceedings”). A valid takings claim will not evaporate just because a purchaser took title after the law was enacted. See Palazzolo, 533 U. S., at 627 (some “enactments are unreasonable and do not become less so through passage of time or title”). A reasonable restriction that predates a landowner’s acquisition, however, can be one of the objective factors that most landowners would reasonably consider in forming fair expectations about their property. See ibid. (“[A] prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned”). Ina similar manner, a use restriction which is triggeredonly after, or because of, a change in ownership should also guide a court’s assessment of reasonable private expectations. Second, courts must look to the physical characteristics of the landowner’s property. These include the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment. In particular, it may be relevant that the property is located in an area that is subject to, or likely to become subject to, environmental or other regulation. Cf. Lucas, supra, at 1035 (Kennedy, J., concurring) (“Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit”). Third, courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. Though a use restriction may decrease the market value of the property, the effect may be tempered if the regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty. A law that limits use of a landowner’s small lot in one part of the city by reason of the landowner’s nonadjacent holdings elsewhere may decrease the market value of the small lot in an unmitigated fashion. The absence of a special relationship between the holdings may counsel against consideration of all the holdings as a single parcel, making the restrictive law susceptible to a takings challenge. On the other hand, if the landowner’s other property is adjacent to the small lot, the market value of the properties may well increase if their combination enables the expansion of a structure, or if development restraints for one part of the parcel protect the unobstructed skyline views of another part. That, in turn, may counsel in favor of treatment as a single parcel and may reveal the weakness of a regulatory takings challenge to the law. State and federal courts have considerable experience in adjudicating regulatory takings claims that depart from these examples in various ways. The Court anticipates that in applying the test above they will continue to exercise care in this complex area. B The State of Wisconsin and petitioners each ask this Court to adopt a formalistic rule to guide the parcel inquiry. Neither proposal suffices to capture the central legal and factual principles that inform reasonable expectations about property interests. Wisconsin would tie the definition of the parcel to state law, considering the two lots here as a single whole due to their merger under the challenged regulations. That approach, as already noted, simply assumes the answer to the question: May the State define the relevant parcel in a way that permits it to escape its responsibility to justify regulation in light of legitimate property expectations? It is, of course, unquestionable that the law must recognize those legitimate expectations in order to give proper weight to the rights of owners and the right of the State to pass reasonable laws and regulations. See Palazzolo, supra, at 627. Wisconsin bases its position on a footnote in Lucas, which suggests the answer to the denominator question “may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property—i.e., whether and to what degree the State’s law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value.” 505 U. S., at 1017, n. 7. As an initial matter, Lucas referenced the parcel problem only in dicta, unnecessary to the announcement or application of the rule it established. See ibid. (“[W]e avoid th[e] difficulty” of determining the relevant parcel “in the present case”). In any event, the test the Court adopts today is consistent with the respect for state law described in Lucas. The test considers state law but in addition weighs whether the state enactments at issue accord with other indicia of reasonable expectations about property. Petitioners propose a different test that is also flawed. They urge the Court to adopt a presumption that lot lines define the relevant parcel in every instance, making Lot E the necessary denominator. Petitioners’ argument, however, ignores the fact that lot lines are themselves creatures of state law, which can be overridden by the State in the reasonable exercise of its power. In effect, petitioners ask this Court to credit the aspect of state law that favors their preferred result (lot lines) and ignore that which does not (merger provision). This approach contravenes the Court’s case law, which recognizes that reasonable land-use regulations do not work a taking. See Palazzolo, 533 U. S., at 627; Mahon, 260 U. S., at 413. Among other cases, Agins v. City of Tiburon, 447 U. S. 255 (1980) , demonstrates the validity of this proposition because it upheld zoning regulations as a legitimate exercise of the government’s police power. Of course, the Court’s later opinion in Lingle v. Chevron U. S. A. Inc. recognized that the test articulated in Agins—that regulation effects a taking if it “ ‘does not substantially advance legitimate state interests’ ”—was improper because it invited courts to engage in heightened review of the effectiveness of government regulation. 544 U. S. 528, 540 (2005) (quoting Agins, supra, at 260). Lingle made clear, however, that the holding of Agins survived, even if its test was “imprecis[e].” See 544 U. S., at 545–546, 548. The merger provision here is likewise a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago. See Brief for National Association of Counties et al. as Amici Curiae 5–10. Merger provisions often form part of a regulatory scheme that establishes a minimum lot size in order to preserve open space while still allowing orderly development. See E. McQuillin, Law of Municipal Corporations §25:24 (3d ed. 2010); see also Agins, supra, at 262 (challenged “zoning ordinances benefit[ed] the appellants as well as the public by serving the city’s interest in assuring careful and orderly development of residential property with provision for open-space areas”). When States or localities first set a minimum lot size, there often are existing lots that do not meet the new requirements, and so local governments will strive to reduce substandard lots in a gradual manner. The regulations here represent a classic way of doing this: by implementing a merger provision, which combines contiguous substandard lots under common ownership, alongside a grandfather clause, which preserves adjacent substandard lots that are in separate ownership. Also, as here, the harshness of a merger provision may be ameliorated by the availability of a variance from the local zoning authority for landowners in special circumstances. See 3 E. Ziegler, Rathkopf’s Law of Zoning and Planning §49:13 (39th ed. 2017). Petitioners’ insistence that lot lines define the relevant parcel ignores the well-settled reliance on the merger provision as a common means of balancing the legitimate goals of regulation with the reasonable expectations of landowners. Petitioners’ rule would frustrate municipalities’ ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today. See Brief for National Association of Counties et al. as Amici Curiae 12–31 (listing over 100 examples of merger provisions). Petitioners’ reliance on lot lines also is problematic for another reason. Lot lines have varying degrees of formality across the States, so it is difficult to make them a standard measure of the reasonable expectations of property owners. Indeed, in some jurisdictions, lot lines may be subject to informal adjustment by property owners, with minimal government oversight. See Brief for California et al. as Amici Curiae 17; 1 J. Kushner, Subdivision Law and Growth Management §5:8 (2d ed. 2017) (lot line adjustments that create no new parcels are often exempt from subdivision review); see, e.g., Cal. Govt. Code Ann. §66412(d) (West 2016) (permitting adjustment of lot lines subject to limited conditions for government approval). The ease of modifying lot lines also creates the risk of gamesmanship by landowners, who might seek to alter the lines in anticipation of regulation that seems likely to affect only part of their property. IV Under the appropriate multifactor standard, it follows that for purposes of determining whether a regulatory taking has occurred here, petitioners’ property should be evaluated as a single parcel consisting of Lots E and F together. First, the treatment of the property under state and local law indicates petitioners’ property should be treated as one when considering the effects of the restrictions. As the Wisconsin courts held, the state and local regulations merged Lots E and F. E.g., App. to Pet. for Cert. A–3, ¶6 (“The 1995 transfer of Lot E brought the lots under common ownership and resulted in a merger of the two lots under [the local ordinance]”). The decision to adopt the merger provision at issue here was for a specific and legitimate purpose, consistent with the widespread understanding that lot lines are not dominant or controlling in every case. See supra, at ___. Petitioners’ land was subject to this regulatory burden, moreover, only because of voluntary conduct in bringing the lots under common ownership after the regulations were enacted. As a result, the valid merger of the lots under state law informs the reasonable expectation they will be treated as a single property. Second, the physical characteristics of the property support its treatment as a unified parcel. The lots are contiguous along their longest edge. Their rough terrain and narrow shape make it reasonable to expect their range of potential uses might be limited. Cf. App. to Pet. for Cert. A–5, ¶8 (“[Petitioners] asserted Lot E could not be put to alternative uses like agriculture or commerce due to its size, location and steep terrain”). The land’s location along the river is also significant. Petitioners could have anticipated public regulation might affect their enjoyment of their property, as the Lower St. Croix was a regulated area under federal, state, and local law long before petitioners possessed the land. Third, the prospective value that Lot E brings to Lot F supports considering the two as one parcel for purposes of determining if there is a regulatory taking. Petitioners are prohibited from selling Lots E and F separately or from building separate residential structures on each. Yet this restriction is mitigated by the benefits of using the property as an integrated whole, allowing increased privacy and recreational space, plus the optimal location of any improvements. See Case No. 12–CV–258, App. to Pet. for Cert. B–9 (“They have an elevated level of privacy because they do not have close neighbors and are able to swim and play volleyball at the property”). The special relationship of the lots is further shown by their combined valuation. Were Lot E separately saleable but still subject to the development restriction, petitioners’ appraiser would value the property at only $40,000. We express no opinion on the validity of this figure. We also note the number is not particularly helpful for understanding petitioners’ retained value in the properties because Lot E, under the regulations, cannot be sold without Lot F. The point that is useful for these purposes is that the combined lots are valued at $698,300, which is far greater than the summed value of the separate regulated lots (Lot F with its cabin at $373,000, according to respondents’ appraiser, and Lot E as an undevelopable plot at $40,000, according to petitioners’ appraiser). The value added by the lots’ combination shows their complementarity and supports their treatment as one parcel. The State Court of Appeals was correct in analyzing petitioners’ property as a single unit. Petitioners allege that in doing so, the state court applied a categorical rule that all contiguous, commonly owned holdings must be combined for Takings Clause analysis. See Brief for Petitioners i (“[D]oes the ‘parcel as a whole’ concept . . . establish a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes”). This does not appear to be the case, however, for the precedent relied on by the Court of Appeals addressed multiple factors before treating contiguous properties as one parcel. See App. to Pet. for Cert. A–9–A–11, ¶¶17–19 (citing Zealy v. Waukesha, 201 Wis. 2d 365, 548 N. W. 2d 528); see id., at 378, 548 N. W. 2d, at 533 (considering the property as a whole because it was “part of a single purchase” and all 10.4 acres were undeveloped). The judgment below, furthermore, may be affirmed on any ground permitted by the law and record. See Thigpen v. Roberts, 468 U. S. 27, 30 (1984) . To the extent the state court treated the two lots as one parcel based on a bright-line rule, nothing in this opinion approves that methodology, as distinct from the result. Considering petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Petitioners have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property. See 505 U. S., at 1019. They can use the property for residential purposes, including an enhanced, larger residential improvement. See Palazzolo, 533 U. S., at 631 (“A regulation permitting a landowner to build a substantial residence . . . does not leave the property ‘economically idle’ ”). The property has not lost all economic value, as its value has decreased by less than 10 percent. See Lucas, supra, at 1019, n. 8 (suggesting that even a landowner with 95 percent loss may not recover). Petitioners furthermore have not suffered a taking under the more general test of Penn Central. See 438 U. S., at 124. The expert appraisal relied upon by the state courts refutes any claim that the economic impact of the regulation is severe. Petitioners cannot claim that they reasonably expected to sell or develop their lots separately given the regulations which predated their acquisition of both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land. * * * Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. See Arkansas Game and Fish Comm’n v. United States, 568 U. S. 23, 31 (2012) . Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. Courts must strive for consistency with the central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here. The judgment of the Wisconsin Court of Appeals is affirmed. It is so ordered. Justice Gorsuch 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 MURR et al. v. WISCONSIN et al. certiorari to the court of appeals of wisconsin No. 15–214. Argued March 20, 2017—Decided June 23, 2017 The St. Croix River, which forms part of the boundary between Wisconsin and Minnesota, is protected under federal, state, and local law. Petitioners own two adjacent lots—Lot E and Lot F—along the lower portion of the river in the town of Troy, Wisconsin. For the area where petitioners’ property is located, state and local regulations prevent the use or sale of adjacent lots under common ownership as separate building sites unless they have at least one acre of land suitable for development. A grandfather clause relaxes this restriction for substandard lots which were in separate ownership from adjacent lands on January 1, 1976, the regulation’s effective date. Petitioners’ parents purchased Lots E and F separately in the 1960’s, and maintained them under separate ownership until transferring Lot F to petitioners in 1994 and Lot E to petitioners in 1995. Both lots are over one acre in size, but because of their topography they each have less than one acre suitable for development. The unification of the lots under common ownership therefore implicated the rules barring their separate sale or development. Petitioners became interested in selling Lot E as part of an improvement plan for the lots, and sought variances from the St. Croix County Board of Adjustment. The Board denied the request, and the state courts affirmed in relevant part. In particular, the State Court of Appeals found that the local ordinance effectively merged the lots, so petitioners could only sell or build on the single combined lot. Petitioners filed suit, alleging that the regulations worked a regulatory taking that deprived them of all, or practically all, of the use of Lot E. The County Circuit Court granted summary judgment to the State, explaining that petitioners had other options to enjoy and use their property, including eliminating the cabin and building a new residence on either lot or across both. The court also found that petitioners had not been deprived of all economic value of their property, because the decrease in market value of the unified lots was less than 10 percent. The State Court of Appeals affirmed, holding that the takings analysis properly focused on Lots E and F together and that, using that framework, the merger regulations did not effect a taking. Held: The State Court of Appeals was correct to analyze petitioners’ property as a single unit in assessing the effect of the challenged governmental action. . (a) The Court’s Takings Clause jurisprudence informs the analysis of this issue. . (1) Regulatory takings jurisprudence recognizes that if a “regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 415. This area of the law is characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302 (citation and internal quotation marks omitted). The Court has, however, identified two guidelines relevant for determining when a government regulation constitutes a taking. First, “with certain qualifications . . . a regulation which ‘denies all economically beneficial or productive use of land’ will require compensation under the Takings Clause.” Palazzolo v. Rhode Island, 533 U. S. 606 (quoting Lucas v. South Carolina Coastal Council, 505 U. S. 1003 ). Second, a taking may be found based on “a complex of factors,” including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Palazzolo, supra, at 617 (citing Penn Central Transp. Co. v. New York City, 438 U. S. 104 ). Yet even the complete deprivation of use under Lucas will not require compensation if the challenged limitations “inhere . . . in the restrictions that background principles of the State’s law of property and nuisance already placed upon land ownership.” Lucas, 505 U. S., at 1029. A central dynamic of the Court’s regulatory takings jurisprudence thus is its flexibility. This is a means to reconcile two competing objectives central to regulatory takings doctrine: the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership, cf. id., at 1027, and the government’s power to “adjus[t] rights for the public good,” Andrus v. Allard, 444 U. S. 51 . . (2) This case presents a critical question in determining whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? The Court has not set forth specific guidance on how to identify the relevant parcel. However, it has declined to artificially limit the parcel to the portion of property targeted by the challenged regulation, and has cautioned against viewing property rights under the Takings Clause as coextensive with those under state law. . (b) Courts must consider a number of factors in determining the proper denominator of the takings inquiry. . (1) The inquiry is objective and should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel or as separate tracts. First, courts should give substantial weight to the property’s treatment, in particular how it is bounded or divided, under state and local law. Second, courts must look to the property’s physical characteristics, including the physical relationship of any distinguishable tracts, topography, and the surrounding human and ecological environment. Third, courts should assess the property’s value under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. . (2) The formalistic rules for which the State of Wisconsin and petitioners advocate do not capture the central legal and factual principles informing reasonable expectations about property interests. Wisconsin would tie the definition of the parcel to state law, but it is also necessary to weigh whether the state enactments at issue accord with other indicia of reasonable expectations about property. Petitioners urge the Court to adopt a presumption that lot lines control, but lot lines are creatures of state law, which can be overridden by the State in the reasonable exercise of its power to regulate land. The merger provision here is such a legitimate exercise of state power, as reflected by its consistency with a long history of merger regulations and with the many merger provisions that exist nationwide today. . (c) Under the appropriate multifactor standard, it follows that petitioners’ property should be evaluated as a single parcel consisting of Lots E and F together. First, as to the property’s treatment under state and local law, the valid merger of the lots under state law informs the reasonable expectation that the lots will be treated as a single property. Second, turning to the property’s physical characteristics, the lots are contiguous. Their terrain and shape make it reasonable to expect their range of potential uses might be limited; and petitioners could have anticipated regulation of the property due to its location along the river, which was regulated by federal, state, and local law long before they acquired the land. Third, Lot E brings prospective value to Lot F. The restriction on using the individual lots is mitigated by the benefits of using the property as an integrated whole, allowing increased privacy and recreational space, plus an optimal location for any improvements. This relationship is evident in the lots’ combined valuation. The Court of Appeals was thus correct to treat the contiguous properties as one parcel. Considering petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking. They have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property. See 505 U. S., at 1019. Nor have they suffered a taking under the more general test of Penn Central, supra, at 124. . 2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628, affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion. Gorsuch, J., took no part in the consideration or decision of the case.

Petitioners, two sisters and two brothers in the Murr family, received ownership of two lots the family used for recreation along the St. Croix River in Wisconsin. The lots are adjacent, but the parents purchased them separately, put the title of one in the name of the family business, and later arranged for transfer of the two lots, on different dates, to petitioners. The Wisconsin rules prevent the use of the lots as separate building sites unless they have at least one acre of land suitable for development. A grand-father clause, in effecting a merger of the property, permits the use for a single improvement to extend over both lots, and provides that adjacent lots under common ownership may not be sold or developed as separate lots if they do not meet the size requirement. The Wisconsin courts granted summary judgment to the State, and the Wisconsin Court of Appeals affirmed, holding that the regulations did not work a regulatory taking because petitioners retained options for the use and enjoyment of their property. Held: The regulatory taking of petitioners' real property did not result by some physical occupation, but instead by enacting burdensome regulations that forbid its improvement or separate sale because it is classified as substandard in size. . (a) The Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment, requires the payment of compensation whenever the government acquires private property for a public purpose, and does not address in specific terms the imposition of regulatory burdens on private property. However, the Court has stated two guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking: (1) with certain qualifications, a regulation that "denies all economically beneficial or productive use of land" will require compensation under the Takings Clause, and (2) when a regulation impedes such use, a taking still may be found based on a complex of factors, including (i) the economic impact of the regulation on the claimant, (ii) the extent to which the regulation has interfered with investment and investment expectations; and (iii) the physical characteristics of the property support its treatment as a unified parcel. Here, petitioners have not suffered a taking under Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (citation, brackets, and internal quotation marks omitted), as they have not lost all economic value, as their value has decreased by less than 10 percent. Moreover, the property was subject to regulatory burden only because of voluntary conduct by petitioners in bringing the lots into common ownership after the regulations were enacted, and not because the regulations predated their acquisition of both lots. Pp. 438 U.S. 255-255. (b) The State of Wisconsin and petitioners each ask this Court to adopt a formalistic rule to guide the parcel inquiry. Neither proposal suffices to capture the central legal and factual principles that inform reasonable expectations about property interests. First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law. The reasonable expectations of an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of property. Second, the properties must be treated as one when considering the effects of the restrictions. Third, courts must look to their physical characteristics to determine whether the property has been taken as a single parcel, and whether the regulation is subject to regulation as a legitimate exercise of the government. See, e.g., Lucas, supra, at 1015. Finally, a proper balancing of these principles requires a careful inquiry informed by the specifics of the case and by the practical considerations of the particular case. See Palazzolo v. Rhode Island,,. In any event, the test adopts today is consistent with the respect for state law described in Lucas. The test considers state law, but in addition weighs whether the state enactments at issue accord with other indicia of reasonable expectations. Petitioners propose a different test that is also flawed. The Court adopts a presumption that lot lines define the relevant parcel in every instance, making Lot E the necessary denominator. However, this approach ignores the fact that Lot lines are themselves creatures of state law and can be overridden by the State in the reasonable exercise of its power. This approach contravenes the Court's case law, which recognizes that reasonable land-use regulations do not work takings. And the expert appraisal relied upon by the state courts refutes any claim that the adverse impact of a regulation is severe. Also, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Both the property and its physical characteristics have been well-settled in their reliance on the merger provision as a common means of balancing the legitimate goals of regulation with the reasonable expectation of property owners. Although the precedent relied on by the Court addressed multiple factors before treating contiguous

2016_15-1251

https://www.oyez.org/cases/2016/15-1251

. Article II of the Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” §2, cl. 2. Given this provision, the responsibilities of an office requiring Presidential appointment and Senate confirmation—known as a “PAS” office—may go unperformed if a va-cancy arises and the President and Senate cannot promptly agree on a replacement. Congress has long accountedfor this reality by authorizing the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U. S. C. §3345 et seq., is the latest version of that authorization. Section 3345(a) of the FVRA authorizes three classes of Government officials to become acting officers. The general rule is that the first assistant to a vacant office shall become the acting officer. The President may override that default rule by directing either a person serving in a different PAS office or a senior employee within the relevant agency to become the acting officer instead. The FVRA, however, prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently. The question presented is whether that limitation applies only to first assistants who have automatically assumed acting duties, or whether it also applies to PAS officers and senior employees serving as acting officers at the President’s behest. We hold that it applies to all three categories of acting officers. I A The Senate’s advice and consent power is a critical “structural safeguard[ ] of the constitutional scheme.” Edmond v. United States, 520 U. S. 651, 659 (1997) . The Framers envisioned it as “an excellent check upon a spirit of favoritism in the President” and a guard against “the appointment of unfit characters . . . from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, p. 457 (C. Rossiter ed. 1961) (A. Hamilton). The constitutional process of Presidential appointment and Senate confirmation, however, can take time: The President may not promptly settle on a nominee to fill an office; the Senate may be unable, or unwilling, to speedily confirm the nominee once submitted. Yet neither may desire to see the duties of the vacant office go unperformed in the interim. Since President Washington’s first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval. The earliest statutes authorized the appointment of “any person or persons” to fill specific vacancies in the Departments of State, Treasury, and War. Act of May 8, 1792, ch. 37, §8, 1Stat. 281. Congress at first allowed acting officers to serve until the permanent officeholder could resume his duties or a successor was appointed, ibid., but soon imposed a six-month limit on acting service, Act of Feb. 13, 1795, ch. 21, 1Stat. 415. Congress revisited the issue in the 1860s, ultimately passing the Vacancies Act of 1868. The Vacancies Act expanded the number of PAS offices that the President could fill with acting officers. Act of July 23, 1868, ch. 227, 15Stat. 168; see also Act of Feb. 20, 1863, ch. 45, 12Stat. 656. With that expansion came new constraints. The authority to appoint “any person or persons” as an acting officer gave way to a default rule that the “first or sole assistant . . . shall” perform that function, with an exception allowing the President to instead fill the post with a person already serving in a PAS office. 15Stat. 168. And rather than six months of acting service, the Vacancies Act generally authorized only ten days. Ibid. That narrow window of acting service was later lengthened to 30 days. Act of Feb. 6, 1891, ch. 113, 26Stat. 733. During the 1970s and 1980s, interbranch conflict arose over the Vacancies Act. The Department of Justice took the position that, in many instances, the head of an executive agency had independent authority apart from the Vacancies Act to temporarily fill vacant offices. The Comptroller General disagreed, arguing that the Act was the exclusive authority for temporarily filling vacancies in executive agencies. See M. Rosenberg, Congressional Research Service Report for Congress, The New Vacancies Act: Congress Acts to Protect the Senate’s Confirmation Prerogative 2–4 (1998) (Rosenberg). Congress then amended the Vacancies Act to clarify that it applies to such agencies, while at the same time lengthening the term of permissible acting service to 120 days, with a tolling period while a nomination is pending. Id., at 3; see Presidential Transitions Effectiveness Act, §7, 102Stat. 988. But tensions did not ease. By 1998, approximately 20 percent of PAS offices in executive agencies were occupied by “temporary designees, most of whom had served beyond the 120-day limitation period . . . without presidential submissions of nominations.” Rosenberg 1. These acting officers filled high-level positions, sometimes in obvious contravention of the Senate’s wishes. One, for instance, was brought in from outside Government to serve as Acting Assistant Attorney General for the Civil Rights Division of the Justice Department, immediately after the Senate refused to confirm him for that very office. Ibid.; see M. Rosenberg, Congressional Research Service, Valid-ity of Designation of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights 1–3 (1998). Perceiving a threat to the Senate’s advice and consent power, see Rosen-berg 6, Congress acted again. In 1998, it replaced the Vacancies Act with the FVRA. Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant PAS office. Subsection (a)(1) prescribes a general rule: If a person serving in a PAS office dies, resigns, or is otherwise unable to perform his duties, the first assistant to that office “shall perform” the office’s “functions and duties . . . temporarily in an acting capacity.” The next two paragraphs of §3345(a) identify alternatives. Subsection (a)(2) provides that “notwithstanding paragraph (1),” the President “may direct a person” who already serves in a PAS office to “perform the functions and duties of the vacant office temporarily in an acting capacity.” Subsection (a)(3) adds that “notwithstanding paragraph (1),” the President “may direct” a person to perform acting duties if the person served in a senior position in the relevant agency for at least 90 days in the 365-day period preceding the vacancy.[1] Section 3345 also makes certain individuals ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the individual “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.” Subsection (b)(2) creates an exception to this prohibition, providing that “[p]aragraph (1) shall not apply to any person” serving in a first assistant position that itself requires the Senate’s advice and consent. Other sections of the FVRA establish time limits on acting service and penalties for noncompliance. In most cases, the statute permits acting service for “210 days beginning on the date the vacancy occurs”; tolls that time limit while a nomination is pending; and starts a new 210-day clock if the nomination is “rejected, withdrawn, or returned.” §§3346(a)–(b)(1). Upon a second nomination, the time limit tolls once more, and an acting officer can serve an additional 210 days if the second nomination proves unsuccessful. §3346(b)(2). The FVRA ensures compliance by providing that, in general, “any function or duty of a vacant office” performed by a person not properly serving under the statute “shall have no force or effect.” §3348(d). B The National Labor Relations Board (NLRB or Board) is charged with administering the National Labor Relations Act. By statute, its general counsel must be appointed by the President with the advice and consent of the Senate. 29 U. S. C. §153(d). In June 2010, the NLRB’s general counsel—who had been serving with Senate confirmation—resigned. The President directed Lafe Solomon to serve temporarily as the NLRB’s acting general counsel, citing the FVRA as the basis for the appointment. See Memorandum from President Barack Obama to L. Solomon (June 18, 2010). Solomon satisfied the requirements for acting service under subsection (a)(3) of the FVRA because he had spent the previous ten years in the senior position of Director of the NLRB’s Office of Representation Appeals. The President had bigger plans for Solomon than acting service. On January 5, 2011, he nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. The Senate had other ideas. That body did not act upon the nomination during the 112th Congress, so it was returned to the President when the legislative session expired. 159 Cong. Rec. S17 (Jan. 3, 2013). The President resubmitted Solomon’s name for consideration in the spring of 2013, id., at S3884 (May 23, 2013), but to no avail. The President ultimately withdrew Solomon’s nomination and put forward a new candidate, whom the Senate confirmed on October 29, 2013. Id., at S7635. Throughout this entire period, Solomon served as the NLRB’s acting general counsel. Solomon’s responsibilities included exercising “final authority” to issue complaints alleging unfair labor practices. 29 U. S. C. §§153(d), 160(b). In January 2013, an NLRB Regional Director, exercising authority on Solomon’s behalf, issued a complaint alleging that respondent SW General, Inc.—a company that provides ambulance services—had improperly failed to pay certain bonuses to long-term employees. An Administrative Law Judge concluded that SW General had committed unfair labor practices, and the NLRB agreed. 360 N. L. R. B. 109 (2014). SW General filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. It argued that the unfair labor practices complaint was invalid because, under subsection (b)(1) of the FVRA, Solomon could not legally perform the duties of general counsel after having been nominated to fill that position. The NLRB defended Solomon’s actions. It contended that subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who, like Solomon, serve under (a)(2) or (a)(3). The Court of Appeals granted SW General’s petition for review and vacated the Board’s order. It reasoned that “the text of subsection (b)(1) squarely supports” the conclusion that the provision’s restriction on nominees serving as acting officers “applies to all acting officers, no matter whether they serve pursuant to subsection (a)(1), (a)(2) or (a)(3).” 796 F. 3d 67, 78 (CADC 2015). As a result, Solomon became “ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel.” Id., at 72.[2] We granted certiorari, 579 U. S. ___ (2016), and now affirm. II Subsection (b)(1) of the FVRA prevents a person who has been nominated for a vacant PAS office from performing the duties of that office in an acting capacity. In full, it states: “(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if— (A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person— (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position of first assistant to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.” Subsection (b)(2) adds that “[p]aragraph (1) shall not apply” to a person serving in a first assistant position that itself requires the advice and consent of the Senate. We conclude that the prohibition in subsection (b)(1) applies to anyone performing acting service under the FVRA. It is not, as the Board contends, limited to first assistants performing acting service under subsection (a)(1). The text of the prohibition extends to any “person” who serves “as an acting officer . . . under this section,” not just to “first assistants” serving under subsection (a)(1). The phrase “[n]otwithstanding subsection (a)(1)” does not limit the reach of (b)(1), but instead clarifies that the prohibition applies even when it conflicts with the default rule that first assistants shall perform acting duties. A 1 Our analysis of subsection (b)(1) begins with its text. Subsection (b)(1) applies to any “person” and prohibits service “as an acting officer for an office under this section.” The key words are “person” and “section.” They clearly indicate that (b)(1) applies to all acting officers under §3345, regardless of the means of appointment. Start with “person.” The word has a naturally expansive meaning that can encompass anyone who performs acting duties under the FVRA. See Pfizer Inc. v. Government of India, 434 U. S. 308, 312 (1978) . Important as they may be, first assistants are not the only “person[s]” of the bunch. Now add “under this section.” The language clarifies that subsection (b)(1) applies to all persons serving under §3345. Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50 –61 (2004); L. Filson, The Legislative Drafter’s Desk Reference 222 (1992). Congress used that structure in the FVRA and relied on it to make precise cross-references. When Congress wanted to refer only to a particular subsection or paragraph, it said so. See, e.g., §3346(a)(2) (“subsection (b)”); §3346(b)(2) (“paragraph (1)”). But in (b)(1) Congress referred to the entire section—§3345—which subsumes all of the ways a person may become an acting officer. The rest of the FVRA uses the pairing of “person” and “section” the same way. Section 3346, for example, specifies how long “the person serving as an acting officer as described under section 3345 may serve in the office.” (Emphasis added.) And §3348(d)(1) describes the consequences of noncompliance with the FVRA by referring to the actions “taken by any person who is not acting under section 3345, 3346, or 3347.” (Emphasis added.) No one disputes that both provisions apply to anyone serving as an acting officer under the FVRA, not just first assistants serving under subsection (a)(1). Had Congress intended subsection (b)(1) to apply only to first assistants acting under (a)(1), it could easily have chosen clearer language. Replacing “person” with “first assistant” would have done the trick. So too would replacing “under this section” with “under subsection (a)(1).” “The fact that [Congress] did not adopt [either] readily available and apparent alternative strongly supports” the conclusion that subsection (b)(1) applies to any acting officer appointed under any provision within §3345. Knight v. Commissioner, 552 U. S. 181, 188 (2008) . The dependent clause at the beginning of subsection (b)(1)—“[n]otwithstanding subsection (a)(1)”—confirms that the prohibition on acting service applies even when it conflicts with the default rule that the first assistant shall perform acting duties. The ordinary meaning of “notwithstanding” is “in spite of,” or “without prevention or obstruction from or by.” Webster’s Third New International Dictionary 1545 (1986); Black’s Law Dictionary 1091 (7th ed. 1999) (“Despite; in spite of”). In statutes, the word “shows which provision prevails in the event of a clash.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 126–127 (2012). Subsection (a)(1) sets the rule that first assistants “shall perform” the vacant office’s “functions and duties . . . in an acting capacity.” But the “notwithstanding” clause in subsection (b)(1) means that, even if a first assistant is serving as an acting officer under this statutory mandate, he must cease that service if the President nominates him to fill the vacant PAS office. That subsection (b)(1) also applies to acting officers serving at the President’s behest is already clear from the broad text of the independent clause—they are all “person[s]” serving “under this section.” 2 The Board takes a different view of the phrase “[n]otwithstanding subsection (a)(1).” It begins by noting that §3345(a) uses three different subsections to “create three separate paths for becoming an acting official.” Reply Brief 2. The prohibition in subsection (b)(1), the Board continues, “applies ‘[n]otwithstanding’ only one of these subsections—‘subsection (a)(1).’ ” Ibid. In the Board’s view, singling out subsection (a)(1) carries a negative implication: that “Congress did not intend Subsection (b)(1) to override the alternative mechanisms for acting service in Subsections (a)(2) and (a)(3).” Id., at 3. We disagree. The Board relies on the “interpretive canon, expressio unius est exclusio alterius, ‘expressing one item of [an] associated group or series excludes another left unmentioned.’ ” Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002) (quoting United States v. Vonn, 535 U. S. 55, 65 (2002) ). If a sign at the entrance to a zoo says “come see the elephant, lion, hippo, and giraffe,” and a temporary sign is added saying “the giraffe is sick,” you would reasonably assume that the others are in good health. “The force of any negative implication, however, depends on context.” Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 9). The expressio unius canon applies only when “circumstances support[ ] a sensible inference that the term left out must have been meant to be excluded.” Echazabal, 536 U. S., at 81. A “notwithstanding” clause does not naturally give rise to such an inference; it just shows which of two or more provisions prevails in the event of a conflict. Such a clause confirms rather than constrains breadth. Singling out one potential conflict might suggest that Congress thought the conflict was particularly difficult to resolve, or was quite likely to arise. But doing so generally does not imply anything about other, unaddressed conflicts, much less that they should be resolved in the opposite manner. Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and ’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by British bands.” You would not tune in expecting to hear the 1970s British band “The Clash” any more than the 1960s “Beatles.” The station, after all, has announced that “we do not play music by British bands.” The “notwithstanding” clause just establishes that this applies even to music from the ’60s, when British bands were prominently featured on the charts. No one, however, would think the station singled out the ’60s to convey implicitly that its categorical statement “we do not play music by British bands” actually did not apply to the ’70s and ’80s. Drawing a negative inference from the “notwithstanding” clause in subsection (b)(1) is similarly inapt. Without that clause, subsection (b)(1) plainly would apply to all persons serving as acting officers under §3345(a). Adding “notwithstanding subsection (a)(1)” makes sense because (a)(1) conflicts with (b)(1) in a unique manner. The former is mandatory and self-executing: The first assistant “shall perform” acting duties. The latter, by contrast, speaks to who “may not” be an acting officer. So if a vacancy arises and the President nominates the first assistant to fill the position, (a)(1) says the first assistant “shall perform” the duties of that office in an acting capacity while the nomination is pending, and (b)(1) says he “may not.” The “notwithstanding” clause clarifies that the language of (a)(1) does not prevail if that conflict occurs. Compare the mandatory language of subsection (a)(1) to (a)(2) and (a)(3). People appointed under those provisions are just as much acting officers as first assistants who assume the role. But there is no freestanding directive that they perform acting duties; subsections (a)(2) and (a)(3) just say that the President “may direct” them to do so. The natural inference, then, is that Congress left these provisions out of the “notwithstanding” clause because they are different from subsection (a)(1), not to exempt from the broad prohibition in subsection (b)(1) those officers serving under (a)(2) and (a)(3). Indeed, “notwithstanding” is used the same way in other parts of §3345. Subsections (a)(2) and (a)(3) are each preceded by the phrase “notwithstanding paragraph (1).” The phrase recognizes that subsection (a)(1) is unique, and resolves the potential conflict between the mandatory “shall perform” in that provision and the permissive “may direct” in (a)(2) and (a)(3). But it implies nothing about other potential conflicts that may arise in the statutory scheme. In subsection (b)(1), it works the same way: The “notwithstanding” clause simply shows that (b)(1) overrides (a)(1), and nothing more. Step back from the Board’s focus on “notwithstanding” and another problem appears: Its interpretation of subsection (b)(1) makes a mess of (b)(2). Subsection (b)(2) specifies that (b)(1) “shall not apply to any person” if (A) that person “is serving as the first assistant”; (B) the first assistant position is itself a PAS office; and (C) “the Senate has approved the appointment of such person” to that office. The Board’s interpretation makes the first requirement superfluous, a result we typically try to avoid. Williams v. Taylor, 529 U. S. 362, 404 (2000) (“It is . . . a cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute.” (internal quotation marks omitted)). If subsection (b)(1) applied only to first assistants, there would be no need to state the requirement in (b)(2)(A) that “such person is serving as the first assistant.” The Board proposes that Congress did so for clarity, but the same could be said of most superfluous language. The Board and the dissent counter that applying the prohibition in subsection (b)(1) to anyone performing acting service under §3345(a) has its own problem: Doing so would also require applying it to §3345(c)(1), which “would nullify” that provision. Reply Brief 9. The dissent deems this “no way to read a statute.” Post, at 6. We agree, and it is not the way we read it. Under our reading, subsection (b)(1) has no effect on (c)(1). Subsection (b)(1) addresses nominations generally, prohibiting any person who has been nominated to fill any vacant office from performing that office’s duties in an acting capacity. Subsection (c)(1) speaks to a specific nomination scenario: When a person is “nominated by the President for reappointment for an additional term to the same office . . . without a break in service.” In this particular situation, the FVRA authorizes the nominee “to continue to serve in that office.” §3345(c). “[I]t is a commonplace of statutory construction that the specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U. S. 639, 645 (2012) . The general prohibition on acting service by nominees yields to the more specific authorization allowing officers up for reappointment to remain at their posts. Applying subsection (b)(1) to §3345(a) hardly compels a different result. The text of subsection (b)(1) is clear: Subject to one narrow exception, it prohibits anyone who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity, regardless of whether the acting officer was appointed under subsection (a)(1), (a)(2), or (a)(3). It is not limited to first assistants who automatically assume acting duties under (a)(1). B The Board contends that legislative history, purpose, and post-enactment practice uniformly show that subsection (b)(1) applies only to first assistants. The text is clear, so we need not consider this extra-textual evidence. See State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U. S. ___ (2016) (slip op., at 9). In any event, the Board’s evidence is not compelling. The Board argues that subsection (b)(1) was designed to serve a specific purpose: preventing the President from having his nominee serve as an acting officer by making him first assistant after (or right before) a vacancy arises. Brief for Petitioner 38. The original draft of the FVRA authorized first assistants and PAS officers to perform acting service. Subsection (b) of that draft provided that if a first assistant was nominated to fill the vacant office, he could not perform that office’s duties in an acting capacity unless he had been the first assistant for at least 180 days before the vacancy. Several Senators thought the FVRA too restrictive. They asked to add senior agency officials to the list of potential acting officers and to shorten the 180-day length-of-service requirement in subsection (b). Their requests, the Board says, were granted; the final version of the FVRA included subsection (a)(3) for senior employees and shortened the length-of-service requirement to 90 days. There was no intent to extend the pro-hibition in subsection (b) beyond first assistants. Id., at 45–46. The glitch in this argument is of course the text of subsection (b)(1). Congress did amend the statute to allow senior employees to become acting officers under subsection (a)(3). The only substantive change that was requested in (b) was to reduce the length-of-service requirement. Congress could have done that with a few tweaks to the original version of subsection (b). Instead, Congress went further: It also removed language that expressly limited subsection (b) to first assistants. And it added a provision—subsection (b)(2)—that makes sense only if (b)(1) applies to all acting officers. In short, Congress took a provision that explicitly applied only to first assistants and turned it into one that applies to all acting officers. The Board protests that Congress would not have expanded the prohibition on nominees serving as acting officers after Senators asked to give the President more flexibility. See Brief for Petitioner 45–46. That certain Senators made specific demands, however, does not mean that they got exactly what they wanted. Passing a law often requires compromise, where even the most firm public demands bend to competing interests. See Ragsdale v. Wolverine World Wide, Inc., 535 U. S. 81 –94 (2002). What Congress ultimately agrees on is the text that it enacts, not the preferences expressed by certain legislators. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998) (“[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”). Compromise is precisely what happened here: “[A] period of intense negotiations” took place after Senators demanded changes to the original draft of the FVRA, and the final bill was “a compromise measure.” Rosenberg 9. The legislation as passed did expand the pool of individuals the President could appoint as acting officers, by adding senior employees in subsection (a)(3). But it also expanded the scope of the limitation on acting service in (b)(1), by dropping the language making (b)(1) applicable only to first assistants. The Board contends that this compromise must not have happened because Senator Thompson, one of the sponsors of the FVRA, said that subsection (b)(1) “applies only when the acting officer is the first assistant, and not when the acting officer is designated by the President pursuant to §§3345(a)(2) or 3345(a)(3).” 144 Cong. Rec. 27496 (1998). But Senator Byrd—the very next speaker—offered a contradictory account: A nominee may not “serve as an acting officer” if “he is not the first assistant” or “has been the first assistant for less than 90 . . . days, and has not been confirmed for the position.” Id., at 27498. This is a good example of why floor statements by individual legislators rank among the least illuminating forms of legislative history. See Milner v. Department of Navy, 562 U. S. 562, 572 (2011) (“Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language.”). Finally, the Board supports its interpretation with post-enactment practice. It notes that the Office of Legal Counsel and the Government Accountability Office have issued guidance construing subsection (b)(1) to apply only to first assistants. And three Presidents have, without congressional objection, submitted the nominations of 112 individuals who were serving as acting officers under subsections (a)(2) and (a)(3). The Board contends that this “historical practice” is entitled to “significant weight” because the FVRA “concern[s] the allocation of power between two elected branches of Government.” Brief for Petitioner 49 (quoting NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014) (slip op., at 6–7); internal quotation marks omitted). “[H]istorical practice” is too grand a title for the Board’s evidence. The FVRA was not enacted until 1998, and the 112 nominations that the Board cites make up less than two percent of the thousands of nominations to positions in executive agencies that the Senate has considered in the years since its passage. Even the guidance documents the Board cites paid the matter little attention; both made conclusory statements about subsection (b)(1), with no analysis. In this context, Congress’s failure to speak up does not fairly imply that it has acquiesced in the Board’s interpretation. See Zuber v. Allen, 396 U. S. 168 , n. 21 (1969); Alexander v. Sandoval, 532 U. S. 275, 292 (2001) . The Senate may not have noticed that certain nominees were serving as acting officers in violation of the FVRA, or it may have chosen not to reject a qualified candidate just to make a point about compliance with the statute. Either is at least as plausible as the theory that the Legislature’s inaction reflects considered acceptance of the Executive’s practice. Our decision in Noel Canning—the chief opinion on which the Board relies—is a sharp contrast. That case dealt with the President’s constitutional authority under the Recess Appointments Clause, an issue that has attracted intense attention and written analysis from Presidents, Attorneys General, and the Senate. 573 U. S., at ___–___ (slip op., at 22–32). The voluminous historical record dated back to “the beginning of the Republic,” and included “thousands of intra-session recess appointments.” Id., at ___, ___ (slip op., at 8, 12). That the chronicle of the Recess Appointments Clause weighed heavily in Noel Canning offers no support to the Board here. III Applying the FVRA to this case is straightforward. Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him from continuing his acting service. This does not mean that the duties of general counsel to the NLRB needed to go unperformed; the President could have appointed another person to serve as the acting officer in Solomon’s place. And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of individuals in PAS positions throughout the Government. The President, however, did not do so, and Solomon’s continued service violated the FVRA. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. APPENDIX Section 3345 of the FVRA provides: “(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office— (1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346; (2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if— (A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule. (b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if— (A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person— (i) did not serve in the position of first assistant to the office of such officer; or (ii) served in the position of first assistant to the office of such officer for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office. (2) Paragraph (1) shall not apply to any person if— (A) such person is serving as the first assistant to the office of an officer described under subsection (a); (B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and (C) the Senate has approved the appointment of such person to such office. (c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die. (2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.”Notes 1 A senior position is one that has a rate of pay equal to or greater than the minimum rate “for a position at GS–15 of the General Schedule.” 5 U. S. C. §3345(a)(3)(B). 2 The FVRA exempts “the General Counsel of the National Labor Relations Board” from the general rule that actions taken in violation of the FVRA are void ab initio. 5 U. S. C. §3348(e)(1). The Court of Appeals “assume[d] that section 3348(e)(1) renders the actions of an improperly serving Acting General Counsel voidable” and rejected the Board’s argument against voiding Solomon’s actions. 796 F. 3d, at 79–82. The Board did not seek certiorari on this issue, so we do not con-sider it.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus NATIONAL LABOR RELATIONS BOARD v. SW GENERAL, INC., dba SOUTHWEST AMBULANCE certiorari to the united states court of appeals for the district of columbia circuit No. 15–1251. Argued November 7, 2016—Decided March 21, 2017 Article II of the Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” §2, cl. 2. Given this provision, the responsibilities of an office requiring Presidential appointment and Senate confirmation (PAS office) may go unperformed if a vacancy arises and the President and Senate cannot promptly agree on a replacement. Congress has accounted for this reality by giving the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval. The current version of that authorization is the Federal Vacancies Reform Act of 1998 (FVRA). Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant PAS office. Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead. Section 3345 also makes certain individuals ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.” The general counsel of the National Labor Relations Board (NLRB or the Board) is a PAS office. In June 2010, a vacancy arose in that office, and the President directed Lafe Solomon to serve as acting general counsel. Solomon qualified for acting service under subsection (a)(3) of the FVRA, because he was a senior employee at the NLRB. In January 2011, the President nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. The Senate never took action on the nomination, and the President ultimately withdrew Solomon’s name in favor of a new candidate, whom the Senate confirmed in October 2013. Throughout this entire period Solomon served as the acting general counsel to the NLRB. In January 2013, an NLRB Regional Director, exercising authority on Solomon’s behalf, issued an unfair labor practices complaint against respondent SW General, Inc. An Administrative Law Judge concluded that SW General had committed unfair labor practices, and the NLRB agreed. SW General sought review in the United States Court of Appeals for the District of Columbia Circuit, arguing that the complaint was invalid because, under subsection (b)(1) of the FVRA, Solomon could not perform the duties of general counsel to the NLRB after having been nominated to fill that position. The NLRB countered that subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who, like Solomon, serve under (a)(2) or (a)(3). The Court of Appeals vacated the Board’s order. It concluded that the prohibition on acting service by nominees contained in subsection (b)(1) applies to all acting officers, regardless of whether they serve pursuant to subsection (a)(1), (a)(2), or (a)(3). As a result, Solomon became ineligible to perform the duties of general counsel in an acting capacity once the President nominated him to fill that post. Held: 1. Subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity. The prohibition applies to anyone performing acting service under the FVRA. It is not limited to first assistants performing acting service under subsection (a)(1). . (a) The text of the FVRA requires this conclusion. . (1) Subsection (b)(1) applies to any “person” and prohibits service “as an acting officer for an office under this section.” “Person” has an expansive meaning that can encompass anyone who performs acting duties under the FVRA. See Pfizer Inc. v. Government of India, 434 U. S. 308 . And “under this section” clarifies that subsection (b)(1) applies to all of §3345: The FVRA contains cross-references to specific subsections and paragraphs. But subsection (b)(1) refers to §3345, which contains all of the ways a person may become an acting officer. The rest of the FVRA also uses the pairing of “person” and “section” to encompass anyone serving as an acting officer under the FVRA, and Congress could readily have used more specific language if it intended subsection (b)(1) to apply only to first assistants acting under (a)(1). The dependent clause at the beginning of subsection (b)(1)—“[n]otwithstanding subsection (a)(1)”—confirms the breadth of the prohibition on acting service by nominees. In statutes, “notwithstanding” clauses show that one provision prevails over another in the event of a conflict. Here, that means that subsection (b)(1) applies even when it conflicts with the default rule in (a)(1) that first assistants “shall perform” acting duties. . (2) The Board argues that, because the phrase “notwithstanding subsection (a)(1)” does not mention (a)(2) or (a)(3), Congress did not intend the prohibition in subsection (b)(1) to apply to people serving as acting officers under those provisions. The Board relies on the “interpretive canon, expressio unius est exclusio alterius, expressing one item of [an] associated group or series excludes another left unmentioned.” Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73 (internal quotation marks omitted). This interpretive canon applies, however, only when “circumstances support[ ] a sensible inference that the term left out must have been meant to be excluded.” Id., at 81. A “notwithstanding” clause does not naturally give rise to such an inference; it just shows which of two or more provisions prevails in the event of a conflict. Singling out one conflict generally does not suggest that other, unaddressed conflicts should be resolved in the opposite manner. Here, the conflict between (a)(1) and (b)(1) is unique: The former uses mandatory language—the first assistant “shall perform” acting duties—while the latter identifies who “may not” serve as an acting officer. The “notwithstanding” clause clarifies that the mandatory language in subsection (a)(1) does not prevail over subsection (b)(1) in the event of a conflict. Subsections (a)(2) and (a)(3) lack that mandatory language, so the natural inference is that Congress left these provisions out of the “notwithstanding” clause because they differ from subsection (a)(1), not to implicitly exempt them from the prohibition in subsection (b)(1). Moreover, subsection (b)(2) specifies that (b)(1) “shall not apply” to certain people who are “serving as the first assistant.” If (b)(1) applied only to first assistants, stating that limitation would be superfluous. . (b) Because the text is clear, the Board’s arguments about legislative history, purpose, and post-enactment practice need not be considered. In any event, its arguments are not compelling. The original draft of the FVRA contained a prohibition on nominees serving as acting officers, but explicitly limited that prohibition to first assistants. The Board argues that, when Congress revised this original draft, it made changes to give the President more flexibility to appoint acting officers and did not intend to broaden the prohibition on nominees performing acting service. The glitch in this argument is that Congress did change the prohibition on nominees performing acting service, revising it to clearly apply to all acting officers. The fact that certain Senators stated that they wanted to give the President more flexibility to appoint acting officials does not mean that they got exactly what they wanted. Nor does a statement by one of the sponsors of the FVRA—who said that subsection (b)(1) applies only to first assistants—overcome the clear text, particularly given that the very next Senator to speak offered a contradictory account of the provision. The Board also argues that, since the FVRA was enacted, Congress has not objected when Presidents have nominated individuals who were serving as acting officers under subsection (a)(2) or (a)(3), and that the Office of Legal Counsel and Government Accountability Office have issued guidance construing subsection (b)(1) to apply only to first assistants. Relying on NLRB v. Noel Canning, the Board contends that this “historical practice” is entitled to “significant weight.” 573 U. S. ___. “[H]istorical practice” is too grand a title for the Board’s evidence. The FVRA was not enacted until 1998, and the evidence the Board cites is not significant enough to warrant the conclusion that Congress’s failure to speak up implies that it has acquiesced in the view that subsection (b)(1) applies only to first assistants. By contrast, the Court’s decision in Noel Canning dealt with the President’s constitutional authority under the Recess Appointments Clause; an issue that had attracted intense attention from Presidents, Attorneys General, and the Senate dating back to the beginning of the Republic. . 2. Applying the FVRA to this case is straightforward. Subsection (b)(1) prohibited Solomon from continuing his service as acting general counsel once the President nominated him to fill the position permanently. The President could have appointed another person to serve as acting officer in Solomon’s place, but did not do so. P. 18. 796 F. 3d 67, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Section 3345(a) of the Federal Vacancies Reform Act of 1998 (FVRA) authorizes certain Government officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation. The section prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently. Other sections of the FVRA establish time limits on acting service and penalties for noncompliance. In most cases, the statute permits acting service for 210 days beginning on the date the vacancy occurs, tolls that time limit while a nomination is pending, and starts a new 210-day clock if the nomination is rejected, withdrawn, or returned. Upon a second nomination, the time limit tolls once more, and an acting officer can serve an additional 210 days if the second nomination proves unsuccessful. Section 3346(b)(1) provides that, "[n]otwithstanding subsection (a)(1), a person may not serve... for an office under this section, if (a) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person did not serve in the position of first assistant to the office of such officer; or (b)(2) shall not apply to any person" serving in a first assistant position that itself requires the Senate's advice and consent. Respondent, a company that provides ambulance services, filed an unfair labor practices complaint with the National Labor Relations Board (NLRB), claiming that the company had improperly failed to pay certain bonuses to long-term employees, and the NLRB agreed. NLRB also filed a petition for review in the Court of Appeals, which vacated the Board's order and vacated the order. Held: 1. The provision of § 3345 that prohibits a person who has been nominated by the President to fill any vacant office from performing the duties of that office in a acting capacity applies to anyone performing acting service under that provision. It is not, as the Board contends, limited to first assistants performing acting service under subsection (1). The text of the prohibition extends to any first assistant serving under that section, not just to the first assistants serving under subsection. . 2. The legislative history, purpose, and post-enactment practice of §3345(b) do not support the Board, which has long accountedfor the reality that the responsibilities of an office requiring Presidential appointment and Senate confirmation may go unperformed if a va-cancy arises and the President and Senate cannot promptly agree on a replacement. Congress often drafts statutes with hierarchical schemes, often using hierarchical schemes to make precise cross-references. What Congress ultimately agrees on is the text that it enacts, not the preferences expressed by certain legislators. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (CADC 2015). Moreover, the Board supports its interpretation of the provision of subsection (b) that applies only to first assistant, rather than first assistants, since it is clear that the provision applies to all persons serving under the statutory mandate. And the legislative history is not compelling, since the Board argues that the prohibition was designed to serve a specific purpose: preventing the President from having his nominee serve as an officer by making him first assistant after the President nominates him to fill a vacant office. Pp. 442 U.S. 651-607. 3. Section 3345 also applies to a specific nomination scenario: When a person is nominated for appointment for an additional term to the same office, the President, by and with the advice of the Senate, may not continue his acting service. Here, the president did not do so, and respondent became ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel. Accordingly, respondent became eligible for the appointment, but became ineligible because he did not perform the duties. 796 F. 3d 67, affirmed. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Part II of which STEWART and STEVENS, JJ. joined. POWELL filed an opinion concurring in part and dissenting in part, post, p.. REHFST,

2016_15-1256

https://www.oyez.org/cases/2016/15-1256

. When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process. I A Two cases are before us for review. Petitioner Shannon Nelson, in 2006, was convicted by a Colorado jury of five counts—two felonies and three misdemeanors—arising from the alleged sexual and physical abuse of her four children. 362 P. 3d 1070, 1071 (Colo. 2015); App. 25–26. The trial court imposed a prison sentence of 20 years to life and ordered Nelson to pay court costs, fees, and restitution totaling $8,192.50. 362 P. 3d, at 1071. On appeal, Nelson’s conviction was reversed for trial error. Ibid. On retrial, a new jury acquitted Nelson of all charges. Ibid. Petitioner Louis Alonzo Madden, in 2005, was convicted by a Colorado jury of attempting to patronize a prostituted child and attempted third-degree sexual assault by force. See 364 P. 3d 866, 867 (Colo. 2015). The trial court imposed an indeterminate prison sentence and ordered Madden to pay costs, fees, and restitution totaling $4,413.00. Ibid. The Colorado Supreme Court reversed one of Madden’s convictions on direct review, and a postconviction court vacated the other. Ibid. The State elected not to appeal or retry the case. Ibid. Between Nelson’s conviction and acquittal, the Colorado Department of Corrections withheld $702.10 from her inmate account, $287.50 of which went to costs and fees[1] and $414.60 to restitution. See 362 P. 3d, at 1071, and n. 1. Following Madden’s conviction, Madden paid Colorado $1,977.75, $1,220 of which went to costs and fees[2] and $757.75 to restitution. See 364 P. 3d, at 867. The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions.[3] Absent those convictions, Colorado would have no legal right to exact and retain petitioners’ funds. Their convictions invalidated, both petitioners moved for return of the amounts Colorado had taken from them. In Nelson’s case, the trial court denied the motion outright. 362 P. 3d, at 1071. In Madden’s case, the postconviction court allowed the refund of costs and fees, but not restitution. 364 P. 3d, at 867–868. The same Colorado Court of Appeals panel heard both cases and concluded that Nelson and Madden were entitled to seek refunds of all they had paid, including amounts allocated to restitution. See People v. Nelson, 369 P. 3d 625, 628–629 (2013); People v. Madden, 2013 WL 1760869, *1 (Apr. 25, 2013). Costs, fees, and restitution, the court held, must be “tied to a valid conviction,” 369 P. 3d, at 627–628, absent which a court must “retur[n] the defendant to the status quo ante,” 2013 WL 1760869, at *2. The Colorado Supreme Court reversed in both cases. A court must have statutory authority to issue a refund, that court stated. 362 P. 3d, at 1077; 364 P. 3d, at 868. Colorado’s Compensation for Certain Exonerated Persons statute (Exoneration Act or Act), Colo. Rev. Stat. §§13–65–101, 13–65–102, 13–65–103 (2016), passed in 2013, “provides the proper procedure for seeking a refund,” the court ruled. 362 P. 3d, at 1075, 1077. As no other statute addresses refunds, the court concluded that the Exoneration Act is the “exclusive process for exonerated defendants seeking a refund of costs, fees, and restitution.” Id., at 1078.[4] Because neither Nelson nor Madden had filed a claim under the Act, the court further determined, their trial courts lacked authority to order a refund. Id., at 1075, 1078; 364 P. 3d, at 867.[5] There was no due process problem, the court continued, because the Act “provides sufficient process for defendants to seek refunds of costs, fees, and restitution that they paid in connection with their conviction.” 362 P. 3d, at 1078. Justice Hood dissented in both cases. Because neither petitioner has been validly convicted, he explained, each must be presumed innocent. Id., at 1079 (Nelson); 364 P. 3d, at 870 (adopting his reasoning from Nelson in Madden). Due process therefore requires some mechanism “for the return of a defendant’s money,” Justice Hood maintained, 362 P. 3d, at 1080; as the Exoneration Act required petitioners to prove their innocence, the Act, he concluded, did not supply the remedy due process demands, id., at 1081. We granted certiorari. 579 U. S. ___ (2016). B The Exoneration Act provides a civil claim for relief “to compensate an innocent person who was wrongly con-victed.” 362 P. 3d, at 1075. Recovery under the Act is avail-able only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual innocence. See §13–65–102. To succeed on an Exoneration Act claim, a petitioner must show, by clear and convincing evidence, her actual innocence of the offense of conviction. §§13–65–101(1), 13–65–102(1). A successful petitioner may recoup, in addition to compensation for time served,[6] “any fine, penalty, court costs, or restitution . . . paid . . . as a result of his or her wrongful conviction.” Id., at 1075 (quoting §13–65–103(2)(e)(V)). Under Colorado’s legislation, as just recounted, a defendant must prove her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction. That scheme, we hold, does not comport with due process. Accordingly, we reverse the judgment of the Supreme Court of Colorado. II The familiar procedural due process inspection instructed by Mathews v. Eldridge, 424 U. S. 319 (1976) , governs these cases. Colorado argues that we should instead apply the standard from Medina v. California, 505 U. S. 437, 445 (1992) , and inquire whether Nelson and Madden were exposed to a procedure offensive to a fundamental principle of justice. Medina “provide[s] the appropriate framework for assessing the validity of state procedural rules” that “are part of the criminal process.” Id., at 443. Such rules concern, for example, the allocation of burdens of proof and the type of evidence qualifying as admissible.[7] These cases, in contrast, concern the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution. See Kaley v. United States, 571 U. S. ___, ___, n. 4 (2014) (Roberts, C. J., dissenting) (slip op., at 10–11, n. 4) (explaining the different offices of Mathews and Medina). Because no further criminal process is implicated, Mathews “provides the relevant inquiry.” 571 U. S., at ___ (slip op., at 11, n. 4). III Under the Mathews balancing test, a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake. 424 U. S., at 335. All three considerations weigh decisively against Colorado’s scheme. A Nelson and Madden have an obvious interest in regaining the money they paid to Colorado. Colorado urges, however, that the funds belong to the State because Nelson’s and Madden’s convictions were in place when the funds were taken. Tr. of Oral Arg. 29–31. But once those convictions were erased, the presumption of their innocence was restored. See, e.g., Johnson v. Mississippi, 486 U. S. 578, 585 (1988) (After a “conviction has been reversed, unless and until [the defendant] should be retried, he must be presumed innocent of that charge.”).[8] “[A]xiomatic and elementary,” the presumption of innocence “lies at the foundation of our criminal law.” Coffin v. United States, 156 U. S. 432, 453 (1895) .[9] Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, see supra, at 2–3, and n. 3, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.[10] That petitioners prevailed on subsequent review rather than in the first instance, moreover, should be inconsequential. Suppose a trial judge grants a motion to set aside a guilty verdict for want of sufficient evidence. In that event, the defendant pays no costs, fees, or restitution. Now suppose the trial court enters judgment on a guilty verdict, ordering cost, fee, and restitution payments by reason of the conviction, but the appeals court upsets the conviction for evidentiary insufficiency. By what right does the State retain the amount paid out by the defendant? “[I]t should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.” Burks v. United States, 437 U. S. 1, 11 (1978) . The vulnerability of the State’s argument that it can keep the amounts exacted so long as it prevailed in the court of first instance is more apparent still if we assume a case in which the sole penalty is a fine. On Colorado’s reasoning, an appeal would leave the defendant emptyhanded; regardless of the outcome of an appeal, the State would have no refund obligation. See Tr. of Oral Arg. 41, 44.[11] B Is there a risk of erroneous deprivation of defendants’ interest in return of their funds if, as Colorado urges, the Exoneration Act is the exclusive remedy? Indeed yes, for the Act conditions refund on defendants’ proof of innocence by clear and convincing evidence. §13–65–101(1)(a). But to get their money back, defendants should not be saddled with any proof burden. Instead, as explained supra, at 6–7, they are entitled to be presumed innocent. Furthermore, as Justice Hood noted in dissent, the Act provides no remedy at all for any assessments tied to invalid misdemeanor convictions (Nelson had three). 362 P. 3d, at 1081, n. 1; see §13–65–102(1)(a). And when amounts a defendant seeks to recoup are not large, as is true in Nelson’s and Madden’s cases, see supra, at 2, the cost of mounting a claim under the Exoneration Act and retaining a lawyer to pursue it would be prohibitive.[12] Colorado argued on brief that if the Exoneration Act provides sufficient process to compensate a defendant for the loss of her liberty, the Act should also suffice “when a defendant seeks compensation for the less significant deprivation of monetary assessments paid pursuant to a conviction that is later overturned.” Brief for Respondent 40. The comparison is inapt. Nelson and Madden seek restoration of funds they paid to the State, not compensation for temporary deprivation of those funds. Petitioners seek only their money back, not interest on those funds for the period the funds were in the State’s custody. Just as the restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction. Colorado also suggests that “numerous pre- and post-deprivation procedures”—including the need for probable cause to support criminal charges, the jury-trial right, and the State’s burden to prove guilt beyond a reasonable doubt—adequately minimize the risk of erroneous deprivation of property. Id., at 31; see id., at 31–35. But Colorado misperceives the risk at issue. The risk here involved is not the risk of wrongful or invalid conviction any criminal defendant may face. It is, instead, the risk faced by a defendant whose conviction has already been overturned that she will not recover funds taken from her solely on the basis of a conviction no longer valid. None of the above-stated procedures addresses that risk, and, as just explained, the Exoneration Act is not an adequate rem-edy for the property deprivation Nelson and Madden experienced.[13] C Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right. “Equitable [c]onsiderations,” Colorado suggests, may bear on whether a State may withhold funds from criminal defendants after their convictionsare overturned. Brief for Respondent 20–22. Colorado, however, has identified no such consideration relevantto petitioners’ cases, nor has the State indicated anyway in which the Exoneration Act embodies “equitable considerations.” IV Colorado’s scheme fails due process measurement because defendants’ interest in regaining their funds is high, the risk of erroneous deprivation of those funds under the Exoneration Act is unacceptable, and the State has shown no countervailing interests in retaining the amounts in question. To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated. * * * The judgments of the Colorado Supreme Court are reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of these cases.Notes 1 Of the $287.50 for costs and fees, $125 went to the victim compensation fund and $162.50 to the victims and witnesses assistance and law enforcement fund (VAST fund). See 362 P. 3d 1070, 1071, n. 1 (Colo. 2015). 2 Of the $1,220 for costs and fees, $125 went to the victim compensation fund and $1,095 to the VAST fund ($1,000 of which was for the special advocate surcharge). See App. 79; 364 P. 3d 866, 869 (Colo. 2015). 3 See Colo. Rev. Stat. §24–4.1–119(1)(a) (2005) (levying victim-compensation-fund fees for “each criminal action resulting in a conviction or in a deferred judgment and sentence”); §24–4.2–104(1)(a)(1)(I) (2005) (same, for VAST fund fees); §24–4.2–104(1)(a)(1)(II) (same, for special advocate surcharge); §18–1.3–603(1) (2005) (with one exception, “[e]very order of conviction . . . shall include consideration of restitution”). See also 362 P. 3d, at 1073 (“[T]he State pays the cost of criminal cases when a defendant is acquitted.” (citing Colo. Rev. Stat. §16–18–101(1) (2015))). Under Colorado law, a restitution order tied to a criminal conviction is rendered as a separate civil judgment. See §18–1.3–603(4)(a) (2005). If the conviction is reversed, any restitution order dependent on that conviction is simultaneously vacated. See People v. Scearce, 87 P. 3d 228, 234–235 (Colo. App. 2003). 4 While these cases were pending in this Court, Colorado passed new legislation to provide “[r]eimbursement of amounts paid following a vacated conviction.” See Colo. House Bill 17–1071 (quoting language for Colo. Rev. Stat. §18–1.3–703, the new provision). That legislation takes effect September 1, 2017, and has no effect on the cases before us. 5 Prior to the Exoneration Act, the Colorado Supreme Court recognized the competence of courts, upon reversal of a conviction, to order the refund of monetary exactions imposed on a defendant solely by reason of the conviction. Toland v. Strohl, 147 Colo. 577, 586, 364 P. 2d 588, 593 (1961). 6 Compensation under the Exoneration Act includes $70,000 per year of incarceration for the wrongful conviction; additional sums per year served while the defendant is under a sentence of death, or placed on parole or probation or on a sex offender registry; compensation for child support payments due during incarceration; tuition waivers at state institutions of higher education for the exonerated person and for any children conceived or legally adopted before the incarceration; and reasonable attorney’s fees for bringing an Exoneration Act claim. §13–65–103(2), (3) (2016). 7 See Cooper v. Oklahoma, 517 U. S. 348 –362 (1996) (standard of proof to establish incompetence to stand trial); Dowling v. United States, 493 U. S. 342 –344, 352 (1990) (admissibility of testimony about a prior crime of which the defendant was acquitted); Patterson v. New York, 432 U. S. 197 –202 (1977) (burden of proving affirmative defense); Medina v. California, 505 U. S. 437 –446, 457 (1992) (burden of proving incompetence to stand trial). 8 Citing Bell v. Wolfish, 441 U. S. 520 (1979) , Colorado asserts that “[t]he presumption of innocence applies only at criminal trials” and thus has no application here. Brief for Respondent 40, n. 19. Colorado misapprehends Wolfish. Our opinion in that case recognized that “under the Due Process Clause,” a detainee who “has not been adjudged guilty of any crime” may not be punished. 441 U. S., at 535–536; see id., at 535–540. Wolfish held only that the presumption does not prevent the government from “detain[ing a defendant] to ensure his presence at trial . . . so long as [the] conditions and restrictions [of his detention] do not amount to punishment, or otherwise violate the Constitution.” Id., at 536–537. 9 Were Medina applicable, Colorado’s Exoneration Act scheme would similarly fail due process measurement. Under Medina, a criminal procedure violates due process if “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 505 U. S., at 445 (quoting Patterson, 432 U. S., at 202). The presumption of innocence unquestionably fits that bill. 10 Colorado invites a distinction between convictions merely “void-able,” rather than “void,” and urges that the invalidated convictions here fall in the voidable category. See Brief for Respondent 32–33, and n. 11. As Justice Hood noted in dissent, however, “reversal is reversal,” regardless of the reason, “[a]nd an invalid conviction is no conviction at all.” 362 P. 3d, at 1080. 11 The dissent echoes Colorado’s argument. If Nelson and Madden prevailed at trial, the dissent agrees, no costs, fees, or restitution could be exacted. See post, at 6. But if they prevailed on appellate inspection, the State gets to keep their money. See ibid. Under Colorado law, as the dissent reads the Colorado Supreme Court’s opinion, “moneys lawfully exacted pursuant to a valid conviction become public funds (or[, in the case of restitution,] the victims’ money).” Post, at 3–4. Shut from the dissent’s sights, however, the convictions pursuant to which the State took petitioners’ money were invalid, hence the State had no legal right to retain their money. Given the invalidity of the convictions, does the Exoneration Act afford sufficient process to enable the State to retain the money? Surely, it does not. 12 A successful petitioner under the Exoneration Act can recover reasonable attorney’s fees, §13–65–103(2)(e)(IV), but neither a defendant nor counsel is likely to assume the risk of loss when amounts to be gained are not worth the candle. 13 Colorado additionally argues that defendants can request a stay of sentence pending appeal, thereby reducing the risk of erroneous deprivation. See Brief for Respondent 32; §§16–12–103, 18–1.3–702(1)(a) (2016). But the State acknowledged at oral argument that few defendants can meet the requirements a stay pending appeal entails. Tr. of Oral Arg. 33–34. And even when a stay is available, a trial court “may require the defendant to deposit the whole or any part of the . . . costs.” Colo. App. Rule 8.1(a)(3) (2016).

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 NELSON v. COLORADO certiorari to the colorado supreme court No. 15–1256. Argued January 9, 2017—Decided April 19, 2017[1] Petitioner Shannon Nelson was convicted by a Colorado jury of two felonies and three misdemeanors arising from the alleged sexual and physical abuse of her four children. The trial court imposed a prison term of 20 years to life and ordered her to pay $8,192.50 in court costs, fees, and restitution. On appeal, Nelson’s conviction was reversed for trial error, and on retrial, she was acquitted of all charges. Petitioner Louis Alonzo Madden was convicted by a Colorado jury of attempting to patronize a prostituted child and attempted sexual assault. The trial court imposed an indeterminate prison sentence and ordered him to pay $4,413.00 in costs, fees, and restitution. After one of Madden’s convictions was reversed on direct review and the other vacated on postconviction review, the State elected not to appeal or retry the case. The Colorado Department of Corrections withheld $702.10 from Nelson’s inmate account between her conviction and acquittal, and Madden paid the State $1,977.75 after his conviction. In both cases, the funds were allocated to costs, fees, and restitution. Once their convictions were invalidated, both petitioners moved for return of the funds. Nelson’s trial court denied her motion outright, and Madden’s postconviction court allowed a refund of costs and fees, but not restitution. The Colorado Court of Appeals concluded that both petitioners were entitled to seek refunds of all they had paid, but the Colorado Supreme Court reversed. It reasoned that Colorado’s Compensation for Certain Exonerated Persons statute (Exoneration Act or Act), Colo. Rev. Stat. §§13–65–101, 13–65–102, 13–65–103, provided the exclusive authority for refunds and that, because neither Nelson nor Madden had filed a claim under that Act, the courts lacked authority to order refunds. The Colorado Supreme Court also held that there was no due process problem under the Act, which permits Colorado to retain conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. Held: The Exoneration Act’s scheme does not comport with the Fourteenth Amendment’s guarantee of due process. . (a) The procedural due process inspection required by Mathews v. Eldridge, 424 U. S. 319 , governs these cases. Medina v. California, 505 U. S. 437 , controls when state procedural rules that are part of the criminal process are at issue. These cases, in contrast, concern the continuing deprivation of property after a conviction has been reversed or vacated, with no prospect of reprosecution. . (b) The three considerations balanced under Mathews—the private interest affected; the risk of erroneous deprivation of that interest through the procedures used; and the governmental interest at stake—weigh decisively against Colorado’s scheme. . (1) Nelson and Madden have an obvious interest in regaining the money they paid to Colorado. The State may not retain these funds simply because Nelson’s and Madden’s convictions were in place when the funds were taken, for once those convictions were erased, the presumption of innocence was restored. See, e.g., Johnson v. Mississippi, 486 U. S. 578 . And Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions. . (2) Colorado’s scheme creates an unacceptable risk of the erroneous deprivation of defendants’ property. The Exoneration Act conditions refund on defendants’ proof of innocence by clear and convincing evidence, but defendants in petitioners’ position are presumed innocent. Moreover, the Act provides no remedy for assessments tied to invalid misdemeanor convictions. And when, as here, the recoupment amount sought is not large, the cost of mounting a claim under the Act and retaining counsel to pursue it would be prohibitive. Colorado argues that an Act that provides sufficient process to compensate a defendant for the loss of her liberty must suffice to compensate a defendant for the lesser deprivation of money. But Nelson and Madden seek the return of their property, not compensation for its temporary deprivation. Just as restoration of liberty on reversal of a conviction is not compensation, neither is the return of money taken by the State on account of the conviction. Other procedures cited by Colorado—the need for probable cause to support criminal charges, the jury-trial right, and the State’s burden to prove guilt beyond a reasonable doubt—do not address the risk faced by a defendant whose conviction has been overturned that she will not recover funds taken from her based solely on a conviction no longer valid. . (3) Colorado has no interest in withholding from Nelson and Madden money to which the State currently has zero claim of right. The State has identified no equitable considerations favoring its position, nor indicated any way in which the Exoneration Act embodies such considerations. P. 10. 362 P. 3d 1070 (first judgment) and 364 P. 3d 866 (second judgment), reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion. Gorsuch, J., took no part in the consideration or decision of the cases.Notes 1 Together with Madden v. Colorado, also on certiorari to the same court (see this Court’s Rule 12.4).

Petitioner Nelson and petitioner Madden were convicted by a Colorado jury of various felonies and misdemeanors stemming from the alleged sexual and physical abuse of their four children. The trial court imposed an indeterminate prison sentence and ordered Madden to pay court costs, fees, and restitution. The sole legal basis for these assessments was the fact of Nelson and Madden convictions. Absent those convictions, Colorado would have no legal right to exact and retain petitioners' funds. Both petitioners moved for return of the amounts Colorado had taken from them, but the trial court denied the motion outright. The postconviction court allowed the refund of costs and fees, but not restitution. The same Colorado Court of Appeals panel heard both cases and concluded that Nelson andadden were entitled to seek refunds of all they had paid, including amounts allocated to restitution. Held: The judgment is reversed, and the cases are remanded. ;;. 362 P. 3d 1070, 1071, and 364 P.3d 866, reversed. Justice Hood, who took no part in the consideration or decision of these cases, concluded that: 1. Under Colorado law, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. Mathews v. Eldridge, 424 U. S. 319, governs these cases. . (a) Under the Mathews balancing test, a court evaluates (1) the private interest affected; (2) the risk of erroneous deprivation of that interest through the procedures used; and (3) the governmental interest at stake. Here, the risk faced by a defendant whose conviction has already been overturned that she will not recover funds taken from her solely on the basis of a conviction no longer valid. None of the above-stated procedures addresses this risk, and, as just explained, the Exoneration Act does not afford sufficient process to enable the State to retain the money. P.. (b) The risk here involved is not that of wrongful or invalid conviction any criminal defendant may face, but instead that of a defendant with a conviction already invalid. That petitioners prevailed on subsequent review rather than in the first instance should be inconsequential. Suppose a trial judge grants a motion to set aside a guilty verdict for want of sufficient evidence. In that event, the defendant pays no costs or fees, or restitution, but, under state law, a restitution order tied to a criminal conviction is rendered as a separate civil judgment. If the conviction is reversed and any restitution order dependent on that conviction is simultaneously vacated, the costs of mounting a claim and retaining a lawyer to pursue it would be prohibitive. Moreover, the Act provides no remedy at all for any assessments tied to invalid misdemeanor convictions, and when amounts a defendant seeks to recoup are not large, the cost of mounting such a claim is prohibitive, nor is the return of money taken by the State on account of the conviction. Colorado also suggests numerous pre- and post-deprivation procedures that, although adequate, do not address this risk. While these cases were pending in this Court, Colorado passed new legislation to provide disbursement of amounts paid following a vacated conviction, which takes effect September 1, 2017, and has no effect on the cases before this Court. However, before the new legislation was enacted, the Supreme Court recognized the competence of courts to refund monetary exactions imposed on a defendant solely by reason of that conviction, recognizing that the allocation of burdens of proof and the type of evidence qualifying as admissible are part of the criminal process, and recognizing that, once convictions were taken in place when the funds were in place, the presumption of innocence has been restored, and that the State may not be punished for misapprehending and adjudged guilty of a crime solely because of an invalid conviction, a criminal procedure violates due process if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. See, e.g., Johnson v. Mississippi,,. Furthermore, Colorado invites a distinction between convictions merely "void-able,� rather than void, and urges that the invalidated convictions here fall in the voidable category. Petitioners seek restoration of funds paid to the State, not compensation for temporary deprivation of those funds, and petitioners seek only their money back, not interest on those funds for the period the fund was in the State's custody. And Colorado has no interest in withholding from them money to which the State currently has a right of claim, since Colorado has identified no relevant cases in which petitioners may bear the burden of regaining the funds after their convictions have been overturned, and since, in fact, Colorado has not identified any relevant factors in regaining those funds after the convictions had been overturned.. 2. The State has no relevant interest in retaining petitioners and retaining their funds because of their erroneous deprivation

2016_15-1194

https://www.oyez.org/cases/2016/15-1194

. In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to theStates under the Due Process Clause of the Fourteenth Amendment. I A North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e) (2015). A “commercial social networking Web site” is defined as a website that meets four criteria. First, it “[i]s operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.” §14–202.5(b). Second, it “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.” Ibid. Third, it “[a]llows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.” Ibid. And fourth, it “[p]rovides users or visitors . . . mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.” Ibid. The statute includes two express exemptions. The statutory bar does not extend to websites that “[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform.” §14–202.5(c)(1). The law also does not encompass websites that have as their “primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.” §14–202.5(c)(2). According to sources cited to the Court, §14–202.5 applies to about 20,000 people in North Carolina and the State has prosecuted over 1,000 people for violating it. Brief for Petitioner 6–8. B In 2002, petitioner Lester Gerard Packingham—then a 21-year-old college student—had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child. Because this crime qualifies as “an offense against a minor,” petitioner was required to register as a sex offender—a status that can endure for 30 years or more. See §14–208.6A; see §14–208.7(a). As a registered sex offender, petitioner was barred under §14–202.5 from gaining access to commercial social networking sites. In 2010, a state court dismissed a traffic ticket against petitioner. In response, he logged on to Facebook.com and posted the following statement on his personal profile: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!” App. 136. At the time, a member of the Durham Police Department was investigating registered sex offenders who were thought to be violating §14–202.5. The officer noticed that a “ ‘J. R. Gerrard’ ” had posted the statement quoted above. 368 N. C. 380, 381, 777 S. E. 2d 738, 742 (2015). By checking court records, the officer discovered that a traffic citation for petitioner had been dismissed around the time of the post. Evidence obtained by search warrant confirmed the officer’s suspicions that petitioner was J. R. Gerrard. Petitioner was indicted by a grand jury for violating §14–202.5. The trial court denied his motion to dismiss the indictment on the grounds that the charge against him violated the First Amendment. Petitioner was ultimately convicted and given a suspended prison sentence. At no point during trial or sentencing did the State allege that petitioner contacted a minor—or committed any other illicit act—on the Internet. Petitioner appealed to the Court of Appeals of North Carolina. That court struck down §14–202.5 on First Amendment grounds, explaining that the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse. 229 N. C. App. 293, 304, 748 S. E. 2d 146, 154 (2013). Rather, the law “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.” Ibid. The North Carolina Supreme Court reversed, concluding that the law is “constitutional in all respects.” 368 N. C., at 381, 777 S. E. 2d, at 741. Among other things, the court explained that the law is “carefully tailored . . . to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors.” Id., at 389, 777 S. E. 2d, at 747. The court also held that the law leaves open adequate alternative means of communication because it permits petitioner to gain access to websites that the court believed perform the “same or similar” functions as social media, such as the Paula Deen Network and the website for the local NBC affiliate. Id., at 390, 777 S. E. 2d, at 747. Two justices dissented. They stated that the law impermissibly “creates a criminal prohibition of alarming breadth and extends well beyond the evils the State seeks to combat.” Id., at 401, 777 S. E. 2d, at 754 (opinion of Hudson, J.) (alteration, citation, and internal quotation marks omitted). The Court granted certiorari, 580 U. S. ___ (2016), and now reverses. II A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989) . Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire. While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997) , and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America. Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” Reno, supra, at 870 (internal quotation marks omitted). The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. Cf. D. Hawke, Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting Rush as observing: “ ‘The American war is over; but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great drama is closed’ ”). So too here. While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow. This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. III This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” McCullen v. Coakley, 573 U. S. ___, ___ (2014) (slip op., at 18) (internal quotation marks omitted). In other words, the law must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Id., at ___ (slip op., at 19) (internal quotation marks omitted). For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. The railroad is one example, see M. Crichton, The Great Train Robbery, p. xv (1975), and the telephone another, see 18 U. S. C. §1343. So it will be with the Internet and social media. There is also no doubt that, as this Court has recognized, “[t]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244 (2002) . And it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, 458 U. S. 747, 757 (1982) . The government, of course, need not simply stand by and allow these evils to occur. But the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U. S. 557, 563 (1969) . It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websitesas varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6–9; see also Brief for Electronic Frontier Foundation 24–27; Brief for Cato Institute et al. as Amici Curiae 10–12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”—that is, websites like Facebook, LinkedIn, and Twitter. See Brief for Respondent 54; Tr. of Oral Arg. 27. Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission. See Brandenburg v. Ohio, 395 U. S. 444 –449 (1969) ( per curiam). Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor. Cf. Brief for Respondent 42–43. Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict. (Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.) Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. Supra, at 5. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U. S., at 870. In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. IV The primary response from the State is that the law must be this broad to serve its preventative purpose of keeping convicted sex offenders away from vulnerable victims. The State has not, however, met its burden to show that this sweeping law is necessary or legitimate to serve that purpose. See McCullen, 573 U. S., at ___ (slip op., at 28). It is instructive that no case or holding of this Court has approved of a statute as broad in its reach. The closest analogy that the State has cited is Burson v. Freeman, 504 U. S. 191 (1992) . There, the Court upheld a prohibition on campaigning within 100 feet of a polling place. That case gives little or no support to the State. The law in Burson was a limited restriction that, in a context consistent with constitutional tradition, was enacted to protect another fundamental right—the right to vote. The restrictions there were far less onerous than those the State seeks to impose here. The law in Burson meant only that the last few seconds before voters entered a polling place were “their own, as free from interference as possible.” Id., at 210. And the Court noted that, were the buffer zone larger than 100 feet, it “could effectively become an impermissible burden” under the First Amendment. Ibid. The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987) , where the Court struck down an ordinance prohibiting any “ First Amendment activities” at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including “talking and reading, or the wearing of campaign buttons or symbolic clothing,” id., at 571, 575. If a law prohibiting “all protected expression” at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture. * * * It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, 535 U. S., at 255. That is what North Carolina has done here. Its law must be held invalid. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch 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 PACKINGHAM v. NORTH CAROLINA certiorari to the supreme court of north carolina No. 15–1194. Argued February 27, 2017—Decided June 19, 2017 North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e). According to sources cited to the Court, the State has prosecuted over 1,000 people for violating this law, including petitioner, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the indictment on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down §14–202.5 on First Amendment grounds, but the State Supreme Court reversed. Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. . (a) A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds,” Reno v. American Civil Liberties Union, 521 U. S. 844 , to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. . (b) This background informs the analysis of the statute at issue. Even assuming that the statute is content neutral and thus subject to intermediate scrutiny, the provision is not “ ‘ “narrowly tailored to serve a significant governmental interest.” ’ ” McCullen v. Coakley, 573 U. S. ___, ___. Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people,” Ashcroft v. Free Speech Coalition, 535 U. S. 234 , and that a legislature “may pass valid laws to protect children” and other sexual assault victims, id., at 245. However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U. S. 557 . Two assumptions are made in resolving this case. First, while the Court need not decide the statute’s precise scope, it is enough to assume that the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the Court assumes that the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor. Even with these assumptions, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives. . (c) The State has not met its burden to show that this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. No case or holding of this Court has approved of a statute as broad in its reach. The State relies on Burson v. Freeman, 504 U. S. 191 , but that case considered a more limited restriction—prohibiting campaigning within 100 feet of a polling place—in order to protect the fundamental right to vote. The Court noted, moreover, that a larger buffer zone could “become an impermissible burden” under the First Amendment. Id., at 210. The better analogy is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 . If an ordinance prohibiting any “ First Amendment activities” at a single Los Angeles airport could be struck down because it covered all manner of protected, nondisruptive behavior, including “talking and reading, or the wearing of campaign buttons or symbolic clothing,” id., at 571, 575, it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of modern society and culture. . 368 N. C. 380, 777 S. E. 2d 738, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Thomas, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.

A North Carolina statute makes it a felony for a registered sex offender to gain access to a commercial social networking site where the offender knows that the site permits minor children to become members or to create or maintain personal Web pages. Petitioner Packingham, then a 21-year-old college student, pleaded guilty to taking indecent liberties with a minor. Because this crime qualifies as an offense against a minor, he was required to register as a sex offender. A state court dismissed a traffic ticket against him on the ground that the statute did not serve the legitimate First Amendment interest in protecting minors from sexual abuse on the State-on-First Amendment point of view. The North Carolina Court of Appeals ultimately struck down the statute on First Amendment grounds. The State Supreme Court reversed, concluding that the law is constitutional in all respects. Held: 1. The law is permissible under the First Amendment. . (a) The statute enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows access to information about one subject that might otherwise be unaware of it. Social media users employ these sites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought. P.. (b) The First Amendment does not permit a State to enact specific, narrowly tailored laws that prohibit sex offenders from engaging in conduct that often presages a sexual crime. The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it, and when awareness comes, they still may be unable to know or foresee where its changes lead. By prohibiting access to one subject at one time, North Carolina bars access to many sources of information about that subject, and by prohibiting one subject from using another subject at the same time, the statute bars a wide range of information and expressive activity unrelated to achieving its purported goal of keeping convicted sex offenders away from vulnerable victims. Moreover, even if the statute is content neutral, the law must not burden substantially more speech than is necessary to further the government's legitimate interests. Burson v. Freeman, 504 U. S. 191 (1992); Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), distinguished. Here, the State has not met its burden to show that the sweeping law is necessary or legitimate to serve that purpose. Even if the State concedes it does, the opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission. Though the issue is not before the Court, it can be assumed that the First Amendment permits a State, as a general rule, to enact such specific laws. Such laws must be the State's first resort to ward off the serious harm that sexual crimes inflict, and, even with these assumptions about the law and the State, its law must be held invalid. See, e.g., at ___ (slip op., at 19), McCullen v. Coakley, ; McCullen, 573 U. s. ___, ___ (internal quotation marks omitted). . (c) Even assuming, arguendo, that the North Carolina law is not content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny and to serve its preventative purpose, a law must (1) be narrowly tailored to serve a significant governmental interest; (2) be nondisruptive in its reach; (3) not only a limited set of websites can be used even by persons who have completed their sentences; and (4) be narrowly tailored to prevent a person who has completed his sentence from engaging with another person altogether. It is unsettling to suggest, as the State does here, that only a small set of potentially unsettling websites can be used to prevent even convicted criminals from exercising their First Amendment rights. Even convicted criminals might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives. Although the issue of the constitutionality of the statute in question is not here, it is well established that the Government may not suppress lawful speech as the means to suppress unlawful speech. That is what North Carolina has done here. Ashcroft v. Free Speech Coalition, 535 S.C. 535, at 255. Thus, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. 368 N. C. 380, 777 S. E. 2d 738, reversed and remanded. Justice Gorsuch took no part in the consideration or decision of this case.

2016_15-606

https://www.oyez.org/cases/2016/15-606

. The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people. In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty. See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton). The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145 –150 (1968). Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict final-ity and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that an-other juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict. I State prosecutors in Colorado brought criminal charges against petitioner, Miguel Angel Peña-Rodriguez, based on the following allegations. In 2007, in the bathroom of a Colorado horse-racing facility, a man sexually assaulted two teenage sisters. The girls told their father and identified the man as an employee of the racetrack. The police located and arrested petitioner. Each girl separately identified petitioner as the man who had assaulted her. The State charged petitioner with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire were repeatedly asked whether they believed that they could be fair and impartial in the case. A written questionnaire asked if there was “anything about you that you feel would make it difficult for you to be a fair juror.” App. 14. The court repeated the question to the panel of prospective jurors and encouraged jurors to speak in private with the court if they had any concerns about their impartiality. Defense counsel likewise asked whether anyone felt that “this is simply not a good case” for them to be a fair juror. Id., at 34. None of the empaneled jurors expressed any reservations based on racial or any other bias. And none asked to speak with the trial judge. After a 3-day trial, the jury found petitioner guilty of unlawful sexual contact and harassment, but it failed to reach a verdict on the attempted sexual assault charge. When the jury was discharged, the court gave them this instruction, as mandated by Colorado law: “The question may arise whether you may now discuss this case with the lawyers, defendant, or other persons. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. . . . If any person persists in discussing the case over your objection, or becomes critical of your service either before or after any discussion has begun, please report it to me.” Id., at 85–86. Following the discharge of the jury, petitioner’s counsel entered the jury room to discuss the trial with the jurors. As the room was emptying, two jurors remained to speak with counsel in private. They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness. Petitioner’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors. The affidavits by the two jurors described a number of biased statements made by another juror, identified as Juror H. C. According to the two jurors, H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Id., at 110. The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “ ‘I think he did it because he’s Mexican and Mexican men take whatever they want.’ ” Id., at 109. According to the jurors, H. C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Id., at 110. Finally, the jurors recounted that Juror H. C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “ ‘an illegal.’ ” Ibid. (In fact, the witness testified during trial that he was a legal resident of the United States.) After reviewing the affidavits, the trial court acknowledged H. C.’s apparent bias. But the court denied petitioner’s motion for a new trial, noting that “[t]he actual deliberations that occur among the jurors are protected from inquiry under [Colorado Rule of Evidence] 606(b).” Id., at 90. Like its federal counterpart, Colorado’s Rule 606(b) generally prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. See Fed. Rule Evid. 606(b). The Colorado Rule reads as follows: “(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.” Colo. Rule Evid. 606(b) (2016). The verdict deemed final, petitioner was sentenced to two years’ probation and was required to register as a sex offender. A divided panel of the Colorado Court of Appeals affirmed petitioner’s conviction, agreeing that H. C.’s alleged statements did not fall within an exception to Rule 606(b) and so were inadmissible to undermine the validity of the verdict. ___ P. 3d ___, 2012 WL 5457362. The Colorado Supreme Court affirmed by a vote of 4 to 3. 350 P. 3d 287 (2015). The prevailing opinion relied on two decisions of this Court rejecting constitutional challenges to the federal no-impeachment rule as applied to evidence of juror misconduct or bias. See Tanner v. United States, 483 U. S. 107 (1987) ; Warger v. Shauers, 574 U. S. ___ (2014). After reviewing those precedents, the court could find no “dividing line between different types of juror bias or misconduct,” and thus no basis for permitting impeachment of the verdicts in petitioner’s trial, notwithstanding H. C.’s apparent racial bias. 350 P. 3d, at 293. This Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias. 578 U. S. ___ (2016). Juror H. C.’s bias was based on petitioner’s Hispanic identity, which the Court in prior cases has referred to as ethnicity, and that may be an instructive term here. See, e.g., Hernandez v. New York, 500 U. S. 352, 355 (1991) (plurality opinion). Yet we have also used the language of race when discussing the relevant constitutional principles in cases involving Hispanic persons. See, e.g., ibid.; Fisher v. University of Tex. at Austin, 570 U. S. ___ (2013); Rosales-Lopez v. United States, 451 U. S. 182 –190 (1981) (plurality opinion). Petitioner and respondent both refer to race, or to race and ethnicity, in this more expansive sense in their briefs to the Court. This opinion refers to the nature of the bias as racial in keeping with the primary terminology employed by the parties and used in our precedents. II A At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony. This rule originated in Vaise v. Delaval, 1 T. R. 11, 99 Eng. Rep. 944 (K. B. 1785). There, Lord Mansfield excluded juror testimony that the jury had decided the case through a game of chance. The Mansfield rule, as it came to be known, prohibited jurors, after the verdict was entered, from testifying either about their subjective mental processes or about objective events that occurred during deliberations. American courts adopted the Mansfield rule as a matter of common law, though not in every detail. Some jurisdictions adopted a different, more flexible version of the no-impeachment bar known as the “Iowa rule.” Under that rule, jurors were prevented only from testifying about their own subjective beliefs, thoughts, or motives during deliberations. See Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195 (1866). Jurors could, however, testify about objective facts and events occurring during deliberations, in part because other jurors could corroborate that testimony. An alternative approach, later referred to as the federal approach, stayed closer to the original Mansfield rule. See Warger, supra, at ___ (slip op., at 5). Under this version of the rule, the no-impeachment bar permitted an exception only for testimony about events extraneous to the deliberative process, such as reliance on outside evidence—newspapers, dictionaries, and the like—or personal investigation of the facts. This Court’s early decisions did not establish a clear preference for a particular version of the no-impeachment rule. In United States v. Reid, 12 How. 361 (1852), the Court appeared open to the admission of juror testimony that the jurors had consulted newspapers during deliberations, but in the end it barred the evidence because the newspapers “had not the slightest influence” on the verdict. Id., at 366. The Reid Court warned that juror testimony “ought always to be received with great caution.” Ibid. Yet it added an important admonition: “cases might arise in which it would be impossible to refuse” juror testimony “without violating the plainest principles of justice.” Ibid. In a following case the Court required the admission of juror affidavits stating that the jury consulted information that was not in evidence, including a prejudicial news-paper article. Mattox v. United States, 146 U. S. 140, 151 (1892) . The Court suggested, furthermore, that the admission of juror testimony might be governed by a more flexible rule, one permitting jury testimony even where it did not involve consultation of prejudicial extraneous information. Id., at 148–149; see also Hyde v. United States, 225 U. S. 347 –384 (1912) (stating that the more flexible Iowa rule “should apply,” but excluding evidence that the jury reached the verdict by trading certain defendants’ acquittals for others’ convictions). Later, however, the Court rejected the more lenient Iowa rule. In McDonald v. Pless, 238 U. S. 264 (1915) , the Court affirmed the exclusion of juror testimony about objective events in the jury room. There, the jury allegedly had calculated a damages award by averaging thenumerical submissions of each member. Id., at 265–266. As the Court explained, admitting that evidence would have “dangerous consequences”: “no verdict would be safe” and the practice would “open the door to the most pernicious arts and tampering with jurors.” Id., at 268 (internal quotation marks omitted). Yet the Court reiterated its admonition from Reid, again cautioning that the no-impeachment rule might recognize exceptions “in the gravest and most important cases” where exclusion of juror affidavits might well violate “the plainest principles of justice.” 238 U. S., at 269 (quoting Reid, supra, at 366; internal quotation marks omitted). The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b). Congress, like the McDonald Court, rejected the Iowa rule. Instead it endorsed a broad no-impeachment rule, with only limited exceptions. The version of the rule that Congress adopted was “no accident.” Warger, 574 U. S., at ___ (slip op., at 7). The Advisory Committee at first drafted a rule reflecting the Iowa approach, prohibiting admission of juror testimony only as it related to jurors’ mental processes in reaching a verdict. The Department of Justice, however, expressed concern over the preliminary rule. The Advisory Committee then drafted the more stringent version now in effect, prohibiting all juror testimony, with exceptions only where the jury had considered prejudicial extraneous evidence or was subject to other outside influence. Rules of Evidence for United States Courts and Magistrates, 56 F. R. D. 183, 265 (1972). The Court adopted this second version and transmitted it to Congress. The House favored the Iowa approach, but the Senate expressed concern that it did not sufficiently address the public policy interest in the finality of verdicts. S. Rep. No. 93–1277, pp. 13–14 (1974). Siding with the Senate, the Conference Committee adopted, Congress enacted, and the President signed the Court’s proposed rule. The substance of the Rule has not changed since 1975, except for a 2006 modification permitting evidence of a clerical mistake on the verdict form. See 574 U. S., at ___. The current version of Rule 606(b) states as follows: “(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. “(2) Exceptions. A juror may testify 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.” This version of the no-impeachment rule has substantial merit. It promotes full and vigorous discussion by providing jurors with considerable assurance that after being discharged they will not be summoned to recount their deliberations, and they will not otherwise be harassed or annoyed by litigants seeking to challenge the verdict. The rule gives stability and finality to verdicts. B Some version of the no-impeachment rule is followed in every State and the District of Columbia. Variations make classification imprecise, but, as a general matter, it appears that 42 jurisdictions follow the Federal Rule, while 9 follow the Iowa Rule. Within both classifications there is a diversity of approaches. Nine jurisdictions that follow the Federal Rule have codified exceptions other than those listed in Federal Rule 606(b). See Appendix, infra. At least 16 jurisdictions, 11 of which follow the Federal Rule, have recognized an exception to the no-impeachment bar under the circumstances the Court faces here: juror testimony that racial bias played a part in deliberations. Ibid. According to the parties and amici, only one State other than Colorado has addressed this issue and declined to recognize an exception for racial bias. See Commonwealth v. Steele, 599 Pa. 341, 377–379, 961 A. 2d 786, 807–808 (2012). The federal courts, for their part, are governed by Federal Rule 606(b), but their interpretations deserve further comment. Various Courts of Appeals have had occasion to consider a racial bias exception and have reached different conclusions. Three have held or suggested there is a constitutional exception for evidence of racial bias. See United States v. Villar, 586 F. 3d 76, 87–88 (CA1 2009) (holding the Constitution demands a racial-bias exception); United States v. Henley, 238 F. 3d 1111, 1119–1121 (CA9 2001) (finding persuasive arguments in favor of an exception but not deciding the issue); Shillcutt v. Gagnon, 827 F. 2d 1155, 1158–1160 (CA7 1987) (observing that in some cases fundamental fairness could require an exception). One Court of Appeals has declined to find an exception, reasoning that other safeguards inherent in the trial process suffice to protect defendants’ constitutional interests. See United States v. Benally, 546 F. 3d 1230, 1240–1241 (CA10 2008). Another has suggested as much, holding in the habeas context that an exception for racial bias was not clearly established but indicating in dicta that no such exception exists. See Williams v. Price, 343 F. 3d 223, 237–239 (CA3 2003) (Alito, J.). And one Court of Appeals has held that evidence of racial bias is excluded by Rule 606(b), without addressing whether the Constitution may at times demand an exception. See Martinez v. Food City, Inc., 658 F. 2d 369, 373–374 (CA5 1981). C In addressing the scope of the common-law no-impeachment rule before Rule 606(b)’s adoption, the Reid and McDonald Courts noted the possibility of an exception to the rule in the “gravest and most important cases.” Reid, 12 How., at 366; McDonald, 238 U. S., at 269. Yet since the enactment of Rule 606(b), the Court has addressed the precise question whether the Constitution mandates an exception to it in just two instances. In its first case, Tanner, 483 U. S. 107 , the Court rejected a Sixth Amendment exception for evidence that some jurors were under the influence of drugs and alcohol during the trial. Id., at 125. Central to the Court’s reasoning were the “long-recognized and very substantial concerns” supporting “the protection of jury deliberations from intrusive inquiry.” Id., at 127. The Tanner Court echoed McDonald’s concern that, if attorneys could use juror testimony to attack verdicts, jurors would be “harassed and beset by the defeated party,” thus destroying “all frankness and freedom of discussion and conference.” 483 U. S., at 120 (quoting McDonald, supra, at 267–268). The Court was concerned, moreover, that attempts to impeach a verdict would “disrupt the finality of the process” and undermine both “jurors’ willingness to return an unpopular verdict” and “the community’s trust in a system that relies on the decisions of laypeople.” 483 U. S., at 120–121. The Tanner Court outlined existing, significant safeguards for the defendant’s right to an impartial and competent jury beyond post-trial juror testimony. At the outset of the trial process, voir dire provides an opportun-ity for the court and counsel to examine members of the venire for impartiality. As a trial proceeds, the court, counsel, and court personnel have some opportunity to learn of any juror misconduct. And, before the verdict, jurors themselves can report misconduct to the court. These procedures do not undermine the stability of a verdict once rendered. Even after the trial, evidence of misconduct other than juror testimony can be used to attempt to impeach the verdict. Id., at 127. Balancing these interests and safeguards against the defendant’s Sixth Amendment interest in that case, the Court affirmed the exclusion of affidavits pertaining to the jury’s inebri-ated state. Ibid. The second case to consider the general issue presented here was Warger, 574 U. S. ___. The Court again rejected the argument that, in the circumstances there, the jury trial right required an exception to the no-impeachment rule. Warger involved a civil case where, after the verdict was entered, the losing party sought to proffer evidence that the jury forewoman had failed to disclose prodefendant bias during voir dire. As in Tanner, the Court put substantial reliance on existing safeguards for a fair trial. The Court stated: “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.” 574 U. S., at ___ (slip op., at 10). In Warger, however, the Court did reiterate that the no-impeachment rule may admit exceptions. As in Reid and McDonald, the Court warned of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.” 574 U. S., at ___–___, n. 3 (slip op., at 10–11, n. 3). “If and when such a case arises,” the Court indicated it would “consider whether the usual safeguards are orare not sufficient to protect the integrity of the process.” Ibid. The recognition in Warger that there may be extreme cases where the jury trial right requires an exception to the no-impeachment rule must be interpreted in context as a guarded, cautious statement. This caution is warranted to avoid formulating an exception that might undermine the jury dynamics and finality interests the no-impeachment rule seeks to protect. Today, however, the Court faces the question that Reid, McDonald, and Warger left open. The Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt. III It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments. “[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. Florida, 379 U. S. 184, 192 (1964) . In the years before and after the ratification of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amendment and to the integrity of the jury trial. “Almost immediately after the Civil War, the South began a practice that would continue for many decades: All-white juries punished black defendants particularly harshly, while simultaneously refusing to punish violence by whites, including Ku Klux Klan members, against blacks and Republicans.” Forman, Juries and Race in the Nineteenth Century, 113 Yale L. J. 895, 909–910 (2004). To take one example, just in the years 1865 and 1866, all-white juries in Texas decided a total of 500 prosecutions of white defendants charged with killing African-Americans. All 500 were acquitted. Id., at 916. The stark and unapologetic nature of race-motivated outcomes challenged the American belief that “the jury was a bulwark of liberty,” id., at 909, and prompted Congress to pass legislation to integrate the jury system and to bar persons from eligibility for jury service if they had conspired to deny the civil rights of African-Americans, id., at 920–930. Members of Congress stressed that the legislation was necessary to preserve the right to a fair trial and to guarantee the equal protection of the laws. Ibid. The duty to confront racial animus in the justice system is not the legislature’s alone. Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. Beginning in 1880, the Court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. Strauder v. West Virginia, 100 U. S. 303 –309 (1880). The Court has repeatedly struck down laws and practices that systematically exclude racial minorities from juries. See, e.g., Neal v. Delaware, 103 U. S. 370 (1881) ; Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam); Avery v. Georgia, 345 U. S. 559 (1953) ; Hernandez v. Texas, 347 U. S. 475 (1954) ; Castaneda v. Partida, 430 U. S. 482 (1977) . To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986) ; Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991) ; Georgia v. McCollum, 505 U. S. 42 (1992) . In an effort to ensure that individuals who sit on juries are free of racial bias, the Court has held that the Constitution at times demands that defendants be permitted to ask questions about racial bias during voir dire. Ham v. South Carolina, 409 U. S. 524 (1973) ; Rosales-Lopez, 451 U. S. 182 ; Turner v. Murray, 476 U. S. 28 (1986) . The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979) . The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991) ; cf. Aldridge v. United States, 283 U. S. 308, 315 (1931) ; Buck v. Davis, ante, at 22. IV A This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system. The two lines of precedent, however, need not conflict. Racial bias of the kind alleged in this case differs in critical ways from the compromise verdict in McDonald, the drug and alcohol abuse in Tanner, or the pro-defendant bias in Warger. The behavior in those cases is troubling and unacceptable, but each involved anomalous behavior from a single jury—or juror—gone off course. Jurors are presumed to follow their oath, cf. Penry v. Johnson, 532 U. S. 782, 799 (2001) , and neither history nor common experience show that the jury system is rife with mischief of these or similar kinds. To attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. “It is not at all clear . . . that the jury system could survive such efforts to perfect it.” Tanner, 483 U. S., at 120. The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect thejury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treat-ment under the law that is so central to a functioning democracy. Racial bias is distinct in a pragmatic sense as well. In past cases this Court has relied on other safeguards to protect the right to an impartial jury. Some of those safeguards, to be sure, can disclose racial bias. Voir dire at the outset of trial, observation of juror demeanor and conduct during trial, juror reports before the verdict, and nonjuror evidence after trial are important mechanisms for discovering bias. Yet their operation may be compromised, or they may prove insufficient. For instance, this Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire. See Rosales-Lopez, supra; Ristaino v. Ross, 424 U. S. 589 (1976) . Generic questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations. Yet more pointed questions “could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.” Rosales-Lopez, supra, at 195 (Rehnquist, J., concurring in result). The stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations. It is one thing to accuse a fellow juror of having a personal experience that improperly influences her consideration of the case, as would have been required in Warger. It is quite another to call her a bigot. The recognition that certain of the Tanner safeguards may be less effective in rooting out racial bias than other kinds of bias is not dispositive. All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. B For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors. See 27 C. Wright & V. Gold, Federal Practice and Procedure: Evidence §6076, pp. 580–583 (2d ed. 2007) (Wright); see also Variations of ABA Model Rules of Professional Conduct, Rule 3.5 (Sept. 15, 2016) (overview of state ethics rules); 2 Jurywork Systematic Techniques §13:18 (2016–2017) (overview of Federal District Court rules). These limits seek to provide jurors some protection when they return to their daily affairs after the verdict has been entered. But while a juror can always tell counsel they do not wish to discuss the case, jurors in some instances may come forward of their own accord. That is what happened here. In this case the alleged statements by a juror were egregious and unmistakable in their reliance on racial bias. Not only did juror H. C. deploy a dangerous racial stereotype to conclude petitioner was guilty and his alibi witness should not be believed, but he also encouraged other jurors to join him in convicting on that basis. Petitioner’s counsel did not seek out the two jurors’ allegations of racial bias. Pursuant to Colorado’s mandatory jury instruction, the trial court had set limits on juror contact and encouraged jurors to inform the court if anyone harassed them about their role in the case. Similar limits on juror contact can be found in other jurisdictions that recognize a racial-bias exception. See, e.g., Fla. Standard Jury Instrs. in Crim. Cases No. 4.2 (West 2016) (“Although you are at liberty to speak with anyone about your deliberations, you are also at liberty to refuse to speak to anyone”); Mass. Office of Jury Comm’r, Trial Juror’s Handbook (Dec. 2015) (“You are not required to speak with anyone once the trial is over. . . . If anyone tries to learn this confidential information from you, or if you feel harassed or embarrassed in any way, you should report it to the court . . . immediately”); N. J. Crim. Model Jury Charges, Non 2C Charges, Dismissal of Jury (2014) (“It will be up to each of you to decide whether to speak about your service as a juror”). With the understanding that they were under no obligation to speak out, the jurors approached petitioner’s counsel, within a short time after the verdict, to relay their concerns about H. C.’s statements. App. 77. A similar pattern is common in cases involving juror allegations of racial bias. See, e.g., Villar, 586 F. 3d, at 78 (juror e-mailed defense counsel within hours of the verdict); Kittle v. United States, 65 A. 3d 1144, 1147 (D. C. 2013) (juror wrote a letter to the judge the same day the court discharged the jury); Benally, 546 F. 3d, at 1231 (juror approached defense counsel the day after the jury announced its verdict). Pursuant to local court rules, petitioner’s counsel then sought and received permission from the court to contact the two jurors and obtain affidavits limited to recounting the exact statements made by H. C. that exhibited racial bias. While the trial court concluded that Colorado’s Rule 606(b) did not permit it even to consider the resulting affidavits, the Court’s holding today removes that bar. When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence. C As the preceding discussion makes clear, the Court relies on the experiences of the 17 jurisdictions that have recognized a racial-bias exception to the no-impeachment rule—some for over half a century—with no signs of an increase in juror harassment or a loss of juror willingness to engage in searching and candid deliberations. The experience of these jurisdictions, and the experience of the courts going forward, will inform the proper exercise of trial judge discretion in these and related matters. This case does not ask, and the Court need not address, what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias. See 27 Wright 575–578 (noting a divergence of authority over the necessity and scope of an evidentiary hearing on alleged juror misconduct). The Court also does not decide the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted. Compare, e.g., Shillcutt, 827 F. 2d, at 1159 (inquiring whether racial bias “pervaded the jury room”), with, e.g., Henley, 238 F. 3d, at 1120 (“One racist juror would be enough”). D It is proper to observe as well that there are standard and existing processes designed to prevent racial bias in jury deliberations. The advantages of careful voir dire have already been noted. And other safeguards deserve mention. Trial courts, often at the outset of the case and again in their final jury instructions, explain the jurors’ duty to review the evidence and reach a verdict in a fair and impartial way, free from bias of any kind. Some instructions are framed by trial judges based on their own learning and experience. Model jury instructions likely take into account these continuing developments and are common across jurisdictions. See, e.g., 1A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal §10:01, p. 22 (6th ed. 2008) (“Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way”). Instructions may emphasize the group dynamic of deliberations by urging jurors to share their questions and conclusions with their colleagues. See, e.g., id., §20:01, at 841 (“It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment”). Probing and thoughtful deliberation improves the likelihood that other jurors can confront the flawed nature of reasoning that is prompted or influenced by improper biases, whether racial or otherwise. These dynamics can help ensure that the exception is limited to rare cases. * * * The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution. The judgment of the Supreme Court of Colorado is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. APPENDIX Codified Exceptions in Addition to Those Enumerated in Fed. Rule Evid. 606(b) See Ariz. Rules Crim. Proc. 24.1(c)(3), (d) (2011) (exception for evidence of misconduct, including verdict by game of chance or intoxication); Idaho Rule Evid. 606(b) (2016) (game of chance); Ind. Rule Evid. 606(b)(2)(A) (Burns 2014) (drug or alcohol use); Minn. Rule Evid. 606(b) (2014) (threats of violence or violent acts); Mont. Rule Evid. 606(b) (2015) (game of chance); N. D. Rule Evid. 606(b)(2)(C) (2016–2017) (same); Tenn. Rule Evid. 606(b) (2016) (quotient verdict or game of chance); Tex. Rule Evid. 606(b)(2)(B) (West 2016) (rebutting claim juror was unqualified); Vt. Rule Evid. 606(b) (Cum. Supp. 2016) (juror communication with nonjuror); see also 27 C. Wright & V. Gold, Federal Practice and Procedure: Evidence §6071, p. 447, and n. 66 (2d ed. 2007); id., at 451, and n. 70; id., at 452, and n. 72. Judicially Recognized Exceptions for Evidence of Racial Bias See State v. Santiago, 245 Conn. 301, 323–340, 715 A. 2d 1, 14–22 (1998); Kittle v. United States, 65 A. 3d 1144, 1154–1556 (D. C. 2013); Fisher v. State, 690 A. 2d 917, 919–921, and n. 4 (Del. 1996) (Appendix to opinion), Powell v. Allstate Ins. Co., 652 So. 2d 354, 357–358 (Fla. 1995); Spencer v. State, 260 Ga. 640, 643–644, 398 S. E. 2d 179, 184–185 (1990); State v. Jackson, 81 Haw. 39, 48–49, 912 P. 2d 71, 80–81 (1996); Commonwealth v. Laguer, 410 Mass. 89, 97–98, 571 N. E. 2d 371, 376 (1991); State v. Callender, 297 N. W. 2d 744, 746 (Minn. 1980); Fleshner v. Pepose Vision Inst., P. C., 304 S. W. 3d 81, 87–90 (Mo. 2010); State v. Levitt, 36 N. J. 266, 271–273, 176 A. 2d 465, 467–468 (1961); People v. Rukaj, 123 App. Div. 2d 277, 280–281, 506 N. Y. S. 2d 677, 679–680 (1986); State v. Hidanovic, 2008 ND 66, ¶¶21–26, 747 N. W. 2d 463, 472–474; State v. Brown, 62 A. 3d 1099, 1110 (R. I. 2013); State v. Hunter, 320 S. C. 85, 88, 463 S. E. 2d 314, 316 (1995); Seattle v. Jackson, 70 Wash. 2d 733, 738, 425 P. 2d 385, 389 (1967); After Hour Welding, Inc. v. Laneil Management Co., 108 Wis. 2d 734, 739–740, 324 N. W. 2d 686, 690 (1982).

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 PENA-RODRIGUEZ v. COLORADO certiorari to the supreme court of colorado No. 15–606. Argued October 11, 2016—Decided March 6, 2017 A Colorado jury convicted petitioner Peña-Rodriguez of harassment and unlawful sexual contact. Following the discharge of the jury, two jurors told defense counsel that, during deliberations, Juror H. C. had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness. Counsel, with the trial court’s supervision, obtained affidavits from the two jurors describing a number of biased statements by H. C. The court acknowledged H. C.’s apparent bias but denied petitioner’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict. The Colorado Court of Appeals affirmed, agreeing that H. C.’s alleged statements did not fall within an exception to Rule 606(b). The Colorado Supreme Court also affirmed, relying on Tanner v. United States, 483 U. S. 107 , and Warger v. Shauers, 574 U. S. ___, both of which rejected constitutional challenges to the federal no-impeachment rule as applied to evidence of juror misconduct or bias. Held: Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. . (a) At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony. Some American jurisdictions adopted a more flexible version of the no-impeachment bar, known as the “Iowa rule,” which prevented jurors from testifying only about their own subjective beliefs, thoughts, or motives during deliberations. An alternative approach, later referred to as the federal approach, permitted an exception only for events extraneous to the deliberative process. This Court’s early decisions did not establish a clear preference for a particular version of the no-impeachment rule, appearing open to the Iowa rule in United States v. Reid, 12 How. 361, and Mattox v. United States, 146 U. S. 140 , but rejecting that approach in McDonald v. Pless, 238 U. S. 264 . The common-law development of the rule reached a milestone in 1975 when Congress adopted Federal Rule of Evidence 606(b), which sets out a broad no-impeachment rule, with only limited exceptions. This version of the no-impeachment rule has substantial merit, promoting full and vigorous discussion by jurors and providing considerable assurance that after being discharged they will not be summoned to recount their deliberations or otherwise harassed. The rule gives stability and finality to verdicts. . (b) Some version of the no-impeachment rule is followed in every State and the District of Columbia, most of which follow the Federal Rule. At least 16 jurisdictions have recognized an exception for juror testimony about racial bias in deliberations. Three Federal Courts of Appeals have also held or suggested there is a constitutional exception for evidence of racial bias. In addressing the common-law no-impeachment rule, this Court noted the possibility of an exception in the “gravest and most important cases.” United States v. Reid, supra, at 366; McDonald v. Pless, supra, at 269. The Court has addressed the question whether the Constitution mandates an exception to Rule 606(b) just twice, rejecting an exception each time. In Tanner, where the evidence showed that some jurors were under the influence of drugs and alcohol during the trial, the Court identified “long-recognized and very substantial concerns” supporting the no-impeachment rule. 483 U. S., at 127. The Court also outlined existing, significant safeguards for the defendant’s right to an impartial and competent jury beyond post-trial juror testimony: members of the venire can be examined for impartiality during voir dire; juror misconduct may be observed the court, counsel, and court personnel during the trial; and jurors themselves can report misconduct to the court before a verdict is rendered. In Warger, a civil case where the evidence indicated that the jury forewoman failed to disclose a prodefendant bias during voir dire, the Court again put substantial reliance on existing safeguards for a fair trial. But the Court also warned, as in Reid and McDonald, that the no-impeachment rule may admit of exceptions for “juror bias so extreme that, almost by definition, the jury trial right has been abridged.” 574 U. S., at ___–___, n. 3. Reid, McDonald, and Warger left open the question here: whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt. . (c) The imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments. “[T]he central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.” McLaughlin v. Florida, 379 U. S. 184 . Time and again, this Court has enforced the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. The Court has interpreted the Fourteenth Amendment to prohibit the exclusion of jurors based on race, Strauder v. West Virginia, 100 U. S. 303 –309; struck down laws and practices that systematically exclude racial minorities from juries, see, e.g., Neal v. Delaware, 103 U. S. 370 ; ruled that no litigant may exclude a prospective juror based on race, see, e.g., Batson v. Kentucky, 476 U. S. 79 ; and held that defendants may at times be entitled to ask about racial bias during voir dire, see, e.g., Ham v. South Carolina, 409 U. S. 524 . The unmistakable principle of these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice,” Rose v. Mitchell, 443 U. S. 545 , damaging “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State,” Powers v. Ohio, 499 U. S. 400 . . (d) This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and those seeking to eliminate racial bias in the jury system. Those lines of precedent need not conflict. Racial bias, unlike the behavior in McDonald, Tanner, or Warger, implicates unique historical, constitutional, and institutional concerns and, if left unaddressed, would risk systemic injury to the administration of justice. It is also distinct in a pragmatic sense, for the Tanner safeguards may be less effective in rooting out racial bias. But while all forms of improper bias pose challenges to the trial process, there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after a verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right. . (e) Before the no-impeachment bar can be set aside to allow further judicial inquiry, there must be a threshold showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether the threshold showing has been satisfied is committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors. The experience of those jurisdictions that have already recognized a racial-bias exception to the no-impeachment rule, and the experience of courts going forward, will inform the proper exercise of trial judge discretion. The Court need not address what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias or the appropriate standard for determining when such evidence is sufficient to require that the verdict be set aside and a new trial be granted. Standard and existing safeguards may also help prevent racial bias in jury deliberations, including careful voir dire and a trial court’s instructions to jurors about their duty to review the evidence, deliberate together, and reach a verdict in a fair and impartial way, free from bias of any kind. . 350 P. 3d 287, reversed 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 Thomas, J., joined.

Petitioner is a member of the jury that was charged with harassment, unlawful sexual contact, and attempted sexual assault on a minor girl. Before the jury was empaneled, members of the venire were repeatedly asked whether they believed that they could be fair and impartial in the case. The court repeated the question to the panel of prospective jurors and encouraged them to speak in private with the court if they had any concerns about their impartiality. Defense counsel likewise asked whether anyone felt that this was simply not a good case for them to be a fair juror, and none asked to speak with the trial judge. After a 3-day trial, the jury found petitioner guilty of sexual harassment and harassment, but failed to reach a verdict on the attempted assault charge. The jury was then discharged, and petitioner was sentenced to two years' probation. The Colorado Court of Appeals affirmed, holding that H. C.'s alleged statements did not fall within an exception to Federal Rule of Evidence 606(b) and were inadmissible to undermine the validity of the verdict. Held: Where a juror makes a clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of a jury trial guarantee. Not every offhand comment indicating racial bias or hostility will justify setting aside the rule to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jurors' deliberations and resulting verdict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. . ___ P. 3d ___, reversed and remanded. Justice DOUGLAS, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART J., filed a dissenting opinion, post, p..

2016_16-399

https://www.oyez.org/cases/2016/16-399

. This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5 U. S. C. §1101 et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as “mixed cases.” In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012) ; the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see §7703(c). When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as “jurisdictional.” As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees,[1] but to secure expeditious resolution of the claims employees present. See Elgin v. Department of Treasury, 567 U. S. 1, 15 (2012) (emphasizing need for “clear guidance about the proper forum for [an] employee’s [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l. I A The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U. S. 41, 44 (2012) . For “particularly serious” actions, “for example, a removal from employment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency’s decision to the MSPB.” Ibid. (citing §§1204, 7512, 7701). Such an appeal may present a civil-service claim only. Typically, the employee may allege that “the agency had insufficient cause for taking the action under the CSRA.” Id., at 44. An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., or the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq. See 5 U. S. C. §7702(a)(1); Kloeckner, 568 U. S., at 44. In Kloeckner, we explained, “[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” Ibid. (quoting 29 CFR §1614.302 (2012)). See also §1614.302(a)(2) (2016) (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special procedures . . . different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discriminatory.” Kloeckner, 568 U. S., at 44–45. As Kloeckner detailed, the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office, “much as an employee challenging a personnel practice not appealable to the MSPB could do.” Id., at 45 (citing 5 CFR §1201.154(a) (2012); 29 CFR §1614.302(b) (2012)); see §7702(a)(2). “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further administrative review by suing the agency in district court.” Kloeckner, 568 U. S., at 45 (citing 5 CFR §1201.154(b); 29 CFR §1614.302(d)(1)(i)); see §7702(a)(2). “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges.” Kloeckner, 568 U. S., at 45 (citing 5 CFR §1201.154(a); 29 CFR §1614.302(b)); see §7702(a)(1). Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB’s jurisdiction in mixed-case appeals that bypass an agency’s EEO office, §7702(a)(1) states in relevant part: “[I]n the case of any employee . . . who— “(A) has been affected by an action which the employee . . . may appeal to the [MSPB], and “(B) alleges that a basis for the action was discrimination prohibited by [specified antidiscrimination statutes], . . . “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures . . . .”[2] Section 7702(a)(2) similarly authorizes a mixed-case appeal to the MSPB from an agency EEO office’s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” Kloeckner, 568 U. S., at 45 (citing §7702(a)(3), (b); 5 CFR §1201.161; 29 CFR §1614.303). Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the general rule: “[A] petition to review a . . . final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit.” Section 7703(b)(2) states the exception here relevant, governing “[c]ases of discrimination subject to the provisions of [§]7702.” See Kloeckner, 568 U. S., at 46 (“The ‘cases of discrimination’ in §7703(b)(2)’s exception . . . are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.”). Such cases “shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938, 29 U. S. C. §201 et seq.], as applicable.” §7703(b)(2). Those enforcement provisions “all authorize suit in federal district court.” Kloeckner, 568 U. S., at 46 (citing, inter alia, 42 U. S. C. §§2000e–16(c), 2000e–5(f); 29 U. S. C. §633a(c); §216(b)). Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. §7703(b)(2); see Kloeckner, 568 U. S., at 56, n. 4.[3] Federal district court is also the proper forum for judicial review, we held in Kloeckner, when the MSPB dismissesa mixed case on procedural grounds. Id., at 50, 56. We rested that conclusion on this syllogism: “Under §7703(b)(2), ‘cases of discrimination subject to [§7702]’ shall be filed in district court.” Id., at 50 (alteration in original). Further, “[u]nder §7702(a)(1), [mixed cases qualify as] ‘cases of discrimination subject to [§7702].’ ” Ibid. (third alteration in original). Thus, “mixed cases shall be filed in district court.” Ibid. That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for “nowhere in the [CSRA’s] provisions on judicial review” is a distinction drawn between MSPB merits decisions and procedural rulings. Id., at 51. The instant case presents this question: Where doesan employee seek judicial review when the MSPB dis-misses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction? B Anthony Perry worked at the U. S. Census Bureau until 2012. 829 F. 3d 760, 762 (CADC 2016). In 2011, Perry received notice that he would be terminated because of spotty attendance. Ibid. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. Ibid. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. Ibid. After retiring, Perry appealed his suspension and retirement to the MSPB. Ibid. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. Ibid. The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. Ibid. An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settlement was coerced. Perry v. Department of Commerce, No. DC–0752–12–0486–B–1 etc. (Dec. 23, 2013) (initial decision), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Id., at 33a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry’s claims. Id., at 51a. The MSPB affirmed the ALJ’s decision. See Perry v. Department of Commerce, 2014 WL 5358308, *1 (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retirement. Ibid. Because Perry did not prove that the agreement was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed voluntary, hence not an adverse action subject to the Board’s jurisdiction under §7702(a)(1). Id., at *3–*4. If dissatisfied with the MSPB’s ruling, the Board stated in its decision, Perry could seek judicial review in the Federal Circuit. Id., at *4. Perry instead filed a pro se petition for review in the D. C. Circuit. 829 F. 3d, at 763. The court ordered jurisdictional briefing and appointed counsel to argue forPerry. Ibid. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdiction, but disagreed on whether the proper forum for judicial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. Ibid. The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry’s petition and transferred his case to that court under 28 U. S. C. §1631. 829 F. 3d, at 763. The court’s disposition was precedent-bound: In a prior decision, Powell v. Department of Defense, 158 F. 3d 597, 598 (1998), the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or threshold grounds.” See 829 F. 3d, at 764, 767–768. Notably, Powell ranked as a “procedural or threshold matter” “the Board’s view of its jurisdiction.” 158 F. 3d, at 599 (internal quotation marks omitted). The D. C. Circuit rejected Perry’s argument that Powell was undermined by this Court’s intervening decision in Kloeckner, which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F. 3d, at 764–768. Kloeckner, the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U. S., at 44, 46, 49, 52, 54, 55. See 829 F. 3d, at 765. Jurisdictional dismissals differ from procedural dismissals, the D. C. Circuit concluded, given the CSRA’s reference to mixed cases as those “which the employee . . . may appeal to the [MSPB].” Id., at 766–767 (quoting §7702(a)(1)(A); emphasis added). A jurisdictional dismissal, the court said, rests on the Board’s determination that the employee may not appeal his case to the MSPB. Id., at 766–767. In contrast, a dismissal on procedural grounds, e.g., untimely resort to the MSPB, leaves the employee still “affected by an action which [she] may appeal tothe MSPB.” Ibid. (quoting §7702(a)(1)(A); alteration in original). We granted certiorari to review the D. C. Circuit’s decision, 580 U. S. ___ (2017), which accords with the Federal Circuit’s decision in Conforto v. Merit Systems Protection Bd., 713 F. 3d 1111 (2013). II Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudicate such claims. See §7703(c) (preserving “right to have the facts subject to trial de novo by the reviewing court” in any “case of discrimination” brought under §7703(b)(2)). The sole question here disputed: What procedural route may an employee in Perry’s situation take to gain judicial review of the MSPB’s jurisdictional disposition of a complaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law? The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudication of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudicate “[c]ases of discrimination,” §7703(b)(2), the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case. Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee . . . may appeal to the [MSPB].” Brief for Respondent 15, 17–19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in §7703(b)(2). Id., at 21. Only this reading of the CSRA’s provisions on judicial review—one ordering Federal Circuit review of any and all MSPB appealability determinations—the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. Id., at 26–32. Perry emphasizes in response that §7702(a)(1)(A)’s language, delineating cases in which an employee “has been affected by an action which the employee . . . may appeal to the [MSPB],” is not confined to cases an em-ployee may successfully appeal to the Board. Brief for Peti-tioner 19. The MSPB’s adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, “did not retroactively divest the MSPB of jurisdiction to render that decision.” Id., at 21. The key consideration, according to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee’s claim that he had been “affected by an action [appealable] to the [MSPB]” (here, suspension for more than 14 days and involuntary removal, see §7512(1), (2)). See id., at 11, 23–24. Perry draws support for this argument from our recognition that “a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 537 (1995) . See Brief for Petitioner 21–22. Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government’s procedure-jurisdiction distinction, we conclude, is no more tenable than “the merits-procedure distinction” we rejected in Kloeckner, 568 U. S., at 51. A As just noted, a nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, Inc., 513 U. S., at 537. See also Bell v. Hood, 327 U. S. 678 –683 (1946) (To invoke federal-question jurisdiction, allegations in a complaint must simply be more than “insubstantial or frivolous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: whether an employee “has been affected by anaction which [she] may appeal to the [MSPB],” §7702(a) (1)(A), turns on her well-pleaded allegations. Kloeckner, EEOC regulations, and Courts of Appeals’ decisions are corroborative. We announced a clear rule in Kloeckner: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50. An employee brings a mixed case, we explained, when she “complains of a personnel action serious enough to appeal to the MSPB,” e.g., suspension for more than 14 days, §7512(2), “and alleges that the action was based on discrimination.” Id., at 44 (emphasis deleted). The key to district court review, we said, was the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id., at 56 (emphasis added). EEOC regulations, see supra, at 3, are in accord: The defining feature of a “mixed case appeal,” those regulations instruct, is the employee’s “alleg[ation] that an appealable agency action was effected, in whole or in part, because of discrimination.” 29 CFR §1614.302(a)(2) (2016) (emphasis added). Several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. See, e.g., Downey v. Runyon, 160 F. 3d 139, 143 (CA2 1998) (“Mixed appeals to the MSPB are those appeals alleging an appealable action affected in whole or in part by prohibited discrimination.” (emphasis added)); Powell, 158 F. 3d, at 597 (defining mixed-case appeal as “an appeal alleging both a Board-jurisdictional agency action and a claim of unlawful discrimination” (emphasis added)).See also Conforto, 713 F. 3d, at 1126–1127, n. 5 (Dyk, J., dissenting).[4] Because Perry “complain[ed] of a personnel action serious enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see supra, at 6; §7512(1), (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. Kloeckner, 568 U. S., at 44.[5] Judicial review of such a case lies in district court. Id., at 50, 56. B The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other.[6] The distinction has multiple infirmities. “If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeckner, “it could just have said so.” Id., at 52. The same observation could be made about bifurcating judicial review here, sending the MSPB’s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal Circuit.[7] The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In Kloeckner, the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1–2 (stating employee’s agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Government there urged, should go to the Federal Circuit. Drawing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in Kloeckner, O. T. 2012, No. 11–184, p. 15 (internal quotation marks omitted). Now, in light of our holding in Kloeckner that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths.[8] A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both parties recognized in Kloeckner, would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i.e., after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has sometimes wrestled over the proper characterization of timeliness questions. Compare Bowles v. Russell, 551 U. S. 205 –211, 215 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with id., at 217–219 (Souter, J., dissenting) (timeliness of notice of appeal is a procedural issue). Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See Shoaf v. Department of Agriculture, 260 F. 3d 1336, 1341 (CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdiction and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry’s civil-service claims on the ground that he voluntarily released those claimsby entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.[9] But the validity of the settlement is at the heart of the dispute on the merits of Perry’s complaint. In essence, the MSPB ruled that it lacked jurisdiction because Perry’s claims fail on the merits. See Shoaf, 260 F. 3d, at 1341 (If it is established that an employee’s “resignation or retirement was involuntary and thus tantamount to forced removal,” then “not only [does the Board] ha[ve] jurisdiction, but also the employee wins on the merits and is entitled to reinstatement.” (internal quotation marks omitted)). See also Conforto, 713 F. 3d, at 1126 (Dyk, J., dissenting) (“[I]t cannot be that [the Federal Circuit] lack[s] jurisdiction to review the ‘merits’ of mixed cases but nevertheless may review ‘jurisdictional’ issues that are identical to the merits . . . .”).[10] Distinguishing between MSPB jurisdictional rulings and the Board’s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be unworkable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either procedural or substantive. See, e.g., Davenport v. Postal Service, 97 MSPR 417 (2004) (dismissing “for lack of jurisdiction and as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board addresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on procedural or substantive grounds. See, e.g., Donahue v. Postal Service, 2006 WL 859448, *1, *3 (ED Pa., Mar. 31, 2006). Tellingly, the Government is silent on the proper channeling of appeals in such cases. Desirable as national uniformity may be,[11] it should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights. Perry’s comprehension of the complex statutory text, we are persuaded, best serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin, 567 U. S., at 14. See also United States v. Fausto, 484 U. S. 439 –445 (1988).[12] Perry asks us not to “tweak” the statute, see post, at 1, but to read it sensibly, i.e., to refrain from reading into it the appeal-splitting bifurcation sought by the Government. Accordingly, we hold: (1) the Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review. * * * For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Many CSRA claimants proceed pro se. See MSPB, Congressional Budget Justification FY 2017, p. 14 (2016) (“Generally, at least half or more of the appeals filed with the [MSPB] are from pro se appellants . . . .”). 2 If the MSPB fails to render a “judicially reviewable action” within 120 days, an employee may, “at any time after . . . the 120th day,” “file a civil action [in district court] to the same extent and in the same manner as provided in” the federal antidiscrimination laws invoked by the employee. §7702(e)(1). 3 Our decision in Kloeckner v. Solis, 568 U. S. 41 (2012) , did not merely assume that the civil-service component of mixed cases travels to district court. See id., at 56, n. 4 (“If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions.” (emphasis added)). But see post, at 9–10. Characteristic of “mixed cases,” the employee in Kloeckner complained of adverse action taken, at least in part, because of discrimination. See 568 U. S., at 47. The Board dismissed that case, not for any flaw under antidiscrimination law, but because the employee missed a deadline set by the MSPB. See id., at 47–48. 4 Our interpretation is also consistent with another CSRA provision, §7513(d), which provides that “[a]n employee against whom an action is taken under this section is entitled to appeal to the . . . Board.” Because the “entitle[ment] to appeal” conferred in §7513(d) must be determined before an appeal is filed, such a right cannot depend on the outcome of the appeal. 5 If, as the dissent and the Government argue, see post, at 8–10; Brief for Respondent 19–26, 33–35, Perry’s case is not “mixed,” one can only wonder what kind of case it is, surely not one asserting rights under the CSRA only, or one invoking only antidiscrimination law. See supra, at 1–2. This is, of course, a paradigm mixed case: Perry alleges serious personnel actions (suspension and forced retirement) caused in whole or in part by prohibited discrimination. So did the employee in Kloeckner. She alleged that her firing (a serious personnel action) was based on discrimination. See 568 U. S., at 47. Thus Perry, like Kloeckner, well understood what the term “mixed case” means. 6 Notably, the dissent ventures no support for the principal argument made by the Government, i.e., that MSPB jurisdictional dispositions belong in the Federal Circuit, procedural and merits dispositions, in district court. 7 As Judge Dyk, dissenting in Conforto v. Merit Systems Protection Bd., 713 F. 3d 1111 (CA Fed. 2013), pointed out: “[W]here Congress intended to distinguish between different types of Board decisions, it did so expressly.” Id., at 1124, n. 1 (citing §3330b(b) (“An election under this section may not be made . . . after the [MSPB] has issued a judicially reviewable decision on the merits of the appeal.” (emphasis added)); §7703(a)(2) (“The Board shall be named respondent in any proceeding brought pursuant to this subsection, unless the employee . . . seeks review of a final order or decision on the merits . . . .” (emphasis added))). 8 This is not the first time the Government has changed its position. Before the Federal Circuit in Ballentine v. Merit Systems Protection Bd., 738 F. 2d 1244 (1984), the Government moved to transfer to district court an appeal challenging a jurisdictional dismissal by the MSPB. See id., at 1245. The Government argued that “even a question of the Board’s jurisdiction to hear an attempted mixed case appeal must be addressed by a district court.” Id., at 1247 (internal quotation marks omitted). Rejecting the Government’s position, the Federal Circuit concluded that it could review MSPB decisions on “procedural or threshold matters, not related to the merits of a discrimination claim.” Ibid. In Kloeckner, we disapproved the Federal Circuit’s holding with respect to MSPB procedural dismissals. 568 U. S., at 50, 56. Today we disapprove Ballentine’s holding with respect to jurisdictional dismissals, thereby adopting precisely the position advanced by the Government in that case. 9 In civil litigation, a release is an affirmative defense to a plaintiff’s claim for relief, not something the plaintiff must anticipate and negate in her pleading. See Fed. Rule Civ. Proc. 8(c)(1) (listing among affirmative defenses “release” and “waiver”); Newton v. Rumery, 480 U. S. 386, 391 (1987) . In that light, the MSPB’s jurisdiction should be determined by the adverse actions Perry asserts, suspension and forced retirement; the settlement releasing Perry’s claims would figure as a defense to his complaint, it would not enter into the determination whether the Board has jurisdiction over his claims. 10 If a reviewing court “agree[d] with the Board’s assessment,” then Perry would indeed have “lost his chance to pursue his . . . discrimination claim[s],” post, at 3, for those claims would have been defeated had he voluntarily submitted to the agency’s action. 11 In Kloeckner, we rejected the Government’s national uniformity argument. See 568 U. S., at 55–56, n. 4. “When Congress passed the CSRA, the Federal Circuit did not exist,” we observed, so uniformity did not then figure in Congress’ calculus. Id., at 56, n. 4. Moreover, even under the Government’s reading, “many cases involving federal employment issues [would be resolved] in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions.” Ibid. 12 In both Elgin v. Department of Treasury, 567 U. S. 1 (2012) , and United States v. Fausto, 484 U. S. 439 (1988) , we rejected employees’ attempts to divide particular issues or claims among review forums. In Elgin, a federal employee opted not to seek review of an MSPB ALJ’s decision, either before the full Board or in the Federal Circuit; he instead brought in District Court, in the first instance, a constitutional challenge to an agency personnel action. 567 U. S., at 7–8. We concluded that an employee with civil-service claims must follow the CSRA’s procedures and may not bring a standalone constitutional challenge in district court. Id., at 8. In Fausto, a federal employee with CSRA claims filed an action in the United States Claims Court under the Back Pay Act of 1966. 484 U. S., at 443. We determined that the employee could not bring his action under the Back Pay Act because the CSRA provided “the comprehensive and integrated review scheme.” See id., at 454. Contrary to the dissent’s suggestion, see post, at 10, neither case indicated that the Federal Circuit, as opposed to district court, is the preferred forum for judicial review of all CSRA claims. Rather, both decisions emphasized the benefits of an integrated review scheme and the problems associated with bifurcating consideration of a single matter in different forums. See 567 U. S., at 13–14; 484 U. S., at 444–445. It is the dissent’s insistence on bifurcated review, therefore, that “Elgin and Fausto warned against,” post, at 10.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus PERRY v. MERIT SYSTEMS PROTECTION BOARD certiorari to the united states court of appeals for the district of columbia circuit No. 16–399. Argued April 17, 2017—Decided June 23, 2017 Under the Civil Service Reform Act of 1978 (CSRA), the Merit Systems Protection Board (MSPB or Board) has the power to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions are subject to judicial review exclusively in the Federal Circuit. 5 U. S. C. §7703(b)(1). If the employee invokes only federal antidiscrimination law, the proper forum for judicial review is federal district court. See Kloeckner v. Solis, 568 U. S. 41 . An employee who complains of a serious adverse employment action and attributes the action, in whole or in part, to bias based on race, gender, age, or disability brings a “mixed case.” When the MSPB dismisses a mixed case on the merits or on procedural grounds, review authority lies in district court, not the Federal Circuit. Id., at 50, 56. This case concerns the proper forum for judicial review when the MSPB dismisses such a case for lack of jurisdiction. Anthony Perry received notice that he would be terminated from his employment at the U. S. Census Bureau for spotty attendance. Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The settlement also required Perry to dismiss discrimination claims he had filed separately with the Equal Employment Opportunity Commission (EEOC). After retiring, Perry appealed his suspension and retirement to the MSPB, alleging discrimination based on race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau had coerced him into signing it. But an MSPB administrative law judge (ALJ) determined that Perry had failed to prove that the settlement was coerced. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. Because voluntary actions are not appealable to the MSPB, the ALJ observed, the Board lacked jurisdiction to entertain Perry’s claims. The MSPB affirmed, deeming Perry’s separation voluntary and therefore not subject to the Board’s jurisdiction. If dissatisfied with the MSPB’s ruling, the Board stated, Perry could seek judicial review in the Federal Circuit. Perry instead sought review in the D. C. Circuit, which, the parties later agreed, lacked jurisdiction. The D. C. Circuit held that the proper forum was the Federal Circuit and transferred the case there. Kloeckner did not control, the court concluded, because it addressed dismissals on procedural grounds, not jurisdictional grounds. Held: The proper review forum when the MSPB dismisses a mixed case on jurisdictional grounds is district court. . (a) The Government argues that employees must split their mixed claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court to adjudicate their discrimination claims. Perry counters that the district court alone can resolve his entire complaint. Perry advances the more sensible reading of the statutory prescriptions. Kloeckner announced a clear rule: “[M]ixed cases shall be filed in district court.” 568 U. S., at 50; see id., at 56. The key to district court review is the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in §7702(a)(1).” Id., at 56 (emphasis added). Such a nonfrivolous allegation of jurisdiction suffices to establish district court jurisdiction. EEOC regulations are in accord, and several Courts of Appeals have similarly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. Perry, who “complain[ed] of a personnel action serious enough to appeal to the MSPB” and “allege[d] that the [personnel] action was based on discrimination,” brought a mixed case, and district court jurisdiction was therefore proper. . (b) The Government’s proposed distinction—between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other—has multiple infirmities. Had Congress wanted to bifurcate judicial review, sending merits and procedural decisions to district court and jurisdictional dismissals to the Federal Circuit, it could have said so. See Kloeckner, 568 U. S., at 52. The Government’s newly devised attempt to distinguish jurisdictional dismissals from procedural dismissals is a departure from its position in Kloeckner. Such a distinction, as both parties recognized in Kloeckner, would be perplexing and elusive. The distinction between jurisdiction and the merits is also not inevitably sharp, for the two inquiries may overlap. And because the MSPB may issue rulings on alternate or multiple grounds, some “jurisdictional,” others procedural or substantive, allocating judicial review authority based on a separate rule for jurisdictional rulings may prove unworkable in practice. Perry’s comprehension of the complex statutory text, in contrast, serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litigation regarding the same agency action.” Elgin v. Department of Treasury, 567 U. S. 1 . . 829 F. 3d 760, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Thomas, J., joined.

The Civil Service Reform Act of 1978 (CSRA) created the Merit Systems Protection Board (MSPB) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review is a federal district court, cf. Kloeckner v. Solis, 568 U. S. 41, 46. The CSRA prescribes appellate proceedings in actions involving discrimination. Section 7703(b)(1)(A) of § 7702(a)(1) authorizes a mixed-case appeal to the MSPb from an agency EEO decision, then, if the employee is dissatisfied with that decision, he can seek judicial review in the District Court. However, if dissatisfied with the M SPB ruling, the Board may, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures, and then, at the appropriate time, the employee may file a civil action in the district court. In this case, an employee filed a pro se petition in the D. C. Circuit for review of the dismissal of the case, but instead filed a petition for review in that court. The court held that the proper forum was the federal court, and transferred the case to the court under § 28 of the C.D.C. § 2000, which authorizes an employee to appeal an adverse decision of the Board. It also transferred his case under § 7704(b) to the Federal District Court, which held that that court had jurisdiction over the dismissal and transferred it to his case. Held: 1. The proper review forum is the federal courts, not the district courts. See, e.g., Powell v. Department of Defense, 621 F.2d 2000. When a complaint presents a mixed case, such as this one, and the employee complains of a serious adverse action prompted, in whole or in part, by the employing agency's violation of federal anti-discrimination laws, the court is the proper judicial forum. See, for example, §7703(c). Here, the review route remains the same when, as in this case in which the employee dis-misses her civil service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction. . (a) A nonfrivolous allegation of jurisdiction generally suffices to establish jurisdiction upon initiation of a case, and, in such cases, as here, where the employee (or former employee) has been affected by an action which she may appeal to, the employer, it is the courts that are the proper review forum. Thus, whether an employee, situated as the employee here, must split their claims, appealing nonappealability rulings to the F. Circuit while repairing to the District court for adjudication of their discrimination claims, the courts alone can resolve his entire complaint. But if a reviewing court disassociates itself from the case upon making a threshold determination, it may not enter into the determination whether the Board has jurisdiction over his claims. Klimckner, supra, at 50, n. 4. Similarly, in civil litigation, a release is an affirmative defense to a plaintiff's claim for relief, not something the plaintiff must anticipate and negate in her pleading, and in such a case the employee, in essence, clai[m] that an agency action appealable to the employer violates an antidisrimination statute. This reading of §7702(e)(1), which provides that an employee against whom an action is taken under this section is entitled to appeal, must be determined before an appeal is filed, thus ensuring nationwide uniformity in answering questions arising under that section. Id., at 50. Pp. 484 U.S. 439. 2. The District Court is also the proper reviewing forum when a complaint is dispelled on procedural grounds or in mixed cases, since the court in which judicial review lies, as both parties recognized, has authority to adjudicate such claims, and since the Government has changed course, contending that procedural and jurisdictional dismissals should travel different paths.. 829 F. 3d 760 (CADC 2016), reversed and remanded. THE CHIEF JUSTICE concluded that the Court of Appeals erred in affirming the District of Columbia Circuit on the ground, inter alia, that, under the merits-procedure distinction, the lower courts had no jurisdiction to review the mixed case dismissal, since such dismissal rests on procedural, rather than procedural, grounds and leaves the employee still "affected by [the] action which [she] may appeal..

2016_15-628

https://www.oyez.org/cases/2016/15-628

. Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit undisclosed trading on inside corporate information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage. 48Stat. 891, as amended, 15 U. S. C. §78j(b) (prohibiting the use, “in connection with the purchase or sale of any security,” of “any manipulative or deceptive device or contrivance in contravention of such rules as the [Securities and Exchange Commission] may prescribe”); 17 CFR §240.10b–5 (2016) (forbidding the use, “in connection with the sale or purchase of any security,” of “any device, scheme or artifice to defraud,” or any “act, practice, or course of business which operates . . . as a fraud or deceit”); see United States v. O’Hagan, 521 U. S. 642 –652 (1997). Individuals under this duty may face criminal and civil liability for trading on inside information (unless they make appropriate disclosures ahead of time). These persons also may not tip inside information to others for trading. The tippee acquires the tipper’s duty to disclose or abstain from trading if the tippee knows the information was disclosed in breach of the tipper’s duty, and the tippee may commit securities fraud by trading in disregard of that knowledge. In Dirks v. SEC, 463 U. S. 646 (1983) , this Court explained that a tippee’s liability for trading on inside information hinges on whether the tipper breached a fiduciary duty by disclosing the information. A tipper breaches such a fiduciary duty, we held, when the tipper discloses the inside information for a personal benefit. And, we went on to say, a jury can infer a personal benefit—and thus a breach of the tipper’s duty—where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id., at 664. Petitioner Bassam Salman challenges his convictions for conspiracy and insider trading. Salman received lucrative trading tips from an extended family member, who had received the information from Salman’s brother-in-law. Salman then traded on the information. He argues that he cannot be held liable as a tippee because the tipper (his brother-in-law) did not personally receive money or property in exchange for the tips and thus did not personally benefit from them. The Court of Appeals disagreed, holding that Dirks allowed the jury to infer that the tipper here breached a duty because he made a “ ‘gift of confidential information to a trading relative.’ ” 792 F. 3d 1087, 1092 (CA9 2015) (quoting Dirks, supra, at 664). Because the Court of Appeals properly applied Dirks, we affirm the judgment below. I Maher Kara was an investment banker in Citigroup’s healthcare investment banking group. He dealt with highly confidential information about mergers and acquisitions involving Citigroup’s clients. Maher enjoyed a close relationship with his older brother, Mounir Kara (known as Michael). After Maher started at Citigroup, he began discussing aspects of his job with Michael. At first he relied on Michael’s chemistry background to help him grasp scientific concepts relevant to his new job. Then, while their father was battling cancer, the brothers discussed companies that dealt with innovative cancer treatment and pain management techniques. Michael began to trade on the information Maher shared with him. At first, Maher was unaware of his brother’s trading activity, but eventually he began to suspect that it was taking place. Ultimately, Maher began to assist Michael’s trading by sharing inside information with his brother about pending mergers and acquisitions. Maher sometimes used code words to communicate corporate information to his brother. Other times, he shared inside information about dealshe was not working on in order to avoid detection. See, e.g., App. 118, 124–125. Without his younger brother’s knowledge, Michael fed the information to others—including Salman, Michael’s friend and Maher’s brother-in-law. By the time the authorities caught on, Salman had made over $1.5 million in profits that he split with another relative who executed trades via a brokerage account on Salman’s behalf. Salman was indicted on one count of conspiracy to commit securities fraud, see 18 U. S. C. §371, and four counts of securities fraud, see 15 U. S. C. §§78j(b), 78ff; 18 U. S. C. §2; 17 CFR §240.10b–5. Facing charges of their own, both Maher and Michael pleaded guilty and testified at Salman’s trial. The evidence at trial established that Maher and Michael enjoyed a “very close relationship.” App. 215. Maher “love[d] [his] brother very much,” Michael was like “a second father to Maher,” and Michael was the best man at Maher’s wedding to Salman’s sister. Id., at 158, 195, 104–107. Maher testified that he shared inside information with his brother to benefit him and with the expectation that his brother would trade on it. While Maher explained that he disclosed the information in large part to appease Michael (who pestered him incessantly for it), he also testified that he tipped his brother to “help him” and to “fulfil[l] whatever needs he had.” Id., at 118, 82. For instance, Michael once called Maher and told him that “he needed a favor.” Id., at 124. Maher offered his brother money but Michael asked for information instead. Maher then disclosed an upcoming acquisition. Ibid. Although he instantly regretted the tip and called his brother back to implore him not to trade, Maher expected his brother to do so anyway. Id., at 125. For his part, Michael told the jury that his brother’s tips gave him “timely information that the average person does not have access to” and “access to stocks, options, and what have you, that I can capitalize on, that the average person would never have or dream of.” Id., at 251. Michael testified that he became friends with Salman when Maher was courting Salman’s sister and later began sharing Maher’s tips with Salman. As he explained at trial, “any time a major deal came in, [Salman] was the first on my phone list.” Id., at 258. Michael also testified that he told Salman that the information was coming from Maher. See, e.g., id., at 286 (“ ‘Maher is the source of all thisinformation’ ”). After a jury trial in the Northern District of California, Salman was convicted on all counts. He was sentenced to 36 months of imprisonment, three years of supervised release, and over $730,000 in restitution. After his motion for a new trial was denied, Salman appealed to the Ninth Circuit. While his appeal was pending, the Second Circuit issued its opinion in United States v. Newman, 773 F. 3d 438 (2014), cert. denied, 577 U. S. ___ (2015). There, the Second Circuit reversed the convictions of two portfolio managers who traded on inside information. The Newman defendants were “several steps removed from the corporate insiders” and the court found that “there was no evidence that either was aware of the source of the inside information.” 773 F. 3d, at 443. The court acknowledged that Dirks and Second Circuit case law allow a factfinder to infer a personal benefit to the tipper from a gift of confidential information to a trading relative or friend. 773 F. 3d, at 452. But the court concluded that, “[t]o the extent” Dirks permits “such an inference,” the inference “is impermissible in the absence of proof of a meaningfully close personal relationship that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” 773 F. 3d, at 452.[1] Pointing to Newman, Salman argued that his conviction should be reversed. While the evidence established that Maher made a gift of trading information to Michael and that Salman knew it, there was no evidence that Maher received anything of “a pecuniary or similarly valuable nature” in exchange—or that Salman knew of any such benefit. The Ninth Circuit disagreed and affirmed Salman’s conviction. 792 F. 3d 1087. The court reasoned that the case was governed by Dirks’s holding that a tipper benefits personally by making a gift of confidential information to a trading relative or friend. Indeed, Maher’s disclosures to Michael were “precisely the gift of confidential information to a trading relative that Dirks envisioned.” 792 F. 3d, at 1092 (internal quotation marks omitted). To the extent Newman went further and required additional gain to the tipper in cases involving gifts of confidential information to family and friends, the Ninth Circuit “decline[d] to follow it.” 792 F. 3d, at 1093. We granted certiorari to resolve the tension between the Second Circuit’s Newman decision and the Ninth Circuit’s decision in this case.[2] 577 U. S. ___ (2016). II A In this case, Salman contends that an insider’s “gift of confidential information to a trading relative or friend,” Dirks, 463 U. S., at 664, is not enough to establish securities fraud. Instead, Salman argues, a tipper does not personally benefit unless the tipper’s goal in disclosing inside information is to obtain money, property, or something of tangible value. He claims that our insider-trading precedents, and the cases those precedents cite, involve situations in which the insider exploited confidential information for the insider’s own “tangible monetary profit.” Brief for Petitioner 31. He suggests that his position is reinforced by our criminal-fraud precedents outside of the insider-trading context, because those cases confirm that a fraudster must personally obtain money or property. Id., at 33–34. More broadly, Salman urges that defining a gift as a personal benefit renders the insider-trading offense indeterminate and overbroad: indeterminate, because liability may turn on facts such as the closeness of the relationship between tipper and tippee and the tipper’s purpose for disclosure; and overbroad, because the Government may avoid having to prove a concrete per-sonal benefit by simply arguing that the tipper meant to give a gift to the tippee. He also argues that we should interpret Dirks’s standard narrowly so as to avoid constitutional concerns. Brief for Petitioner 36–37. Finally, Salman contends that gift situations create especially troubling problems for remote tippees—that is, tippees who receive inside information from another tippee, rather than the tipper—who may have no knowledge of the relationship between the original tipper and tippee and thus may not know why the tipper made the disclosure. Id., at 43, 48, 50. The Government disagrees and argues that a gift of confidential information to anyone, not just a “trading relative or friend,” is enough to prove securities fraud. See Brief for United States 27 (“Dirks’s personal-benefit test encompasses a gift to any person with the expectation that the information will be used for trading, not just to ‘a trading relative or friend’ ” (quoting 463 U. S., at 664; emphasis in original)). Under the Government’s view, a tipper personally benefits whenever the tipper discloses confidential trading information for a noncorporate purpose. Accordingly, a gift to a friend, a family member, or anyone else would support the inference that the tipper exploited the trading value of inside information for personal purposes and thus personally benefited from the disclosure. The Government claims to find support for this reading in Dirks and the precedents on which Dirks relied. See, e.g., id., at 654 (“fraud” in an insider-trading case “derives ‘from the inherent unfairness involved where one takes advantage’ of ‘information intended to be available only for a corporate purpose and not for the personal benefit of anyone’ ” (quoting In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S. E. C. 933, 936 (1968))). The Government also argues that Salman’s concerns about unlimited and indeterminate liability for remote tippees are significantly alleviated by other statutory elements that prosecutors must satisfy to convict a tippee for insider trading. The Government observes that, in order to establish a defendant’s criminal liability as a tippee, it must prove beyond a reasonable doubt that the tipper expected that the information being disclosed would be used in securities trading. Brief for United States 23–24; Tr. of Oral Arg. 38. The Government also notes that, to establish a defendant’s criminal liability as a tippee, it must prove that the tippee knew that the tipper breached a duty—in other words, that the tippee knew that the tipper disclosed the information for a personal benefit and that the tipper expected trading to ensue. Brief for United States 43; Tr. of Oral Arg. 36–37, 39. B We adhere to Dirks, which easily resolves the narrow issue presented here. In Dirks, we explained that a tippee is exposed to liability for trading on inside information only if the tippee participates in a breach of the tipper’s fiduciary duty. Whether the tipper breached that duty depends “in large part on the purpose of the disclosure” to the tippee. 463 U. S., at 662. “[T]he test,” we explained, “is whether the insider personally will benefit, directly or indirectly, from his disclosure.” Ibid. Thus, the disclosure of confidential information without personal benefit is not enough. In determining whether a tipper derived a personal benefit, we instructed courts to “focus on objective criteria, i.e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings.” Id., at 663. This personal benefit can “often” be inferred “from objective facts and circumstances,” we explained, such as “a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient.” Id., at 664. In particular, we held that “[t]he elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend.” Ibid. (emphasis added). In such cases, “[t]he tip and trade resemble trading by the insider followed by a gift of the profits to the recipient.” Ibid. We then applied this gift-giving principle to resolve Dirks itself, finding it dispositive that the tippers “received no monetary or personal benefit” from their tips to Dirks, “nor was their purpose to make a gift of valuable information to Dirks.” Id., at 667 (emphasis added). Our discussion of gift giving resolves this case. Maher, the tipper, provided inside information to a close relative, his brother Michael. Dirks makes clear that a tipper breaches a fiduciary duty by making a gift of confidential information to “a trading relative,” and that rule is sufficient to resolve the case at hand. As Salman’s counsel acknowledged at oral argument, Maher would have breached his duty had he personally traded on the information here himself then given the proceeds as a gift to his brother. Tr. of Oral Arg. 3–4. It is obvious that Maher would personally benefit in that situation. But Maher effectively achieved the same result by disclosing the information to Michael, and allowing him to trade on it. Dirks appropriately prohibits that approach, as well. Cf. 463 U. S., at 659 (holding that “insiders [are] forbidden” both “from personally using undisclosed corporate information to their advantage” and from “giv[ing] such information to an outsider for the same improper purpose of exploiting the information for their personal gain”). Dirks specifies that when a tipper gives inside information to “a trading relative or friend,” the jury can infer that the tipper meant to provide the equivalent of a cash gift. In such situations, the tipper benefits personally because giving a gift of trading information is the same thing as trading by the tipper followed by a gift of the proceeds. Here, by disclosing confidential information as a gift to his brother with the expectation that he would trade on it, Maher breached his duty of trust and confidence to Citigroup and its clients—a duty Salman acquired, and breached himself, by trading on the information with full knowledge that it had been improperly disclosed. To the extent the Second Circuit held that the tipper must also receive something of a “pecuniary or similarly valuable nature” in exchange for a gift to family or friends, Newman, 773 F. 3d, at 452, we agree with the Ninth Circuit that this requirement is inconsistent with Dirks. C Salman points out that many insider-trading cases—including several that Dirks cited—involved insiders who personally profited through the misuse of trading information. But this observation does not undermine the test Dirks articulated and applied. Salman also cites a sampling of our criminal-fraud decisions construing other federal fraud statutes, suggesting that they stand for the proposition that fraud is not consummated unless the defendant obtains money or property. Sekhar v. United States, 570 U. S. ___ (2013) (Hobbs Act); Skilling v. United States, 561 U. S. 358 (2010) (honest-services mail and wire fraud); Cleveland v. United States, 531 U. S. 12 (2000) (wire fraud); McNally v. United States, 483 U. S. 350 (1987) (mail fraud). Assuming that these cases are relevant to our construction of §10(b) (a proposition the Government forcefully disputes), nothing in them undermines the commonsense point we made in Dirks. Making a gift of inside information to a relative like Michael is little different from trading on the information, obtaining the profits, and doling them out to the trading relative. The tipper benefits either way. The facts of this case illustrate the point: In one of their tipper-tippee interactions, Michael asked Maher for a favor, declined Maher’s offer of money, and instead requested and received lucrative trading information. We reject Salman’s argument that Dirks’s gift-giving standard is unconstitutionally vague as applied to this case. Dirks created a simple and clear “guiding principle” for determining tippee liability, 463 U. S., at 664, and Salman has not demonstrated that either §10(b) itself or the Dirks gift-giving standard “leav[e] grave uncertainty about how to estimate the risk posed by a crime” or are plagued by “hopeless indeterminacy,” Johnson v. United States, 576 U. S. ___, ___, ___ (2015) (slip op., at 5, 7). At most, Salman shows that in some factual circumstances assessing liability for gift-giving will be difficult. That alone cannot render “shapeless” a federal criminal prohibition, for even clear rules “produce close cases.” Id., at ___, ___ (slip op., at 9, 10). We also reject Salman’s appeal to the rule of lenity, as he has shown “no grievous ambiguity or uncertainty that would trigger the rule’s application.” Barber v. Thomas, 560 U. S. 474, 492 (2010) (internal quotation marks omitted). To the contrary, Salman’s conduct is in the heartland of Dirks’s rule concerning gifts. It remains the case that “[d]etermining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts.” 463 U. S., at 664. But there is no need for us to address those difficult cases today, because this case involves “precisely the ‘gift of confidential information to a trading relative’ that Dirks envisioned.” 792 F. 3d, at 1092 (quoting 463 U. S., at 664). III Salman’s jury was properly instructed that a personal benefit includes “the benefit one would obtain from simply making a gift of confidential information to a trading relative.” App. 398–399. As the Court of Appeals noted, “the Government presented direct evidence that the disclosure was intended as a gift of market-sensitive information.” 792 F. 3d, at 1094. And, as Salman conceded below, this evidence is sufficient to sustain his conviction under our reading of Dirks. Appellant’s Supplemental Brief in No. 14–10204 (CA9), p. 6 (“Maher made a gift of confidential information to a trading relative [Michael] . . . and, if [Michael’s] testimony is accepted as true (as it must be for purposes of sufficiency review), Salman knew that Maher had made such a gift” (internal quotation marks, brackets, and citation omitted)). Accordingly, the Ninth Circuit’s judgment is affirmed. It is so ordered.Notes 1 The Second Circuit also reversed the Newman defendants’ convictions because the Government introduced no evidence that the defendants knew the information they traded on came from insiders or that the insiders received a personal benefit in exchange for the tips. 773 F. 3d, at 453–454. This case does not implicate those issues. 2 Dirks v. SEC, 463 U. S. 646 (1983) , established the personal-benefit framework in a case brought under the classical theory of insider-trading liability, which applies “when a corporate insider” or his tippee “trades in the securities of [the tipper’s] corporation on the basis of material, nonpublic information.” United States v. O’Hagan, 521 U. S. 642 –652 (1997). In such a case, the defendant breaches a duty to, and takes advantage of, the shareholders of his corporation. By contrast, the misappropriation theory holds that a person commits securities fraud “when he misappropriates confidential information for securities trading purposes, in breach of a duty owed to the source of the information” such as an employer or client. Id., at 652. In such a case, the defendant breaches a duty to, and defrauds, the source of the information, as opposed to the shareholders of his corporation. The Court of Appeals observed that this is a misappropriation case, 792 F. 3d, 1087, 1092, n. 4 (CA9 2015), while the Government represents that both theories apply on the facts of this case, Brief for United States 15, n. 1. We need not resolve the question. The parties do not dispute that Dirks’s personal-benefit analysis applies in both classical and misappropriation cases, so we will proceed on the assumption that it does.

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 STATESSyllabusSALMAN v. UNITED STATEScertiorari to the united states court of appeals for the ninth circuitNo. 15–628. Argued October 5, 2016—Decided December 6, 2016Section 10(b) of the Securities Exchange Act of 1934 and the Securities and Exchange Commission’s Rule 10b–5 prohibit undisclosed trading on inside corporate information by persons bound by a duty of trust and confidence not to exploit that information for their personal advantage. These persons are also forbidden from tipping inside information to others for trading. A tippee who receives such information with the knowledge that its disclosure breached the tipper’s duty acquires that duty and may be liable for securities fraud for any undisclosed trading on the information. In Dirks v. SEC,463 U. S. 646, this Court explained that tippee liability hinges on whether the tipper’s disclosure breaches a fiduciary duty, which occurs when the tipper discloses the information for a personal benefit. The Court also held that a personal benefit may be inferred where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id., at 664.Petitioner Salman was indicted for federal securities-fraud crimes for trading on inside information he received from a friend and relative-by-marriage, Michael Kara, who, in turn, received the information from his brother, Maher Kara, a former investment banker at Citigroup. Maher testified at Salman’s trial that he shared inside information with his brother Michael to benefit him and expected him to trade on it, and Michael testified to sharing that information with Salman, who knew that it was from Maher. Salman was convicted. While Salman’s appeal to the Ninth Circuit was pending, the Second Circuit decided that Dirks does not permit a factfinder to infer a personal benefit to the tipper from a gift of confidential information to a trading relative or friend, unless there is “proof of a meaningfully close personal relationship” between tipper and tippee “that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” United States v. Newman, 773 F. 3d 438, 452, cert. denied, 577 U. S. ___. The Ninth Circuit declined to follow Newman so far, holding that Dirks allowed Salman’s jury to infer that the tipper breached a duty because he made “ ‘a gift of confidential information to a trading relative.’ ” 792 F. 3d 1087, 1092 (quoting Dirks, 463 U. S., at 664). Held: The Ninth Circuit properly applied Dirks to affirm Salman’s conviction. Under Dirks, the jury could infer that the tipper here personally benefited from making a gift of confidential information to a trading relative. .(a) Salman contends that a gift of confidential information to a friend or family member alone is insufficient to establish the personal benefit required for tippee liability, claiming that a tipper does not personally benefit unless the tipper’s goal in disclosing information is to obtain money, property, or something of tangible value. The Government counters that a gift of confidential information to anyone, not just a “trading relative or friend,” is enough to prove securities fraud because a tipper personally benefits through any disclosure of confidential trading information for a personal (non-corporate) purpose. The Government argues that any concerns raised by permitting such an inference are significantly alleviated by other statutory elements prosecutors must satisfy. .(b) This Court adheres to the holding in Dirks, which easily resolves the case at hand: “when an insider makes a gift of confidential information to a trading relative or friend . . . [t]he tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient,” 463 U. S., at 664. In these situations, the tipper personally benefits because giving a gift of trading information to a trading relative is the same thing as trading by the tipper followed by a gift of the proceeds. Here, by disclosing confidential information as a gift to his brother with the expectation that he would trade on it, Maher breached his duty of trust and confidence to Citigroup and its clients—a duty acquired and breached by Salman when he traded on the information with full knowledge that it had been improperly disclosed. To the extent that the Second Circuit in Newman held that the tipper must also receive something of a “pecuniary or similarly valuable nature” in exchange for a gift to a trading relative, that rule is inconsistent with Dirks. .(c) Salman’s arguments to the contrary are rejected. Salman has cited nothing in this Court’s precedents that undermines the gift-giving principle this Court announced in Dirks. Nor has he demonstrated that either §10(b) itself or Dirks’s gift-giving standard “leav[e] grave uncertainty about how to estimate the risk posed by a crime” or are plagued by “hopeless indeterminacy.” Johnson v. United States, 576 U. S. ___, ___, ___. Salman also has shown “no grievous ambiguity or uncertainty that would trigger” the rule of lenity. Barber v. Thomas,560 U. S. 474 (internal quotation marks omitted). To the contrary, his conduct is in the heartland of Dirks’s rule concerning gifts of confidential information to trading relatives. .792 F. 3d 1087, affirmed.Alito, J., delivered the opinion for a unanimous Court.

Petitioner Bassam Salman received lucrative trading tips from an extended family member, who had received the information from his brother-in-law. At first, he relied on his older brother (also known as Michael) to help him grasp scientific concepts relevant to his new job. Then, while his father was battling cancer, the brothers discussed companies that dealt with innovative cancer treatment and pain management techniques. Eventually, Maher began to assist Michael in his trading by sharing inside information with his brother about mergers and acquisitions involving Citigroup's clients. Eventually, he began to trade on the information on the basis of the information Maher shared with him. Ultimately, he was convicted of conspiracy and insider trading. The Court of Appeals affirmed the conviction, holding that Dirks v. SEC, 787 F. 3d 1087 (CA9), which allowed a factfinder to infer a personal benefit to the tipper from a gift of confidential information to a trading relative or friend, did not permit such an inference. Held: The judgment is affirmed. ;;. (a) A tippee is liable for undisclosed trading on inside information by individuals who are under a duty of trust and confidence that prohibits them from secretly using such information for their personal advantage. Dirks makes clear that a tipper breaches a fiduciary duty by making a confidential information disclosure for a noncorporate purpose, and that rule is sufficient to resolve the case at hand. . (b) There is no need for this Court to address the difficult cases in this case, because this case involves the precise act of trading on the inside information, Dirks making clear that Maher would personally benefit from the same result by disclosing the information to his brother and allowing him to trade it. Here, by disclosing confidential information as a gift to Maher with the expectation that he would trade on it, Maher breached his duty by receiving something of value in exchange for the tip or by giving the confidential information away with full knowledge that it had been improperly disclosed. To the extent that the Government introduced no evidence that the defendants knew the information they traded on came from insiders or that the insiders received a personal benefit in exchange for the tips, this Court agrees with the Ninth Circuit that this requirement is inconsistent with Dirks. And, as Salman conceded below, this evidence was sufficient to sustain his conviction under this Court's reading of Dirks, which is supported by other statutory elements that prosecutors must satisfy in a case brought under the classical theory of insider-trading liability, which applies when a corporate insider breaches a duty to, and takes advantage of, the shareholders of his corporation. See, e.g., id., at 654; Tr. of Oral Arg. 39, 561 U. S. Cleveland, 358 U.S. 561. Assuming, arguendo, that a person commits securities fraud when he misappropriates information for his confidential information, the facts of this case do not undermine the proposition that fraud is not consummated unless the defendant obtains money or property. Similarly, there is nothing in Dirks to undermine the construction of the facts that Maher and Maher made inside information for trading in favor of the Government. Even if the evidence established Maher and his brother that Maher made gifts of trading information to Michael and that he knew it were the same thing as trading by tipper followed by the proceeds are sufficient to support the inference that Maher personally benefited from the disclosure. Moreover, the Government presented direct evidence that it was inconsistent with the test Dirks articulated and applied. Thus, the evidence is sufficient to sustain the conviction under the reading that Maher, as well as Maher, violated Dirks and the precedents on which Dirks relied. Both the Government and the courts below reversed the Newman defendants' convictions, since the Government did not introduce evidence that they knew that the respondents knew that they had breached a duty. In addition, the court also reversed the convictions of petitioners who were convicted in United States v. Newman, 773 F.3d 438, which established the personal-benefit framework in cases brought under, inter alia, the classical misappropriation theory, which requires that a defendant be convicted of securities fraud in such a case, in which the defendant breaches the duty to adhere to a duty that ensue for the information he expected to be disclosed, and the misappropriation theory is applicable. Also, this case does not implicate the issues raised by the Government, since petitioners concede below that their convictions were affirmed on the ground that they were erroneously reversed by the court below. Petitioners challenge their convictions under Dirks on the grounds that:1. In order to establish a defendant's criminal liability, it must prove beyond a reasonable doubt that he expected that the information being disclosed would be used in securities trading, and thus the defendant knew that he breached the duty that he disclosed the information for personal benefit. Dirks creates a simple and clear guideline

2016_15-777

https://www.oyez.org/cases/2016/15-777

. Section 289 of the Patent Act provides a damages rem-edy specific to design patent infringement. A person who manufactures or sells “any article of manufacture to which [a patented] design or colorable imitation has been applied shall be liable to the owner to the extent of his totalprofit.” 35 U. S. C. §289. In the case of a design for a single-component product, such as a dinner plate, the product is the “article of manufacture” to which the design has been applied. In the case of a design for a multicomponent product, such as a kitchen oven, identifying the “article of manufacture” to which the design has been applied is a more difficult task. This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible “article of manufacture” for the purpose of calculating §289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with §289. We hold that it is not. I A The federal patent laws have long permitted those who invent designs for manufactured articles to patent their designs. See Patent Act of 1842, §3, 5Stat. 543–544. Patent protection is available for a “new, original and ornamental design for an article of manufacture.” 35 U. S. C. §171(a). A patentable design “gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form.” Gorham Co. v. White, 14 Wall. 511, 525 (1872). This Court has explained that a design patent is infringed “if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.” Id., at 528. In 1885, this Court limited the damages available for design patent infringement. The statute in effect at the time allowed a holder of a design patent to recover “the actual damages sustained” from infringement. Rev. Stat. §4919. In Dobson v. Hartford Carpet Co., 114 U. S. 439 (1885) , the lower courts had awarded the holders of design patents on carpets damages in the amount of “the entire profit to the [patent holders], per yard, in the manufacture and sale of carpets of the patented designs, and not merely the value which the designs contributed to the carpets.” Id., at 443. This Court reversed the damages award and construed the statute to require proof that the profits were “due to” the design rather than other aspects of the carpets. Id., at 444; see also Dobson v. Dornan, 118 U. S. 10, 17 (1886) (“The plaintiff must show what profits or damages are attributable to the use of the infringing design”). In 1887, in response to the Dobson cases, Congress enacted a specific damages remedy for design patent infringement. See S. Rep. No. 206, 49th Cong., 1st Sess., 1–2 (1886); H. R. Rep. No. 1966, 49th Cong., 1st Sess., 1–2 (1886). The new provision made it unlawful to manufacture or sell an article of manufacture to which a patented design or a colorable imitation thereof had been applied. An act to amend the law relating to patents, trademarks, and copyright, §1, 24Stat. 387. It went on to make a design patent infringer “liable in the amount of” $250 or “the total profit made by him from the manufacture or sale . . . of the article or articles to which the design, or color-able imitation thereof, has been applied.” Ibid. The Patent Act of 1952 codified this provision in §289. 66Stat. 813. That codified language now reads, in relevant part: “Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250 . . . .” 35 U. S. C. §289. B Apple Inc. released its first-generation iPhone in 2007. The iPhone is a smartphone, a “cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectiv-ity.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 2). Apple secured many design patents in connection with the release. Among those patents were the D618,677 patent, covering a black rectangular front face with rounded corners, the D593,087 patent, covering a rectangular front face with rounded corners and a raised rim, and the D604,305 patent, covering a grid of 16 colorful icons on a black screen. App. 530–578. Samsung Electronics Co., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (Samsung), also manufacture smartphones. After Apple released its iPhone, Samsung released a series of smartphones that resembled the iPhone. Id., at 357–358. Apple sued Samsung in 2011, alleging, as relevant here, that various Samsung smartphones infringed Apple’s D593,087, D618,677, and D604,305 design patents. A jury found that several Samsung smartphones did infringe those patents. See id., at 273–276. All told, Apple was awarded $399 million in damages for Samsung’s design patent infringement, the entire profit Samsung made from its sales of the infringing smartphones. See id., at 277–280, 348–350. The Federal Circuit affirmed the design patent infringement damages award.[1] In doing so, it rejected Samsung’s argument “that the profits awarded should have been limited to the infringing ‘article of manufacture’ ”—for example, the screen or case of the smartphone—“not the entire infringing product”—the smartphone. 786 F. 3d 983, 1002 (2015). It reasoned that “limit[ing] the dam-ages” award was not required because the “innards of Samsung’s smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers.” Ibid. We granted certiorari, 577 U. S. ___ (2016), and now reverse and remand. II Section 289 allows a patent holder to recover the total profit an infringer makes from the infringement. It does so by first prohibiting the unlicensed “appli[cation]” of a “patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale” or the unlicensed sale or exposure to sale of “any article of manufacture to which [a patented] design or colorable imitation has been applied.” 35 U. S. C. §289. It then makes a person who violates that prohibition “liable to the owner to the extent of his total profit, but not less than $250.” Ibid. “Total,” of course, means all. See American Heritage Dictionary 1836 (5th ed. 2011) (“[t]he whole amount of something; the entirety”). The “total profit” for which §289 makes an infringer liable is thus all of the profit made from the prohibited conduct, that is, from the manufacture or sale of the “article of manufacture to which [the patented] design or colorable imitation has been applied.” Arriving at a damages award under §289 thus involves two steps. First, identify the “article of manufacture” to which the infringed design has been applied. Second, calculate the infringer’s total profit made on that article of manufacture. This case requires us to address a threshold matter: the scope of the term “article of manufacture.” The only question we resolve today is whether, in the case of a multicomponent product, the relevant “article of manufacture” must always be the end product sold to the consumer or whether it can also be a component of that product. Under the former interpretation, a patent holder will always be entitled to the infringer’s total profit from the end product. Under the latter interpretation, a patent holder will sometimes be entitled to the infringer’s total profit from a component of the end product.[2] A The text resolves this case. The term “article of manufacture,” as used in §289, encompasses both a product sold to a consumer and a component of that product. “Article of manufacture” has a broad meaning. An “article” is just “a particular thing.” J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 (“[a]n individual thing or element of a class; a particular object or item”). And “manufacture” means “the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man” and “the articles so made.” Stormonth 589; see also American Heritage Dictionary, at 1070 (“[t]he act, craft, or process of manufacturing products, especially on a large scale” or “[a] product that is manufactured”). An article of manufacture, then, is sim-ply a thing made by hand or machine. So understood, the term “article of manufacture” is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture. This reading of article of manufacture in §289 is consistent with 35 U. S. C. §171(a), which makes “new, original and ornamental design[s] for an article of manufacture” eligible for design patent protection.[3] The Patent Office and the courts have understood §171 to permit a design patent for a design extending to only a component of a multicomponent product. See, e.g., Ex parte Adams, 84 Off. Gaz. Pat. Office 311 (1898) (“The several articles of manufacture of peculiar shape which when combined produce a machine or structure having movable parts may each separately be patented as a design . . . ”); Application of Zahn, 617 F. 2d 261, 268 (CCPA 1980) (“Section 171 authorizes patents on ornamental designs for articles of manufacture. While the design must be embodied in some articles, the statute is not limited to designs for complete articles, or ‘discrete’ articles, and certainly not to articles separately sold . . . ”). This reading is also consistent with 35 U. S. C. §101, which makes “any new and useful . . . manufacture . . . or any new and useful improvement thereof” eligible for utility patent protection. Cf. 8 D. Chisum, Patents §23.03[2], pp. 23–12 to 23–13 (2014) (noting that “article of manufacture” in §171 includes “what would be considered a ‘manufacture’ within the meaning of Section 101”). “[T]his Court has read the term ‘manufacture’ in §101 . . . to mean ‘the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.’ ” Diamond v. Chakrabarty, 447 U. S. 303, 308 (1980) (quoting American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931) ). The broad term includes “the parts of a machine considered sepa-rately from the machine itself.” 1 W. Robinson, The Law of Patents for Useful Inventions §183, p. 270 (1890). B The Federal Circuit’s narrower reading of “article of manufacture” cannot be squared with the text of §289. The Federal Circuit found that components of the infringing smartphones could not be the relevant article of manufacture because consumers could not purchase those components separately from the smartphones. See 786 F. 3d, at 1002 (declining to limit a §289 award to a component of the smartphone because “[t]he innards of Samsung’s smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers”); see also Nordock, Inc. v. Systems Inc., 803 F. 3d 1344, 1355 (CA Fed. 2015) (declining to limit a §289 award to a design for a “ ‘lip and hinge plate’ ” because it was “welded together” with a leveler and “there was no evidence” it was sold “separate[ly] from the leveler as a complete unit”). But, for the reasons given above, the term “article of manufacture” is broad enough to embrace both a product sold to a consumer and a component of that product, whether sold separately or not. Thus, reading “article of manufacture” in §289 to cover only an end product sold to a consumer gives too narrow a meaning to the phrase. The parties ask us to go further and resolve whether, for each of the design patents at issue here, the relevant article of manufacture is the smartphone, or a particular smartphone component. Doing so would require us to set out a test for identifying the relevant article of manufacture at the first step of the §289 damages inquiry and to parse the record to apply that test in this case. The United States as amicus curiae suggested a test, see Brief for United States as Amicus Curiae 27–29, but Samsung and Apple did not brief the issue. We decline to lay out a test for the first step of the §289 damages inquiry in the absence of adequate briefing by the parties. Doing so is not necessary to resolve the question presented in this case, and the Federal Circuit may address any remaining issues on remand. III The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Samsung raised a host of challenges on appeal related to other claims in the litigation between Apple and Samsung. The Federal Circuit affirmed in part—with respect to the design patent infringement finding, the validity of two utility patent claims, and the design and utility patent infringement damages awards—and reversed and remanded in part—with respect to trade dress dilution. Only the design patent infringement award is at issue here. 2 In its petition for certiorari and in its briefing, Samsung challenged the decision below on a second ground. It argued that 35 U. S. C. §289 contains a causation requirement, which limits a §289 damages award to the total profit the infringer made because of the infringement. Samsung abandoned this theory at argument, and so we do not address it. See Tr. of Oral Arg. 6. 3 As originally enacted, the provision protected “any new and original design for a manufacture.” §3, 5Stat. 544. The provision listed examples, including a design “worked into or worked on, or printed or painted or cast or otherwise fixed on, any article of manufacture” and a “shape or configuration of any article of manufacture.” Ibid. A streamlined version enacted in 1902 protected “any new, original, and ornamental design for an article of manufacture.” Ch. 783, 32Stat. 193. The Patent Act of 1952 retained that language. See §171, 66Stat. 813.

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 SAMSUNG ELECTRONICS CO., LTD., et al. v.APPLE INC. certiorari to the united states court of appeals for the federal circuit No. 15–777. Argued October 11, 2016—Decided December 6, 2016 Section 289 of the Patent Act makes it unlawful to manufacture or sell an “article of manufacture” to which a patented design or a colorable imitation thereof has been applied and makes an infringer liable to the patent holder “to the extent of his total profit.” 35 U. S. C. §289. As relevant here, a jury found that various smartphones manufactured by petitioners (collectively, Samsung) infringed design patents owned by respondent Apple Inc. that covered a rectangular front face with rounded edges and a grid of colorful icons on a black screen. Apple was awarded $399 million in damages—Samsung’s entire profit from the sale of its infringing smartphones. The Federal Circuit affirmed the damages award, rejecting Samsung’s argument that damages should be limited because the relevant articles of manufacture were the front face or screen rather than the entire smartphone. The court reasoned that such a limit was not required because the components of Samsung’s smartphones were not sold separately to ordinary consumers and thus were not distinct articles of manufacture. Held: In the case of a multicomponent product, the relevant “article of manufacture” for arriving at a §289 damages award need not be the end product sold to the consumer but may be only a component of that product. . (a) The statutory text resolves the issue here. An “article of manufacture,” which is simply a thing made by hand or machine, encompasses both a product sold to a consumer and a component of that product. This reading is consistent with §171(a) of the Patent Act, which makes certain “design[s] for an article of manufacture” eligible for design patent protection, and which has been understood by the Patent Office and the courts to permit a design patent that extends to only a component of a multicomponent product, see, e.g., Ex parte Adams, 84 Off. Gaz. Pat. Office 311; Application of Zahn, 617 F. 2d 261, 268 (CCPA). This reading is also consistent with the Court’s reading of the term “manufacture” in §101, which makes “any new and useful . . . manufacture” eligible for utility patent protection. See Diamond v. Chakrabarty, 447 U. S. 303 . . (b) Because the term “article of manufacture” is broad enough to embrace both a product sold to a consumer and a component of that product, whether sold separately or not, the Federal Circuit’s narrower reading cannot be squared with §289’s text. Absent adequate briefing by the parties, this Court declines to resolve whether the relevant article of manufacture for each design patent at issue here is the smartphone or a particular smartphone component. Doing so is not necessary to resolve the question presented, and the Federal Circuit may address any remaining issues on remand. . 786 F. 3d 983, reversed and remanded. Sotomayor, J., delivered the opinion for a unanimous Court.

Section 289 of the Patent Act makes it unlawful to manufacture or sell an article of manufacture to which a patented design or a colorable imitation thereof had been applied. In the case of a design for a single-component product, such as a dinner plate, the product is the "article of manufacture" to which the design has been applied, and in the case for a multicomponent product, similar to the iPhone, the article is the source of manufacture. After Apple released its iPhone, it released a series of smartphones that resembled the iPhone. The patent laws have long permitted those who invent designs for manufactured articles to patent their designs. 35 U. S. C. §289 allows a patent holder to recover the total profit an infringer makes from the infringement by prohibiting the unlicensed appli[cation] of apatented design to articles of manufacture for the purpose of sale. However, §289 makes a person who violates that prohibition "liable to the owner to the extent of his total profit, but not less than $250." The Federal Circuit affirmed the design patent infringement damages award, rejecting the argument that the profits should have been limited to the infringing articles. Held: 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. ;;. 792 F. 3d 983, reversed and remanded. (a) Arriving at a damages award under §289, first, identify the infringing design and second, calculate the infringer's total profit made on that article. Here, the scope of the term is broad enough to encompass both a product sold to a consumer and a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles. This reading is consistent with §171(a), which makes new, original and ornamental design[s] eligible for design patent protection. . (b) The term of manufacture, however, as used in §289 to define both a consumer product and a product component, gives §289 a broad enough reading to embrace both products sold to consumers and a consumer sold to both. Thus, the term gives the broad reading that §289 gives the consumer and the product the product sold separately. Thus, it is not too narrow a reading to resolve the §289 design issue. Doing so in the absence of adequate briefing by the parties will not resolve the question presented in this case. P.. (c) The lower courts did not lay out a test of §289 for the first time, and will not address the remaining issues on remand. Such a test is not necessary to resolve that question. W. Robinson, The Law of Patents for Useful Inventions §183, p. 270 (1890). Pp. 447 U.S. 439-443. (d) The narrower reading of the phrase that the court found that components of the infringing smartphones could not be the relevant article of manufacture because consumers could not purchase those components separately from the smartphones cannot be squared with §289. That reading gives the narrow reading too narrow to cover a particular product sold only to the consumer, and thus gives a narrow reading that gives the parties too much scope to resolve a design or product issue.. 786 F.3d 1002 (CA 9 1989), reversed in part, remanded; 555 F.2d 813 (CA 8 1989). WHITE, J., wrote the opinion of Amicus, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. DOUGLAS and STEVENS JJ., concurred in the judgment.

2016_15-1039

https://www.oyez.org/cases/2016/15-1039

. These cases involve 42 U. S. C. §262(l), which was enacted as part of the Biologics Price Competition and Innovation Act of 2009 (BPCIA), 124Stat. 808. The BPCIA governs a type of drug called a biosimilar, which is a biologic product that is highly similar to a biologic product that has already been approved by the Food and Drug Administration (FDA). Under §262(l), an applicant that seeks FDA approval of a biosimilar must provide its application materials and manufacturing information to the manufacturer of the corresponding biologic within 20 days of the date the FDA notifies the applicant that it has accepted the application for review. The applicant then must give notice to the manufacturer at least 180 days before marketing the biosimilar commercially. The first question presented by these cases is whether the requirement that an applicant provide its application and manufacturing information to the manufacturer of the biologic is enforceable by injunction. We conclude that an injunction is not available under federal law, but we remand for the court below to decide whether an injunction is available under state law. The second question is whether the applicant must give notice to the manufac-turer after, rather than before, obtaining a license from the FDA for its biosimilar. We conclude that an applicant may provide notice before obtaining a license. I The complex statutory scheme at issue in these cases establishes processes both for obtaining FDA approval of biosimilars and for resolving patent disputes between manufacturers of licensed biologics and manufacturers of biosimilars. Before turning to the questions presented, we first explain the statutory background. A A biologic is a type of drug derived from natural, biological sources such as animals or microorganisms. Biologics thus differ from traditional drugs, which are typically synthesized from chemicals.[1] A manufacturer of a biologic may market the drug only if the FDA has licensed it pursuant to either of two review processes set forth in §262. The default pathway for approval, used for new biologics, is set forth in §262(a). Under that subsection, the FDA may license a new biologic if, among other things, the manufacturer demonstrates that it is “safe, pure, and potent.” §262(a)(2)(C)(i)(I). In addition to this default route, the statute also prescribes an alternative, abbreviated route for FDA approval of biosimilars, which is set forth in §262(k). To obtain approval through the BPCIA’s abbreviated process, the manufacturer of a biosimilar (applicant) does not need to show that the product is “safe, pure, and potent.” Instead, the applicant may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). See §262(k)(2)(A)(iii). An applicant must show that its product is “highly similar” to the reference product and that there are no “clinically meaningful differences” between the two in terms of “safety, purity, and potency.” §§262(i)(2)(A), (B); see also §262(k)(2)(A)(i)(I). An applicant may not submit an application until 4 years after the reference product is first licensed, and the FDA may not license a biosimilar until 12 years after the reference product is first licensed. §§262(k)(7)(A), (B). As a result, the manufacturer of a new biologic enjoys a 12-year period when its biologic may be marketed without competition from biosimilars. B A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. Those patents may constrain an applicant’s ability to market its biosimilar even after the expiration of the 12-year exclusivity period contained in §262(k)(7)(A). The BPCIA facilitates litigation during the period preceding FDA approval so that the parties do not have to wait until commercial marketing to resolve their patent disputes. It enables the parties to bring infringement actions at certain points in the application process, even if the applicant has not yet committed an act that would traditionally constitute patent infringement. See 35 U. S. C. §271(a) (traditionally infringing acts include making, using, offering to sell, or selling any patented invention within the United States without authority to do so). Specifically, it provides that the mere submission of a biosimilar application constitutes an act of infringement. §§271(e)(2)(C)(i), (ii). We will refer to this kind of preapproval infringement as “artificial” infringement. Section 271(e)(4) provides remedies for artificial infringement, including injunctive relief and damages. C The BPCIA sets forth a carefully calibrated scheme for preparing to adjudicate, and then adjudicating, claims of infringement. See 42 U. S. C. §262(l). When the FDA accepts an application for review, it notifies the applicant, who within 20 days “shall provide” to the sponsor a copy of the application and information about how the biosimilar is manufactured. §262(l)(2)(A). The applicant also “may provide” the sponsor with any additional information that it requests. §262(l)(2)(B). These disclosures enable the sponsor to evaluate the biosimilar for possible infringement of patents it holds on the reference product (i.e., the corresponding biologic). §262(l)(1)(D). The information the applicant provides is subject to strict confidentiality rules, enforceable by injunction. See §262(l)(1)(H). The first question presented by these cases is whether §262(l)(2)(A)’s requirement—that the applicant provide its application and manufacturing information to the sponsor—is itself enforceable by injunction. After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. Within 60 days of receiving the application and manufacturing information, the sponsor “shall provide” to the applicant “a list of patents” for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported “the biological product that is the subject of the [biosimilar] application.” §262(l)(3)(A)(i). The sponsor must also identify any patents on the list that it would be willing to license. §262(l)(3)(A)(ii). Next, within 60 days of receiving the sponsor’s list, the applicant may provide to the sponsor a list of patents that the applicant believes are relevant but that the sponsor omitted from its own list, §262(l)(3)(B)(i), and “shall provide” to the sponsor reasons why it could not be held liable for infringing the relevant patents, §262(l)(3)(B)(ii). The applicant may argue that the relevant patents are invalid, unenforceable, or not infringed, or the applicant may agree not to market the biosimilar until a particular pat-ent has expired. Ibid. The applicant must also respond to the sponsor’s offers to license particular patents. §262(l)(3)(B)(iii). Then, within 60 days of receiving the applicant’s responses, the sponsor “shall provide” to the applicant its own arguments concerning infringement, enforceability, and validity as to each relevant patent. §262(l)(3)(C). Following this exchange, the BPCIA channels the parties into two phases of patent litigation. In the first phase, the parties collaborate to identify patents that they would like to litigate immediately. The second phase is triggered by the applicant’s notice of commercial marketing and involves any patents that were included on the parties’ §262(l)(3) lists but not litigated in the first phase. At the outset of the first phase, the applicant and the sponsor must negotiate to determine which patents included on the §262(l)(3) lists will be litigated immediately. See §§262(l)(4)(A), (l)(6). If they cannot agree, then they must engage in another list exchange. §262(l)(4)(B). The applicant “shall notify” the sponsor of the number of pat-ents it intends to list for litigation, §262(l)(5)(A), and, within five days, the parties “shall simultaneously exchange” lists of the patents they would like to litigate immediately. §262(l)(5)(B)(i). This process gives the applicant substantial control over the scope of the first phase of litigation: The number of patents on the sponsor’s list is limited to the number contained in the applicant’s list, though the sponsor always has the right to list at least one patent. §262(l)(5)(B)(ii). The parties then proceed to litigate infringement with respect to the patents they agreed to litigate or, if they failed to agree, the patents contained on the lists they simultaneously exchanged under §262(l)(5). §§262(l)(6)(A), (B). Section 271(e)(2)(C)(i) facilitates this first phase of litigation by making it an act of artificial infringement, with respect to any patent included on the parties’ §262(l)(3) lists, to submit an application for a license from the FDA. The sponsor “shall bring an action” in court within 30 days of the date of agreement or the simultaneous list exchange. §§262(l)(6)(A), (B). If the sponsor brings a timely action and prevails, it may obtain a rem-edy provided by §271(e)(4). The second phase of litigation involves patents that were included on the original §262(l)(3) lists but not litigated in the first phase (and any patents that the sponsor acquired after the §262(l)(3) exchange occurred and added to the lists, see §262(l)(7)). The second phase is commenced by the applicant’s notice of commercial marketing, which the applicant “shall provide” to the sponsor “not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” §262(l)(8)(A). The BPCIA bars any declaratory judgment action prior to this notice. §262(l)(9)(A) (prohibiting, in situations where the parties have complied with each step of the BPCIA process, either the sponsor or the applicant from seeking a “declaration of infringement, validity, or enforceability of any patent” that was included on the §262(l)(3) lists but not litigated in the first phase “prior to the date notice is received under paragraph (8)(A)”). Because the applicant (subject to certain constraints) chooses when to begin commercial marketing and when to give notice, it wields substantial control over the timing of the second phase of litigation. The second question presented is whether notice is effective if an appli-cant provides it prior to the FDA’s decision to license the biosimilar. In this second phase of litigation, either party may sue for declaratory relief. See §262(l)(9)(A). In addition, prior to the date of first commercial marketing, the sponsor may “seek a preliminary injunction prohibiting the [biosimilar] applicant from engaging in the commercial manufacture or sale of [the biosimilar] until the court decides the issue of patent validity, enforcement, and infringement with respect to any patent that” was included on the §262(l)(3) lists but not litigated in the first phase. §262(l)(8)(B). D If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the biosimilar is marketed. To encourage parties to comply with its procedural requirements, the BPCIA includes various consequences for failing to do so. Two of the BPCIA’s remedial provisions are at issue here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor—thus effectively pretermitting the entire two-phase litigation process—then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” Section 271(e)(2)(C)(ii) facilitates this action by making it an artificial act of infringement, with respect to any patent that could have been included on the §262(l)(3) lists, to submit a biosimilar application. Similarly, when an applicant provides the application and manufacturing information but fails to complete a subsequent step, §262(l)(9)(B) provides that the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s §262(l)(3)(A) list of patents (as well as those it acquired later and added to the list). As noted, it is an act of artificial infringement, with respect to any patent on the §262(l)(3) lists, to submit an application to the FDA. See §271(e)(2)(C)(i). II These cases concern filgrastim, a biologic used to stimulate the production of white blood cells. Amgen, the respondent in No. 15–1039 and the petitioner in No. 15–1195, has marketed a filgrastim product called Neupogen since 1991 and claims to hold patents on methods of manufacturing and using filgrastim. In May 2014, Sandoz, the petitioner in No. 15–1039 and the respondent in No. 15–1195, filed an application with the FDA seeking approval to market a filgrastim biosimilar under the brand name Zarxio, with Neupogen as the reference product. The FDA informed Sandoz on July 7, 2014, that it had accepted the application for review. One day later, Sandoz notified Amgen both that it had submitted an application and that it intended to begin marketing Zarxio immediately upon receiving FDA approval, which it expected in the first half of 2015. Sandoz later confirmed that it did not intend to provide the requisite application and manufacturing information under §262(l)(2)(A) and informed Amgen that Amgen could sue for infringement immediately under §262(l)(9)(C). In October 2014, Amgen sued Sandoz for patent infringement. Amgen also asserted two claims under California’s unfair competition law, which prohibits “any unlawful . . . business act or practice.” Cal. Bus. & Prof. Code Ann. §17200 (West 2008). A “business act or practice” is “unlawful” under the unfair competition law if it violates a rule contained in some other state or federal statute. Rose v. Bank of America, N. A., 57 Cal. 4th 390, 396, 304 P. 3d 181, 185 (2013). Amgen alleged that Sandoz engaged in “unlawful” conduct when it failed to provide its application and manufacturing information under §262(l)(2)(A), and when it provided notice of commercial marketing under §262(l)(8)(A) before, rather than after, the FDA licensed its biosimilar. Amgen sought injunctions to enforce both requirements. Sandoz counterclaimed for declaratory judgments that the asserted pat-ent was invalid and not infringed and that it had not violated the BPCIA. While the case was pending in the District Court, the FDA licensed Zarxio, and Sandoz provided Amgen a further notice of commercial marketing. The District Court subsequently granted partial judgment on the pleadings to Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice. 2015 WL 1264756, *7–*9 (ND Cal., Mar. 19, 2015). After the District Court entered final judgment as to these claims, Amgen appealed to the Federal Circuit, which granted an injunction pending appeal against the commercial marketing of Zarxio. A divided Federal Circuit affirmed in part, vacated in part, and remanded. First, the court affirmed the dismissal of Amgen’s state-law claim based on Sandoz’s alleged violation of §262(l)(2)(A). It held that Sandoz did not violate the BPCIA in failing to disclose its application and manufacturing information. It further held that the remedies contained in the BPCIA are the exclusive remedies for an applicant’s failure to comply with §262(l)(2)(A). 794 F. 3d 1347, 1357, 1360 (2015). Second, the court held that an applicant may provide effective notice of commercial marketing only after the FDA has licensed the biosimilar. Id., at 1358. Accord-ingly, the 180-day clock began after Sandoz’s second, post-licensure notice. The Federal Circuit further concluded that the notice requirement is mandatory and extended its injunction pending appeal to bar Sandoz from marketing Zarxio until 180 days after the date it provided its second notice. Id., at 1360–1361. We granted Sandoz’s petition for certiorari, No. 15–1039, and Amgen’s conditional cross-petition for certiorari, No. 15–1195, and consolidated the cases. 580 U. S. ___ (2017). III The first question we must answer is whether §262(l)(2)(A)’s requirement that an applicant provide the sponsor with its application and manufacturing information is enforceable by an injunction under either federal or state law. A We agree with the Federal Circuit that an injunction under federal law is not available to enforce §262(l)(2)(A), though for slightly different reasons than those provided by the court below. The Federal Circuit held that “ 42 U. S. C. §262(l)(9)(C) and 35 U. S. C. §271(e) expressly provide the only remedies” for a violation of §262(l)(2)(A), 794 F. 3d, at 1357, and neither of those provisions authorizes a court to compel compliance with §262(l)(2)(A). In concluding that the remedies specified in the BPCIA are exclusive, the Federal Circuit relied primarily on §271(e)(4), which states that it provides “ ‘the only remedies which may be granted by a court for an act of [artificial] infringement.’ ” Id., at 1356 (emphasis deleted). The flaw in the Federal Circuit’s reasoning is that Sandoz’s failure to disclose its application and manufacturing information was not an act of artificial infringement, and thus was not remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement. See §§271(e)(2)(C)(i), (ii) (“It shall be an act of infringement to submit . . . an application seeking approval of a biological product”). Failing to disclose the application and manufacturing information under §262(l)(2)(A) does not. In reaching the opposite conclusion, the Federal Circuit relied on §271(e)(2)(C)(ii), which states that “[i]t shall be an act of infringement to submit[,] if the applicant for the application fails to provide the application and information required under [§262(l)(2)(A)], an application seeking approval of a biological product for a patent that could be identified pursuant to [§262(l)(3)(A)(i)].” (Emphasis added.) The court appeared to conclude, based on the italicized language, that an applicant’s noncompliance with §262(l)(2)(A) is an element of the act of artificial infringement (along with the submission of the application). 794 F. 3d, at 1356. We disagree. The italicized language merely assists in identifying which patents will be the subject of the artificial infringement suit. It does not define the act of artificial infringement itself. This conclusion follows from the structure of §271(e)(2)(C). Clause (i) of §271(e)(2)(C) defines artificial infringement in the situation where the parties proceed through the list exchange process and the patents subject to suit are those contained in the §262(l)(3) lists, as supplemented under §262(l)(7). That clause provides that it is an act of artificial infringement to submit, “with respect to a patent that is identified in the list of patents described in [§262(l)(3)] (including as provided under [§262(l)(7)]), an application seeking approval of a biological product.” (Emphasis added.) Clause (ii) of §271(e)(2)(C), in contrast, defines artificial infringement in the situation where an applicant fails to disclose its application and manufacturing information altogether and the parties never prepare the §262(l)(3) lists. That clause provides that the submission of the application represents an act of artificial infringement with respect to any patent that could have been included on the lists. In this way, the two clauses of §271(e)(2)(C) work in tandem. They both treat submission of the application as the act of artificial infringement for which §271(e)(4) provides the remedies. And they both identify the patents subject to suit, although by different means depending on whether the applicant disclosed its application and manufacturing information under §262(l)(2)(A). If the applicant made the disclosures, clause (i) applies; if it did not, clause (ii) applies. In neither instance is the applicant’s failure to provide its application and manufacturing information an element of the act of artificial infringement, and in neither instance does §271(e)(4) provide a remedy for that failure. See Brief for Amgen Inc. et al. 66–67 (conceding both points). A separate provision of §262, however, does provide a remedy for an applicant’s failure to turn over its application and manufacturing information. When an applicant fails to comply with §262(l)(2)(A), §262(l)(9)(C) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement as defined in §271(e)(2)(C)(ii). Section 262(l)(9)(C) thus vests in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation. It also deprives the applicant of the certainty that it could have obtained by bringing a declaratory-judgment action prior to marketing its product. The remedy provided by §262(l)(9)(C) excludes all other federal remedies, including injunctive relief. Where, as here, “a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies.” Karahalios v. Federal Employees, 489 U. S. 527, 533 (1989) . The BPCIA’s “carefully crafted and detailed enforcement scheme provides strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.” Great-West Life & Annu-ity Ins. Co. v. Knudson, 534 U. S. 204, 209 (2002) (internal quotation marks omitted). The presence of §262(l)(9)(C), coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement. Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. Section 262(l)(1)(H) provides that “the court shall consider immediate injunctive relief to be an appropriate and necessary remedy for any violation or threatened violation” of the rules governing the confidentiality of information disclosed under §262(l). We assume that Congress acted intentionally when it provided an injunctive remedy for breach of the confidentiality requirements but not for breach of §262(l)(2)(A)’s disclosure requirement. Cf. Touche Ross & Co. v. Redington, 442 U. S. 560, 572 (1979) (“[W]hen Congress wished to provide a private damage remedy, it knew how to do so and did so expressly”).[2] Accordingly, the Federal Circuit properly declined to grant an injunction under federal law. B The Federal Circuit rejected Amgen’s request for an injunction under state law for two reasons. First, it interpreted California’s unfair competition law not to provide a remedy when the underlying statute specifies an “expressly . . . exclusive” remedy. 794 F. 3d, at 1360 (citing Cal. Bus. & Prof. Code Ann. §17205; Loeffler v. Target Corp., 58 Cal. 4th 1081, 1125–1126, 324 P. 3d 50, 76 (2014)). It further held that §271(e)(4), by its text, “provides ‘the only remedies’ ” for an applicant’s failure to disclose its application and manufacturing information. 794 F. 3d, at 1360 (quoting §271(e)(4)). The court thus concluded that no state remedy was available for Sandoz’s alleged violation of §262(l)(2)(A) under the terms of California’s unfair competition law. This state-law holding rests on an incorrect interpretation of federal law. As we have explained, failure to comply with §262(l)(2)(A) is not an act of artificial infringement. Because §271(e)(4) provides remedies only for artificial infringement, it provides no remedy at all, much less an “expressly . . . exclusive” one, for Sandoz’s failure to comply with §262(l)(2)(A). Second, the Federal Circuit held in the alternative that Sandoz’s failure to disclose its application and manufacturing information was not “unlawful” under California’s unfair competition law. In the court’s view, when an applicant declines to provide its application and manufacturing information to the sponsor, it takes a path “expressly contemplated by” §262(l)(9)(C) and §271(e)(2)(C)(ii) and thus does not violate the BPCIA. 794 F. 3d, at 1357, 1360. In their briefs before this Court, the parties frame this issue as whether the §262(l)(2)(A) requirement is mandatory in all circumstances, see Brief for Amgen Inc. et al. 58, or merely a condition precedent to the information exchange process, see Reply Brief for Sandoz Inc. 33. If it is only a condition precedent, then an applicant effectively has the option to withhold its application and manufacturing information and does not commit an “unlawful” act in doing so. We decline to resolve this particular dispute definitively because it does not present a question of federal law. The BPCIA, standing alone, does not require a court to decide whether §262(l)(2)(A) is mandatory or conditional; the court need only determine whether the applicant supplied the sponsor with the information required under §262(l)(2)(A). If the applicant failed to provide that information, then the sponsor, but not the applicant, could bring an immediate declaratory-judgment action pursuant to §262(l)(9)(C). The parties in these cases agree—as did the Federal Circuit—that Sandoz failed to comply with §262(l)(2)(A), thus subjecting itself to that consequence. There is no dispute about how the federal scheme actually works, and thus nothing for us to decide as a matter of federal law. The mandatory or conditional nature of the BPCIA’s requirements matters only for purposes of California’s unfair competition law, which penalizes “unlawful” conduct. Whether Sandoz’s conduct was “unlawful” under the unfair competition law is a state-law question, and the court below erred in attempting to answer that question by referring to the BPCIA alone. On remand, the Federal Circuit should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful.” If the answer is yes, then the court should proceed to determine whether the BPCIA pre-empts any additional remedy available under state law for an applicant’s failure to comply with §262(l)(2)(A) (and whether Sandoz has forfeited any pre-emption defense, see 794 F. 3d, at 1360, n. 5). The court is also of course free to address the pre-emption question first by assuming that a remedy under state law exists. IV The second question at issue in these cases is whether an applicant must provide notice after the FDA licenses its biosimilar, or if it may also provide effective notice before licensure. Section 262(l)(8)(A) states that the applicant “shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” The Federal Circuit held that an applicant’s biosimilar must already be “licensed” at the time the applicant gives notice. 794 F. 3d, at 1358. We disagree. The applicant must give “notice” at least 180 days “before the date of the first commercial marketing.” “[C]ommercial marketing,” in turn, must be “of the biological product licensed under subsection (k).” §262(l)(8)(A). Because this latter phrase modifies “commercial marketing” rather than “notice,” “commercial marketing” is the point in time by which the biosimilar must be “licensed.” The statute’s use of the word “licensed” merely reflects the fact that, on the “date of the first commercial marketing,” the product must be “licensed.” See §262(a)(1)(A). Accordingly, the applicant may provide notice either before or after receiving FDA approval. Statutory context confirms this interpretation. Section 262(l)(8)(A) contains a single timing requirement: The applicant must provide notice at least 180 days prior to marketing its biosimilar. The Federal Circuit, however, interpreted the provision to impose two timing requirements: The applicant must provide notice after the FDA licenses the biosimilar and at least 180 days before the applicant markets the biosimilar. An adjacent provision expressly sets forth just that type of dual timing requirement. See §262(l)(8)(B) (“After receiving notice under subparagraph (A) and before such date of the first commercial marketing of such biological product, the reference product sponsor may seek a preliminary injunction” (emphasis added)). But Congress did not use that structure in §262(l)(8)(A). “Had Congress intended to” impose two timing requirements in §262(l)(8)(A), “it presumably would have done so expressly as it did in the immediately following” subparagraph. Russello v. United States, 464 U. S. 16, 23 (1983) . We are not persuaded by Amgen’s arguments to the contrary. Amgen points out that other provisions refer to “ ‘the biological product that is the subject of’ ” the application, rather than the “ ‘biological product licensed under subsection (k).’ ” Brief for Amgen Inc. et al. 28 (emphasis added). In its view, this variation “is a strong textual indication that §262(l)(8)(A), unlike the other provisions, refers to a product that has already been ‘licensed’ by the FDA.” Ibid. Amgen’s interpretation is not necessary to harmonize Congress’ use of the two different phrases. The provision upon which Amgen primarily relies (and that is generally illustrative of the other provisions it cites) requires the applicant to explain why the sponsor’s patents are “ ‘invalid, unenforceable, or will not be infringed by the commercial marketing of the biological product that is the subject of the subsection (k) application.’ ” Id., at 29–30 (quoting §262(l)(3)(B)(ii)(I); emphasis deleted). This provision uses the phrase “subject of the subsection (k) application” rather than “product licensed under subsection (k)” because the applicant can evaluate validity, enforceability, and infringement with respect to the biosimilar only as it exists when the applicant is conducting the evaluation, which it does before licensure. The applicant cannot make the same evaluation with respect to the biosimilar as it will exist after licensure, because the biosimilar’s specifications may change during the application process. See, e.g., 794 F. 3d, at 1358. In contrast, nothing in §262(l)(8)(A) turns on the precise status or characteristics of the biosimilar application. Amgen also advances a host of policy arguments that prelicensure notice is undesirable. See Brief for Amgen Inc. et al. 35–42. Sandoz and the Government, in turn, respond with their own bevy of arguments that Amgen’s concerns are misplaced and that prelicensure notice affirmatively furthers Congress’ intent. See Brief for Sandoz Inc. 39–42, 56; Brief for United States as Amicus Curiae 28–29. The plausibility of the contentions on both sides illustrates why such disputes are appropriately addressed to Congress, not the courts. Even if we were persuaded that Amgen had the better of the policy arguments, those arguments could not overcome the statute’s plain language, which is our “primary guide” to Congress’ preferred policy. McFarland v. Scott, 512 U. S. 849, 865 (1994) (Thomas, J., dissenting). In sum, because Sandoz fully complied with §262(l)(8)(A) when it first gave notice (before licensure) in July 2014, the Federal Circuit erred in issuing a federal injunction prohibiting Sandoz from marketing Zarxio until 180 days after licensure. Furthermore, because Amgen’s request for state-law relief is predicated on its argument that the BPCIA forbids prelicensure notice, its claim under California’s unfair competition law also fails. We accordingly reverse the Federal Circuit’s judgment as to the notice provision. * * * For the foregoing reasons, the judgment of the Court of Appeals is vacated in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 FDA, What Are “Biologics” Questions and Answers (Aug. 5, 2015), http://www.fda.gov/aboutfda/centersoffices/officeofmedicalproductsandtobacco /cber /ucm133077.htm (as last visited June 6, 2017). 2 In holding that §262(l)(9)(C) represents the exclusive remedy for an applicant’s failure to provide its application and manufacturing information, we express no view on whether a district court could take into account an applicant’s violation of §262(l)(2)(A) (or any other BPCIA procedural requirement) in deciding whether to grant a preliminary injunction under 35 U. S. C. §271(e)(4)(B) or §283 against marketing the biosimilar. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008) (court should consider “balance of equities” in deciding whether to grant a preliminary injunction).

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 SANDOZ INC. v. AMGEN INC. et al. certiorari to the united states court of appeals for the federal circuit No. 15–1039. Argued April 26, 2017—Decided June 12, 2017[1] The Biologics Price Competition and Innovation Act of 2009 (BPCIA or Act) provides an abbreviated pathway for obtaining Food and Drug Administration (FDA) approval of a drug that is biosimilar to an already licensed biological product (reference product). 42 U. S. C. §262(k). It also provides procedures for resolving patent disputes between biosimilar manufacturers (applicants) and manufacturers of reference products (sponsors). §262(l). The Act treats the mere submission of a biosimilar application as an “artificial” act of infringement, enabling parties to bring patent infringement actions at certain points in the application process even if the applicant has not committed a traditional act of patent infringement. See 35 U. S. C. §§271(e)(2)(C)(i), (ii). Under §262(l)(2)(A), an applicant seeking FDA approval of a biosimilar must provide its application and manufacturing information to the sponsor within 20 days of the date the FDA notifies the applicant that it has accepted the application for review. This triggers an exchange of information between the applicant and sponsor designed to create lists of relevant patents and flesh out potential legal arguments. §262(l)(3). The BPCIA then channels the parties into two phases of patent litigation. In the first, the parties collaborate to identify patents on the lists for immediate litigation. The second phase—triggered when the applicant, pursuant to §262(l)(8)(A), gives the sponsor notice at least 180 days before commercially marketing the biosimilar—involves any listed patents not litigated in the first phase. The applicant has substantial control over the timing and scope of both phases of litigation. Failure to comply with these procedural requirements may lead to two consequences relevant here. Under §262(l)(9)(C), if an applicant fails to provide its application and manufacturing information to the sponsor under §262(l)(2)(A), then the sponsor, but not the applicant, may immediately bring an action “for a declaration of infringement, validity, or enforceability of any patent that claims the biological product or a use of the biological product.” And under §262(l)(9)(B), if an applicant provides the application and manufacturing information but fails to complete a subsequent step in the process, the sponsor, but not the applicant, may bring a declaratory-judgment action with respect to any patent included on the sponsor’s list of relevant patents. Neupogen is a filgrastim product marketed by Amgen, which claims to hold patents on methods of manufacturing and using filgrastim. Sandoz sought FDA approval to market a biosimilar filgrastim product under the brand name Zarxio, with Neupogen as the reference product. A day after the FDA informed Sandoz that its application had been accepted for review, Sandoz notified Amgen that it had submitted an application and that it intended to market Zarxio immediately upon receiving FDA approval. It later informed Amgen that it did not intend to provide the application and manufacturing information required by §262(l)(2)(A) and that Amgen could sue immediately for infringement under §262(l)(9)(C). Amgen sued Sandoz for patent infringement and also asserted that Sandoz engaged in “unlawful” conduct in violation of California’s unfair competition law. This latter claim was predicated on two alleged violations of the BPCIA: Sandoz’s failure to provide its application and manufacturing information under §262(l)(2)(A), and its provision of notice of commercial marketing under §262(l)(8)(A) prior to obtaining licensure from the FDA. Amgen sought injunctions to enforce both BPCIA requirements. Sandoz counterclaimed for declaratory judgments that the asserted patent was invalid and not infringed and that it had not violated the BPCIA. While the case was pending, the FDA licensed Zarxio, and Sandoz provided Amgen a further notice of commercial marketing. The District Court subsequently granted partial judgment on the pleadings to Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice. The Federal Circuit affirmed in part, vacated in part, and remanded. The court affirmed the dismissal of Amgen’s state-law claim based on Sandoz’s alleged violation of §262(l)(2)(A), holding that Sandoz did not violate the BPCIA in failing to disclose its application and manufacturing information and that the BPCIA provides the exclusive remedies for failure to comply with this requirement. The court also held that under §262(l)(8)(A) an applicant must provide notice of commercial marketing after obtaining licensure, and that this requirement is mandatory. It thus enjoined Sandoz from marketing Zarxio until 180 days after the date it provided its second notice. Held: Section 262(l)(2)(A) is not enforceable by injunction under federal law, but the Federal Circuit on remand should determine whether a state-law injunction is available. An applicant may provide notice under §262(l)(8)(A) prior to obtaining licensure. . (a) Section 262(l)(2)(A)’s requirement that an applicant provide the sponsor with its application and manufacturing information is not enforceable by an injunction under federal law. The Federal Circuit reached the proper result on this point, but its reasoning was flawed. It cited §271(e)(4), which expressly provides the “only remedies” for an act of artificial infringement. In light of this language, the court reasoned that no remedy other than those specified in the text—such as an injunction to compel the applicant to provide its application and manufacturing information—was available. The problem with this reasoning is that Sandoz’s failure to disclose was not an act of artificial infringement remediable under §271(e)(4). Submitting an application constitutes an act of artificial infringement; failing to disclose the application and manufacturing information required by §262(l)(2)(A) does not. Another provision, §262(l)(9)(C), provides a remedy for an applicant’s failure to turn over its application and manufacturing information. It authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action for artificial infringement, thus vesting in the sponsor the control that the applicant would otherwise have exercised over the scope and timing of the patent litigation and depriving the applicant of the certainty it could have obtained by bringing a declaratory-judgment action prior to marketing its product. The presence of this remedy, coupled with the absence of any other textually specified remedies, indicates that Congress did not intend sponsors to have access to injunctive relief, at least as a matter of federal law, to enforce the disclosure requirement. See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 . Statutory context further confirms that Congress did not authorize courts to enforce §262(l)(2)(A) by injunction. . (b) The Federal Circuit should determine on remand whether an injunction is available under state law to enforce §262(l)(2)(A). Whether Sandoz’s conduct was “unlawful” under California’s unfair competition statute is a question of state law, and the Federal Circuit thus erred in attempting to answer that question by referring only to the BPCIA. There is no dispute about how the federal scheme actually works on the facts of this case: Sandoz failed to disclose the requisite information under §262(l)(2)(A), and was accordingly subject to the consequence specified in §262(l)(9)(C). As a result, there is nothing to decide on this point as a matter of federal law. The court on remand should determine whether California law would treat noncompliance with §262(l)(2)(A) as “unlawful,” and whether the BPCIA pre-empts any additional state-law remedy for failure to comply with §262(l)(2)(A). . (c) An applicant may provide notice of commercial marketing before obtaining a license. Section 262(l)(8)(A) states that the applicant “shall provide notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product licensed under subsection (k).” Because the phrase “of the biological product licensed under subsection (k)” modifies “commercial marketing” rather than “notice,” “commercial marketing” is the point in time by which the biosimilar must be “licensed.” Accordingly, the applicant may provide notice either before or after receiving FDA approval. Statutory context confirms that §262(l)(8)(A) contains a single timing requirement (180 days before marketing), rather than the two requirements posited by the Federal Circuit (after licensing, and 180 days before marketing). “Had Congress intended to” impose two timing requirements in §262(l)(8)(A), “it presumably would have done so expressly as it did in the” adjacent provision, §262(l)(8)(B). Russello v. United States, 464 U. S. 16 . Amgen’s contrary arguments are unpersuasive, and its various policy arguments cannot overcome the statute’s plain language. . 794 F. 3d 1347, vacated in part, reversed in part, and remanded. Thomas, J., delivered the opinion for a unanimous Court. Breyer, J., filed a concurring opinion.Notes 1 Together with No. 15–1195, Amgen Inc. et al. v. Sandoz Inc., also on certiorari to the same court.

Under 42 U.S. C. §262(l), an applicant seeking FDA approval of a type of drug called a biosimilar must provide its application materials and manufacturing information to the manufacturer of the corresponding biologic within 20 days of the date the FDA notifies the applicant that it has accepted the application for review. The applicant then must give notice to the manufacturing company at least 180 days before marketing the biosimilar commercially. The first phase of patent litigation involves patents that were included on the parties' original lists but not litigated in the first phase, and any patents that the manufacturer acquired after the exchange occurred and added to the lists. After the applicant makes the requisite disclosures, the parties exchange information to identify relevant patents and to flesh out the legal arguments that they might raise in future litigation. The second phase is commenced by the applicant providing to the sponsor a list of patents for which it believes it could assert an infringement claim if a person without a license made, used, offered to sell, sold, or imported the biological product that is the subject of the application. If the parties comply with each step outlined in the BPCIA, they will have the opportunity to litigate the relevant patents before the drug is marketed. As a result, the manufacturer enjoys a 12-year period when its biologic may be marketed without competition from biosimilars. A sponsor may hold multiple patents covering the biologic, its therapeutic uses, and the processes used to manufacture it. These patents may constrain an applicant's ability to market its biosimilar even after the expiration of the prior exclusivity period. Respondents in No. 15–1039 and No.15–1195, who have marketed filgrastim, a biologic used to stimulate the production of white blood cells, filed patents on methods of manufacturing the drug, filed applications under the patent in question, and filed applications for regulatory approval of the drug. In addition to the default route for FDA approval, the statute prescribes an alternative route for approval, under which the manufacturer may piggyback on the showing made by the manufacturer (sponsor) of a previously licensed biologic (reference product). To obtain approval through the abbreviated process, the applicant does not need to show that the product is safe, pure, and potent. Instead, the sponsor may submit a patent that it believes is relevant but that the sponsor omitted from its own list. An applicant may submit an application and manufacturing application, if it cannot agree, to submit the application, and if it fails to submit a subsequent application, or to complete a subsequent list exchange, §271(e)(4)(B) authorizes the sponsor, but not the applicant, to bring an immediate declaratory-judgment action with respect to any patent included on a sponsor's §262 (l)(3)(A) list (as well as those it acquired later and added) of patents. Section262(5)(B). The sponsor, however, may hold patents on the patented biologic. When an applicant fails to comply with §262, a sponsor may then bring an action for a declaration of infringement, validity, or enforceability of any patent that claims the biological products or a use of that biological product. Thus, it is an act of artificial infringement, with respect to a patent on the list, that is enforceable by injunction. . 794 F. 3d 1347, 1360, vacated in part, 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, and in Parts I, II, and III of which WHITE and O'CONNOR, JJ. joined. WHITE filed an opinion concurring in the judgment, post, p.. MARSHAL, J. filed a dissenting opinion, in Part I of which BRENNan, supra, joined, in part and in Part II of which STEWART, J, joined in part. O

2016_15-927

https://www.oyez.org/cases/2016/15-927

. We return to a subject that we addressed in Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. ___ (2014): the relationship between the equitable defense of laches and claims for damages that are brought within the time allowed by a statute of limitations. In Petrella, we held that laches cannot preclude a claim for damages incurred within the Copyright Act’s 3-year limitations period. Id., at ___ (slip op., at 1). “[L]aches,” we explained, “cannot be invoked to bar legal relief” “[i]n the face of a statute of limitations enacted by Congress.” Id., at ___ (slip op., at 13). The question in this case is whether Petrella’s reasoning applies to a similar provision of the Patent Act, 35 U. S. C. §286. We hold that it does. I Petitioners SCA Hygiene Products Aktiebolag and SCA Personal Care, Inc. (collectively, SCA), manufacture and sell adult incontinence products. In October 2003, SCA sent a letter to respondents (collectively, First Quality), alleging that First Quality was making and selling products that infringed SCA’s rights under U. S. Patent No. 6,375,646 B1 (’646 patent). App. 54a. First Quality responded that one of its patents—U. S. Patent No. 5,415,649 (Watanabe patent)—antedated the ’646 patent and revealed “the same diaper construction.” Id., at 53a. As a result, First Quality maintained, the ’646 patent was invalid and could not support an infringement claim. Ibid. SCA sent First Quality no further correspondence regarding the ’646 patent, and First Quality proceeded to develop and market its products. In July 2004, without notifying First Quality, SCA asked the Patent and Trademark Office (PTO) to initiate a reexamination proceeding to determine whether the ’646 patent was valid in light of the Watanabe patent. Id., at 49a–51a. Three years later, in March 2007, the PTO issued a certificate confirming the validity of the ’646 patent. In August 2010, SCA filed this patent infringement action against First Quality. First Quality moved for summary judgment based on laches and equitable estoppel, and the District Court granted that motion on both grounds. 2013 WL 3776173, *12 (WD Ky., July 16, 2013). SCA appealed to the Federal Circuit, but before the Federal Circuit panel issued its decision, this Court de-cided Petrella. The panel nevertheless held, based on a Fed-eral Circuit precedent, A. C. Aukerman Co. v. R. L. Chaides Constr. Co., 960 F. 2d 1020 (1992) (en banc), that SCA’s claims were barred by laches.[1] The Federal Circuit then reheard the case en banc in order to reconsider Aukerman in light of Petrella. But in a 6-to-5 decision, the en banc court reaffirmed Aukerman’s holding that laches can be asserted to defeat a claim for damages incurred within the 6-year period set out in the Patent Act. As it had in Aukerman, the en banc court concluded that Congress, in enacting the Patent Act, had “codified a laches defense” that “barred recovery of legal remedies.” 807 F. 3d 1311, 1323–1329 (2015). Judge Hughes, joined by four other judges, dissented.[2] Id., at 1337–1342 (opinion concurring in part and dissenting in part). We granted certiorari. 578 U. S. ___ (2016). II Laches is “a defense developed by courts of equity” to protect defendants against “unreasonable, prejudicial delay in commencing suit.” Petrella, supra, at ___, ___ (slip op., at 1, 12). See also 1 D. Dobbs, Law of Remedies §2.3(5), p. 89 (2d ed. 1993) (Dobbs) (“The equitable doctrine of laches bars the plaintiff whose unreasonable delay in prosecuting a claim or protecting a right has worked a prejudice to the defendant”). Before the separate systems of law and equity were merged in 1938, the ordinary rule was that laches was available only in equity courts.[3] See County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 , n. 16 (1985). This case turns on the application of the defense to a claim for damages, a quintessential legal remedy. We discussed this subject at length in Petrella. Petrella arose out of a copyright dispute relating to the film Raging Bull. 572 U. S., at ___ (slip op., at 8). The Copyright Act’s statute of limitations requires a copyright holder claiming infringement to file suit “within three years after the claim accrued.” 17 U. S. C. §507(b). In Petrella, the plaintiff sought relief for alleged acts of infringement that accrued within that 3-year period, but the lower courts nevertheless held that laches barred her claims. See 695 F. 3d 946 (CA9 2012). We reversed, holding that laches cannot defeat a damages claim brought within the period prescribed by the Copyright Act’s statute of limitations. Petrella, 572 U. S., at ___–___ (slip op., at 11–14). And in so holding, we spoke in broad terms. See id., at ___ (slip op., at 13) (“[I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief”). Petrella’s holding rested on both separation-of-powers principles and the traditional role of laches in equity. Laches provides a shield against untimely claims, id., at ___ (slip op., at 19), and statutes of limitations serve a similar function. When Congress enacts a statute of limitations, it speaks directly to the issue of timeliness and provides a rule for determining whether a claim is timely enough to permit relief. Id., at ___ (slip op., at 11). The enactment of a statute of limitations necessarily reflects a congressional decision that the timeliness of covered claims is better judged on the basis of a generally hard and fast rule rather than the sort of case-specific judicial determination that occurs when a laches defense is asserted. Therefore, applying laches within a limitations period specified by Congress would give judges a “legislation-overriding” role that is beyond the Judiciary’s power. Id., at ___ (slip op., at 14). As we stressed in Petrella, “courts are not at liberty to jettison Congress’ judgment on the timeliness of suit.” Id., at ___ (slip op., at 1). Applying laches within the limitations period would also clash with the purpose for which the defense developed in the equity courts. As Petrella recounted, the “principal application” of laches “was, and remains, to claims of an equitable cast for which the Legislature has provided no fixed time limitation.” Id., at ___ (slip op., at 12); see also R. Weaver, E. Shoben, & M. Kelly, Principles of Remedies Law 21 (2d ed. 2011); 1 Dobbs §2.4(4), at 104; 1 J. Story, Commentaries on Equity Jurisprudence §55(a), p. 73 (2d ed. 1839). Laches is a gap-filling doctrine, and where there is a statute of limitations, there is no gap to fill.[4] Petrella, supra, at ___ (slip op., at 14); see also 1 Dobbs §2.4(4), at 108 (“[I]f the plaintiff has done only what she is permitted to do by statute, and has not misled the defendant [so as to trigger equitable estoppel], the basis for barring the plaintiff seems to have disappeared”). With Petrella’s principles in mind, we turn to the present dispute. III A Although the relevant statutory provisions in Petrella and this case are worded differently, Petrella’s reasoning easily fits the provision at issue here. As noted, the statute in Petrella precludes a civil action for copyright infringement “unless it is commenced within three years after the claim accrued.” 17 U. S. C. §507(b). We saw in this language a congressional judgment that a claim filed within three years of accrual cannot be dismissed on timeliness grounds. 572 U. S., at ___ (slip op., at 11); see also id., at ___–___ (slip op., at 14–15). The same reasoning applies in this case. Section 286 of the Patent Act provides: “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” By the logic of Petrella, we infer that this provision represents a judgment by Congress that a patentee may recover damages for any infringement committed within six years of the filing of the claim. B First Quality contends that this case differs from Petrella because §286 of the Patent Act is not a true statute of limitations. A true statute of limitations, we are told, “runs forward from the date a cause of action accrues,” but §286 “runs backward from the time of suit.” Brief for Respondents 41. Petrella cannot reasonably be distinguished on this ground. First Quality thinks it critical that §286 “runs backward from the time of suit,” Brief for Respondents 41, but Petrella described the Copyright Act’s statute of limitations in almost identical terms. We said that this provision “allows plaintiffs . . . to gain retrospective relief running only three years back from the date the complaint was filed.” 572 U. S., at ___ (slip op., at 6–7) (emphasis added). See also id., at ___ (slip op., at 11) (“[A] successful plaintiff can gain retrospective relief only three years back from the time of suit”). And we described the Copyright Act’s statute of limitations as “a three-year look-back limitations period.” Id., at ___ (slip op., at 4). First Quality contends that the application of a true statute of limitations, like the defense of laches (but unlike §286), takes into account the fairness of permitting the adjudication of a particular plaintiff’s claim. First Quality argues as follows: “When Congress enacts [a true statute of limitations], it can be viewed as having made a considered judgment about how much delay may occur after a plaintiff knows of a cause of action (i.e., after accrual) before the plaintiff must bring suit—thus potentially leaving no room for judges to evaluate the reasonableness of a plaintiff’s delay on a case-by-case basis under laches.” Brief for Respondents 42. According to First Quality, §286 of the Patent Act is different because it “turns only on when the infringer is sued, regardless of when the pat-entee learned of the infringement.” Ibid. This argument misunderstands the way in which statutes of limitations generally work. First Quality says that the accrual of a claim, the event that triggers the running of a statute of limitations, occurs when “a plaintiff knows of a cause of action,” ibid., but that is not ordinarily true. As we wrote in Petrella, “[a] claim ordinarily accrues ‘when [a] plaintiff has a complete and present cause of action.’ ” 572 U. S., at ___ (slip op., at 4); see Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409 –419 (2005). While some claims are subject to a “discovery rule” under which the limitations period begins when the plaintiff discovers or should have discovered the injury giving rise to the claim, that is not a universal feature of statutes of limitations. See, e.g., ibid. (limitations period in 31 U. S. C. §3731(b)(1) begins to run when the cause of action accrues); TRW Inc. v. Andrews, 534 U. S. 19, 28 (2001) (same with regard to 15 U. S. C. §1681p). And in Petrella, we specifically noted that “we have not passed on the question” whether the Copyright Act’s statute of limitations is governed by such a rule. 572 U. S., at ___, n. 4 (slip op., at 4, n. 4). For these reasons, Petrella cannot be dismissed as applicable only to what First Quality regards as true statutes of limitations. At least for present purposes, nothing depends on this debatable taxonomy. Compare Automobile Workers v. Hoosier Cardinal Corp., 383 U. S. 696, 704 (1966) (describing §286 as “enacting a uniform period of limitations”); 1 Dobbs §2.4(4), at 107, and n. 33 (same), with A. Stucki Co. v. Buckeye Steel Castings Co., 963 F. 2d 360, 363, n. 3 (CA Fed. 1992) (Section 286 “is not, strictly speaking, a statute of limitations”); Standard Oil Co. v. Nippon Shokubai Kagaku Co., Ltd., 754 F. 2d 345, 348 (CA Fed. 1985) (“[Section] 286 cannot properly be called a ‘statute of limitations’ in the sense that it defeats the right to bring suit”). C The Federal Circuit based its decision on a different footing. Section 286 of the Patent Act begins with the phrase “[e]xcept as otherwise provided by law,” and according to the Federal Circuit, §282 of the Act is a provision that provides otherwise. In its view, §282 creates an exception to §286 by codifying laches as a defense to all patent infringement claims, including claims for damages suffered within §286’s 6-year period. 807 F. 3d, at 1329–1330. Section 282(b), which does not specifically mention laches, provides in relevant part as follows: “The following shall be defenses in any action involving the validity or infringement of a patent and shall be pleaded: “(1) Noninfringement, absence of liability for infringement or unenforceability.” The en banc majority below never identified which word or phrase in §282 codifies laches as a defense, but First Quality argues that laches falls within §282(b)(1) because laches is a defense based on “unenforceability.” Brief for Respondents 28–33. SCA disputes this interpretation of §282(b)(1), arguing that laches does not make a patent categorically unenforceable. Reply Brief 6–8; see Aukerman, 960 F. 2d, at 1030 (“Recognition of laches as a defense . . . does not affect the general enforceability of the patent against others”). We need not decide this question. Even if we assume for the sake of argument that §282(b)(1) incorporates a laches defense of some dimension, it does not necessarily follow that this defense may be invoked to bar a claim for damages incurred within the period set out in §286. Indeed, it would be exceedingly unusual, if not unprecedented, if Congress chose to include in the Patent Act both a statute of limitations for damages and a laches provision applicable to a damages claim. Neither the Federal Circuit, nor First Quality, nor any of First Quality’s amici has identified a single federal statute that provides such dual protection against untimely claims. D In holding that Congress codified a damages-limiting laches defense, the Federal Circuit relied on patent cases decided by the lower courts prior to the enactment of the Patent Act. After surveying these cases, the Federal Circuit concluded that by 1952 there was a well-established practice of applying laches to such damages claims and that Congress, in adopting §282, must have chosen to codify such a defense in §282(b)(1). 807 F. 3d, at 1321–1329. First Quality now presses a similar argument. We have closely examined the cases on which the Federal Circuit and First Quality rely, and we find that they are insufficient to support the suggested interpretation of the Patent Act. The most prominent feature of the relevant legal landscape at the time of enactment of the Patent Act was the well-established general rule, often repeated by this Court, that laches cannot be invoked to bar a claim for damages incurred within a limitations period specified by Congress. See Holmberg v. Armbrecht, 327 U. S. 392, 395 (1946) (“If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter”); United States v. Mack, 295 U. S. 480, 489 (1935) (“Laches within the term of the statute of limitations is no defense at law”); Wehrman v. Conklin, 155 U. S. 314, 326 (1894) (“Though a good defense in equity, laches is no defense at law. If the plaintiff at law has brought his action within the period fixed by the statute of limitations, no court can deprive him of his right to proceed”); Cross v. Allen, 141 U. S. 528, 537 (1891) (“So long as the demands secured were not barred by the statute of limitations, there could be no laches in prosecuting a suit”). Petrella confirmed and restated this long-standing rule. 572 U. S., at ___ (slip op., at 12) (“[T]his Court has cautioned against invoking laches to bar legal relief”). If Congress examined the relevant legal landscape when it adopted 35 U. S. C. §282, it could not have missed our cases endorsing this general rule. The Federal Circuit and First Quality dismiss the significance of this Court’s many reiterations of the general rule because they were not made in patent cases. But as the dissenters below noted, “[p]atent law is governed by the same common-law principles, methods of statutory interpretation, and procedural rules as other areas of civil litigation.” 807 F. 3d, at 1333 (opinion of Hughes, J.). In light of the general rule regarding the relationship between laches and statutes of limitations, nothing less than a broad and unambiguous consensus of lower court decisions could support the inference that §282(b)(1) codifies a very different patent-law-specific rule. No such consensus is to be found.[5] IV The pre-1952 cases on which First Quality relies fall into three groups: (1) cases decided by equity courts before 1938; (2) cases decided by law courts before 1938; and (3) cases decided after the merger of equity and law in 1938. We will discuss each group separately. A Pre-1938 equity cases The pre-1938 equity cases are unpersuasive for several, often overlapping reasons. Many do not even reveal whether the plaintiff asked for damages. Indeed, some say nothing at all about the form of relief that was sought, see, e.g., Cummings v. Wilson & Willard Mfg. Co., 4 F. 2d 453 (CA9 1925), and others state only that the plaintiff wanted an accounting of profits, e.g., Westco-Chippewa Pump Co. v. Delaware Elec. & Supply Co., 64 F. 2d 185, 186 (CA3 1933); Wolf Mineral Process Corp. v. Minerals Separation North Am. Corp., 18 F. 2d 483, 484 (CA4 1927). The equitable remedy of an accounting, however, was not the same as damages. The remedy of damages seeks to compensate the victim for its loss, whereas the remedy of an accounting, which Congress abolished in the patent context in 1946,[6] sought disgorgement of ill-gotten profits. See Birdsall v. Coolidge, 93 U. S. 64 –69 (1876); 1 Dobbs §4.3(5), at 611 (“Accounting holds the defendant liable for his profits, not for damages”); A. Walker, Patent Laws §573, p. 401 (1886) (distinguishing between the two remedies); G. Curtis, Law of Patents §341(a), p. 461 (4th ed. 1873); 2 J. Pomeroy, Treatise on Equitable Remedies §568, p. 977 (1905). First Quality argues that courts sometimes used the term “accounting” imprecisely to refer to both an accounting of profits and a calculation of damages, Brief for Respondents 19–20, but even if that is true, this loose usage shows only that a reference to “accounting” might refer to damages. For that reason, the Federal Circuit did not rely on cases seeking only an accounting, 807 F. 3d, at 1326, n. 7, and we likewise exclude such cases from our analysis. Turning to the cases that actually refer to damages, we note that many of the cases merely suggest in dicta that laches might limit recovery of damages. See, e.g., Hartford-Empire Co. v. Swindell Bros., 96 F. 2d 227, 233, modified on reh’g, 99 F. 2d 61 (CA4 1938). Such dicta “settles nothing.” Jama v. Immigration and Customs Enforcement, 543 U. S. 335 , n. 12 (2005). See also Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1 –10 (2000); Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 300 (1995) . As for the cases in which laches was actually held to bar a claim for damages, e.g., Wolf, Sayer & Heller v. United States Slicing Mach. Co., 261 F. 195, 197–198 (CA7 1919); A. R. Mosler & Co. v. Lurie, 209 F. 364, 369–370 (CA2 1913), these cases are too few to establish a settled, national consensus. See Hartford Underwriters, supra, at 10. Moreover, the most that can possibly be gathered from a pre-1938 equity case is that laches could defeat a damages claim in an equity court, not that the defense could en-tirely prevent a patentee from recovering damages. Before 1870, a patentee wishing to obtain both an injunction against future infringement and damages for past infringement was required to bring two suits, one in an equity court (where injunctive relief but not damages was available), and one in a court of law (where damages but not injunctive relief could be sought). See Beauchamp, The First Patent Litigation Explosion, 125 Yale L. J. 848, 913–914 (2016). To rectify this situation, Congress en-acted a law in 1870 authorizing equity courts to award dam-ages in patent-infringement actions. Rev. Stat. §4921. And although statutes of limitations did not generally apply in equity, Congress in 1897 enacted a statute that, like the current §286, imposed a 6-year limitations period for damages claims and made that statute applicable in both law and equity. §6, 29Stat. 694. Pointing to cases decided between 1897 and 1938 in which an equity court permitted a defendant in an infringement case to invoke the defense of laches, First Quality contends that Congress, aware of these cases, assumed that the 1952 Act would likewise allow a defendant in an infringement case to claim laches with respect to a claim for damages occurring within a limitations period. This argument overlooks the fact that a patentee, during the period in question, could always sue for damages in law, where the equitable doctrine of laches did not apply, and could thus avoid any possible laches defense. Thus, accepting First Quality’s argument would not return patentees to the position they held from 1897 to 1938. Instead, it would go much further and permit laches entirely to defeat claims like SCA’s.[7] B Pre-1938 claims at law First Quality cites three Court of Appeals cases in which laches was raised in a proceeding at law and in which, according to First Quality, the defense was held to bar a damages claim. See Universal Coin Lock Co. v. American Sanitary Lock Co., 104 F. 2d 781 (CA7 1939); Banker v. Ford Motor Co., 69 F. 2d 665 (CA3 1934); Ford v. Huff, 296 F. 652 (CA5 1924). But even if all of these cases squarely held that laches could be applied to a damages claim at law within the limitations period, they would still constitute only a handful of decisions out of the corpus of pre-1952 patent cases, and that would not be enough to overcome the presumption that Congress legislates against the background of general common-law principles. See H. McClintock, Handbook of the Principles of Equity §28, p. 75 (2d ed. 1948) (“The majority of the courts which have considered the question have refused to enjoin an action at law on the ground of the laches of the plaintiff at law”). In any event, these cases, like the equity cases, offer minimal support for First Quality’s position. Not one of these cases even mentions the statute of limitations. One of the three, Ford, is not even a patent infringement case; it is a breach-of-contract case arising out of a patent dispute, 296 F., at 654, and it is unclear whether the ground for decision was laches or equitable estoppel. See 807 F. 3d, at 1340 (opinion of Hughes, J.). Another, Universal Coin, applied laches to a legal damages claim without any analysis of the propriety of doing so. 104 F. 2d, at 783. First Quality protests that the paucity of supporting cases at law should not count against its argument since very few patent-infringement cases were brought at law after 1870. Brief for Respondents 25–26. But the fact remains that it is First Quality’s burden to show that Congress departed from the traditional common-law rule highlighted in our cases.[8] C Post-merger cases First Quality claims that courts continued to apply laches to damages claims after the merger of law and equity in 1938, but First Quality’s evidence is scant. During this period, two Courts of Appeals stated in dicta that laches could bar legal damages claims. See Chicago Pneumatic Tool Co. v. Hughes Tool Co., 192 F. 2d 620, 625 (CA10 1951); Shaffer v. Rector Well Equip. Co., 155 F. 2d 344, 347 (CA5 1946). And two others actually held that laches could bar a damages claim. See, e.g., Brennan v. Hawley Prods. Co., 182 F. 2d 945, 948 (CA7 1950); Lukens Steel Co. v. American Locomotive Co., 197 F. 2d 939, 941 (CA2 1952) (alternative holding). This does not constitute a settled, uniform practice of applying laches to damages claims. After surveying the pre-1952 case law, we are not convinced that Congress, in enacting §282 of the Patent Act, departed from the general rule regarding the application of laches to damages suffered within the time for filing suit set out in a statute of limitations. V First Quality’s additional arguments do not require extended discussion. First Quality points to post-1952 Court of Appeals decisions holding that laches can be invoked as a defense against a damages claim. Noting that Congress has amended §282 without altering the “ ‘unenforceability’ ” language that is said to incorporate a laches defense, First Quality contends that Congress has implicitly ratified these decisions. Brief for Respondents 35–36. We reject this argument. Nothing that Congress has done since 1952 has altered the meaning of §282. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 186 (1994) ; West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 , and n. 7 (1991). First Quality and its supporting amici also make various policy arguments, but we cannot overrule Congress’s judgment based on our own policy views. We note, however, as we did in Petrella, that the doctrine of equitableestoppel provides protection against some of the problems that First Quality highlights, namely, unscrupulous patentees inducing potential targets of infringement suits to invest in the production of arguably infringing products. 572 U. S., at ___ (slip op., at 19). Indeed, the Federal Circuit held that there are genuine disputes of material fact as to whether equitable estoppel bars First Quality’s claims in this very case. See 807 F. 3d, at 1333. * * * Laches cannot be interposed as a defense against damages where the infringement occurred within the period prescribed by §286. The judgment of the Court of Appeals is vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 The panel reversed the District Court’s holding on equitable estoppel, concluding that there are genuine disputes of material fact relating to that defense. 767 F. 3d 1339, 1351 (2014). 2 The dissenting judges concurred in the portion of the majority opinion relating to the application of laches to equitable relief. 807 F. 3d, at 1333, n. 1 (opinion of Hughes, J.); see also id., at 1331–1333 (majority opinion). We do not address that aspect of the Federal Circuit’s judgment. Nor do we address the Federal Circuit’s reversal of the District Court’s equitable estoppel holding. Id., at 1333 (reinstating original panel holding on equitable estoppel). 3 “The federal courts always had equity powers as well as law power, but they operated, until the Federal Rules of Civil Procedure, by distinctly separating equity cases and even had separate equity rules.” 1 Dobbs §2.6(1), at 148, n. 2; see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279 (1988) . It is in this sense that we refer in this opinion to federal courts as equity or law courts. 4 The dissent argues that there is a “gap” in the statutory scheme because the Patent Act’s statute of limitations might permit a patentee to wait until an infringing product has become successful before suing for infringement. Post, at 2–3 (opinion of Breyer, J.). We rejected a version of this argument in Petrella, 572 U. S., at ___–___ (slip op., at 16–17), and we do so here. The dissent’s argument implies that, insofar as the lack of a laches defense could produce policy outcomes judges deem undesirable, there is a “gap” for laches to fill, notwithstanding the presence of a statute of limitations. That is precisely the kind of “legislation-overriding” judicial role that Petrella rightly disclaimed. Id., at ___ (slip op., at 14). 5 Because we conclude that First Quality fails to show that there was a special laches rule in the patent context, we need not address whether it is ever reasonable to assume that Congress legislated against the background of a lower court consensus rather than the contrary decisions of this Court. Cf. 807 F. 3d, at 1338 (opinion of Hughes, J.) (“For even if there were differing views in the lower [federal] courts, it would be nearly impossible to conclude that there was a uniform understanding of the common law that was inconsistent with Supreme Court precedent. In our judicial system, the Supreme Court's understanding is controlling”). 6 See 60Stat. 778; see also Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476, 505 (1964) . 7 The dissent misunderstands this point and thinks that we dismiss the relevance of the equity cases because they applied laches “to equitable claims without statutes of limitations.” Post, at 5. But we are well aware that a statute of limitations applied in equity when these cases arose. See supra, at 13. 8 For the same reason, the dissent misses the mark when it demands that we cite cases “holding that laches could not bar a patent claim for damages.” Post, at 8.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus SCA HYGIENE PRODUCTS AKTIEBOLAG et al. v. FIRST QUALITY BABY PRODUCTS, LLC, et al. certiorari to the united states court of appeals for the federal circuit No. 15–927. Argued November 1, 2016—Decided March 21, 2017 In 2003, petitioners (collectively, SCA) notified respondents (collectively, First Quality) that their adult incontinence products infringed an SCA patent. First Quality responded that its own patent antedated SCA’s patent and made it invalid. In 2004, SCA sought reexamination of its patent in light of First Quality’s patent, and in 2007, the Patent and Trademark Office confirmed the SCA patent’s validity. SCA sued First Quality for patent infringement in 2010. The District Court granted summary judgment to First Quality on the grounds of equitable estoppel and laches. While SCA’s appeal was pending, this Court held that laches could not preclude a claim for damages incurred within the Copyright Act’s 3-year limitations period. Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. ___, ___. A Federal Circuit panel nevertheless affirmed the District Court’s laches holding based on Circuit precedent, which permitted laches to be asserted against a claim for damages incurred within the Patent Act’s 6-year limitations period, 35 U. S. C. §286. The en banc court reheard the case in light of Petrella and reaffirmed the original panel’s laches holding. Held: Laches cannot be invoked as a defense against a claim for damages brought within §286’s 6-year limitations period. . (a) Petrella’s holding rested on both separation-of-powers principles and the traditional role of laches in equity. A statute of limitations reflects a congressional decision that timeliness is better judged by a hard and fast rule instead of a case-specific judicial determination. Applying laches within a limitations period specified by Congress would give judges a “legislation-overriding” role that exceeds the Judiciary’s power. 572 U. S., at ___. Moreover, applying laches within a limitations period would clash with the gap-filling purpose for which the defense developed in the equity courts. . (b) Petrella’s reasoning easily fits §286. There, the Court found in the Copyright Act’s language a congressional judgment that a claim filed within three years of accrual cannot be dismissed on timeliness grounds. 572 U. S., at ___. By that same logic, §286 of the Patent Act represents Congress’s judgment that a patentee may recover damages for any infringement committed within six years of the filing of the claim. First Quality contends that this case differs from Petrella because a true statute of limitations runs forward from the date a cause of action accrues, whereas §286’s limitations period runs backward from the filing of the complaint. However, Petrella repeatedly characterized the Copyright Act’s limitations period as running backward from the date the suit was filed. First Quality also contends that a true statute of limitations begins to run when the plaintiff discovers a cause of action, which is not the case with §286’s limitations period, but ordinarily, a statute of limitations begins to run on the date that the claim accrues, not when the cause of action is discovered. . (c) The Federal Circuit based its decision on the idea that §282 of the Patent Act, which provides for “defenses in any action involving the validity or infringement of a patent,” creates an exception to §286 by codifying laches as such a defense, and First Quality argues that laches is a defense within §282(b)(1) based on “unenforceability.” Even assuming that §282(b)(1) incorporates a laches defense of some dimension, it does not necessarily follow that the defense may be invoked to bar a claim for damages incurred within the period set out in §286. Indeed, it would be exceedingly unusual, if not unprecedented, if Congress chose to include in the Patent Act both a statute of limitations for damages and a laches provision applicable to a damages claim. Neither the Federal Circuit, nor any party, has identified a single federal statute that provides such dual protection against untimely claims. . (d) The Federal Circuit and First Quality rely on lower court patent cases decided before the 1952 Patent Act to argue that §282 codified a pre-1952 practice of permitting laches to be asserted against damages claims. But the most prominent feature of the relevant legal landscape at that time was the well-established rule that laches cannot be invoked to bar a claim for damages incurred within a limitations period specified by Congress. In light of this rule, which Petrella confirmed and restated, 572 U. S., at ___, nothing less than a broad and unambiguous consensus of lower court decisions could support the inference that §282(b)(1) codifies a very different patent-law-specific rule. . (e) The Federal Circuit and First Quality rely on three types of cases: (1) pre-1938 equity cases; (2) pre-1938 claims at law; and (3) cases decided after the merger of law and equity in 1938. None of these establishes a broad, unambiguous consensus in favor of applying laches to damages claims in the patent context. Many of the pre-1938 equity cases do not even reveal whether the plaintiff asked for damages, and of the cases in which damages were sought, many merely suggest in dicta that laches might limit damages. The handful of cases that apply laches against a damages claim are too few to establish a settled, national consensus. In any event, the most that can possibly be gathered from a pre-1938 equity case is that laches could defeat a damages claim in an equity court, not that the defense could entirely prevent a patentee from recovering damages. Similarly, even if all three pre-1938 cases at law cited by First Quality squarely held that laches could be applied to a damages claim within the limitations period, that number would be insufficient to overcome the presumption that Congress legislates against the background of general common-law principles. First Quality argues that the small number of cases at law should not count against its position because there were few patent cases brought at law after 1870, but it is First Quality’s burden to show that Congress departed from the traditional common-law rule. As for the post-1938 patent case law, there is scant evidence supporting First Quality’s claim that courts continued to apply laches to damages claims after the merger of law and equity. Only two Courts of Appeals held that laches could bar a damages claim, and that does not constitute a settled, uniform practice of applying laches to damages claims. . (f) First Quality’s additional arguments are unconvincing and do not require extended discussion. It points to post-1952 Court of Appeals decisions holding that laches can be invoked as a defense against a damages claim, but nothing that Congress has done since 1952 has altered §282’s meaning. As for the various policy arguments presented here, this Court cannot overrule Congress’s judgment based on its own policy views. . 807 F. 3d 1311, vacated in part and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion.

In Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U. S. ___ (2014), this Court held that laches cannot preclude a claim for damages incurred within the Copyright Act's 3-year limitations period. Petrella also held that, in the face of a statute of limitations enacted by Congress, laches could be invoked to bar legal relief. In Petrella, the en banc court reaffirmed this holding, but the court concluded that Congress, in enacting the Patent Act, had codified a laches defense that barred recovery of legal remedies. Held: Petrella applies to a patent infringement action brought within the 6-year period set forth in the Patent Act. . (a) Laches is a gap-filling doctrine that protects defendants against unreasonable delay in commencing a suit, commencing in six years, and bars recovery of damages within six years. Remedies law, which has merged laches and equitable equity, applies only to a plaintiff whose claim is the quintessential legal remedy for a legal claim. P.. (b) Although Petrella and this case are worded differently, the statute in Petrella precludes a civil action for copyright infringement unless it is commenced within three years after the claim accrued. Accordingly, a claim cannot be dismissed on timeliness grounds on the ground that it accrues within a three-year limitation period provided by the patent statute. See, e.g., id., at ___ (slip op., at 11). First Quality contends that the application of a true laches statute, like the defense of laches, takes into account the fairness of permitting the adjudication of a particular plaintiff's claim, and that applying laches within a limitations period specified by Congress would give judges alegislation-overriding role that is beyond the Judiciary's power. And to hold that the Court of Appeals erred in holding that §282(b)(1) does not bar damages where the infringement occurred within the period prescribed by §286 would also clash with the purpose for which the defense developed in the equity courts was developed, Petrella being the most prominent feature of the relevant legal landscape at the time of enactment of the patent Act, and thus the well-established general rule, often repeated by this Court, that no laches can be invoked for damages when a claim has been filed within a limitation period. Moreover, First Quality has not identified a single federal statute that provides such dual protection against untimely claims. Although First Quality claims that courts continued to apply laches to damages claims after the merger of law and equity in 1938, his evidence is scant. Moreover, the most that can possibly be gathered from a pre-1938 equity case is that a patentee could not defeat a claim in equity on the basis of a claim that accrued six years in advance of the filing of any patent infringement complaint. There is no merit to First Quality's argument that the 1952 Act would likewise allow a defendant in an infringement case to claim laches with respect to a claim for damages occurring within the limitations period, since that argument overlooks the fact that, during the period in question, a patentEE could always sue for damages in law, where the equitable doctrine did not apply, and could thus avoid any possible laches defenses. Thus, accepting First Quality on this ground would not return patentees to the position they held from 1897 to 1938, because laches is based on unenforceability. Indeed, the Federal Circuit held that there are genuine disputes of material fact as to whether equitable estoppel bars First Quality claims in this very case. Furthermore, the cases in which laches was actually held to bar a damages claim are too few to establish a settled, national consensus, and the most recent cases merely suggest in dicta that such laches might limit a claim's recovery. The dissent argues that there is a "gap" in the statutory scheme because the patent Act's statute of limitation might permit the patentee to wait until an infringing product has become successful before suing for infringement. As to the post-merger cases First Quality cites, not one of them mentions the statute of limitations, and none of the cases even mentions the statutory limitations. Nor are there any other cases that even mention that statute. And First Quality does not point to the patent-law rule in support of its position, since the most common common-law common law exception to damages is not a uniform understanding of the common law law of limitations, but a general rule of limitations that bars damages claims within a time limit. Even assuming, arguendo, that the lack of a patent-infringement defense of some dimension could produce policy outcomes judges deem undesirable, there is no such gap, notwithstanding the presence of a statutory limitations limitation. No such consensus is to be found, and, in any event, it is not necessary to

2016_15-1191

https://www.oyez.org/cases/2016/15-1191

. This case concerns a gender-based differential in the law governing acquisition of U. S. citizenship by a child born abroad, when one parent is a U. S. citizen, the other, a citizen of another nation. The main rule appears in 8 U. S. C. §1401(a)(7) (1958 ed.), now §1401(g) (2012 ed.). Applicable to married couples, §1401(a)(7) requires a period of physical presence in the United States for the U. S.-citizen parent. The requirement, as initially prescribed, was ten years’ physical presence prior to the child’s birth, §601(g) (1940 ed.); currently, the requirement is five years prebirth, §1401(g) (2012 ed.). That main rule is rendered applicable to unwed U. S.-citizen fathers by §1409(a). Congress ordered an exception, however, for unwed U. S.-citizen mothers. Contained in §1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child’s birth. The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting §1401(a)(7)’s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment[1] entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons “the equal protection of the laws.” Nevertheless, we cannot convert §1409(c)’s exception for unwed mothers into the main rule displacing §1401(a)(7) (covering married couples) and §1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U. S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination. I A We first describe in greater detail the regime Congress constructed. The general rules for acquiring U. S. citizenship are found in 8 U. S. C. §1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), §301, 66Stat. 235–236. Section 1401 sets forth the INA’s rules for determining who “shall be nationals and citizens of the United States at birth” by establishing a range of residency and physical-presence requirements calibrated primarily to the parents’ nationality and the child’s place of birth. §1401(a) (1958 ed.); §1401 (2012 ed.). The primacy of §1401 in the statutory scheme is evident. Comprehensive in coverage, §1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here,[2] §1401(a)(7) provided for the U. S. citizenship of “a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.” Congress has since reduced the duration requirement to five years, two after age 14. §1401(g) (2012 ed.).[3] Section 1409 pertains specifically to children with unmarried parents. Its first subsection, §1409(a), incorporates by reference the physical-presence requirements of §1401, thereby allowing an acknowledged unwed citizen parent to transmit U. S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c)—a provision applicable only to unwed U. S.-citizen mothers—states an exception to the physical-presence requirements of §§1401 and 1409(a). Under §1409(c)’s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad. B Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U. S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household. José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55–56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U. S. ___, ___–___ (2016) (slip op., at 2–4); 8 U. S. C. §1101(a)(38) (1958 ed.) (“The term United States . . . means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U. S.] Virgin Islands.” (internal quotation marks omitted)); §1101(a)(38) (2012 ed.) (similar), and José became a U. S. citizen under the Organic Act of Puerto Rico, ch. 145, §5, 39Stat. 953 (a predecessor to 8 U. S. C. §1402). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy §1401(a)(7)’s requirement of five years’ physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U. S. company in the then-U. S.-occupied Dominican Republic. Ibid.[4] By 1959, José attested in a June 21, 1971 affidavit presented to the U. S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. Id., at 166–167. While the record before us reveals little about Morales-Santana’s childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana’s birth certificate as his father. Id., at 163–164, 167. José also related in the same affidavit that he was then saving money “for the susten[ance] of [his] family” in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369.[5] C In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years’ physical presence after age 14. See supra, at 3–4, and n. 3. An immigration judge rejected Morales-Santana’s claim to citizenship derived from the U. S. citizenship of his father, and ordered Morales-Santana’s removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a–49a. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a–44a. The United States Court of Appeals for the Second Circuit reversed the BIA’s decision. 804 F. 3d 520, 524 (2015). Relying on this Court’s post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. Id., at 527–535. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U. S. citizen. Id., at 535–538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar, 536 F. 3d 990 (2008), see 804 F. 3d, at 530, 535, n. 17. We granted certiorariin Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States, 564 U. S. 210 (2011) ( per curiam). Taking up Morales-Santana’s request for review, 579 U. S. ___ (2016), we consider the matter anew. II Because §1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana’s birth and was not accorded the right an unwed U. S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father’s right to the equal protection of the laws.[6] Ordinarily, a party “must assert his own legal rights” and “cannot rest his claim to relief on the legal rights . . . of third parties.” Warth v. Seldin, 422 U. S. 490, 499 (1975) . But we recognize an exception where, as here, “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests.” Kowalski v. Tesmer, 543 U. S. 125, 130 (2004) (quoting Powers v. Ohio, 499 U. S. 400, 411 (1991) ). José Morales’ ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the “close relationship” requirement. So, too, is the “hindrance” requirement well met. José Morales’ failure to assert a claim in his own right “stems from disability,” not “disinterest,” Miller v. Albright, 523 U. S. 420, 450 (1998) (O’Connor, J., concurring in judgment), for José died in 1976, Record 140, many years before the current controversy arose. See Hodel v. Irving, 481 U. S. 704 –712, 723, n. 7 (1987) (children and their guardians may assert Fifth Amendment rights of deceased relatives). Morales-Santana is thus the “obvious claimant,” see Craig v. Boren, 429 U. S. 190, 197 (1976) , the “best available proponent,” Singleton v. Wulff, 428 U. S. 106, 116 (1976) , of his father’s right to equal protection. III Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U. S. 57, 62 (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (States may draw “a sharp line between the sexes”). Today, laws of this kind are subject to review under the heightened scrutiny that now attends “all gender-based classifications.” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136 (1994) ; see, e.g., United States v. Virginia, 518 U. S. 515 –556 (1996) (state-maintained military academy may not deny admission to qualified women). Laws granting or denying benefits “on the basis of the sex of the qualifying parent,” our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee. Califano v. Westcott, 443 U. S. 76, 84 (1979) ; see id., at 88–89 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, 430 U. S. 199 –207 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld, 420 U. S. 636 –653 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U. S. 677 –691 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U. S. 71 –77 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).[7] Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications we declared unconstitutional in Reed, Frontiero, Wiesenfeld, Goldfarb, and Westcott. As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia, 518 U. S., at 531 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981) (internal quotation marks omitted). A The defender of legislation that differentiates on the basis of gender must show “at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Virginia, 518 U. S., at 533 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982) ; alteration in original); see Tuan Anh Nguyen v. INS, 533 U. S. 53, 60, 70 (2001) . Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20). Here, the Government has supplied no “exceedingly persuasive justification,” Virginia, 518 U. S., at 531 (internal quotation marks omitted), for §1409(a) and (c)’s “gender-based” and “gender-biased” disparity, Westcott, 443 U. S., at 84 (internalquotation marks omitted). 1 History reveals what lurks behind §1409. Enacted in the Nationality Act of 1940 (1940 Act), see 54Stat. 1139–1140, §1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents.[8] During this era, two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child. Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. “[D]ominance [of] the husband,” this Court observed in 1915, “is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U. S. 299, 311 (1915) .[9] See generally Brief for Professors of History et al. as Amici Curiae 4–15. Through the early 20th century, a male citizen automatically conferred U. S. citizenship on his alien wife. Act of Feb. 10, 1855, ch. 71, §2, 10Stat. 604; see Kelly v. Owen, 7 Wall. 496, 498 (1869) (the 1855 Act “confers the privileges of citizenship upon women married to citizens of the United States”); C. Bredbenner, A Nationality of Her Own:Women, Marriage, and the Law of Citizenship 15–16, 20–21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien.[10] The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. See, e.g., Act of Mar. 3, 1903, ch. 1012, §37, 32Stat. 1221 (wives and children entering the country to join permanent-resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S. Rep. No. 1515, 81st Cong., 2d Sess., 415–417 (1950) (wives exempt from literacy and quota requirements). And from 1790 until 1934, the foreign-born child of a married couple gained U. S. citizenship only through the father.[11] For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child’s natural and sole guardian. At common law, the mother, and only the mother, was “bound to maintain [a nonmarital child] as its natural guardian.” 2 J. Kent, Commentaries on American Law *215–*216 (8th ed. 1854); see Nguyen, 533 U. S., at 91–92 (O’Connor, J., dissenting). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice. See Hearings on H. R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op. Atty. Gen. 397, 397–398 (1939); 39 Op. Atty. Gen. 290, 291 (1939). See also Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L. J. 2134, 2199–2205 (2014) (hereinafter Collins). In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed §1409, explained: “[T]he mother [of a nonmarital child] stands in the place of the father . . . [,] has a right tothe custody and control of such a child as against the putative father, and is bound to maintain it as its natu-ral guardian.” 1940 Hearings 431 (internal quotation marks omitted). This unwed-mother-as-natural-guardian notion renders §1409’s gender-based residency rules understandable. Fearing that a foreign-born child could turn out “more alien than American in character,” the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Id., at 426–427. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture. See id., at 431; Collins 2203 (in “nearly uniform view” of U. S. officials, “almost invariably,” the mother alone “concern[ed] herself with [a nonmarital] child” (internal quotation marks omitted)). 2 For close to a half century, as earlier observed, see supra, at 7–8, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U. S., at 533; see Wiesenfeld, 420 U. S., at 643, 648. In particular, we have recognized that if a “statutory objective is to exclude or ‘protect’ members of one gender” in reliance on “fixed notions concerning [that gender’s] roles and abilities,” the “objective itself is illegitimate.” Mississippi Univ. for Women, 458 U. S., at 725. In accord with this eventual understanding, the Court has held that no “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed, 441 U. S. 380, 382, 394 (1979) .[12] Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives.[13] Laws according or denying benefits in reliance on “[s]tereotypes about women’s domestic roles,” the Court has observed, may “creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003) . Correspondingly, such laws may disserve men who exercise responsibility for raising their children. See ibid. In light of the equal protection jurisprudence this Court has developed since 1971, see Virginia, 518 U. S., at 531–534, §1409(a) and (c)’s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic. B In urging this Court nevertheless to reject Morales-Santana’s equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell, 430 U. S. 787 (1977) ; Miller v. Albright, 523 U. S. 420 ; and Nguyen v. INS, 533 U. S. 53 . None controls this case. The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U. S., at 788–789, and n. 1. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress’ “exceptionally broad power” to admit or exclude aliens. Id., at 792, 794.[14] This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U. S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review. See Nguyen, 533 U. S., at 60–61, 70; Miller, 523 U. S., at 434–435, n. 11 (opinion of Stevens, J.). The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U. S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U. S. citizenship to those children. See §1409(a)(4) (2012 ed.).[15] After Miller produced no opinion for the Court, see 523 U. S., at 423, we took up the issue anew in Nguyen. There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. See 533 U. S., at 62–63. Morales-Santana’s challenge does not renew the contest over §1409’s paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana’s father, by marrying Morales-Santana’s mother, satisfied that requirement. Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent’s prebirth residency in the United States, notto the parent’s filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman “in order to have assimilated citizenship-related values to transmit to [his]child.” 804 F. 3d, at 531. And unlike Nguyen’s parental-acknowledgment requirement, §1409(a)’s age-calibrated physical-presence requirements cannot fairly be described as “minimal.” 533 U. S., at 70. C Notwithstanding §1409(a) and (c)’s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing “statelessness,” i.e., a child’s possession of no citizenship at all. Even indulging the assumption that Congress intended §1409 to serve these interests, but see supra, at 9–13, neither rationale survives heightened scrutiny. 1 We take up first the Government’s assertion that §1409(a) and (c)’s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does not contend, nor could it, that unmarried men take more time to absorb U. S. values than unmarried women do. See supra, at 16. Instead, it presents a novel argument, one it did not advance in Flores-Villar.[16] An unwed mother, the Government urges, is the child’s only “legally recognized” parent at the time of childbirth. Brief for Petitioner 9–10, 28–32.[17] An unwed citizen father enters the scene later, as a second parent. A longer physical connection to the United States is warranted for the unwed father, the Government maintains, because of the “competing national influence” of the alien mother. Id., at 9–10. Congress, the Government suggests, designed the statute to bracket an unwed U. S.-citizen mother with a married couple in which both parents are U. S. citizens,[18] and to align an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien. Underlying this apparent design is the assumption that the alien father of a nonmarital child born abroad to a U. S.-citizen mother will not accept parental responsibility. For an actual affiliation between alien father and nonmarital child would create the “competing national influence” that, according to the Government, justifies imposing on unwed U. S.-citizen fathers, but not unwed U. S.-citizen mothers, lengthy physical-presence requirements. Hardly gender neutral, see id., at 9, that assumption conforms to the long-held view that unwed fathers care little about, indeed are strangers to, their children. See supra, at 9–13. Lump characterization of that kind, however, no longer passes equal protection inspection. See supra, at 13–14, and n. 13. Accepting, arguendo, that Congress intended the diverse physical-presence prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the United States, the gender-based means scarcely serve the posited end. The scheme permits the transmission of citizenship to children who have no tie to the United States so long as their mother was a U. S. citizen continuously present in the United States for one year at any point in her life prior to the child’s birth. The transmission holds even if the mother marries the child’s alien father immediately after the child’s birth and never returns with the child to the United States. At the same time, the legislation precludes citizenship transmission by a U. S.-citizen father who falls a few days short of meeting §1401(a)(7)’s longer physical-presence requirements, even if the father acknowledges paternity on the day of the child’s birth and raises the child in the United States.[19] One cannot see in this driven-by-gender scheme the close means-end fit required to survive heightened scrutiny. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 –152 (1980) (holding unconstitutional state workers’ compensation death-benefits statute presuming widows’ but not widowers’ dependence on their spouse’s earnings); Westcott, 443 U. S., at 88–89. 2 The Government maintains that Congress established the gender-based residency differential in §1409(a) and (c) to reduce the risk that a foreign-born child of a U. S. citizen would be born stateless. Brief for Petitioner 33. This risk, according to the Government, was substantially greater for the foreign-born child of an unwed U. S.-citizen mother than it was for the foreign-born child of an unwed U. S.-citizen father. Ibid. But there is little reason to believe that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers. As the Court of Appeals pointed out, with one exception,[20] nothing in the congressional hearings and reports on the 1940 and 1952 Acts “refer[s] to the problem of statelessness for children born abroad.” 804 F. 3d, at 532–533. See Collins 2205, n. 283 (author examined “many hundreds of pre-1940 administrative memos . . . defend[ing] or explain[ing] recognition of the nonmarital foreign-born children of American mothers as citizens”; of the hundreds, “exactly one memo by a U. S. official . . . mentions the risk of statelessness for the foreign-born nonmarital children of American mothers as a concern”). Reducing the incidence of statelessness was the express goal of other sections of the 1940 Act. See 1940 Hearings 430 (“stateless[ness]” is “object” of section on foundlings). The justification for §1409’s gender-based dichotomy, however, was not the child’s plight, it was the mother’s role as the “natural guardian” of a nonmarital child. See supra, at 9–13; Collins 2205 (“[T]he pronounced gender asymmetry of the Nationality Act’s treatment of nonmarital foreign-born children of American mothers and fathers was shaped by contemporary maternalist norms regarding the mother’s relationship with her nonmarital child—and the father’s lack of such a relationship.”). It will not do to “hypothesiz[e] or inven[t]” governmental purposes for gender classifications “post hoc in response to litigation.” Virginia, 518 U. S., at 533, 535–536. Infecting the Government’s risk-of-statelessness argument is an assumption without foundation. “[F]oreign laws that would put the child of the U. S.-citizen mother at risk of statelessness (by not providing for the child to acquire the father’s citizenship at birth),” the Government asserts, “would protect the child of the U. S.-citizen father against statelessness by providing that the child would take his mother’s citizenship.” Brief for Petitioner 35. The Government, however, neglected to expose this supposed “protection” to a reality check. Had it done so, it would have recognized the formidable impediments placed by foreign laws on an unwed mother’s transmission of citizenship to her child. See Brief for Scholars on Statelessness as Amici Curiae 13–22, A1–A15. Experts who have studied the issue report that, at the time relevant here, in “at least thirty countries,” citizen mothers generally could not transmit their citizenship to nonmarital children born within the mother’s country. Id., at 14; see id., at 14–17. “[A]s many as forty-five countries,” they further report, “did not permit their female citizens to assign nationality to a nonmarital child born outside the subject country with a foreign father.” Id., at 18; see id., at 18–21. In still other countries, they also observed, there was no legislation in point, leaving the nationality of nonmarital children uncertain. Id., at 21–22; see Sandifer, A Comparative Study of Laws Relating to Nationality at Birth and to Loss of Nationality, 29 Am. J. Int’l L. 248, 256, 258 (1935) (of 79 nations studied, about half made no specific provision for the nationality of nonmarital children). Taking account of the foreign laws actually in force, these experts concluded, “the risk of parenting stateless children abroad was, as of [1940 and 1952], and remains today, substantial for unmarried U. S. fathers, a risk perhaps greater than that for unmarried U. S. mothers.” Brief for Scholars on Statelessness as Amici Curiae 9–10; see id., at 38–39. One can hardly characterize as gender neutral a scheme allegedly attending to the risk of statelessness for children of unwed U. S.-citizen mothers while ignoring the same risk for children of unwed U. S.-citizen fathers. In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024. See generally UNHCR, Ending Statelessness Within 10 Years, online at http://www.unhcr.org/en-us/protection/statelessness/546217229/special-report-ending-statelessness-10-years.html (all Internet materials as last visited June 9, 2017). Cognizant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key component of its project the elimination of gender discrimination in such laws. UNHCR, The Campaign To End Statelessness: April 2016 Update 1 (referring to speech of UNHCR “highlight[ing] the issue of gender discrimination in the nationality laws of 27 countries—a major cause of statelessness globally”), online at http://www.unhcr.org/ibelong/wp-content / uploads / Campaign-Update-April-2016.pdf;UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2016, p. 1 (“Ensuring gender equality in nationality laws can mitigate the risks of statelessness.”), online at http://www.refworld.org/docid/56de83ca4.html. In this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women andmen with regard to transmission of citizenship to their children. In sum, the Government has advanced no “exceedingly persuasive” justification for §1409(a) and (c)’s gender-specific residency and age criteria. Those disparate criteria, we hold, cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens.[21] IV While the equal protection infirmity in retaining a longer physical-presence requirement for unwed fathers than for unwed mothers is clear, this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term §1409(c) reserves for unwed mothers. There are “two remedial alternatives,” our decisions instruct, Westcott, 443 U. S., at 89 (quoting Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurringin result)), when a statute benefits one class (in this case, unwed mothers and their children), as §1409(c) does, and excludes another from the benefit (here, unwed fathers and their children). “[A] court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Westcott, 443 U. S., at 89 (quoting Welsh, 398 U. S., at 361 (opinion of Harlan, J.)).[22] “[W]hen the ‘right invoked is that to equal treatment,’ the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984) (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 247 (1931) ; emphasis deleted). “How equality is accomplished . . . is a matter on which the Constitution is silent.” Levin v. Commerce Energy, Inc., 560 U. S. 413 –427 (2010).[23] The choice between these outcomes is governed by the legislature’s intent, as revealed by the statute at hand. See id., at 427 (“On finding unlawful discrimination, . . . courts may attempt, within the bounds of their institutional competence, to implement what the legislature would have willed had it been apprised of the constitutional infirmity.”). See also Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 330 (2006) (“the touchstone for any decision about remedy is legislative intent”).[24] Ordinarily, we have reiterated, “extension, rather than nullification, is the proper course.” Westcott, 443 U. S., at 89. Illustratively, in a series of cases involving federal financial assistance benefits, the Court struck discriminatory exceptions denying benefits to discrete groups, which meant benefits previously denied were extended. See, e.g., Goldfarb, 430 U. S., at 202–204, 213–217 (plurality opinion) (survivors’ benefits), aff’g 396 F. Supp. 308, 309 (EDNY 1975) (per curiam); Jimenez v. Weinberger, 417 U. S. 628 –631, and n. 2, 637–638 (1974) (disability benefits); Department of Agriculture v. Moreno, 413 U. S. 528 –530, 538 (1973) (food stamps); Frontiero, 411 U. S., at 678–679, and n. 2, 691, and n. 25 (plurality opinion) (military spousal benefits). Here, however, the discriminatory exception consists of favorable treatment for a discrete group (a shorter physical-presence requirement for unwed U. S.-citizen mothers giving birth abroad). Following the same approach as in those benefits cases—striking the discriminatory exception—leads here to extending the general rule of longer physical-presence requirements to cover the previously favored group. The Court has looked to Justice Harlan’s concurring opinion in Welsh v. United States, 398 U. S., at 361–367, in considering whether the legislature would have struck an exception and applied the general rule equally to all, or instead, would have broadened the exception to cure the equal protection violation. In making this assessment, a court should “ ‘measure the intensity of commitment to the residual policy’ ”—the main rule, not the exception—“ ‘and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.’ ” Heckler, 465 U. S., at 739, n. 5 (quoting Welsh, 398 U. S., at 365 (opinion of Harlan, J.)). The residual policy here, the longer physical-presence requirement stated in §§1401(a)(7) and 1409, evidences Congress’ recognition of “the importance of residence in this country as the talisman of dedicated attachment.” Rogers v. Bellei, 401 U. S. 815, 834 (1971) ; see Weedin v. Chin Bow, 274 U. S. 657 –666 (1927) (Congress “attached more importance to actual residence in the United States as indicating a basis for citizenship than it did to descent. . . . [T]he heritable blood of citizenship was thus associated unmistakeably with residence within the country which was thus recognized as essential to full citizenship.” (internal quotation marks omitted)). And the potential for “disruption of the statutory scheme” is large. For if §1409(c)’s one-year dispensation were extended to unwed citizen fathers, would it not be irrational to retain the longer term when the U. S.-citizen parent is married? Disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress.[25] Although extension of benefits is customary in federal benefit cases, see supra, at 23–24, n. 22, 25, all indicators in this case point in the opposite direction.[26] Put to the choice, Congress, we believe, would have abrogated §1409(c)’s exception, preferring preservation of the general rule.[27] V The gender-based distinction infecting §§1401(a)(7) and 1409(a) and (c), we hold, violates the equal protection principle, as the Court of Appeals correctly ruled. For the reasons stated, however, we must adopt the remedial course Congress likely would have chosen “had it been apprised of the constitutional infirmity.” Levin, 560 U. S., at 427. Although the preferred rule in the typical case is to extend favorable treatment, see Westcott, 443 U. S., at 89–90, this is hardly the typical case.[28] Extension here would render the special treatment Congress prescribed in §1409(c), the one-year physical-presence requirement for U. S.-citizen mothers, the general rule, no longer an exception. Section 1401(a)(7)’s longer physical-presence requirement, applicable to a substantial majority of children born abroad to one U. S.-citizen parent and one foreign-citizen parent, therefore, must hold sway.[29] Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim,as the Government suggests, §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers. See Brief for Petitioner 12, 51; Reply Brief 19, n. 3. * * * The judgment of the Court of Appeals for the Second Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 As this case involves federal, not state, legislation, the applicable equality guarantee is not the Fourteenth Amendment’s explicit Equal Protection Clause, it is the guarantee implicit in the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U. S. 636 , n. 2 (1975) (“[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is so unjustifiable as to be violative of due process. This Court’s approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.” (citations and internal quotation marks omitted; alteration in original)). 2 Unless otherwise noted, references to 8 U. S. C. §§1401 and 1409 are to the 1958 edition of the U. S. Code, the version in effect when respondent Morales-Santana was born. Section 1409(a) and (c) have retained their numbering; §1401(a)(7) has become §1401(g). 3 The reduction affects only children born on or after November 14, 1986. §8(r), 102Stat. 2619; see §§12–13, 100Stat. 3657. Because Morales-Santana was born in 1962, his challenge is to the ten-years, five-after-age-14 requirement applicable at the time of his birth. 4 See generally B. Calder, The Impact of Intervention: The Dominican Republic During the U. S. Occupation of 1916–1924, pp. 17, 204–205 (1984) (describing establishment of a U. S. military government in the Dominican Republic in 1916, and plans, beginning in late 1920, for withdrawal). 5 There is no question that Morales-Santana himself satisfied the five-year residence requirement that once conditioned a child’s acquisition of citizenship under §1401(a)(7). See §1401(b). 6 We explain why Morales-Santana has third-party standing in view of the Government’s opposition to such standing in Flores-Villar v. United States, 564 U. S. 210 (2011) (per curiam ). See Brief for United States, O. T. 2010, No. 09–5801, pp. 10–14. 7 See Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (“It is difficult to understand [Reed] without an assumption that some special sensitivity to sex as a classifying factor entered into the analysis. . . . Only by importing some special suspicion of sex-related means . . . can the [Reed] result be made entirely persuasive.”). 8 The provision was first codified in 1940 at 8 U. S. C. §605, see §205, 54Stat. 1139–1140, and recodified in 1952 at §1409, see §309, 66Stat. 238–239. For simplicity, we here use the latter designation. 9 This “ancient principle” no longer guides the Court’s jurisprudence. See Kirchberg v. Feenstra, 450 U. S. 455, 456 (1981) (invalidating, on equal protection inspection, Louisiana’s former “head and master” rule). 10 See generally C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 58–61 (1998); Sapiro, Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, 13 Politics & Society 1, 4–10 (1984). In 1907, Congress codified several judicial decisions and prevailing State Department views by providing that a female U. S. citizen automatically lost her citizenship upon marriage to an alien. Act of Mar. 2, 1907, ch. 2534, §3, 34Stat. 1228; see L. Gettys, The Law of Citizenship in the United States 119 (1934). This Court upheld the statute. Mackenzie v. Hare, 239 U. S. 299, 311 (1915) . 11 Act of Mar. 26, 1790, ch. 3, 1Stat. 104; Act of Jan. 29, 1795, §3, 1Stat. 415; Act of Apr. 14, 1802, §4, 2Stat. 155; Act of Feb. 10, 1855, ch. 71, §2, 10Stat. 604; see 2 J. Kent, Commentaries on American Law *52–*53 (8th ed. 1854) (explaining that the 1802 Act, by adding “fathers,” “seem[ed] to remove the doubt” about “whether the act intended by the words, ‘children of persons,’ both the father and mother, . . . or the father only”); Kerber, No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship 36 (1998); Brief for Professors of History et al. as Amici Curiae 5–6. In 1934, Congress moved in a new direction by allowing a married mother to transmit her citizenship to her child. Act of May 24, 1934, ch. 344, §1, 48Stat. 797. 12 Lehr v. Robertson, 463 U. S. 248 (1983) , on which the Court relied in Tuan Anh Nguyen v. INS, 533 U. S. 53 –64 (2001), recognized that laws treating fathers and mothers differently “may not constitutionally be applied . . . where the mother and father are in fact similarly situated with regard to their relationship with the child,” Lehr, 463 U. S., at 267. The “similarly situated” condition was not satisfied in Lehr, however, for the father in that case had “never established any custodial, personal, or financial relationship” with the child. Ibid. 13 Even if stereotypes frozen into legislation have “statistical support,” our decisions reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn. J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 139, n. 11 (1994) ; see, e.g., Craig v. Boren, 429 U. S. 190 –199 (1976); Weinberger v. Wiesenfeld, 420 U. S. 636, 645 (1975) . In fact, unwed fathers assume responsibility for their children in numbers already large and notably increasing. See Brief for Population and Family Scholars as Amici Curiae 3, 5–13 (documenting that nonmarital fathers “are [often] in a parental role at the time of their child’s birth,” and “most . . . formally acknowledge their paternity either at the hospital or in the birthing center just after the child is born”); Brief for American Civil Liberties Union et al. as Amici Curiae 22 (observing, inter alia, that “[i]n 2015, fathers made up 16 percent of single parents with minor children in the United States”). 14 In 1986, nine years after the decision in Fiallo, Congress amended the governing law. The definition of “child” that included offspring of natural mothers but not fathers was altered to include children born out of wedlock who established a bona fide parent-child relationship with their natural fathers. See Immigration Reform and Control Act of 1986, §315(a), 100Stat. 3439, as amended, 8 U. S. C. §1101(b)(1)(D) (1982 ed., Supp. IV); Miller v. Albright, 523 U. S. 420 , n. 4 (1998) (opinion of Stevens, J.). 15 Section 1409(a), following amendments in 1986 and 1988, see §13, 100Stat. 3657; §8(k), 102Stat. 2618, now states: 16 In Flores-Villar, the Government asserted only the risk-of-statelessness rationale, which it repeats here. See Brief for United States, O. T. 2010, No. 09–5801, at 22–39; infra, at 19–23. 17 But see §1409(a) (unmarried U. S.-citizen father who satisfies the physical-presence requirements and, after his child is born, accepts parental responsibility transmits his citizenship to the child “as of the date of birth”). 18 When a child is born abroad to married parents, both U. S. citizens, the child ranks as a U. S. citizen at birth if either parent “has had a residence in the United States or one of its outlying possessions, prior to the birth of [the child].” §1401(a)(3) (1958 ed.); §1401(c) (2012 ed.) (same). 19 Brief for Respondent 26, n. 9, presents this example: “Child A is born in Germany and raised there by his U. S.-citizen mother who spent only a year of her life in the United States during infancy; Child B is born in Germany and is legitimated and raised in Germany by a U. S.-citizen father who spent his entire life in the United States before leaving for Germany one week before his nineteenth birthday. Notwithstanding the fact that Child A’s ‘legal relationship’ with his U. S.-citizen mother may have been established ‘at the moment of birth,’ and Child B’s ‘legal relationship’ with his U. S.-citizen father may have been established a few hours later, Child B is more likely than Child A to learn English and assimilate U. S. values. Nevertheless, under the discriminatory scheme, only Child A obtains U. S. citizenship at birth.” For another telling example, see Brief for Equality Now et al. as Amici Curiae 19–20. 20 A Senate Report dated January 29, 1952, is the sole exception. That Report relates that a particular problem of statelessness accounts for the 1952 Act’s elimination of a 1940 Act provision the State Department had read to condition a citizen mother’s ability to transmit nationality to her child on the father’s failure to legitimate the child prior to the child’s 18th birthday. See 1940 Act, §205, 54Stat. 1140 (“In the absence of . . . legitimation or adjudication [during the child’s minority], . . . the child” born abroad to an unmarried citizen mother “shall be held to have acquired at birth [the mother’s] nationality status.” (emphasis added)). The 1952 Act eliminated this provision, allowing the mother to transmit citizenship independent of the father’s actions. S. Rep. No. 1137, 82d Cong., 2d Sess., 39 (1952) (“This provision establish[es] the child’s nationality as that of the [citizen] mother regardless of legitimation or establishment of paternity . . . .” (emphasis added)). This sole reference to a statelessness problem does not touch or concern the different physical-presence requirements carried over from the 1940 Act into the 1952 Act. 21 Justice Thomas, joined by Justice Alito, sees our equal protection ruling as “unnecessary,” post, at 1, given our remedial holding. But, “as we have repeatedly emphasized, discrimination itself . . . perpetuat[es] ‘archaic and stereotypic notions’ ” incompatible with the equal treatment guaranteed by the Constitution. Heckler v. Mathews, 465 U. S. 728, 739 (1984) (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 725 (1982) ). 22 After silently following the path Justice Harlan charted in Welsh v. United States, 398 U. S. 333 (1970) , in several cases involving gender-based discrimination, see, e.g., Wiesenfeld, 420 U. S., at 642, 653 (extending benefits); Frontiero v. Richardson, 411 U. S. 677 –691, and n. 25 (1973) ( plurality opinion) (same), the Court unanimously adopted his formulation in Califano v. Westcott, 443 U. S. 76 (1979) . See id., at 89–90 (opinion for the Court); id., at 94–95 (Powell, J., concurring in part and dissenting in part). The appropriate remedy, the Westcott majority held, was extension to unemployed mothers of federal family-aid unemployment benefits provided by statute only for families of unemployed fathers. Id., at 90–93. In the dissent’s view, nullification was the proper course. Id., at 94–96. 23 Because the manner in which a State eliminates discrimination “is an issue of state law,” Stanton v. Stanton, 421 U. S. 7, 18 (1975) , upon finding state statutes constitutionally infirm, we have generally remanded to permit state courts to choose between extension and invalidation. See Levin v. Commerce Energy, Inc., 560 U. S. 413, 427 (2010) . In doing so, we have been explicit in leaving open on remand the option of removal of a benefit, as opposed to extension. See, e.g., Orr v. Orr, 440 U. S. 268 –284 (1979) (leaving to state courts remedy for unconstitutional imposition of alimony obligations on husbands but not wives); Stanton, 421 U. S., at 17–18 (how to eliminate unconstitutional age differential, for child-support purposes, between male and female children, is “an issue of state law to be resolved by the Utah courts”). 24 We note, however, that a defendant convicted under a law classifying on an impermissible basis may assail his conviction without regard to the manner in which the legislature might subsequently cure the infirmity. In Grayned v. City of Rockford, 408 U. S. 104 (1972) , for example, the defendant participated in a civil rights demonstration in front of a school. Convicted of violating a local “antipicketing” ordinance that exempted “peaceful picketing of any school involved in a labor dispute,” he successfully challenged his conviction on equal protection grounds. Id., at 107 (internal quotation marks omitted). It was irrelevant to the Court’s decision whether the legislature likely would have cured the constitutional infirmity by excising the labor-dispute exemption. In fact, the legislature had done just that subsequent to the defendant’s conviction. Ibid., and n. 2. “Necessarily,” the Court observed, “we must consider the facial constitutionality of the ordinance in effect when [the defendant] was arrested and convicted.” Id., at 107, n. 2. See also Welsh, 398 U. S., at 361–364 (Harlan, J., concurring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription). 25 Distinctions based on parents’ marital status, we have said, are subject to the same heightened scrutiny as distinctions based on gender. Clark v. Jeter, 486 U. S. 456, 461 (1988) . 26 In crafting the INA in 1952, Congress considered, but did not adopt, an amendment that would have applied the shorter one-year continuous physical-presence requirement now contained in §1409(c) to all foreign-born children of parents with different nationalities. See S. 2842, 82d Cong., 2d Sess., §301(a)(5) (1952). 27 Compare with the remedial issue presented here suits under Title VII of the Civil Rights Act of 1964 challenging laws prescribing terms and conditions of employment applicable to women only, e.g., minimum wage, premium pay, rest breaks, or lunch breaks. Most courts, perhaps mindful of the mixed motives implicated in passage of such legislation (some conceiving the laws as protecting women, others, as discouraging employers from hiring women), and, taking into account the economic burdens extension would impose on employers, have invalidated the provisions. See, e.g., Homemakers, Inc., of Los Angeles v. Division of Industrial Welfare, 509 F. 2d 20, 22–23 (CA9 1974), aff’g 356 F. Supp. 1111 (1973) (ND Cal. 1973); Burns v. Rohr Corp., 346 F. Supp. 994, 997–998 (SD Cal. 1972); RCA del Caribe, Inc. v. Silva Recio, 429 F. Supp. 651, 655–658 (PR 1976); Doctors Hospital, Inc. v. Recio, 383 F. Supp. 409, 417–418 (PR 1974); State v. Fairfield Communities Land Co., 260 Ark. 277, 279–281, 538 S. W. 2d 698, 699–700 (1976); Jones Metal Products Co. v. Walker, 29 Ohio St. 2d 173, 178–183, and n. 6, 281 N. E. 2d 1, 6–9, and n. 6 (1972); Vick v. Pioneer Oil Co., 569 S. W. 2d 631, 633–635 (Tex. Civ. App. 1978). 28 The Court of Appeals found the remedial issue “the most vexing problem in this case.” 804 F. 3d 520, 535 (2015). 29 That Morales-Santana did not seek this outcome does not restrain the Court’s judgment. The issue turns on what the legislature would have willed. “The relief the complaining party requests does not circumscribe this inquiry.” Levin, 560 U. S., at 427.

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 SESSIONS, ATTORNEY GENERAL v. MORALES-SANTANA certiorari to the united states court of appeals for the second circuit No. 15–1191. Argued November 9, 2016—Decided June 12, 2017 The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a U. S. citizen and the other a citizen of another nation. Applicable to married couples, the main rule in effect at the time here relevant, 8 U. S. C. §1401(a)(7) (1958 ed.), required the U. S.-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed U. S.-citizen fathers by §1409(a), but §1409(c) creates an exception for an unwed U. S.-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth. Respondent Luis Ramón Morales-Santana, who has lived in the United States since he was 13, asserts U. S. citizenship at birth based on the U. S. citizenship of his biological father, José Morales. José moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy §1401(a)(7)’s requirement of five years’ physical presence after age 14. There, he lived with the Dominican woman who gave birth to Morales-Santana. José accepted parental responsibility and included Morales-Santana in his household; he married Morales-Santana’s mother and his name was then added to hers on Morales-Santana’s birth certificate. In 2000, the Government sought to remove Morales-Santana based on several criminal convictions, ranking him as alien because, at his time of birth, his father did not satisfy the requirement of five years’ physical presence after age 14. An immigration judge rejected Morales-Santana’s citizenship claim and ordered his removal. Morales-Santana later moved to reopen the proceedings, asserting that the Government’s refusal to recognize that he derived citizenship from his U. S.-citizen father violated the Constitution’s equal protection guarantee. The Board of Immigration Appeals denied the motion, but the Second Circuit reversed. Relying on this Court’s post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. To cure this infirmity, the Court of Appeals held that Morales-Santana derived citizenship through his father, just as he would were his mother the U. S. citizen. Held: 1. The gender line Congress drew is incompatible with the Fifth Amendment’s requirement that the Government accord to all persons “the equal protection of the laws.” . (a) Morales-Santana satisfies the requirements for third-party standing in seeking to vindicate his father’s right to equal protection. José Morales’ ability to pass citizenship to his son easily satisfies the requirement that the third party have a “ ‘close’ relationship with the person who possesses the right.” Kowalski v. Tesmer, 543 U. S. 125 . And José’s death many years before the current controversy arose is “a ‘hindrance’ to [José’s] ability to protect his own interests.” Ibid. . (b) Sections 1401 and 1409 date from an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are. Today, such laws receive the heightened scrutiny that now attends “all gender-based classifications,” J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , including laws granting or denying benefits “on the basis of the sex of the qualifying parent,” Califano v. Westcott, 443 U. S. 76 . Prescribing one rule for mothers, another for fathers, §1409 is of the same genre as the classifications declared unconstitutional in Westcott; Reed v. Reed, 404 U. S. 71 –77; Frontiero v. Richardson, 411 U. S. 677 –691; Weinberger v. Wiesenfeld, 420 U. S. 636 –653; and Califano v. Goldfarb, 430 U. S. 199 –207. A successful defense therefore requires an “ ‘exceedingly persuasive justification.’ ” United States v. Virginia, 518 U. S. 515 . . (c) The Government must show, at least, that its gender-based “ ‘classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to [achieving] those objectives.” ’ ” Virginia, 518 U. S., at 533. The classification must serve an important governmental interest today, for “new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___. . (1) At the time §1409 was enacted as part of the Nationality Act of 1940 (1940 Act), two once habitual, but now untenable, assumptions pervaded the Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the sole guardian of a nonmarital child. In the 1940 Act, Congress codified the mother-as-sole-guardian perception for unmarried parents. According to the stereotype, a residency requirement was justified for unwed citizen fathers, who would care little about, and have scant contact with, their nonmarital children. Unwed citizen mothers needed no such prophylactic, because the alien father, along with his foreign ways, was presumptively out of the picture. . (2) For close to a half century, this Court has viewed with suspicion laws that rely on “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U. S., at 533. No “important [governmental] interest” is served by laws grounded, as §1409(a) and (c) are, in the obsolescing view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. Caban v. Mohammed, 441 U. S. 380 . In light of this equal protection jurisprudence, §1409(a) and (c)’s discrete duration-of-residence requirements for mothers and fathers are anachronistic. . (d) The Government points to Fiallo v. Bell, 430 U. S. 787 ; Miller v. Albright, 523 U. S. 420 ; and Nguyen v. INS, 533 U. S. 53 , for support. But Fiallo involved entry preferences for alien children; the case did not present a claim of U. S. citizenship. And Miller and Nguyen addressed a paternal-acknowledgment requirement well met here, not the length of a parent’s prebirth residency in the United States. . (e) The Government’s suggested rationales for §1409(a) and (c)’s gender-based differential do not survive heightened scrutiny. . (1) The Government asserts that Congress sought to ensure that a child born abroad has a strong connection to the United States. The statute, the Government suggests, bracketed an unwed U. S.-citizen mother with a married couple in which both parents are U. S. citizens because she is the only legally recognized parent at birth; and aligned an unwed U. S.-citizen father with a married couple, one spouse a citizen, the other, an alien, because of the competing national influence of the alien mother. This rationale conforms to the long-held view that unwed fathers care little about their children. And the gender-based means scarcely serve the suggested congressional interest. Citizenship may be transmitted to children who have no tie to the United States so long as their U. S.-citizen mother was continuously present in the United States for one year at any point in her life prior to the child’s birth; but it may not be transmitted by a U. S.-citizen father who falls a few days short of meeting §1401(a)(7)’s longer physical-presence requirements, even if he acknowledges paternity on the day the child is born and raises the child in the United States. . (2) The Government also maintains that Congress wished to reduce the risk of statelessness for the foreign-born child of a U. S. citizen. But congressional hearings and reports offer no support for the assertion that a statelessness concern prompted the diverse physical-presence requirements. Nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed U. S.-citizen mothers. . 2. Because this Court is not equipped to convert §1409(c)’s exception for unwed U. S.-citizen mothers into the main rule displacing §§1401(a)(7) and 1409(a), it falls to Congress to select a uniform prescription that neither favors nor disadvantages any person on the basis of gender. In the interim, §1401(a)(7)’s current requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers. The legislature’s intent, as revealed by the statute at hand, governs the choice between the two remedial alternatives: extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class. Ordinarily, the preferred rule is to extend favorable treatment. Westcott, 443 U. S., at 89–90. Here, however, extension to fathers of §1409(c)’s favorable treatment for mothers would displace Congress’ general rule, the longer physical-presence requirements of §§1401(a)(7) and 1409 applicable to unwed U. S.-citizen fathers and U. S.-citizen parents, male as well as female, married to the child’s alien parent. Congress’ “ ‘commitment to th[is] residual policy’ ” and “ ‘the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation,’ ” Heckler v. Mathews, 465 U. S. 728 , n. 5, indicate that Congress would likely have abrogated §1409(c)’s special exception, preferring to preserve “the importance of residence in this country as the talisman of dedicated attachment,” Rogers v. Bellei, 401 U. S. 815 . . 804 F. 3d 520, affirmed in part, reversed in part, and remanded. 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 in part, in which Alito, J., joined. Gorsuch, J., took no part in the consideration or decision of the case.

Title 8 U.S.C. §1401(a)(7) provides for the U. S. citizenship of a child born abroad to parents one of whom is an alien and the other a citizen of the United States who, prior to the birth of such person, was physically present in the country or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years. Section1409(a) incorporates a physical-presence provision for unwed United S.Citizen fathers, providing that, after 14 years of age, the physical presence of the father may be computed. Subsequently, the Government placed respondent Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. The court rejected his claim to citizenship derived from the father of the child, and ordered his removal to the Dominican Republic. In 2010, he moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his father violated the Constitution. The Board of Immigration Appeals denied the motion, and the Court of Appeals reversed. Held: 1. The gender-based differential in the law governing the acquisition of citizenship of children born abroad by one parent is incompatible with the requirement of the Government according to all persons the equal protection of the laws. Although §1409 (c) treats sons and daughters alike, respondent does not suffer discrimination on the basis of his gender. He complains instead of gender discrimination against his biological father, who was unwed at the time of his birth and was not accorded the right an unwed U. s.-citizen mother would have to transmit citizenship to her child. . 2. The Government has supplied no adequate justification for the gender-wide distinction infecting §§1401 (a) (1958 ed.), (2012 ed.), and (c). A defendant convicted under a law classifying on an impermissible basis may assail his conviction without regard to the manner in which the legislature might subsequently cure the infirmity. Such a defendant is the obvious claimant of his father's right to equal protection. There is little reason to believe that a statelessness concern prompted such requirements, nor has the Government shown that the risk of statelessness disproportionately endangered the children of unwed mothers. Moreover, the residual policy here, the longer requirement, evidences Congress' recognition of the importance of residence in this country as the talisman of dedicated attachment. And the potential for disruption of the statutory scheme is large.. 3. Nor is there any merit to the argument that Congress intended the diversity of physical practices prescriptions to serve an interest in ensuring a connection between the foreign-born nonmarital child and the Government, and that such prescriptions should apply, prospectively, to children born to unwed parents. While the Government has retained the same internalized equal protection approach as in the cases of Reed, Frontiero, Wiesenfeld, and Nguyen v. INS, the Court has retained its previous approach. It must adopt the remedial course Congress likely would have chosen if it had been apprised of the constitutional irmity, see, e.g., Levin v. Commerce Energy, Inc., 560 U. S. 413, 427, n. 7. Extension here would render the special treatment Congress prescribed in § 1409(c), the one-year physical-Presence requirement, the general rule, no longer an exception. However, the discriminatory exception consists of favorable treatment for a discrete group (a shorter requirement than in the current version) and, in the interim, should be applied to children living with unwed mother. P.. 804 F. 3d 520, affirmed in part and reversed in part, and remanded. MR. JUSTICE HARLAN, concurring in the judgment, concluded that: (1) While the Equal Protection Clause of the Fifth Amendment does forbid discrimination that is so unjustifiable as to be violative of due process, it does not forbid discrimination on equal protection grounds. Title VII of the Constitution contains no equal protection clause, but is the guarantee implicit in the Due Process Clause, and therefore prohibits review under the heightened scrutiny that now accords the Constitution to the laws in question. Cf. United States v. Wright,; Virginia, 518 U. N. 787; Miller v. Albright, 523 U. SC. 420, and n. 6.. P.. (2) The Gender-Based Gender-Bias-Based Discrimination infecting Sections 1401 (A) and (C) of the Code is an anachronistic, inasmuch as it applies only to unmarried mothers and unwed fathers, rather than unwed custodians. This Court has long recognized that discrimination itself perpetuat[es] "archaic

2016_15-5991

https://www.oyez.org/cases/2016/15-5991

. A federal statute makes it a crime “knowingly [to] execut[e] a scheme . . . to defraud a financial institution,” 18 U. S. C. §1344(1), for example, a federally insured bank, 18 U. S. C. §20. The petitioner, Lawrence Shaw, was convicted of violating this provision. He argues here that the provision does not apply to him because he intended to cheat only a bank depositor, not a bank. We do not accept his arguments. I The relevant criminal statute makes it a crime: “knowingly [to] execut[e] a scheme . . . “(1) to defraud a financial institution; or “(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.” §1344. Shaw obtained the identifying numbers of a Bank of America account belonging to a bank customer, Stanley Hsu. Shaw used those numbers (and other related information) to transfer funds from Hsu’s account to other accounts at other institutions from which Shaw could obtain (and eventually did obtain) Hsu’s funds. Shaw was convicted of violating the first clause of the statute, namely,the prohibition against “defraud[ing] a financial insti-tution.” The Ninth Circuit affirmed his conviction. 781F. 3d 1130 (2015). Shaw then filed a petition for certiorari arguing that the words “scheme to defraud a financial institution” require the Government to prove that the defendant had “a specific intent not only to deceive, but also to cheat, a bank,” rather than “a non-bank third party.” Pet. for Cert. i. We granted review. II Shaw makes several related arguments in favor of his basic claim, namely, that the statute does not cover schemes to deprive a bank of customer deposits. First, he says that subsection (1) requires “an intent to wrong a victim bank [a ‘financial institution’] in its property rights . . . .” Brief for Petitioner 23. He adds that the property he took, money in Hsu’s bank account, belonged to Hsu, the bank’s customer, and that Hsu is not a “financial institution.” Id., at 25, 45. Hence Shaw’s was a scheme “designed” to obtain only “a bank customer’s property,” not “a bank’s own property.” Id., at 24–25. The basic flaw in this argument lies in the fact that the bank, too, had property rights in Hsu’s bank account. When a customer deposits funds, the bank ordinarily becomes the owner of the funds and consequently has the right to use the funds as a source of loans that help the bank earn profits (though the customer retains the right, for example, to withdraw funds). 5A Michie, Banks and Banking, ch. 9, §1, pp. 1–7 (2014) (Michie); id., §4b, at 54–58; id., §38, at 162; Phoenix Bank v. Risley, 111 U. S. 125, 127 (1884) . Sometimes, the contract between the customerand the bank provides that the customer retains ownership of the funds and the bank merely assumes possession. Michie, ch. 9, §38, at 162; Phoenix Bank, supra, at 127. But even then the bank is like a bailee, say, a garage that stores a customer’s car. Michie, ch. 9, §38, at 162. And as bailee, the bank can assert the right to possess the deposited funds against all the world but for the bailor (or, say, the bailor’s authorized agent). 8A Am. Jur. 2d, Bailment §166, pp. 685–686 (2009). This right, too, is a property right. 2 W. Blackstone, Commentaries on the Laws of England 452–454 (1766) (referring to a bailee’s right in a bailment as a “special qualified property”). Thus, Shaw’s scheme to cheat Hsu was also a scheme to deprive the bank of certain bank property rights. Hence, for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds. Second, Shaw says he did not intend to cause the bank financial harm. Indeed, the parties appear to agree that, due to standard banking practices in place at the time of the fraud, no bank involved in the scheme ultimately suffered any monetary loss. Brief for Petitioner 4; Brief for United States 4, 27–28. But the statute, while insisting upon “a scheme to defraud,” demands neither a showing of ultimate financial loss nor a showing of intent to cause financial loss. Many years ago Judge Learned Hand pointed out that “[a] man is none the less cheated out of his property, when he is induced to part with it by fraud,” even if “he gets a quid pro quo of equal value.” United States v. Rowe, 56 F. 2d 747, 749 (CA2 1932). That is because “[i]t may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost,” for example, “his chance to bargain with the facts before him.” Ibid. Cf. O. Holmes, The Common Law 132 (1881) (“[A] man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it”); Neder v. United States, 527 U. S. 1 –25 (1999) (bank fraud statute’s definition of fraud reflects the common law). It is consequently not surprising that, when interpreting the analogous mail fraud statute, we have held it “sufficient” that the victim (here, the bank) be “deprived of its right” to use of the property, even if it ultimately did not suffer unreimbursed loss. Carpenter v. United States, 484 U. S. 19 –27 (1987). Lower courts have explained that, where cash is taken from a bank “but the bank [is] fully insured[,] [t]he theft [is] complete when the cash [i]s taken; the fact that the bank ha[s] a contract with an insur-ance company enabling it to shift the loss to that company [is] immaterial.” United States v. Kucik, 844 F. 2d 493, 495 (CA7 1988). And commentators have made clear that “on the criminal side, it is generally held that the lack of financial loss is no defense to false pretenses.” 2 W. LaFave & A. Scott, Substantive Criminal Law §8.7(i)(3), p. 404 (1986). We have found no case from this Court interpreting the bank fraud statute as requiring that the victim bank ultimately suffer financial harm, or that the defendant intend that the victim bank suffer such harm. Third, Shaw appears to argue that, whatever the true state of property law, he did not know that the bank had a property interest in Hsu’s account; hence he could not have intended to cheat the bank of its property. Shaw did know, however, that the bank possessed Hsu’s account. He did make false statements to the bank. He did correctly believe that those false statements would lead the bankto release from that account funds that ultimately and wrongfully ended up in Shaw’s pocket. And the bank did in fact possess a property interest in the account. These facts are sufficient to show that Shaw knew he was entering into a scheme to defraud the bank even if he was not aware of the niceties of bank-related property law. To require more, i.e., to require actual knowledge of those bank-related property-law niceties, would free (or convict) equally culpable defendants depending upon their property-law expertise—an arbitrary result. We have found nocase from this Court requiring legal knowledge of the kind Shaw suggests he lacked. But we have found cases in roughly similar fraud-related contexts where this Court has asked only whether the targeted property was in fact property in the hands of the victim, not whether the defendant knew that the law would characterize the items at issue as “property.” See Pasquantino v. United States, 544 U. S. 349 –356 (2005) (Canada’s right to uncollected excise taxes on imported liquor counted as “property” for purposes of the wire fraud statute); Carpenter, supra, at 25–26 (a newspaper’s interest in the confidentiality of the contents and timing of a news column counted as property for the purposes of the mail and wire fraud statutes). We conclude that the legal ignorance that Shaw claims here is no defense to criminal prosecution for bank fraud. Fourth, Shaw argues that the bank fraud statute requires the Government to prove more than his simple knowledge that he would likely harm the bank’s property interest; in his view, the Government must prove that such was his purpose. See Voisine v. United States, 579 U. S. ___, ___ (2016) (slip op., at 4) (“knowingly” committing an assault requires an awareness “ ‘that [harm] is practically certain,’ ” whereas “purposefully” committing an assault is “to have that result as a ‘conscious object’ ” (quoting ALI, Model Penal Code §§2.02(2)(a)–(b) (1962))). Shaw adds that his purpose was to take money from Hsu; taking property from the bank was not his purpose. But the statute itself makes criminal the “knowin[g] execut[ion of] a scheme . . . to defraud.” To hold that something other than knowledge is required would assume that Congress intended to distinguish, in respect to states of mind, between (1) the fraudulent scheme, and (2) its fraudulent elements. Why would Congress wish to do so? Shaw refers us to a number of cases involving fraud against the Government and points to language in those cases suggesting that the relevant statutes required that the defendant’s purpose be to harm the statutorily protected target and not a third party. Brief for Petitioner 25–29. But in two of those cases, the fraudulent statement was made not to the Government but to the third party—a circumstance not present here. See Allison Engine Co. v. United States ex rel. Sanders, 553 U. S. 662 –668 (2008); Tanner v. United States, 483 U. S. 107 –112 (1987). In the third, the relevant portion of the statute expressly required a false statement “ ‘for the purpose . . . of . . . defrauding the Government of the United States.’ ” United States v. Cohn, 270 U. S. 339 (1926) (emphasis added). As for the fourth case, the language Shaw cites states the uncontroversial proposition that “defrauding or attempting to defraud the United States” means “fraud against the Government.” Bridges v. United States, 346 U. S. 209 –222 (1953). In any event, these cases all involved crimes of fraud targeting the Government—an area of the law with its own special rules and protections. We have found no relevant authority in the area of mail fraud, wire fraud, financial frauds, or the like supporting Shaw’s view. Fifth, Shaw, reading the bank fraud statute as a whole, urges us to compare subsection (1) with subsection (2). Supra, at 1. Subsection (2), he points out, makes criminal the use of “false or fraudulent pretenses” to obtain “property . . . under the custody or control of” a bank. And in his view that fact means that we should read subsection (1) not to apply to those circumstances. That is to say, given the language of subsection (2), efforts such as his effort fraudulently to obtain money deposited in a bank account should not fall within the scope of the subsection (1) phrase “scheme . . . to defraud a financial institution.” Brief for Petitioner 30–33. As we read the two subsections, however, they do not demand that interpretation. The two subsections overlap substantially but not completely. Subsection (2) makes criminal the use of a scheme “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.” This language covers much that subsection (1) also covers, for example, making a false representation to a bank in order to obtain property belonging to that bank. See Loughrin v. United States, 573 U. S. ___, ___–___, n. 4 (2014) (slip op., at 6–7, n. 4) (recognizing the “substantial” overlap between the two subsections and noting that such overlap “is not uncommon in criminal statutes”). At the same time, it applies to a circumstance in which a shopper makes a false statement to a department store cashier in order to pay for goods with money “under the custody or control of a financial institution,” say, Bank A. The shopper’s false statement, though designed to obtain Bank A’s property, might well not amount to an effort (under subsection (1)) to defraud Bank A (since the statement was made not to Bank A but to an agent of the department store). Given, on the one hand, the overlap and, on the other hand, a plausible reading of the language that applies it to circumstances significantly different from those at issue here, we have no good reason to read subsection (2) as excluding from subsection (1) applications that would otherwise fall within the scope of subsection (1), such as conduct of the kind before us. Finally, Shaw asks us to apply the rule of lenity. Brief for Petitioner 40–41. We have said that the rule applies if “at the end of the process of construing what Congress has expressed,” Callanan v. United States, 364 U. S. 587, 596 (1961) , there is “ ‘a grievous ambiguity or uncertainty in the statute,’ ” Muscarello v. United States, 524 U. S. 125 –139 (1998) (quoting Staples v. United States, 511 U. S. 600, 619, n. 17 (1994) ). The statute is clear enough that we need not rely on the rule of lenity. As we have said, a deposit account at a bank counts as bank property for purposes of subsection (1). Supra, at 2–3. The defendant, in circumstances such as those present here, need not know that the deposit account is, as a legal matter, characterized as bank property. Supra, at 4–5. Moreover, in those circumstances, the Government need not prove that the defendant intended that the bank ultimately suffer monetary loss. Supra, at 3–4. Finally, the statute as applied here requires a state of mind equivalent to knowledge, not purpose. Supra, at 5–6. III Shaw further argues that the instructions the District Court gave the jury were erroneous. He points out that the District Court told the jury that the “phrase ‘scheme to defraud’ means any deliberate plan of action or course of conduct by which someoneintends to deceive, cheat, or deprive a financial institution of something of value.” App. 18 (emphasisadded). This instruction, Shaw says, could be understood as permitting the jury to find him guilty if it found no more than that his scheme was one to deceive the bank but notto “deprive” the bank of anything of value. Brief for Petitioner 22–23. The parties agree, as do we, that the scheme must be one to deceive the bank and deprive it of something of value. For reasons previously pointed out, we have held that a plan to deprive a bank of money in a customer’s deposit account is a plan to deprive the bank of “something of value” within the meaning of the bank fraud statute. The parties dispute whether the jury instruction is nonetheless ambiguous or otherwise improper. We leave to the Ninth Circuit to determine whether that question was fairly presented to that court and, if so, whether the instruction is lawful, and, if not, whether any error was harmless in this case. For these reasons, the judgment of the Ninth 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 SHAW v. UNITED STATES certiorari to the united states court of appeals for the ninth circuit No. 15–5991. Argued October 4, 2016—Decided December 12, 2016 Petitioner Shaw used identifying numbers of a bank account belonging to bank customer Hsu in a scheme to transfer funds from that account to accounts at other institutions from which Shaw was able to obtain Hsu’s funds. Shaw was convicted of violating 18 U. S. C. §1344(1), which makes it a crime to “knowingly execut[e] a scheme . . . to defraud a financial institution.” The Ninth Circuit affirmed. Held: 1. Subsection (1) of the bank fraud statute covers schemes to deprive a bank of money in a customer’s deposit account. Shaw’s arguments in favor of his claim that subsection (1) does not apply to him because he intended to cheat only a bank depositor, not a bank, are unpersuasive. First, the bank did have property rights in Hsu’s bank deposits: When a customer deposits funds, the bank ordinarily becomes the owner of the funds, which the bank has a right to use as a source of loans that help the bank earn profits. Sometimes, the contract between the customer and the bank provides that the customer retains ownership of the funds and the bank only assumes possession; even then, the bank has a property interest in the funds because its role is akin to that of a bailee. Hence, for purposes of the bank fraud statute, a scheme fraudulently to obtain funds from a bank depositor’s account normally is also a scheme fraudulently to obtain property from a “financial institution,” at least where, as here, the defendant knew that the bank held the deposits, the funds obtained came from the deposit account, and the defendant misled the bank in order to obtain those funds. Second, Shaw may not have intended to cause the bank financial harm, but the statute, while insisting upon “a scheme to defraud,” demands neither a showing that the bank suffered ultimate financial loss nor a showing that the defendant intended to cause such loss. This Court has found no case that interprets the statute as Shaw does. Cf. Carpenter v. United States, 484 U. S. 19 . Third, that Shaw may have been ignorant of relevant bank-related property law is no defense to criminal prosecution for bank fraud. Shaw knew that the bank possessed Hsu’s account, Shaw made false statements to the bank, Shaw believed that those false statements would lead the bank to release from that account funds that ultimately and wrongfully ended up with Shaw, and the bank in fact possessed a property interest in the account. These facts are sufficient to show that Shaw knew that he was entering into a scheme to defraud the bank even if he was not aware of the niceties of bank-related property law. Cf. Pasquantino v. United States, 544 U. S. 349 –356. Fourth, Shaw mistakenly contends that the statute requires the Government to prove not just that he acted with the knowledge that he would likely harm the bank’s property interest but also that such was his purpose. This Court has found no relevant authority supporting the view that a statute making criminal the “knowin[g] execut[ion of] a scheme . . . to defraud” requires something more than knowledge. Allison Engine Co. v. United States ex rel. Sanders, 553 U. S. 662 –668; Tanner v. United States, 483 U. S. 107 –112; United States v. Cohn, 270 U. S. 339 ; and Bridges v. United States, 346 U. S. 209 –222, distinguished. Fifth, subsection (2) of the bank fraud statute, which makes criminal the use of “false or fraudulent pretenses” to obtain “property . . . under the custody or control of” a bank, may overlap with subsection (1), but it does not do so completely. Thus, it should not be read as excluding from subsection (1) applications that would otherwise fall within the scope of subsection (1), such as the conduct at issue in this case. See Loughrin v. United States, 573 U. S. ___, ___, n. 4. Finally, because the bank fraud statute is clear enough, the rule of lenity is not implicated. . 2. With regard to the parties’ dispute over whether the District Court improperly instructed the jury that a scheme to defraud a bank must be one to deceive the bank or deprive it of something of value, instead of one to deceive and deprive, the Ninth Circuit is left to determine whether that question was properly presented and if so, whether the instruction given is lawful, and, if not, whether any error was harmless in this case. . 781 F. 3d 1130, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.

Petitioner Shaw was convicted of violating 18 U.S. C. §1344(1), which makes it a crime to "knowingly [to] execut[e] a scheme... to defraud a financial institution," for example, a federally insured bank. Shaw contends that the statute does not apply to him because he intended to cheat only a bank depositor, not a bank. Held: The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. ;81F. 3d 1130, vacated and remanded. WHITELL CIRCUIT 1. The words to the contrary do not require the Government to prove that Shaw had a specific intent not only to deceive, but also to cheat, a bank, rather than a non-bank third party.. (a) The property Shaw took belonged to Hsu, the bank customer, and Hsu is not a "financial institution." Hence Shaw had property rights in Hsu's bank account. Hence his scheme was a scheme designed to obtain only that bank customer's property, not to deprive the bank of its property. P.. (b) Shaw also contends that, whatever the true state of property law, he did not know that Hsu had a property interest in his account; hence he could not have intended tocheat the bank. The facts are sufficient to show that Shaw knew that the bank possessed Hsu. He did make false statements to the bank, correctly believing that those false statements would lead the bankto release from that account funds that ultimately and wrongfully ended up in his pocket. And the bank did in fact possess a property interest in the account. . 2. The jury instruction was lawful, and, if not, whether any error was harmless in this case. This Court has not interpreted the bank fraud statute as requiring that the victim bank ultimately suffer financial harm or that the defendant intend to deprive that bank of such harm. See Supra Michie, Banks and Banking, ch. 9, §1, pp. 1-7; ibid., §4b, at 54-58; id., §38, at 162; Phoenix Bank v. Risley, 111 U. S. 125, 127. Shaw also argues that the instructions the District Court gave the jury were erroneous, since the instruction could be understood to permit the jury to find him guilty if it found no more than that his fraudulently scheme was one to deceive the bank but not to deposit the bank in anything of value. Such an interpretation would require more, i.e., to require actual knowledge of bank-related property law niceties, which would free (or convict) equally culpable defendants depending upon their property-law expertise. Here, Shaw has found nocase from this Court requiring legal knowledge of the kind he lacked in similar cases where he lacked. However, the overlap and, on the other hand, a plausible reading of the language that applies it to circumstances significantly different from those at issue here, have no good reason to read subsection (2) as excluding from subsection (1) applications that would otherwise fall within the scope of subsection (1), such as conduct of the kind before us. Moreover, the rule of lenity applies if, at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute. Although a deposit account at a bank counts as bank property for purposes of the statute, Shaw argues that it is sufficient that the plaintiff need not know the deposit account is, as a legal matter, characterized as bank property, even if it ultimately did not suffer unreimbursed loss, and that, in those circumstances, the Government need not prove that he intended the defendant to suffer monetary loss. To hold that something other than knowledge is required would assume that Congress intended to distinguish, in respect to states of mind, between the fraudulent scheme and its fraudulent elements... 3. Shaw is correct in his argument that the jury instruction is nonetheless ambiguous or otherwise improper. It was fairly presented to that court, and is therefore left to the Ninth Circuit to determine whether the question was fairly presented to the court and whether, if so, whether the instruction is lawful. Pp. 468 U. s. 674-607. 781 F. 3rd 1130 (CA9 1989), vacated with a remand. WHICELL C.J., announced the judgment of the Court and delivered the opinion, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p..

2016_15-866

https://www.oyez.org/cases/2016/15-866

. Congress has provided copyright protection for original works of art, but not for industrial designs. The line between art and industrial design, however, is often difficult to draw. This is particularly true when an industrial design incorporates artistic elements. Congress has afforded limited protection for these artistic elements by providing that “pictorial, graphic, or sculptural features” of the “design of a useful article” are eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101. We granted certiorari to resolve widespread disagreement over the proper test for implementing §101’s separate-identification and independent-existence requirements. 578 U. S. ___ (2016). We hold that a feature incor-porated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. Because that test is satisfied in this case, we affirm. I Respondents Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc., design, make, and sell cheerleading uniforms. Respondents have obtained or acquired more than 200 U. S. copyright registrations for two-dimensional designs appearing on the surface of their uniforms and other garments. These designs are primarily “combinations, positionings, and arrangements of elements” that include “chevrons . . . , lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring, and shapes.” App. 237. At issue in this case are Designs 299A, 299B, 074, 078, and 0815. See Appendix, infra. Petitioner Star Athletica, L. L. C., also markets and sells cheerleading uniforms. Respondents sued petitioner for infringing their copyrights in the five designs. The District Court entered summary judgment for petitioner on respondents’ copyright claims on the ground that the designs did not qualify as protectable pictorial, graphic, or sculptural works. It reasoned that the designs served the useful, or “utilitarian,” function of identifying the garments as “cheerleading uniforms” and therefore could not be “physically or conceptually” separated under §101 “from the utilitarian function” of the uniform. 2014 WL 819422, *8–*9 (WD Tenn., Mar. 1, 2014). The Court of Appeals for the Sixth Circuit reversed. 799 F. 3d 468, 471 (2015). In its view, the “graphic designs” were “separately identifiable” because the designs “and a blank cheerleading uniform can appear ‘side by side’—one as a graphic design, and one as a cheerleading uniform.” Id., at 491 (quoting Compendium of U. S. Copyright Office Practices §924.2(B) (3d ed. 2014) (Compendium)). And it determined that the designs were “ ‘capable of existing independently’ ” because they could be incorporated onto the surface of different types of garments, or hung on the wall and framed as art. 799 F. 3d, at 491, 492. Judge McKeague dissented. He would have held that, because “identifying the wearer as a cheerleader” is a utilitarian function of a cheerleading uniform and the surface designs were “integral to” achieving that function, the designs were inseparable from the uniforms. Id., at 495–496. II The first element of a copyright-infringement claim is “ownership of a valid copyright.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 361 (1991) . A valid copyright extends only to copyrightable subject matter. See 4 M. Nimmer & D. Nimmer, Copyright §13.01[A] (2010) (Nimmer). The Copyright Act of 1976 defines copyrightable subject matter as “original works of authorship fixed in any tangible medium of expression.” 17 U. S. C. §102(a). “Works of authorship” include “pictorial, graphic, and sculptural works,” §102(a)(5), which the statute defines to include “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans,” §101. And a work of authorship is “ ‘fixed’ in a tangible medium of expression when it[ is] embodi[ed] in a” “material objec[t] . . . from which the work can be perceived, reproduced, or otherwise communicated.” Ibid. (definitions of “fixed” and “copies”). The Copyright Act also establishes a special rule for copyrighting a pictorial, graphic, or sculptural work incorporated into a “useful article,” which is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Ibid. The statute does not protect useful articles as such. Rather, “the design of a useful article” is “considered a pictorial, graphical, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Ibid. Courts, the Copyright Office, and commentators have described the analysis undertaken to determine whether a feature can be separately identified from, and exist independently of, a useful article as “separability.” In this case, our task is to determine whether the arrangements of lines, chevrons, and colorful shapes appearing on the surface of respondents’ cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms. A As an initial matter, we must address whether separability analysis is necessary in this case. 1 Respondents argue that “[s]eparability is only implicated when a [pictorial, graphic, or sculptural] work is the ‘design of a useful article.’ ” Brief for Respondents 25. They contend that the surface decorations in this case are “two-dimensional graphic designs that appear on useful articles,” but are not themselves designs of useful articles. Id., at 52. Consequently, the surface decorations are protected two-dimensional works of graphic art without regard to any separability analysis under §101. Ibid.; see 2 W. Patry, Copyright §3:151, p. 3–485 (2016) (Patry) (“Courts looking at two-dimensional design claims should not apply the separability analysis regardless of the three-dimensional form that design is embodied in”). Under this theory, two-dimensional artistic features on the surface of useful articles are “inherently separable.” Brief for Respondents 26. This argument is inconsistent with the text of §101. The statute requires separability analysis for any “pictorial, graphic, or sculptural features” incorporated into the “design of a useful article.” “Design” refers here to “the combination” of “details” or “features” that “go to make up” the useful article. 3 Oxford English Dictionary 244 (def. 7, first listing) (1933) (OED). Furthermore, the words “pictorial” and “graphic” include, in this context, two-dimensional features such as pictures, paintings, or drawings. See 4 id., at 359 (defining “[g]raphic” to mean “[o]f or pertaining to drawing or painting”); 7 id., at 830 (defining “[p]ictorial” to mean “of or pertaining to painting or drawing”). And the statute expressly defines “[p]ictorial, graphical, and sculptural works” to include “two-dimensional . . . works of . . . art.” §101. The statute thus provides that the “design of a useful article” can include two-dimensional “pictorial” and “graphic” features, and separability analysis applies to those features just as it does to three-dimensional “sculptural” features. 2 The United States makes a related but distinct argument against applying separability analysis in this case, which respondents do not and have not advanced. As part of their copyright registrations for the designs in this case, respondents deposited with the Copyright Office drawings and photographs depicting the designs incorporated onto cheerleading uniforms. App. 213–219; Appendix, infra. The Government argues that, assuming the other statutory requirements were met, respondents obtained a copyright in the deposited drawings and photographs and have simply reproduced those copyrighted works on the surface of a useful article, as they would have the exclusive right to do under the Copyright Act. See Brief for United States as Amicus Curiae 14–15, 17–22. Accordingly, the Government urges, separability analysis is unnecessary on the record in this case. We generally do not entertain arguments that were not raised below and that are not advanced in this Court by any party, Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014), because “[i]t is not the Court’s usual practice to adjudicate either legal or predicate factual questions in the first instance,” CRST Van Expedited, Inc. v. EEOC, 578 U. S. ___, ___ (2016) (slip op., at 16). We decline to depart from our usual practice here. B We must now decide when a feature incorporated into a useful article “can be identified separately from” and is “capable of existing independently of” “the utilitarian aspects” of the article. This is not a free-ranging search for the best copyright policy, but rather “depends solely on statutory interpretation.” Mazer v. Stein, 347 U. S. 201, 214 (1954) . “The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992) . We thus begin and end our inquiry with the text, giving each word its “ordinary, contemporary, common meaning.” Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 207 (1997) (internal quotation marks omitted). We do not, however, limit this inquiry to the text of §101 in isolation. “[I]nterpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning.” Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 15). We thus “look to the provisions of the whole law” to determine §101’s meaning. United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849). 1 The statute provides that a “pictorial, graphic, or sculptural featur[e]” incorporated into the “design of a useful article” is eligible for copyright protection if it (1) “can be identified separately from,” and (2) is “capable of existing independently of, the utilitarian aspects of the article.” §101. The first requirement—separate identification—is not onerous. The decisionmaker need only be able to look at the useful article and spot some two- or three-dimensional element that appears to have pictorial, graphic, or sculptural qualities. See 2 Patry §3:146, at 3–474 to3–475. The independent-existence requirement is ordinarily more difficult to satisfy. The decisionmaker must determine that the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article. See 2 OED 88 (def. 5) (defining “[c]apable” of as “[h]aving the needful capacity, power, or fitness for”). In other words, the feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in §101 once it is imagined apart from the useful article. If the feature is not capable of existing as a pictorial, graphic, or sculptural work once separated from the useful article, then it was not a pictorial, graphic, or sculptural feature of that article, but rather one of its utilitarian aspects. Of course, to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot itself be a useful article or “[a]n article that is normally a part of a useful article” (which is itself considered a useful article). §101. Nor could someone claim a copyright in a useful article merely by creating a replica of that article in some other medium—for example, a cardboard model of a car. Al-though the replica could itself be copyrightable, it would not give rise to any rights in the useful article that inspired it. 2 The statute as a whole confirms our interpretation. The Copyright Act provides “the owner of [a] copyright” with the “exclusive righ[t] . . . to reproduce the copyrighted work in copies.” §106(1). The statute clarifies that this right “includes the right to reproduce the [copyrighted] work in or on any kind of article, whether useful or otherwise.” §113(a). Section 101 is, in essence, the mirror image of §113(a). Whereas §113(a) protects a work of authorship first fixed in some tangible medium other than a useful article and subsequently applied to a useful article, §101 protects art first fixed in the medium of a useful article. The two provisions make clear that copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as freestanding art or as features of useful articles. The ultimate separability question, then, is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article. 3 This interpretation is also consistent with the history of the Copyright Act. In Mazer, a case decided under the 1909 Copyright Act, the respondents copyrighted a statuette depicting a dancer. The statuette was intended for use as a lamp base, “with electric wiring, sockets and lamp shades attached.” 347 U. S., at 202. Copies of the statuette were sold both as lamp bases and separately as statuettes. Id., at 203. The petitioners copied the statuette and sold lamps with the statuette as the base. They defended against the respondents’ infringement suit by arguing that the respondents did not have a copyright in a statuette intended for use as a lamp base. Id., at 204–205. Two of Mazer’s holdings are relevant here. First, the Court held that the respondents owned a copyright in the statuette even though it was intended for use as a lamp base. See id., at 214. In doing so, the Court approved the Copyright Office’s regulation extending copyright protection to works of art that might also serve a useful purpose. See ibid. (approving 37 CFR §202.8(a) (1949) (protect-ing “works of artistic craftsmanship, in so far as theirform but not their mechanical or utilitarian aspects are concerned”)). Second, the Court held that it was irrelevant to the copyright inquiry whether the statuette was initially created as a freestanding sculpture or as a lamp base. 347 U. S., at 218–219 (“Nor do we think the subsequent registration of a work of art published as an element in a manufactured article, is a misuse of copyright. This is not different from the registration of a statuette and its later embodiment in an industrial article”). Mazer thus interpreted the 1909 Act consistently with the rule discussed above: If a design would have been copyrightable as a standalone pictorial, graphic, or sculptural work, it is copyrightable if created first as part of a useful article. Shortly thereafter, the Copyright Office enacted a regulation implementing the holdings of Mazer. See 1 Nimmer §2A.08[B][1][b] (2016). As amended, the regulation introduced the modern separability test to copyright law: “If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration.” 37 CFR §202.10(c) (1960) (punctuation altered). Congress essentially lifted the language governing protection for the design of a useful article directly from the post-Mazer regulations and placed it into §101 of the 1976 Act. Consistent with Mazer, the approach we outline today interprets §§101 and 113 in a way that would afford copyright protection to the statuette in Mazer regardless of whether it was first created as a standalone sculptural work or as the base of the lamp. See 347 U. S., at 218–219. C In sum, a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium. Applying this test to the surface decorations on the cheerleading uniforms is straightforward. First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium—for example, on a painter’s canvas—they would qualify as “two-dimensional . . . works of . . . art,” §101. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have applied the designs in this case to other media of expression—different types of clothing—without replicating the uniform. See App. 273–279. The decorations are therefore separable from the uniforms and eligible for copyright protection.[1] The dissent argues that the designs are not separable because imaginatively removing them from the uniforms and placing them in some other medium of expression—a canvas, for example—would create “pictures of cheerleader uniforms.” Post, at 10 (opinion of Breyer, J.). Petitioner similarly argues that the decorations cannot be copyrighted because, even when extracted from the useful article,they retain the outline of a cheerleading uniform. Brief for Petitioner 48–49. This is not a bar to copyright. Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted. Or consider, for example, a design etched or painted on the surface of a guitar. If that entire design is imaginatively removed from the guitar’s surface and placed on an album cover, it would still resemble the shape of a guitar. But the image on the cover does not “replicate” the guitar as a useful article. Rather, the design is a two-dimensional work of art that corresponds to the shape of the useful article to which it was applied. The statute protects that work of art whether it is first drawn on the album cover and then applied to the guitar’s surface, or vice versa. Failing to protect that art would create an anomaly: It would extend protection to two-dimensional designs that cover a part of a useful article but would not protect the same design if it covered the entire article. The statute does not support that distinction, nor can it be reconciled with the dissent’s recognition that “artwork printed on a t-shirt” could be protected. Post, at 4 (internal quotation marks omitted). To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear. They may prohibit only the reproduction of the surface designs in any tangible medium of expression—a uniform or otherwise.[2] D Petitioner and the Government raise several objections to the approach we announce today. None is meritorious. 1 Petitioner first argues that our reading of the statute is missing an important step. It contends that a feature may exist independently only if it can stand alone as a copyrightable work and if the useful article from which it was extracted would remain equally useful. In other words, copyright extends only to “solely artistic” features of useful articles. Brief for Petitioner 33. According to petitioner, if a feature of a useful article “advance[s] the utility of the article,” id., at 38, then it is categorically beyond the scope of copyright, id., at 33. The designs here are not protected, it argues, because they are necessary to two of the uniforms’ “inherent, essential, or natural functions”—identifying the wearer as a cheerleader and enhancing the wearer’s physical appearance. Id., at 38, 48; Reply Brief 2, 16. Because the uniforms would not be equally useful without the designs, petitioner contends that the designs are inseparable from the “utilitarian aspects” of the uniform. Brief for Petitioner 50. The Government raises a similar argument, although it reaches a different result. It suggests that the appropriate test is whether the useful article with the artistic feature removed would “remai[n] similarly useful.” Brief for United States as Amicus Curiae 29 (emphasis added). In the view of the United States, however, a plain white cheerleading uniform is “similarly useful” to uniforms with respondents’ designs. Id., at 27–28. The debate over the relative utility of a plain white cheerleading uniform is unnecessary. The focus of the separability inquiry is on the extracted feature and not on any aspects of the useful article that remain after the imaginary extraction. The statute does not require the decisionmaker to imagine a fully functioning useful article without the artistic feature. Instead, it requires that the separated feature qualify as a nonuseful pictorial, graphic, or sculptural work on its own. Of course, because the removed feature may not be a useful article—as it would then not qualify as a pictorial, graphic, or sculptural work—there necessarily would be some aspects of the original useful article “left behind” if the feature were conceptually removed. But the statute does not require the imagined remainder to be a fully functioning useful article at all, much less an equally useful one. Indeed, such a requirement would deprive the Mazer statuette of protection had it been created first as a lamp base rather than as a statuette. Without the base, the “lamp” would be just a shade, bulb, and wires. The statute does not require that we imagine a nonartistic replacement for the removed feature to determine whether that feature is capable of an independent existence. Petitioner’s argument follows from its flawed view that the statute protects only “solely artistic” features that have no effect whatsoever on a useful article’s utilitarian function. This view is inconsistent with the statutory text. The statute expressly protects two- and three-dimensional “applied art.” §101. “Applied art” is art “employed in the decoration, design, or execution of useful objects,” Webster’s Third New International Dictionary 105 (1976) (emphasis added), or “those arts or crafts that have a primarily utilitarian function, or . . . the designs and decorations used in these arts,” Random House Dictionary 73 (1966) (emphasis added); see also 1 OED 576 (2d ed. 1989) (defining “applied” as “[p]ut to practical use”). An artistic feature that would be eligible for copyright protection on its own cannot lose that protection simply because it was first created as a feature of the design of a useful article, even if it makes that article more useful. Indeed, this has been the rule since Mazer. In holding that the statuette was protected, the Court emphasized that the 1909 Act abandoned any “distinctions between purely aesthetic articles and useful works of art.” 347 U. S., at 211. Congress did not enact such a distinction in the 1976 Act. Were we to accept petitioner’s argument that the only protectable features are those that play absolutely no role in an article’s function, we would effectively abrogate the rule of Mazer and read “applied art” out of the statute. Because we reject the view that a useful article must remain after the artistic feature has been imaginatively separated from the article, we necessarily abandon the distinction between “physical” and “conceptual” separability, which some courts and commentators have adopted based on the Copyright Act’s legislative history. See H. R. Rep. No. 94–1476, p. 55 (1976). According to this view, a feature is physically separable from the underlying useful article if it can “be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.” Compendium §924.2(A); see also Chosun Int’l, Inc. v. Chrisha Creations, Ltd., 413 F. 3d 324, 329 (CA2 2005). Conceptual separability applies if the feature physically could not be removed from the useful article by ordinary means. See Compendium §924.2(B); but see 1 P. Goldstein, Copyright §2.5.3, p. 2:77 (3d ed. 2016) (explaining that the lower courts have been unable to agree on a single conceptual separability test); 2 Patry §§3:140–3:144.40 (surveying the various approaches in the lower courts). The statutory text indicates that separability is a conceptual undertaking. Because separability does not require the underlying useful article to remain, the physical-conceptual distinction is unnecessary. 2 Petitioner next argues that we should incorporate two “objective” components, Reply Brief 9, into our test to provide guidance to the lower courts: (1) “whether the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influence,” Brief for Petitioner 34 (emphasis deleted and internal quotation marks omitted), and (2) whether “there is [a] substantial likelihood that the pictorial, graphic, or sculptural feature would still be marketable to some significant segment of the community without its utilitarian function,” id., at 35 (emphasis deleted and internal quotation marks omitted). We reject this argument because neither consideration is grounded in the text of the statute. The first would require the decisionmaker to consider evidence of the creator’s design methods, purposes, and reasons. Id., at 48. The statute’s text makes clear, however, that our inquiry is limited to how the article and feature are perceived, not how or why they were designed. See Brandir Int’l, Inc. v. Cascade Pacific Lumber Co., 834 F. 2d 1142, 1152 (CA2 1987) (Winter, J., concurring in part and dissenting in part) (The statute “expressly states that the legal test is how the final article is perceived, not how it was developed through various stages”). The same is true of marketability. Nothing in the statute suggests that copyrightability depends on market surveys. Moreover, asking whether some segment of the market would be interested in a given work threatens to prize popular art over other forms, or to substitute judicial aesthetic preferences for the policy choices embodied in the Copyright Act. See Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits”). 3 Finally, petitioner argues that allowing the surface decorations to qualify as a “work of authorship” is inconsistent with Congress’ intent to entirely exclude industrial design from copyright. Petitioner notes that Congress refused to pass a provision that would have provided limited copyright protection for industrial designs, including clothing, when it enacted the 1976 Act, see id., at 9–11 (citing S. 22, Tit. II, 94th Cong., 2d Sess., 122 Cong. Rec. 3856–3859 (1976)), and that it has enacted laws protecting designs for specific useful articles—semiconductor chips and boat hulls, see 17 U. S. C. §§901–914, 1301–1332—while declining to enact other industrial design statutes, Brief for Petitioner 29, 43. From this history of failed legislation petitioner reasons that Congress intends to channel intellectual property claims for industrial design into design patents. It therefore urges us to approach this question with a presumption against copyrightability. Id., at 27. We do not share petitioner’s concern. As an initial matter, “[c]ongressional inaction lacks persuasive significance” in most circumstances. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990) (internal quotation marks omitted). Moreover, we have long held that design patent and copyright are not mutually exclusive. See Mazer, 347 U. S., at 217. Congress has provided for limited copyright protection for certain features of industrial design, and approaching the statute with presumptive hostility toward protection for industrial design would undermine Congress’ choice. In any event, as explained above, our test does not render the shape, cut, and physical dimensions of the cheerleading uniforms eligible for copyright protection. III We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article. Because the designs on the surface of respondents’ cheerleading uniforms in this case satisfy these requirements, the judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 We do not today hold that the surface decorations are copyrightable. We express no opinion on whether these works are sufficiently original to qualify for copyright protection, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340 –359 (1991), or on whether any other prerequisite of a valid copyright has been satisfied. 2 The dissent suggests that our test would lead to the copyrighting of shovels. Post, at 7; Appendix to opinion of Breyer, J., fig. 4, post. But a shovel, like a cheerleading uniform, even if displayed in an art gallery, is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U. S. C. §101. It therefore cannot be copyrighted. A drawing of a shovel could, of course, be copyrighted. And, if the shovel included any artistic features that could be perceived as art apart from the shovel, and which would qualify as protectable pictorial, graphic, or sculptural works on their own or in another medium, they too could be copyrighted. But a shovel as a shovel cannot.

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 STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC., et al. certiorari to the united states court of appeals for the sixth circuit No. 15–866. Argued October 31, 2016—Decided March 22, 2017 The Copyright Act of 1976 makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U. S. C. §101. Respondents have more than 200 copyright registrations for two-dimensional designs—consisting of various lines, chevrons, and colorful shapes—appearing on the surface of the cheerleading uniforms that they design, make, and sell. They sued petitioner, who also markets cheerleading uniforms, for copyright infringement. The District Court granted petitioner summary judgment, holding that the designs could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection. In reversing, the Sixth Circuit concluded that the graphics could be “identified separately” and were “capable of existing independently” of the uniforms under §101. Held: A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. That test is satisfied here. . (a) Separability analysis is necessary in this case. Respondents claim that two-dimensional surface decorations are always separable, even without resorting to a §101 analysis, because they are “on a useful article” rather than “designs of a useful article.” But this argument is inconsistent with §101’s text. ”[P]ictorial” and “graphic” denote two-dimensional features such as pictures, paintings, or drawings. Thus, by providing protection for “pictorial, graphical, and sculptural works” incorporated into the “design of a useful article,” §101 necessarily contemplates that such a design can include two-dimensional features. This Court will not adjudicate in the first instance the Government’s distinct argument against applying separability analysis, which was neither raised below nor advanced here by any party. . (b) Whether a feature incorporated into a useful article “can be identified separately from,” and is “capable of existing independently of,” the article’s “utilitarian aspects” is a matter of “statutory interpretation.” Mazer v. Stein, 347 U. S. 201 . . (1) Section 101’s separate-identification requirement is met if the decisionmaker is able to look at the useful article and spot some two- or three-dimensional element that appears to have pictorial, graphic, or sculptural qualities. To satisfy the independent-existence requirement, the feature must be able to exist as its own pictorial, graphic, or sculptural work once it is imagined apart from the useful article. If the feature could not exist as a pictorial, graphic, or sculptural work on its own, it is simply one of the article’s utilitarian aspects. And to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot be a useful article or “[a]n article that is normally a part of a useful article,” §101. Neither could one claim a copyright in a useful article by creating a replica of it in another medium. . (2) The statute as a whole confirms this interpretation. Section 101, which protects art first fixed in the medium of a useful article, is essentially the mirror image of §113(a), which protects art first fixed in a medium other than a useful article and subsequently applied to a useful article. Together, these provisions make clear that copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as freestanding art or as features of useful articles. P. 8. (3) This interpretation is also consistent with the Copyright Act’s history. In Mazer, a case decided under the 1909 Copyright Act, the Court held that respondents owned a copyright in a statuette created for use as a lamp base. In so holding, the Court approved a Copyright Office regulation extending protection to works of art that might also serve a useful purpose and held that it was irrelevant to the copyright inquiry whether the statuette was initially created as a freestanding sculpture or as a lamp base. Soon after, the Copyright Office enacted a regulation implementing Mazer’s holding that anticipated the language of §101, thereby introducing the modern separability test to copyright law. Congress essentially lifted the language from those post-Mazer regulations and placed it in §101 of the 1976 Act. . (c) Applying the proper test here, the surface decorations on the cheerleading uniforms are separable and therefore eligible for copyright protection. First, the decorations can be identified as features having pictorial, graphic, or sculptural qualities. Second, if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art under §101. Imaginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself. The dissent argues that the decorations are ineligible for copyright protection because, when imaginatively extracted, they form a picture of a cheerleading uniform. Petitioner similarly claims that the decorations cannot be copyrighted because, even when extracted from the useful article, they retain the outline of a cheerleading uniform. But this is not a bar to copyright. Just as two-dimensional fine art correlates to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. The only feature of respondents’ cheerleading uniform eligible for a copyright is the two-dimensional applied art on the surface of the uniforms. Respondents may prohibit the reproduction only of the surface designs on a uniform or in any other medium of expression. Respondents have no right to prevent anyone from manufacturing a cheerleading uniform that is identical in shape, cut, or dimensions to the uniforms at issue here. . (d) None of the objections raised by petitioner or the Government is meritorious. . (1) Petitioner and the Government focus on the relative utility of the plain white uniform that would remain if the designs were physically removed from the uniform. But the separability inquiry focuses on the extracted feature and not on any aspects of the useful article remaining after the imaginary extraction. The statute does not require the imagined remainder to be a fully functioning useful article at all. Nor can an artistic feature that would be eligible for copyright protection on its own lose that protection simply because it was first created as a feature of the design of a useful article, even if it makes that article more useful. This has been the rule since Mazer, and it is consistent with the statute’s explicit protection of “applied art.” In rejecting petitioner’s view, the Court necessarily abandons the distinction between “physical” and “conceptual” separability adopted by some courts and commentators. . (2) Petitioner also suggests incorporating two “objective” components into the test—one requiring consideration of evidence of the creator’s design methods, purposes, and reasons, and one looking to the feature’s marketability. The Court declines to incorporate these components because neither is grounded in the statute’s text. . (3) Finally, petitioner claims that protecting surface decorations is inconsistent with Congress’ intent to entirely exclude industrial design from copyright. But Congress has given limited copyright protection to certain features of industrial design. Approaching the statute with presumptive hostility toward protection for industrial design would undermine that choice. In any event, the test adopted here does not render the underlying uniform eligible for copyright protection. . 799 F. 3d 468, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Kennedy, J., joined.

A feature of the design of a useful article is eligible for copyright protection only if (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work (either on its own or fixed in some other tangible medium of expression) if those features can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. Respondents, Varsity Brands, Inc., and Varsity Spirit Corporation, design, make, and sell cheerleading uniforms. Respondents sued petitioner for infringing their copyrights in five designs, and the District Court entered summary judgment for petitioner on respondents' copyright claims on the ground that the designs did not qualify as protectable, as an article design. The Court of Appeals reversed, holding that the design was separately identifiable because the designs and a blank cheerleading uniform could appear side by side as graphic and/or sculptural designs. Held: The design on the surface of respondents' Cheerleading uniforms qualifies as an artistic feature if the feature can be characterized as either (1)(1) an entirely three- or four-Dimensional work of Art separate from, or as capable ofexisting independently from, the useful articles into which it is incorporated, or (2)(2) is able to exist as its own pictorial-graphic work as defined in §101 once it is imagined apart from, rather than as part of, such articles. . 798 F. 3d 468, affirmed. (a) A feature of a feature that can be discerned separately from and is capable of existing independent of, but is not itself designed to be useful articles, qualifies as Art. I, §101 of the Copyright Act, 17 U. S. C. §101. A feature such as the design here, which is eligible only if it can be identified as an independently designed, two-dimensional, and three-dimensional work, can be distinguished from and can be protected as an art work, either as a freestanding sculpture or as a lamp base. Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue, respondents have no right to prohibit any person from manufacturing a design of identical shape, cut, and dimensions to the ones on which the decorations in this case appear. They may prohibit only the reproduction of the surface designs in any tangible medium, such as a uniform or otherwise. Pp. 468. (b) The statutory text indicates that separability is a conceptual undertaking, and that, because separability does not require the underlying useful article to remain, the physical-conceptual distinction is unnecessary. In any event, the test below does not render the shape or cut, or physical dimensions of respondents Cheering Uniforms eligible for Copyright protection. Because the designs on their surface are not copyrightable, they cannot be copyrighted, but, instead, are facially facially protected as pictorial or graphic works of art apart from their useful articles.. (c) Nor can they be copyrighted on their own, since they retain the outline of a Cheering uniform. That feature is not separable because imaginatively removing it from the uniforms and placing it in some other medium would create pictures of Cheerleader uniforms. Nothing in the statute suggests that copyrightability depends on market surveys. Moreover, asking whether some segment of the market would be interested in a given work threatens to prize popular art over other forms, or to substitute judicial aesthetic preferences for the policy choices embodied in the copyright Act. This is not a free-ranging search for the best copyright policy, but rather,depends solely on statutory interpretation. Mazer v. Stein, 347 U.S. 201, 207 (1954) (internal quotation marks omitted). P.. (d) The fact that a feature may exist independently only if a feature can stand alone as a copyrightable work and if its useful article from which it was extracted would remain equally useful does not mean that it is categorically beyond the scope of copyright. Cf. United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849). Even assuming, arguendo, that respondents have deposited their copyright registrations under the Amicus Curiae, the Government does not have a right to prevent the copyrighting of the designs, since the statute expressly protects only "solely artistic" features that have no effect whatsoever on useful articles' utilitarian function. See, e.g., 2 Patry §§3:140-3:144.40. Petitioner and the Government raise several objections to the approach announced today. First, the reading of the statute is missing an important step. The statute requires separability analysis for any feature of an article that can properly be identified as a work of authorship, since it

2016_15-513

https://www.oyez.org/cases/2016/15-513

. This case addresses the question of the proper remedy when there is a violation of the False Claims Act (FCA) requirement that certain complaints must be sealed for a limited time period. See 31 U. S. C. §3730(b)(2). There are two questions presented before this Court. First, do any and all violations of the seal requirement mandate dismissal of a private party’s complaint with prejudice? Second, if dismissal is not mandatory, did the District Court here abuse its discretion by declining to dismiss respondents’ complaint? I A The FCA imposes civil liability on an individual who, inter alia, “knowingly presents . . . a false or fraudulent claim for payment or approval” to the Federal Government. §3729(a)(1)(A). Almost unique to the FCA are its qui tam enforcement provisions, which allow a private party known as a “relator” to bring an FCA action on behalf of the Government. §3730(b)(1); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 , n. 1 (2000) (listing three other qui tam statutes). The Attorney General retains the authority to intervene in a relator’s ongoing action or to bring an FCA suit in the first instance. §§3730(a)–(b). This system is designed to benefit both the relator and the Government. A relator who initiates a meritorious qui tam suit receives a percentage of the ultimate dam-ages award, plus attorney’s fees and costs. §3730(d). In turn, “ ‘encourag[ing] more private enforcement suits’ ” serves “ ‘to strengthen the Government’s hand in fighting false claims.’ ” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 298 (2010) . The FCA places a number of restrictions on suits by relators. For example, under the provision known as the “first-to-file bar,” a relator may not “ ‘bring a related action based on the facts underlying [a] pending action.’ ” Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 575 U. S. ___, ___ (2015) (slip op., at 11) (quoting §3730(b)(5); emphasis deleted). Other FCA provisions require compliance with statutory requirements as express conditions on the relators’ ability to bring suit. The paragraph known as the “public disclosure bar,” for instance, provided at the time this suit was filed that “ ‘[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions . . . unless the action is brought by the Attorney General or . . . an original source of the information.’ ” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, supra, at 283, n. 1, 285–286 (quoting 31 U. S. C. §3730(e)(4)(A) (2006 ed.); footnote omitted). The FCA also establishes specific procedures for the relator to follow when filing the complaint. Among other things, the relator must serve on the Government “[a] copy of the complaint and written disclosure of substantially all material evidence and information the [relator] possesses.” §3730(b)(2). Most relevant here, the FCA provides: “The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” Ibid. B Petitioner State Farm is an insurance company. In the years before Hurricane Katrina, petitioner issued two types of homeowner-insurance policies that are relevant in this case: (1) Federal Government-backed flood insurance policies and (2) petitioner’s own general homeowner insurance policies. The practical effect for homeowners who were affected by Hurricane Katrina and who purchased both policies was that petitioner would be responsible for paying for wind damage, while the Government would pay for flood damage. As the Court of Appeals noted, this arrangement created a potential conflict of interest: Petitioner had “an incentive to classify hurricane damage as flood-related to limit its economic exposure.” 794 F. 3d 457, 462 (CA5 2015). Respondents Cori and Kerri Rigsby are former claims adjusters for one of petitioner’s contractors, E. A. Renfroe & Co. Together with other adjusters, they were responsible for visiting the damaged homes of petitioner’s customers to determine the extent to which a homeowner was entitled to an insurance payout. According to respondents, petitioner instructed them and other adjusters to misclassify wind damage as flood damage in order to shift petitioner’s insurance liability to the Government. See id., at 463–464 (summarizing trial evidence). In April 2006, respondents filed their qui tam complaint under seal. At the Government’s request, the District Court extended the length of the seal a number of times. In January 2007, the court lifted the seal in part, allowing disclosure of the qui tam action to another District Court hearing a suit by E. A. Renfroe against respondents for purported misappropriation of documents related to petitioner’s alleged fraud. See E. A. Renfroe & Co. v. Moran, No. 2:06–cv–1752 (ND Ala.). In August 2007, the District Court lifted the seal in full. In January 2008, the Government declined to intervene. In January 2011, petitioner moved to dismiss respondents’ suit on the grounds that they had violated the seal requirement. The parties do not dispute the essential background. In the months before the seal was lifted in part, respondents’ then-attorney, one Dickie Scruggs, e-mailed a sealed evidentiary filing that disclosed the complaint’s existence to journalists at ABC, the Associated Press, and the New York Times. All three outlets issued stories discussing the fraud allegations, but none revealed the existence of the FCA complaint. Respondents themselves met with Mississippi Congressman Gene Taylor, who later spoke out in public against petitioner’s purported fraud, although he did not mention the existence of the FCA suit at that time. After the seal was lifted in part, Scruggs disclosed the existence of the suit to various others, including a public relations firm and CBS News. At the time of the motion to dismiss in 2011, respondents were represented neither by Scruggs nor by any of the attorneys who had worked with him. In March 2008, Scruggs withdrew from respondents’ case after he was indicted for attempting to bribe a state-court judge. Two months later, the District Court removed the remaining Scruggs-affiliated attorneys from the case, based on their alleged involvement in improper payments made from Scruggs to respondents. The District Court did not punish respondents themselves for the payments because they were not made “aware of the ethical implications” and, as laypersons, “are not bound by the rules of professional conduct that apply to” attorneys. App. 21. In deciding petitioner’s motion the District Court considered only the seal violations that occurred before the seal was lifted in part, reasoning the partial lifting in effect had mooted the seal. Applying the test for dismissal set out in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F. 3d 242, 245–247 (CA9 1995), the District Court balanced three factors: (1) the actual harm to the Government, (2) the severity of the violations, and (3) the evidence of bad faith. The court decided against dismissal. Petitioner did not request some lesser sanction. The case went to trial, resulting in a victory for respondents on what the Court of Appeals referred to as a “bellwether” claim regarding a single damaged home. 794 F. 3d, at 462. The Court of Appeals for the Fifth Circuit affirmed the denial of petitioner’s motion to dismiss. The court recognized that the case presented two related issues of the first impression under its case law: (1) whether a seal violation requires mandatory dismissal of a relator’s complaint and, if not, (2) what standard governs a district court’s decision to dismiss. The court noted that the Courts of Appeals for the Second and Ninth Circuits had held that the FCA does not require automatic dismissal for a seal violation, while the Court of Appeals for the Sixth Circuit had held that dismissal is mandatory. See United States ex rel. Pilon v. Martin Marietta Corp., 60 F. 3d 995, 998 (CA2 1995); United States ex rel. Lujan v. Hughes Aircraft Co., supra, at 245; United States ex rel. Summers v. LHC Group Inc., 623 F. 3d 287, 296 (CA6 2010); see also United States ex rel. Smith v. Clark/Smoot/Russell, 796 F. 3d 424, 430 (CA4 2015) (following Pilon). After a careful analysis, the Court of Appeals for the Fifth Circuit held automatic dismissal is not required by the FCA. 794 F. 3d, at 470–471. It then considered the same factors the District Court had weighed and came to a similar conclusion. Id., at 471–472. First, the Court of Appeals held the Government was in all likelihood not harmed by the disclosures because none of them led to the publication of the pendency of the suit before the seal was lifted in part. Second, the Court of Appeals determined the violations were not severe in their repercussions because respondents had complied with the seal requirement when they first filed their suit. Third, the Court of Appeals assumed, without deciding, that the bad behavior of respondents’ then-attorney could be imputed to respondents; but it held that, even presuming the attribution of bad faith, the other factors favored respondents. This Court granted certiorari, 578 U. S. ___ (2016), and now affirms. II A Petitioner’s primary contention is that a violation of the seal provision necessarily requires a relator’s complaint to be dismissed. The FCA does not enact so harsh a rule. Section 3730(b)(2)’s text provides that a complaint “shall” be kept under seal. True, this language creates a mandatory rule the relator must follow. See Rockwell Int’l Corp. v. United States, 549 U. S. 457, 464 (2007) (“As required under the Act, [the relator] filed his complaint under seal . . . ”); see also Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9) (“[T]he word ‘shall’ usually connotes a requirement”). The statute says nothing, however, about the remedy for a violation of that rule. In the absence of congressional guidance regarding a remedy, “[a]lthough the duty is mandatory, the sanction for breach is not loss of all later powers to act.” United States v. Montalvo-Murillo, 495 U. S. 711, 718 (1990) . The FCA’s structure is itself an indication that violating the seal requirement does not mandate dismissal. This Court adheres to the general principle that Congress’ use of “explicit language” in one provision “cautions against inferring” the same limitation in another provision. Marx v. General Revenue Corp., 568 U. S. ___, ___ (2013) (slip op., at 12). And the FCA has a number of provisions that do require, in express terms, the dismissal of a re-lator’s action. Supra, at 2 (citing §3730(b)(5)); see also §§3730(e)(1)–(2) (“[n]o court shall have jurisdiction” over certain FCA claims by relators against a member of the military or of the judicial, legislative, or executive branches). It is proper to infer that, had Congress intended to require dismissal for a violation of the seal requirement, it would have said so. The Court’s conclusion is consistent with the general purpose of §3730(b)(2). The seal provision was enacted in the 1980’s as part of a set of reforms that were meant to “encourage more private enforcement suits.” S. Rep. No. 99–345, pp. 23–24 (1986). At the time, “perhaps the most serious problem plaguing effective enforcement” of the FCA was “a lack of resources on the part of Federal enforcement agencies.” Id., at 7. The Senate Committee Report indicates that the seal provision was meant to allay the Government’s concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. Id., at 24. Because the seal requirement was intended in main to protect the Government’s interests, it would make little sense to adopt a rigid interpretation of the seal provision that prejudices the Government by depriving it of needed assistance from private parties. The Federal Government agrees with this interpretation. It informs the Court that petitioner’s test “would undermine the very governmental interests that the seal provision is meant to protect.” Brief for United States as Amicus Curiae 10. B Petitioner’s arguments to the contrary are unavailing. First, petitioner urges that because the seal provision appears in the subsection of the FCA creating the relator’s private right of action, Congress intended to condition the right to bring suit on compliance with the seal requirement. It is true that, as discussed further below, the Court sometimes has concluded that Congress conditioned the authority to file a private right of action on compliance with a statutory mandate. E.g., Hallstrom v. Tillamook County, 493 U. S. 20 –26 (1989). There is no textual indication, however, that Congress did so here. Section 3730(b)(2) does not tie the seal requirement to the right to bring the qui tam suit in conditional terms. As noted above, the statute just provides: “The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” The text at issue in Hallstrom, by contrast, was quite different than the statutory language that controls here. The Hallstrom statute, part of the Resource Conservation and Recovery Act of 1976, provided: “ ‘No action may be commenced . . . prior to sixty days after the plaintiff has given notice of the violation’ ” to the Government. 493 U. S., at 25. Petitioner cites two additional cases to support its argument, but those decisions concerned statutes that used even clearer conditional words, like “if” and “unless.” See United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 161 (1914) (statute allowed creditors of Government contractors to bring suit “ ‘if no suit should be brought by the United States within six months from the completion and final settlement of said contract’ ”); McNeil v. United States, 508 U. S. 106 , n. 1 (1993) (statute provided that “ ‘[a]n action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency’ ”). Again, the FCA’s structure shows that Congress knew how to draft the kind of statutory language that petitioner seeks to read into §3730(b)(2). The applicable version of the public disclosure bar, for example, requires a district court to dismiss an action when the underlying information has already been made available to the public, “ ‘unless’ ” the plaintiff is the Attorney General or an original source. Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S., at 286. Second, petitioner contends that because this Court has described the FCA’s qui tam provisions as “effecting a partial assignment of the Government’s damages claim,” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S., at 773, adherence to all of the FCA’s mandatory requirements—no matter how small—is a condition of the assignment. This argument fails for the same reason as the one discussed above: Petitioner can show no textual indication in the statute suggesting that the relator’s ability to bring suit depends on adherence to the seal requirement. Third, petitioner points to a few stray sentences in the Senate Committee Report that it claims support the mandatory dismissal rule. As explained above, however, the Report’s recitation of the general purpose of the statute is best understood to support respondents. Supra, at 7. And, furthermore, because the meaning of the FCA’s text and structure is “plain and unambiguous, we need not accept petitioner[’s] invitation to consider the legislative history.” Whitfield v. United States, 543 U. S. 209, 215 (2005) . III Petitioner’s secondary argument is that the District Court did not consider the proper factors when declining to dismiss respondents’ complaint or, at a minimum, that it was plain error not to consider respondents’ conduct after the seal was lifted in part. This Court holds the District Court did not abuse its discretion by denying petitioner’s motion, much less commit plain error. In light of the questionable conduct of respondents’ prior attorney, it well may not have been reversible error had the District Court granted the motion; that possibility, however, need not be considered here. In general, the question whether dismissal is appropriate should be left to the sound discretion of the district court. While the factors articulated in United States ex rel. Lujan v. Hughes Aircraft Co. appear to be appropriate, it is unnecessary to explore these and other relevant considerations. These standards can be discussed in the course of later cases. IV Petitioner and its amici place great emphasis on the reputational harm FCA defendants may suffer when the seal requirement is violated. But even if every seal violation does not mandate dismissal, that sanction remains a possible form of relief. District courts have inherent power, moreover, to impose sanctions short of dismissal for violations of court orders. See Chambers v. NASCO, Inc., 501 U. S. 32 –46 (1991). Remedial tools like monetary penalties or attorney discipline remain available to punish and deter seal violations even when dismissal is not appropriate. Of note in this case, petitioner did not request any sanction other than dismissal. Tr. of Oral Arg. 3–4, 17. Had petitioner sought some lesser sanctions, the District Court might have taken a different course. Yet petitioner failed to do so. On this record, the question whether a lesser sanction is warranted is not preserved. The judgment of the Court of Appeals for the Fifth 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 STATE FARM FIRE & CASUALTY CO. v. UNITED STATES ex rel. RIGSBY et al. certiorari to the united states court of appeals for the fifth circuit No. 15–513. Argued November 1, 2016—Decided December 6, 2016 The False Claims Act (FCA) authorizes private parties (known as relators) to seek recovery from persons who make false or fraudulent payment claims to the Federal Government, 31 U. S. C. §§3729–3730, and permits the Attorney General to intervene in a relator’s action or bring an FCA suit in the first instance, §§3730(a)–(b). This system is designed to benefit both the relator and the Government. A relator who initiates a meritorious qui tam suit receives, inter alia, a percentage of the ultimate damages award, §3730(d), while “ ‘encourag[ing] more private enforcement suits’ ” serves “ ‘to strengthen the Government’s hand in fighting false claims,’ ” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280 . The FCA establishes specific procedures for relators to follow, including the requirement relevant here: “The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders.” §3730(b)(2). In the years before Hurricane Katrina, petitioner State Farm issued, as pertinent here, both Federal Government-backed flood insurance policies and petitioner’s own general homeowner policies. Respondents Cori and Kerri Rigsby, former claims adjusters for one of petitioner’s contractors, E. A. Renfroe & Co., filed a complaint under seal in April 2006, claiming that petitioner instructed them and other adjusters to misclassify wind damage as flood damage in order to shift petitioner’s insurance liability to the Government. The District Court extended the length of the seal several times at the Government’s request, but lifted the seal in part in January 2007, allowing disclosure of the action to another District Court hearing a suit by E. A. Renfroe against respondents. In August 2007, the District Court lifted the seal in full. The Government subsequently declined to intervene. Petitioner moved to dismiss the suit on the grounds that respondents had violated the seal requirement. Specifically, it alleged, respondents’ former attorney had disclosed the complaint’s existence to several news outlets, which issued stories about the fraud allegations, but did not mention the existence of the FCA complaint; and respondents had met with a Congressman who later spoke out against the purported fraud. The District Court applied the test for dismissal set out in United States ex rel. Lujan v. Hughes Aircraft Co., 67 F. 3d 242, 245–247. Balancing three factors—actual harm to the Government, severity of the violations, and evidence of bad faith—the court decided against dismissal. Petitioner did not request a lesser sanction. The Fifth Circuit affirmed. It first concluded that a seal violation does not require mandatory dismissal of a relator’s complaint. It then considered the same factors weighed by the District Court and reached a similar conclusion. Held: 1. A seal violation does not mandate dismissal of a relator’s complaint. . (a) The FCA does not enact so harsh a rule. Section 3730(b)(2)’s requirement that a complaint “shall” be kept under seal is a mandatory rule for relators. But the statute says nothing about the remedy for violating that rule; and absent congressional guidance regarding a remedy, “the sanction for breach [of a mandatory duty] is not loss of all later powers to act.” United States v. Montalvo-Murillo, 495 U. S. 711 . The FCA’s structure supports this result. The FCA has a number of provisions requiring, in express terms, the dismissal of a relator’s action. E.g., §§3730(b)(5), (e)(1)–(2). It is thus proper to infer that Congress did not intend to require dismissal for a violation of the seal requirement. See Marx v. General Revenue Corp., 568 U. S. ___, ___. This result is also consistent with the general purpose of §3730(b)(2), which was enacted as part of a set of reforms meant to “encourage more private enforcement suits,” S. Rep. No. 99–345, pp. 23–24, and which was intended to protect the Government’s interests, allaying its concern that a relator filing a civil complaint would alert defendants to a pending federal criminal investigation. It would thus make little sense to adopt a rigid interpretation that prejudices the Government by depriving it of needed assistance from private parties. . (b) Petitioner’s arguments to the contrary are unavailing. There is no textual indication that Congress conditioned the authority to file a private right of action on compliance with the seal requirement or that the relator’s ability to bring suit depends on adherence to the seal requirement. And the Senate Committee Report’s recitation of the FCA’s general purpose is best understood to support respondents rather than a mandatory dismissal rule. Moreover, because the FCA’s text and structure are clear, there is no need to accept petitioner’s invitation to consider a few stray sentences from the legislative history. . 2. The District Court did not abuse its discretion by denying petitioner’s motion to dismiss. The question whether dismissal is appropriate should be left to the sound discretion of the district court. While the Hughes Aircraft factors appear to be appropriate, it is unnecessary to explore these and other relevant considerations, which can be discussed in the course of later cases. . 3. On this record, where petitioner requested no sanction other than dismissal, the question whether a lesser sanction—such as monetary penalties—is warranted is not preserved. P. 10. 794 F. 3d 457, affirmed. Kennedy, J., delivered the opinion for a unanimous Court.

The False Claims Act (FCA) imposes civil liability on an individual who, inter alia, knowingly presents a false or fraudulent claim for payment or approval to the Federal Government. Almost unique to the FCA are its qui tam enforcement provisions, which allow a private party known as a "relator" to bring an FCA action on behalf of the Government. The FCA also establishes specific procedures for the relator to follow when filing the complaint, including the requirement that the complaint be filed in camera, remain under seal for at least 60 days, and not be served on the defendant until the court so orders. In the months before the seal was lifted in part, respondents, then-attorney, one Dickie Scruggs, e-mailed a sealed evidentiary filing that disclosed the complaint's existence to journalists at the time of the motion to dismiss in 2011, but none revealed the existence of the complaint. Two months later, the District Court removed the remaining Scruggers-affiliated attorneys from the case, based on their alleged involvement in improper payments made from him to respondents. The court did not punish respondents themselves for the payments because they were not made aware of the ethical implications and, as laypersons, were not bound by the rules of professional conduct that apply to attorneys. Ultimately, the case went to trial, resulting in a victory for respondents on what the Court of Appeals referred to as abellwether claim regarding a single damaged home. However, the court affirmed the denial of petitioner, holding that the case presented two related issues of the first impression under its case law: (1) whether a seal violation requires mandatory dismissal of a relator's complaint, and, if not, what standard governs a district court's decision to dismiss. Held: Petitioner did not abuse its discretion by declining to dismiss respondents' complaint. . (a) Section 3730(b)(2), which provides that a complaint "shall" be kept under seal, does not require automatic dismissal. It is proper to infer that, had Congress intended to require dismissal for a violation of the seal requirement, it would have said so. Cf. United States ex rel. Lujan v. Hughes Aircraft Co., 67 F. 3d 242, 245-247 (CA9 1995). The seal provision was enacted in the 1980’s as part of a set of reforms that were meant to encourage more private enforcement suits, and was intended in main to protect the Government's interests. To adopt a rigid interpretation of §3730 (b)(5) that prejudices the Government by depriving it of needed assistance from private parties would not be fair. Here, the seal provision appears to be true, since it sometimes appears that Congress sometimes intended to bring private suits on the condition that the private relator file a private action with the Government on a condition conditioned on compliance with the seal mandate. Hallstrom v. Tillson,, distinguished. There is no indication that Congress did so here. Moreover, the structure of the statute shows that Congress knew how to draft the kind of statutory language that petitioner seeks to read into §3731(b) (2). Furthermore, adherence to all of FCA's mandatory requirements, no matter how small, is a condition of the assignment. And, because the Senate Committee Report claims support the mandatory dismissal rule, the Report is best understood to support respondents. Supra, at 7. And, furthermore, the meaning of the Rule is plain and unambiguous... 794 F.2d 470, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p..

2016_16-341

https://www.oyez.org/cases/2016/16-341

. The question presented in this case is where proper venue lies for a patent infringement lawsuit brought against a domestic corporation. The patent venue statute, 28 U. S. C. §1400(b), provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 226 (1957) , this Court concluded that for purposes of §1400(b) a domestic corporation “resides” only in its State of incorporation. In reaching that conclusion, the Court rejected the argument that §1400(b) incorporates the broader definition of corporate “residence” contained in the general venue statute, 28 U. S. C. §1391(c). 353 U. S., at 228. Congress has not amended §1400(b) since this Court construed it in Fourco, but it has amended §1391 twice. Section 1391 now provides that, “[e]xcept as otherwise provided by law” and “[f]or all venue purposes,” a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” §§1391(a), (c). The issue in this case is whether that definition supplants the definition announced in Fourco and allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to §1391 did not modify the meaning of §1400(b) as interpreted by Fourco. We therefore hold that a domestic corporation “resides” only in its State of incorporation for purposes of the patent venue statute. I Petitioner, which is organized under Indiana law and headquartered in Indiana, manufactures flavored drink mixes.[1] Respondent, which is organized under Delaware law and has its principal place of business in Illinois, is a competitor in the same market. As relevant here, respondent sued petitioner in the District Court for the District of Delaware, alleging that petitioner’s products infringed one of respondent’s patents. Although petitioner is not registered to conduct business in Delaware and has no meaningful local presence there, it does ship the al-legedly infringing products into the State. Petitioner moved to dismiss the case or transfer venue to the District Court for the Southern District of Indiana, arguing that venue was improper in Delaware. See 28 U. S. C. §1406. Citing Fourco’s holding that a corporation resides only in its State of incorporation for patent infringement suits, petitioner argued that it did not “resid[e]” in Delaware under the first clause of §1400(b). It further argued that it had no “regular and established place of business” in Delaware under the second clause of §1400(b). Relying on Circuit precedent, the District Court rejected these arguments, 2015 WL 5613160 (D Del., Sept. 24, 2015), and the Federal Circuit denied a petition for a writ of mandamus, In re TC Heartland LLC, 821 F. 3d 1338 (2016). The Federal Circuit concluded that subsequent statutory amendments had effectively amended §1400(b) as construed in Fourco, with the result that §1391(c) now supplies the definition of “resides” in §1400(b). 821 F. 3d, at 1341–1343. Under this logic, because the District of Delaware could exercise personal jurisdiction over petitioner, petitioner resided in Delaware under §1391(c) and, therefore, under §1400(b). We granted certiorari, 580 U. S. ___ (2016), and now reverse. II A The history of the relevant statutes provides important context for the issue in this case. The Judiciary Act of 1789 permitted a plaintiff to file suit in a federal district court if the defendant was “an inhabitant” of that district or could be “found” for service of process in that district. Act of Sept. 24, 1789, §11, 1Stat. 79. The Act covered patent cases as well as other civil suits. Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561, 563 (1942) . In 1887, Congress amended the statute to permit suit only in the district of which the defendant was an inhabitant or, in diversity cases, of which either the plaintiff or defendant was an inhabitant. See Act of Mar. 3, 1887, §1, 24 Stat. 552; see also Stonite, supra, at 563–564. This Court’s decision in In re Hohorst, 150 U. S. 653 –662 (1893), arguably suggested that the 1887 Act did not apply to patent cases. As a result, while some courts continued to apply the Act to patent cases, others refused to do so and instead permitted plaintiffs to bring suit (in line with the pre-1887 regime) anywhere a defendant could be found for service of process. See Stonite, supra, at 564–565. In 1897, Congress resolved the confusion by enacting a patent specific venue statute. See Act of Mar. 3, 1897, ch. 395, 29Stat. 695. In so doing, it “placed pat-ent infringement cases in a class by themselves, outside the scope of general venue legislation.” Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 713 (1972) . This new statute (§1400(b)’s predecessor) permitted suit in the district of which the defendant was an “inhabitant,” or a district in which the defendant both maintained a “regular and established place of business” and committed an act of infringement. 29Stat. 695. At the time, a corporation was understood to “inhabit” only the State in which it was incorporated. Shaw v. Quincy Mining Co., 145 U. S. 444 –450 (1892). The Court addressed the scope of §1400(b)’s predecessor in Stonite. In that case, the two defendants inhabited different districts within a single State. The plaintiff sought to sue them both in the same district, invoking a then governing general venue statute that, if applicable, permitted it to do so. 315 U. S., at 562–563. This Court rejected the plaintiff’s venue choice on the ground that the patent venue statute constituted “the exclusive provision controlling venue in patent infringement proceedings” and thus was not supplemented or modified by the general venue provisions. Id., at 563. In the Court’s view, the patent venue statute “was adopted to define the exact jurisdiction of the federal courts in actions to enforce patent rights,” a purpose that would be undermined by interpreting it “to dovetail with the general provisions relating to the venue of civil suits.” Id., at 565–566. The Court thus held that the patent venue statute “alone should control venue in patent infringement proceedings.” Id., at 566. In 1948, Congress recodified the patent venue statute as §1400(b). See Act of June 25, 1948, 62Stat. 936. The recodified provision, which remains unaltered today, states that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” 28 U. S. C. §1400(b) (1952 ed.). This version differs from the previous one in that it uses “resides” instead of “inhabit[s].” At the same time, Congress also enacted the general venue statute, §1391, which defined “residence” for corporate defendants. That provision stated that “[a] corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” §1391(c) (1952 ed.). Following the 1948 legislation, courts reached differing conclusions regarding whether §1400(b)’s use of the word “resides” incorporated §1391(c)’s definition of “residence.” See Fourco, 353 U. S., at 224, n. 3 (listing cases). In Fourco, this Court reviewed a decision of the Second Circuitholding that §1391(c) defined residence for purposes of §1400(b), “just as that definition is properly . . . incorporated into other sections of the venue chapter.” Trans-mirra Prods. Corp. v. Fourco Glass Co., 233 F. 2d 885, 886 (1956). This Court squarely rejected that interpretation, reaffirming Stonite’s holding that §1400(b) “is the sole and exclusive provision controlling venue in patent infringement actions, and . . . is not to be supplemented by . . . §1391(c).” 353 U. S., at 229. The Court observed that Congress enacted §1400(b) as a standalone venue statute and that nothing in the 1948 recodification evidenced an intent to alter that status. The fact that §1391(c) by “its terms” embraced “all actions” was not enough to overcome the fundamental point that Congress designed §1400(b) to be “complete, independent and alone controlling in its sphere.” Id., at 228. The Court also concluded that “resides” in the recodified version of §1400(b) bore the same meaning as “inhabit[s]” in the pre-1948 version. See id., at 226 (“[T]he [w]ords ‘inhabitant’ and ‘resident,’ as respects venue, are synonymous” (internal quotation marks omitted)). The substitution of “resides” for “inhabit[s]” thus did not suggest any alteration in the venue rules for corporations in patent cases. Accordingly, §1400(b) continued to apply to domestic corporations in the same way it always had: They were subject to venue only in their States of incorporation. See ibid. (The use of “resides” “negat[es] any intention to make corporations suable, in patent infringement cases, where they are merely ‘doing business,’ because those synonymous words [“inhabitant” and “resident”] mean domicile and, in respect of corporations, mean the state of incorporation only”). B This landscape remained effectively unchanged until 1988, when Congress amended the general venue statute, §1391(c), to provide that “[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” Judicial Improvements and Access to Justice Act, §1013(a), 102Stat. 4669. The Federal Circuit in VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574 (1990), announced its view of the effect of this amendment on the meaning of the patent venue statute. The court reasoned that the phrase “[f]or purposes of venue under this chapter” was “exact and classic language of incorporation,” id., at 1579, and that §1391(c) accord-ingly established the definition for all other venue statutes under the same “chapter.” Id., at 1580. Because §1400(b) fell within the relevant chapter, the Federal Circuit concluded that §1391(c), “on its face,” “clearly applies to §1400(b), and thus redefines the meaning of the term ‘resides’ in that section.” Id., at 1578. Following VE Holding, no new developments occurred until Congress adopted the current version of §1391 in 2011 (again leaving §1400(b) unaltered). See Federal Courts Jurisdiction and Venue Clarification Act of 2011, §202, 125Stat. 763. Section 1391(a) now provides that, “[e]xcept as otherwise provided by law,” “this section shall govern the venue of all civil actions brought in district courts of the United States.” And §1391(c)(2), in turn, provides that, “[f]or all venue purposes,” certain entities, “whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” In its decision below, the Federal Circuit reaffirmed VE Holding, reasoning that the 2011 amendments provided no basis to reconsider its prior decision. III We reverse the Federal Circuit. In Fourco, this Court definitively and unambiguously held that the word “reside[nce]” in §1400(b) has a particular meaning as applied to domestic[2] corporations: It refers only to the State of incorporation. Congress has not amended §1400(b) since Fourco, and neither party asks us to reconsider our holding in that case. Accordingly, the only question we must answer is whether Congress changed the meaning of §1400(b) when it amended §1391. When Congress intends to effect a change of that kind, it ordinarily provides a relatively clear indication of its intent in the text of the amended provision. See United States v. Madigan, 300 U. S. 500, 506 (1937) (“[T]he modification by implication of the settled construction of an earlier and different section is not favored”); A. Scalia & B. Garner, Reading Law 331 (2012) (“A clear, authoritative judicial holding on the meaning of a particular provision should not be cast in doubt and subjected to challenge whenever a related though not utterly inconsistent provision is adopted in the same statute or even in an affiliated statute”). The current version of §1391 does not contain any indication that Congress intended to alter the meaning of §1400(b) as interpreted in Fourco. Although the current version of §1391(c) provides a default rule that applies “[f]or all venue purposes,” the version at issue in Fourco similarly provided a default rule that applied “for venue purposes.” 353 U. S., at 223 (internal quotation marks omitted). In this context, we do not see any material difference between the two phrasings. See Pure Oil Co. v. Suarez, 384 U. S. 202 –205 (1966) (construing “ ‘for venue purposes’ ” to cover “all venue statutes”). Respondent argues that “ ‘all venue purposes’ means ‘all venue purposes’—not ‘all venue purposes except for patentvenue.’ ” Brief for Respondent 21. The plaintiffs in Fourco advanced the same argument. See 353 U. S., at 228 (“The main thrust of respondents’ argument is that §1391(c) is clear and unambiguous and that its terms include all actions—including patent infringement actions”). This Court was not persuaded then, and the addition of the word “all” to the already comprehensive provision does not suggest that Congress intended for us to reconsider that conclusion. This particular argument is even weaker under the current version of §1391 than it was under the provision in place at the time of Fourco, because the current provision includes a saving clause expressly stating that it does not apply when “otherwise provided by law.” On its face, the version of §1391(c) at issue in Fourco included no exceptions, yet this Court still held that “resides” in §1400(b) retained its original meaning contrary to §1391(c)’s default definition. Fourco’s holding rests on even firmer footing now that §1391’s saving clause expressly contemplates that certain venue statutes may retain definitions of “resides” that conflict with its default definition. In short, the saving clause makes explicit the qualification that this Court previously found implicit in the statute. See Pure Oil, supra, at 205 (interpreting earlier version of §1391 to apply “to all venue statutes using residence as a criterion, at least in the absence of contrary restrictive indications in any such statute”). Respondent suggests that the saving clause in §1391(a) does not apply to the definitional provisions in §1391(c), Brief for Respondent 31–32, but that interpretation is belied by the text of §1391(a), which makes clear that the saving clause applies to the entire “section.” See §1391(a)(1) (“Except as otherwise provided by law— . . . this section shall govern the venue of all civil actions” (emphasis added)). Finally, there is no indication that Congress in 2011 ratified the Federal Circuit’s decision in VE Holding. If anything, the 2011 amendments undermine that decision’s rationale. As petitioner points out, VE Holding relied heavily—indeed, almost exclusively—on Congress’ decision in 1988 to replace “for venue purposes” with “[f]or purposes of venue under this chapter” (emphasis added) in §1391(c). Congress deleted “under this chapter” in 2011 and worded the current version of §1391(c) almost identically to the original version of the statute. Compare §1391(c) (2012 ed.) (“[f]or all venue purposes”) with §1391(c) (1952 ed.) (“for venue purposes”). In short, nothing in the text suggests congressional approval of VE Holding. * * * As applied to domestic corporations, “reside[nce]” in §1400(b) refers only to the State of incorporation. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 The complaint alleged that petitioner is a corporation, and petitioner admitted this allegation in its answer. See App. 11a, 60a. Similarly, the petition for certiorari sought review on the question of “corporate” residence. See Pet. for Cert. i. In their briefs before this Court, how-ever, the parties suggest that petitioner is, in fact, an unincorporated entity. See Brief for Respondent 9, n. 4 (the complaint’s allegation was “apparently inaccurat[e]”); Reply Brief 4. Because this case comes to us at the pleading stage and has been litigated on the understanding that petitioner is a corporation, we confine our analysis to the proper venue for corporations. We leave further consideration of the issue of petitioner’s legal status to the courts below on remand. 2 The parties dispute the implications of petitioner’s argument for foreign corporations. We do not here address that question, nor do we express any opinion on this Court’s holding in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706 (1972) (determining proper venue for foreign corporation under then existing statutory regime).

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 TC HEARTLAND LLC v. KRAFT FOODS GROUP BRANDS LLC certiorari to the united states court of appeals for the federal circuit No. 16–341. Argued March 27, 2017—Decided May 22, 2017 The patent venue statute, 28 U. S. C. §1400(b), provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” In Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 , this Court concluded that for purposes of §1400(b) a domestic corporation “resides” only in its State of incorporation, rejecting the argument that §1400(b) incorporates the broader definition of corporate “residence” contained in the general venue statute, 28 U. S. C. §1391(c). Congress has not amended §1400(b) since Fourco, but it has twice amended §1391, which now provides that, “[e]xcept as otherwise provided by law” and “[f]or all venue purposes,” a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” §§1391(a), (c). Respondent filed a patent infringement suit in the District Court for the District of Delaware against petitioner, a competitor that is organized under Indiana law and headquartered in Indiana but ships the allegedly infringing products into Delaware. Petitioner moved to transfer venue to a District Court in Indiana, claiming that venue was improper in Delaware. Citing Fourco, petitioner argued that it did not “resid[e]” in Delaware and had no “regular and established place of business” in Delaware under §1400(b). The District Court rejected these arguments. The Federal Circuit denied a petition for a writ of mandamus, concluding that §1391(c) supplies the definition of “resides” in §1400(b). The Federal Circuit reasoned that because petitioner resided in Delaware under §1391(c), it also resided there under §1400(b). Held: As applied to domestic corporations, “reside[nce]” in §1400(b) refers only to the State of incorporation. The amendments to §1391 did not modify the meaning of §1400(b) as interpreted by Fourco. . (a) The venue provision of the Judiciary Act of 1789 covered patent cases as well as other civil suits. Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 . In 1897, Congress enacted a patent specific venue statute. This new statute (§1400(b)’s predecessor) permitted suit in the district of which the defendant was an “inhabitant” or in which the defendant both maintained a “regular and established place of business” and committed an act of infringement. 29Stat. 695. A corporation at that time was understood to “inhabit” only the State of incorporation. This Court addressed the scope of §1400(b)’s predecessor in Stonite, concluding that it constituted “the exclusive provision controlling venue in patent infringement proceedings” and thus was not supplemented or modified by the general venue provisions. 315 U. S., at 563. In 1948, Congress recodified the patent venue statute as §1400(b). That provision, which remains unaltered today, uses “resides” instead of “inhabit[s].” At the same time, Congress also enacted the general venue statute, §1391, which defined “residence” for corporate defendants. In Fourco, this Court reaffirmed Stonite’s holding, observing that Congress enacted §1400(b) as a standalone venue statute and that nothing in the 1948 recodification evidenced an intent to alter that status, even the fact that §1391(c) by “its terms” embraced “all actions,” 353 U. S., at 228. The Court also concluded that “resides” in the recodified version bore the same meaning as “inhabit[s]” in the pre-1948 version. See id., at 226. This landscape remained effectively unchanged until 1988, when Congress amended the general venue statute, §1391(c). The revised provision stated that it applied “[f]or purposes of venue under this chapter.” In VE Holding Corp. v. Johnson Gas Appliance Co., 917 F. 2d 1574, 1578, the Federal Circuit held that, in light of this amendment, §1391(c) established the definition for all other venue statutes under the same “chapter,” including §1400(b). In 2011, Congress adopted the current version of §1391, which provides that its general definition applies “[f]or all venue purposes.” The Federal Circuit reaffirmed VE Holding in the case below. . (b) In Fourco, this Court definitively and unambiguously held that the word “reside[nce]” in §1400(b), as applied to domestic corporations, refers only to the State of incorporation. Because Congress has not amended §1400(b) since Fourco, and neither party asks the Court to reconsider that decision, the only question here is whether Congress changed §1400(b)’s meaning when it amended §1391. When Congress intends to effect a change of that kind, it ordinarily provides a relatively clear indication of its intent in the amended provision’s text. No such indication appears in the current version of §1391. Respondent points out that the current §1391(c) provides a default rule that, on its face, applies without exception “[f]or all venue purposes.” But the version at issue in Fourco similarly provided a default rule that applied “ ‘for venue purposes,’ ” 353 U. S., at 223, and those phrasings are not materially different in this context. The addition of the word “all” to the already comprehensive provision does not suggest that Congress intended the Court to reconsider its decision in Fourco. Any argument based on this language is even weaker now than it was when the Court rejected it in Fourco. Fourco held that §1400(b) retained a meaning distinct from the default definition contained in §1391(c), even though the latter, by its terms, included no exceptions. The current version of §1391 includes a saving clause, which expressly states that the provision does not apply when “otherwise provided by law,” thus making explicit the qualification that the Fourco Court found implicit in the statute. Finally, there is no indication that Congress in 2011 ratified the Federal Circuit’s decision in VE Holding. . 821 F. 3d 1338, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 226 (1957), this Court concluded that for purposes of 28 U.S. C. §1400(b) a domestic corporation "resides" only in its State of incorporation. The patent venue statute provides that a civil action for patent infringement may be brought in the judicial district where the defendant resides, or where he has committed infringement acts and has a regular and established place of business. Fourco, supra, at 228. In 1897, Congress resolved the confusion by enacting a patent specific venue statute that permitted suit in the district of which the defendant was an "inhabitant, or a district in which he both maintained a [regular and established] business" and committed an infringement. In 1948, however, Congress recodified the patent venue provision as §1391(c), which states that a corporation may be sued in any judicial district within which it is incorporated or licensed to do business or is doing business, and which provides that such district shall be regarded as the residence of the corporation for venue purposes. Petitioner, which is organized under Indiana law and headquartered in Indiana, is a competitor in the same market. As relevant here, respondent sued petitioner in the District Court for the District of Delaware, alleging that petitioner's products infringed one of respondent's patents. Although petitioner is not registered to conduct business in Delaware and has no meaningful local presence there, it does ship the allegedly infringing products into the State. Petitioner moved to dismiss the case or transfer venue to the Indiana District Court, arguing that venue was improper in Delaware. The District Court rejected this argument, and the Court of Appeals denied a petition for a writ of mandamus. Held: 1. The word "reside[nce][e]resides[s]... has a particular meaning as applied to domestic corporations, and it refers only to corporations, not to corporations. . (a) Fourco firmly and unambiguously held that the word, which has no particular meaning in domestic corporations that of the word in the statute, has a particular meaning. It is clear from the text of §1491(a), which provides a default rule that applies only when otherwise provided by law, and its version at issue in Fourco similarly provided a default rule that applied venue purposes in the pre-1948 version. This landscape remained effectively unchanged until 1988, when Congress amended the general venue statute to provide that "[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside, if a corporation is subject to the court's personal jurisdiction with respect to the civil action in question...." VE Holding Corp., 917 F. 2d 1574, reversed and remanded. P.. 2. Because this case comes to be at the pleading stage and has been litigated on the understanding that petitioner is a corporation, this analysis is confined to the proper venue for corporations.. 821 F. 3d 1338 (D Del., Sept. 24, 2016), reversed. JUSTICE WHITE, joined by JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded that:3. Since neither Congress nor the State of Delaware has changed its answer to the question whether incorporation of the State refers to incorporation in this case, and since neither party has amended its answer, this Court must reconsider the question only when it asks the question that Congress intends to change its answer when it changes its answer. See, e.g., Garner v. Madigan,,. Here, the parties dispute the implications of petitioner's argument for foreign corporations, but do not address that question, nor do they express any opinion on this Court's holding in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U S. 706 (1972) (determining proper venue for foreign corporation under then existing statutory regime), or this Court, Brunette, supra. However, in VE Holding, supra at 228, the Court noted that the saving clause expressly contemplates that certain venue statutes may retain definitions of the same ones that conflict with its default definition. Moreover, there is no indication that Congress in 2011 ratified the Federal Circuit decision in the other case, which relied heavily on Congress' decision in 1988 to replace, inter alia, the phrase "for venue purposes" with the phrase, in §1389(c). In any event, nothing in the text suggests congressional approval of the latter decision. Nor does anything in the legislative history suggest that Congress has applied the word to the domestic corporations in the first place. Similarly, this case is consistent with certiorari in this Court on remand, and this Court ordered petitioner to answer the question of residence in the State on rem

2016_16-605

https://www.oyez.org/cases/2016/16-605

. Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief. I In 2001, land developer Steven Sherman paid $2.7 million to purchase nearly 400 acres of land in the town of Chester, New York (Town). Sherman planned to build a housing subdivision called MareBrook, complete with 385 housing units, a golf course, an onsite restaurant, and other amenities. Sherman applied for approval of his plan and thus began a “journey through the Town’s ever-changing labyrinth of red tape.” Sherman v. Chester, 752 F. 3d 554, 557 (CA2 2014). In 2012, Sherman filed this suit against the Town in New York state court. The suit concerned “the decade’s worth of red tape put in place” by the Town and its regulatory bodies. Id., at 558. According to Sherman, the Town obstructed his plans for the subdivision and forced him to spend around $5.5 million to comply with the Town’s demands. Id., at 558, 560. All of this, Sherman claimed, left him financially exhausted and on the brink of personal bankruptcy. Id., at 560. Sherman brought nine federal- and state-law claims against the Town, including a regulatory takings claim under the Fifth and Fourteenth Amendments. See App. 98–122. The Town removed the case to a Federal District Court, which dismissed Sherman’s takings claim as unripe. Opinion and Order in No. 1:12–cv–00647 (SDNY), Dkt. 14, p. 25. The Court of Appeals for the Second Circuit reversed the ripeness determination and remanded for the case to go forward. Chester, supra, at 557.[1] On remand, real estate development company Laroe Estates, Inc. (the respondent here) filed a motion to intervene of right under Federal Rule of Civil Procedure 24(a)(2). This Rule requires a court to permit intervention by a litigant that “claims an interest related to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Laroe alleged that in 2003 it had entered into an agreement with Sherman regarding the MareBrook property. Under this agreement, Laroe was to make $6 million in payments to Sherman, secured by a mortgage on all of the development, and Sherman was to sell Laroe parcels of land within the proposed subdivision when the MareBrook plan was approved. However, Laroe reserved the right to terminate the entire agreement if Sherman was unable to obtain Town approval for a sufficient number of lots. While this agreement was in place and Sherman continued his futile quest for regulatory approval, Laroe paid Sherman more than $2.5 million. In 2013, TD Bank commenced a foreclosure proceeding on Sherman’s property. In an effort to save the deal, Laroe and Sherman entered into a new agreement. That agreement provided that the purchase price of the property would be the $2.5 million that Laroe had already advanced Sherman plus any amount Sherman had to pay to settle with TD Bank. Once the Town approved the plan, Laroe was required to transfer a certain number of lots back to Sherman. In addition to imposing this transfer obligation, the agreement deemed Laroe to have paid for the land in full. Laroe was also given the authority to settle the debt Sherman owed TD Bank and to terminate the agreement if the settlement failed. The settlement did fail, and TD Bank took over the property. But Laroe never terminated its agreement with Sherman. In support of its motion to intervene, Laroe argued that, under New York law, it is “the equitable owner of the Real Property” at issue in Sherman’s suit. App. 131, 135–139. Laroe asserted that its status as equitable owner gave it an interest in the MareBrook property; that its interest would be impaired if it could not intervene; and that Sherman “ha[d] his own agenda” and consequently could not adequately represent Laroe’s interest. Id., at 143–145. Along with its other intervention-related pleadings, Laroe filed an intervenor’s complaint asserting a regulatory takings claim that was substantively identical to Sherman’s. Laroe’s complaint sought, among other things, a “judgment against [the Town] awarding [Laroe] damages,” namely, “compensation for the taking of Laroe’s interest in the subject real property.” Id., at 162. The District Court denied Laroe’s motion to intervene on the ground that Laroe lacked standing to bring a takings claim “based on its status as contract vendee to the property.” App. to Pet. for Cert. 57a. The District Court interpreted Second Circuit precedent—specifically, United States Olympic Comm. v. Intelicense Corp., S. A., 737 F. 2d 263, 268 (1984)—to mean that Laroe’s equitable interest did not confer standing. App. to Pet. for Cert. 55a–56a.[2] The Court of Appeals reversed. 828 F. 3d 60, 62 (CA2 2016). Acknowledging a division among the Courts of Appeals on whether an intervenor of right must meet the requirements of Article III, the Second Circuit sided with the courts that have held that Article III standing is not required. Id., at 64–65. We granted certiorari. 580 U. S. ___ (2017). II Article III of the Constitution limits the exercise of the judicial power to “Cases” and “Controversies.” §2, cl. 1. This fundamental limitation preserves the “tripartite structure” of our Federal Government, prevents the Federal Judiciary from “intrud[ing] upon the powers given to the other branches,” and “confines the federal courts to a properly judicial role.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 5–6). “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) . “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, supra, at ___ (slip op., at 6). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 408 (2013) . Our standing doctrine accomplishes this by requiring plaintiffs to “alleg[e] such a personal stake in the outcome of the controversy as to . . . justify [the] exercise of the court’s remedial powers on [their] behalf.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38 (1976) (internal quotation marks omitted). To establish Article III standing, the plaintiff seeking compensatory relief must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, supra, at ___ (slip op., at 6). “Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.” Simon, supra, at 38. Our standing decisions make clear that “ ‘standing is not dispensed in gross.’ ” Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (2008) (quoting Lewis v. Casey, 518 U. S. 343 , n. 6 (1996); alteration omitted). To the contrary, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis, supra, at 734 (internal quotation marks omitted); see, e.g., DaimlerChrysler, supra, at 352 (“[A] plaintiff must demonstrate standing separately for each form of relief sought”); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 185 (2000) (same); Los Angeles v. Lyons, 461 U. S. 95 –106, and n. 7 (1983) (a plaintiff who has standing to seek damages must also demonstrate standing to pursue injunctive relief). The same principle applies when there are multiple plaintiffs. At least one plaintiff must have standing to seek each form of relief requested in the complaint. Both of the parties accept this simple rule.[3] The same principle applies to intervenors of right. Although the context is different, the rule is the same: For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that which the plaintiff requests. This result follows ineluctably from our Article III case law, so it is not surprising that both parties accept it (as does the United States as amicus curiae). See Brief for Petitioner 13 (arguing that an intervenor must always demonstrate standing); Brief for Respondent 28 (“[A]n intervenor who . . . seeks relief beyond that requested by a party with standing must satisfy Arti-cle III”); Brief for United States as Amicus Curiae 16 (An intervenor must demonstrate its own standing if it “seek[s] damages” or “injunctive relief that is broader than or different from the relief sought by the original plaintiff(s)”). In sum, an intervenor of right must have Article III standing in order to pursue relief that is different from that which is sought by a party with standing. That includes cases in which both the plaintiff and the intervenor seek separate money judgments in their own names. Cf. General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 402, n. 22 (1982) (declining to address the State’s standing “until [it] obtains relief different from that sought by plaintiffs whose standing has not been questioned”). That principle dictates the disposition of this case. It is unclear whether Laroe seeks the same relief as Sherman or instead seeks different relief, such as a money judgment against the Town in Laroe’s own name. Laroe’s complaint—the best evidence of the relief Laroe seeks—requests a judgment awarding damages to Laroe. App. 162. Unsurprisingly, Sherman requests something different: specifically, compensation for the taking of his interest in the property. Id., at 122. In other words, as Laroe’s counsel conceded at oral argument, the complaint plainly seeks separate monetary relief for Laroe directly against the Town. Tr. of Oral Arg. 43–44. And, as Laroe’s counsel conceded further, if Laroe is “seeking additional damages in [its] own name,” “at that point, an Article III inquiry would be required.” Id., at 47. To be sure, at some points during argument in the Court of Appeals, Laroe made statements that arguably indicated that Laroe is not seeking damages different from those sought by Sherman. In particular, Laroe’s counsel stated that he was “not saying that Sherman and [Laroe’s] damages are not the same damages,” and insisted that there is “exactly one fund, and the town doesn’t have to do anything except turn over the fund.” Tr. 16, 33; see also Reply Brief in No. 15–1086 (CA2), p. 12 (similar). At other points, however, the same counsel made statements pointing in the opposite direction. When asked directly whether “there would be separate awards to you and to the Sherman estate” if Sherman’s suit was successful, Laroe’s counsel admitted that he “ha[d] never contemplated how [damages] ge[t] allocated at the end of the day” and suggested bifurcated proceedings so that once liability was settled, Laroe and Sherman could “duke it out” over damages if necessary. Tr. 32–35. And in its Court of Appeals briefing, Laroe argued that it—not Sherman—would be entitled to most of the damages from the takings claim, flagging the allocation issue as one that the District Court would have to resolve. Brief for Appellant in No. 15–1086 (CA2), p. 32 (“[T]he trier of fact will have to determine the relative allocation of rights over the fund . . . . Specifi-cally, what is the value of Sherman’s bare legal title as com-pared to Laroe’s equitable title in the subject property”); Reply Brief in No. 15–1086, at 15 (“[M]ost, if not all of the benefits” of this litigation “will accrue [to] Laroe”); see also 828 F. 3d, at 70 (noting that Sherman and Laroe “may disagree about . . . the issue of damages were they to prevail”). Taken together, these representations at best leave it ambiguous whether Laroe is seeking damages for itself or is simply seeking the same damages sought by Sherman.[4] Unfortunately, the Court of Appeals did not resolve this ambiguity. In fact, the section of its opinion concerning standing did not discuss whether Laroe sought different relief than Sherman. Id., at 64–66. Elsewhere, in a different context, the court did acknowledge Laroe’s statement that it sought “essentially the same” damages as Sherman. Id., at 66. But the court also found that “it is unclear from the record whether Laroe believes the Town is directly liable to Sherman or Laroe for the taking.” Ibid. This confusion needs to be dispelled. If Laroe wants only a money judgment of its own running directly against the Town, then it seeks damages different from those sought by Sherman and must establish its own Article III standing in order to intervene. We leave it to the Court of Appeals to address this question on remand. * * * For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Notes 1 Sherman died in 2013, and his estate replaced him as the plaintiff. 2 We assume for the sake of argument only that Laroe does not have Article III standing. If resolution of this question becomes necessary on remand, the Court of Appeals will be required to determine whether the District Court’s decision was correct. 3 See Brief for Petitioner 23 (“If different parties raising a single issue seek different relief, then standing must be shown for each one”); Brief for Respondent 15 (“[A] case or controversy as to one claim does not extend the judicial power to different claims or forms of relief ”). 4 Before this Court, Laroe’s counsel represented that Laroe is not seeking damages of its own and is seeking only to maximize Sherman’s recovery. Tr. of Oral Arg. 43–44. But in light of the ambiguous record and the lack of a reasoned conclusion on this question from the Court of Appeals, we are not inclined to resolve it in the first instance. Cutter v. Wilkinson, 544 U. S. 709 , n. 7 (2005) (“[W]e are a court of review, not first view”).

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 TOWN OF CHESTER, NEW YORK v. LAROE ESTATES, INC. certiorari to the united states court of appeals for the second circuit No. 16–605. Argued April 17, 2017—Decided June 5, 2017 Land developer Steven Sherman paid $2.7 million to purchase land in the town of Chester (Town) for a housing subdivision. He also sought the Town’s approval of his development plan. About a decade later, he filed this suit in New York state court, claiming that the Town had obstructed his plans for the subdivision, forcing him to spend around $5.5 million to comply with its demands and driving him to the brink of personal bankruptcy. Sherman asserted, among other claims, a regulatory takings claim under the Fifth and Fourteenth Amendments. The Town removed the case to a Federal District Court, which dismissed the takings claim as unripe. The Second Circuit reversed that determination and remanded for the case to go forward. On remand, real estate development company Laroe Estates, Inc. (respondent here), filed a motion to intervene of right under Federal Rule of Civil Procedure 24(a)(2), which requires a court to permit intervention by a litigant that “claims an interest related to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Laroe alleged that it had paid Sherman more than $2.5 million in relation to the development project and the subject property, that its resulting equitable interest in the property would be impaired if it could not intervene, and that Sherman would not adequately represent its interest. Laroe filed, inter alia, an intervenor’s complaint asserting a regulatory takings claim that was substantively identical to Sherman’s and seeking a judgment awarding Laroe compensation for the taking of Laroe’s interest in the property at issue. The District Court denied Laroe’s motion to intervene, concluding that its equitable interest did not confer standing. The Second Circuit reversed, holding that an intervenor of right is not required to meet Article III’s standing requirements. Held: 1. A litigant seeking to intervene as of right under Rule 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff. To establish Article III standing, a plaintiff seeking compensatory relief must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___. The “ plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Federal Election Comm’n, 554 U. S. 724 (internal quotation marks omitted). The same principle applies when there are multiple plaintiffs: At least one plaintiff must have standing to seek each form of relief requested in the complaint. That principle also applies to intervenors of right: For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that requested by the plaintiff. That includes cases in which both the plaintiff and the intervenor seek separate money judgments in their own names. . 2. The Court of Appeals is to address on remand the question whether Laroe seeks different relief than Sherman. If Laroe wants only a money judgment of its own running directly against the Town, then it seeks damages different from those sought by Sherman and must establish its own Article III standing in order to intervene. The record is unclear on that point, and the Court of Appeals did not resolve that ambiguity. . 828 F. 3d 60, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court.

Land developer filed suit against the Chester, N.Y., Town in a New York state court, alleging that the Town obstructed his plans for a housing subdivision, forced him to spend around $5.5 million to comply with the Town's demands, and left him financially exhausted and on the brink of bankruptcy. The Town removed the case to Federal District Court, which dismissed the takings claim as unripe. On remand, real estate development company Laroe Estates, Inc. (respondent here) filed a motion to intervene of right under Federal Rule of Civil Procedure 24(a)(2), which requires a court to permit intervention by a litigant thatclaims an interest related to the property or transaction that is the subject of the action and is so situated that disposing of the suit may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. The company alleged that it had entered into an agreement with respondent regarding the property, whereby it was to make payments to respondent, secured by a mortgage on all of the development, and Sherman was to sell Laroe parcels of land within the proposed subdivision when the plan was approved. However, while this agreement was in place and Sherman continued his futile quest for regulatory approval, Laroe paid Sherman more than $2 million. Subsequently, in an effort to save the foreclosure proceeding on Sherman's property, the Town entered into a new agreement that provided that the purchase price of the property would be the amount that Laroe had already advanced Sherman plus any amount Sherman had to pay to settle with TD Bank. Once the Town approved the plan, the agreement deemed Laroe to have paid for the land in full, and Laroe was given the authority to settle the debt Sherman owed TD Bank and to terminate the agreement if the settlement failed and the settlement did not fail. The settlement failed, and the property was terminated. The New York Real Estate Appellant, which owns the property and is the owner of it, asserted that it could not adequately represent its interest in the property. It filed an intervenor complaint with the District Court asserting an equitable interest-related complaint that was identical to Sherman-related to the Sherman-Takings claim, and seeking a judgment against the Town awarding damages. The court denied Laroe intervention on the ground that its equitable interest did not confer standing. The Court of Appeals reversed and remanded, interpreting Second Circuit precedent to mean that the intervenor had Article III standing in order to meet the requirements of Article III. Held: The judgment is vacated and the case is remanded for that court to determine whether respondent seeks additional relief. 828 F. 3d 60 (CA2, 2016) (CA 2, 2016), vacated in part, reversed in pertinent part, remanded. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA, JJ., joined, and in Parts I, II, III, and IV of which REHNQUIST, C.J., and STEVENS, J., joined. MARSHALL J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and POWELL joined, post, p..

2016_15-577

https://www.oyez.org/cases/2016/15-577

, except as to footnote 3. The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church applied for such a grant for its preschool and daycare center and would have received one, but for the fact that Trinity Lutheran is a church. The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program. The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment. I A The Trinity Lutheran Church Child Learning Center is a preschool and daycare center open throughout the year to serve working families in Boone County, Missouri, and the surrounding area. Established as a nonprofit organization in 1980, the Center merged with Trinity Lutheran Church in 1985 and operates under its auspices on church property. The Center admits students of any religion, and enrollment stands at about 90 children ranging from age two to five. The Center includes a playground that is equipped with the basic playground essentials: slides, swings, jungle gyms, monkey bars, and sandboxes. Almost the entire surface beneath and surrounding the play equipment is coarse pea gravel. Youngsters, of course, often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. Run by the State’s Department of Natural Resources to reduce the number of used tires destined for landfills and dump sites, the program offers reimbursement grants to qualifying nonprofit organizations that purchase playground surfaces made from recycled tires. It is funded through a fee imposed on the sale of new tires in the State. Due to limited resources, the Department cannot offer grants to all applicants and so awards them on a competitive basis to those scoring highest based on several criteria, such as the poverty level of the population in the surrounding area and the applicant’s plan to promote recycling. When the Center applied, the Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. That policy, in the Department’s view, was compelled by Article I, Section 7 of the Missouri Constitution, which provides: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” In its application, the Center disclosed its status as a ministry of Trinity Lutheran Church and specified that the Center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.” App. to Pet. for Cert. 131a. After describing the playground and the safety hazards posed by its current surface, the Center detailed the anticipated benefits of the proposed project: increasing access to the playground for all children, including those with disabilities, by providing a surface compliant with the Americans with Disabilities Act of 1990; providing a safe, long-lasting, and resilient surface under the play areas; and improving Missouri’s environment by putting recycled tires to positive use. The Center also noted that the benefits of a new surface would extend beyond its students to the local community, whose children often use the playground during non-school hours. The Center ranked fifth among the 44 applicants in the 2012 Scrap Tire Program. But despite its high score, the Center was deemed categorically ineligible to receive a grant. In a letter rejecting the Center’s application, the program director explained that, under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Because the Center was operated by Trinity Lutheran Church, it did not receive a grant. B Trinity Lutheran sued the Director of the Department in Federal District Court. The Church alleged that the Department’s failure to approve the Center’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violates the Free Exercise Clause of the First Amendment. Trinity Lutheran sought declara-tory and injunctive relief prohibiting the Department from discriminating against the Church on that basis in future grant applications. The District Court granted the Department’s motion to dismiss. The Free Exercise Clause, the District Court stated, prohibits the government from outlawing or restricting the exercise of a religious practice; it generally does not prohibit withholding an affirmative benefit on account of religion. The District Court likened the Department’s denial of the scrap tire grant to the situation this Court encountered in Locke v. Davey, 540 U. S. 712 (2004) . In that case, we upheld against a free exercise challenge the State of Washington’s decision not to fund degrees in devotional theology as part of a state scholarship program. Finding the present case “nearly indistinguishable from Locke,” the District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to religious institutions like Trinity Lutheran. Trinity Lutheran Church of Columbia, Inc. v. Pauley, 976 F. Supp. 2d 1137, 1151 (WD Mo. 2013). The Court of Appeals for the Eighth Circuit affirmed. The court recognized that it was “rather clear” that Missouri could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the United States Constitution. Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F. 3d 779, 784 (2015). But, the Court of Appeals explained, that did not mean the Free Exercise Clause compelled the State to disregard the antiestablishment principle reflected in its own Constitution. Viewing a monetary grant to a religious institution as a “ ‘hallmark[ ] of an established religion,’ ” the court concluded that the State could rely on an applicant’s religious status to deny its application. Id., at 785 (quoting Locke, 540 U. S., at 722; some internal quotation marks omitted). Judge Gruender dissented. He distinguished Locke on the ground that it concerned the narrow issue of funding for the religious training of clergy, and “did not leave states with unfettered discretion to exclude the religious from generally available public benefits.” 788 F. 3d, at 791 (opinion concurring in part and dissenting in part). Rehearing en banc was denied by an equally divided court. We granted certiorari sub nom. Trinity Lutheran Church of Columbia, Inc. v. Pauley, 577 U. S. ___ (2016), and now reverse.[1] II The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The parties agree that the Establishment Clause of that Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program. That does not, however, answer the question under the Free Exercise Clause, because we have recognized that there is “play in the joints” between what the Establishment Clause permits and the Free Exercise Clause compels. Locke, 540 U. S., at 718 (internal quotation marks omitted). The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.” McDaniel v. Paty, 435 U. S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972) ). In Everson v. Board of Education of Ewing, 330 U. S. 1 (1947) , for example, we upheld against an Establishment Clause challenge a New Jersey law enabling a local school district to reimburse parents for the public transportation costs of sending their children to public and private schools, including parochial schools. In the course of ruling that the Establishment Clause allowed New Jersey to extend that public benefit to all its citizens regardless of their religious belief, we explained that a State “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Id., at 16. Three decades later, in McDaniel v. Paty, the Court struck down under the Free Exercise Clause a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention. Writing for the plurality, Chief Justice Burger acknowledged that Tennessee had disqualified ministers from serving as legislators since the adoption of its first Constitution in 1796, and that a number of early States had also disqualified ministers from legislative office. This historical tradition, however, did not change the fact that the statute discriminated against McDaniel by denying him a benefit solely because of his “status as a ‘minister.’ ” 435 U. S., at 627. McDaniel could not seek to participate in the convention while also maintaining his role as a minister; to pursue the one, he would have to give up the other. In this way, said Chief Justice Burger, the Tennessee law “effectively penalizes the free exercise of [McDaniel’s] constitutional liberties.” Id., at 626 (quoting Sherbert v. Verner, 374 U. S. 398, 406 (1963) ; internal quotation marks omitted). Joined by Justice Marshall in concurrence, Justice Brennan added that “because the challenged provision requires [McDaniel] to purchase his right to engage in the ministry by sacrificing his candidacy it impairs the free exercise of his religion.” McDaniel, 435 U. S., at 634. In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment. For example, in Lyng v. Northwest Indian Cemetery Protective Association, 485 U. S. 439 (1988) , we held that the Free Exercise Clause did not prohibit the Government from timber harvesting or road construction on a particular tract of federal land, even though the Government’s action would obstruct the religious practice of several Native American Tribes that held certain sites on the tract to be sacred. Accepting that “[t]he building of a road or the harvesting of timber . . . would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” we nonetheless found no free exercise violation, because the affected individuals were not being “coerced by the Government’s action into violating their religious beliefs.” Id., at 449. The Court specifically noted, however, that the Government action did not “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Ibid. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U. S. 872 (1990) , we rejected a free exercise claim brought by two members of a Native American church denied unemployment benefits because they had violated Oregon’s drug laws by ingesting peyote for sacramental purposes. Along the same lines as our decision in Lyng, we held that the Free Exercise Clause did not entitle the church members to a special dispensation from the general criminal laws on account of their religion. At the same time, we again made clear that the Free Exercise Clause did guard against the government’s imposition of “special disabilities on the basis of religious views or religious status.” 494 U. S., at 877 (citing McDaniel, 435 U. S. 618 ).[2] Finally, in Church of Lukumi Babalu Aye, Inc. v. Hia-leah, we struck down three facially neutral city ordinances that outlawed certain forms of animal slaughter. Members of the Santeria religion challenged the ordinances under the Free Exercise Clause, alleging that despite their facial neutrality, the ordinances had a discriminatory purpose easy to ferret out: prohibiting sacrificial rituals integral to Santeria but distasteful to local residents. We agreed. Before explaining why the challenged ordinances were not, in fact, neutral or generally applicable, the Court recounted the fundamentals of our free exercise jurisprudence. A law, we said, may not discriminate against “some or all religious beliefs.” 508 U. S., at 532. Nor may a law regulate or outlaw conduct because it is religiously motivated. And, citing McDaniel and Smith, we restated the now-familiar refrain: The Free Exercise Clause protects against laws that “ ‘impose[ ] special dis-abilities on the basis of . . . religious status.’ ” 508 U. S., at 533 (quoting Smith, 494 U. S., at 877); see also Mitchell v. Helms, 530 U. S. 793, 828 (2000) (plurality opinion) (noting “our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity” (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) ; Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993) ; Widmar v. Vincent, 454 U. S. 263 (1981) )). III A The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Lukumi, 508 U. S., at 546. This conclusion is unremarkable in light of our prior decisions. Like the disqualification statute in McDaniel, the Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lu-theran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: “To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender[ ] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.” 435 U. S., at 626 (plurality opinion) (alterations omitted). The Department contends that merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights. In this sense, says the Department, its policy is unlike the ordinances struck down in Lukumi, which outlawed rituals central to Santeria. Here the Department has simply declined to allocate to Trinity Lutheran a subsidy the State had no obligation to provide in the first place. That decision does not meaningfully burden the Church’s free exercise rights. And absent any such burden, the argument continues, the Department is free to heed the State’s antiestablishment objection to providing funds directly to a church. Brief for Respondent 7–12, 14–16. It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng, 485 U. S., at 450. As the Court put it more than 50 years ago, “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Sherbert, 374 U. S., at 404; see also McDaniel, 435 U. S., at 633 (Brennan, J., concurring in judgment) (The “proposition—that the law does not interfere with free exercise because it does not directly prohibit religious activity, but merely conditions eligibility for office on its abandonment—is . . . squarely rejected by precedent”). Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” Sherbert, 374 U. S., at 405. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. Cf. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993) (“[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract”). Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny. B The Department attempts to get out from under the weight of our precedents by arguing that the free exercise question in this case is instead controlled by our decision in Locke v. Davey. It is not. In Locke, the State of Washington created a scholarship program to assist high-achieving students with the costs of postsecondary education. The scholarships were paid out of the State’s general fund, and eligibility was based on criteria such as an applicant’s score on college admission tests and family income. While scholarship recipients were free to use the money at accredited religious and non-religious schools alike, they were not permitted to use the funds to pursue a devotional theology degree—one “devotional in nature or designed to induce religious faith.” 540 U. S., at 716 (internal quotation marks omitted). Davey was selected for a scholarship but was denied the funds when he refused to certify that he would not use them toward a devotional degree. He sued, arguing that the State’s refusal to allow its scholarship money to go toward such degrees violated his free exercise rights. This Court disagreed. It began by explaining what was not at issue. Washington’s selective funding program was not comparable to the free exercise violations found in the “Lukumi line of cases,” including those striking down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” Id., at 720–721. At the outset, then, the Court made clear that Locke was not like the case now before us. Washington’s restriction on the use of its scholarship funds was different. According to the Court, the State had “merely chosen not to fund a distinct category of instruction.” Id., at 721. Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church. The Court in Locke also stated that Washington’s choice was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could “think of few areas in which a State’s antiestablishment interests come more into play.” Id., at 722. The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id., at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds. Relying on Locke, the Department nonetheless emphasizes Missouri’s similar constitutional tradition of not furnishing taxpayer money directly to churches. Brief for Respondent 15–16. But Locke took account of Washington’s antiestablishment interest only after determining, as noted, that the scholarship program did not “require students to choose between their religious beliefs and receiving a government benefit.” 540 U. S., at 720–721 (citing McDaniel, 435 U. S. 618 ). As the Court put it, Washington’s scholarship program went “a long way toward including religion in its benefits.” Locke, 540 U. S., at 724. Students in the program were free to use their scholarships at “pervasively religious schools.” Ibid. Davey could use his scholarship to pursue a secular degree at one institution while studying devotional theology at another. Id., at 721, n. 4. He could also use his scholarship money to attend a religious college and take devotional theology courses there. Id., at 725. The only thing he could not do was use the scholarship to pursue a degree in that subject. In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.[3] C The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny. Lukumi, 508 U. S., at 546.[4] Under that stringent standard, only a state interest “of the highest order” can justify the Department’s discriminatory policy. McDaniel, 435 U. S., at 628 (internal quotation marks omitted). Yet the Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns. Brief for Respondent 15–16. In the face of the clear infringement on free exercise before us, that interest cannot qual-ify as compelling. As we said when considering Missouri’s same policy preference on a prior occasion, “the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.” Widmar, 454 U. S., at 276. The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause.[5] * * * Nearly 200 years ago, a legislator urged the Maryland Assembly to adopt a bill that would end the State’s disqualification of Jews from public office: “If, on account of my religious faith, I am subjected to disqualifications, from which others are free, . . . I cannot but consider myself a persecuted man. . . . An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.” Speech by H. M. Brackenridge, Dec. Sess. 1818, in H. Brackenridge, W. Worthington, & J. Tyson, Speeches in the House of Delegates of Maryland, 64 (1829). The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand. 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.Notes 1 In April 2017, the Governor of Missouri announced that he had directed the Department to begin allowing religious organizations to compete for and receive Department grants on the same terms as secular organizations. That announcement does not moot this case. We have said that such voluntary cessation of a challenged practice does not moot a case unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). The Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations. Ibid. The parties agree. See Letter from James R. Layton, Counsel for Respondent, to Scott S. Harris, Clerk of Court (Apr. 18, 2017) (adopting the position of the Missouri Attorney General’s Office that “there is no clearly effective barrier that would prevent the [Department] from reinstating [its] policy in the future”); Letter from David A. Cortman, Counsel for Petitioner, to Scott S. Harris, Clerk of Court (Apr. 18, 2017) (“[T]he policy change does nothing to remedy the source of the [Department’s] original policy—the Missouri Supreme Court’s interpretation of Article 1, §7 of the Missouri Constitution”). 2 This is not to say that any application of a valid and neutral law of general applicability is necessarily constitutional under the Free Exercise Clause. Recently, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012) , this Court held that the Religion Clauses required a ministerial exception to the neutral prohibition on employment retaliation contained in the Americans with Disabilities Act. Distinguishing Smith, we explained that while that case concerned government regulation of physical acts, “[t]he present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.” 565 U. S., at 190. 3 This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination. 4 We have held that “a law targeting religious beliefs as such is never permissible.” Lukumi, 508 U. S., at 533; see also McDaniel v. Paty, 435 U. S. 618, 626 (1978) (plurality opinion). We do not need to decide whether the condition Missouri imposes in this case falls within the scope of that rule, because it cannot survive strict scrutiny in any event. 5 Based on this holding, we need not reach the Church’s claim that the policy also violates the Equal Protection Clause.

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 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES certiorari to the united states court of appeals for the eighth circuit No. 15–577. Argued April 19, 2017—Decided June 26, 2017 The Trinity Lutheran Church Child Learning Center is a Missouri preschool and daycare center. Originally established as a nonprofit organization, the Center later merged with Trinity Lutheran Church and now operates under its auspices on church property. Among the facilities at the Center is a playground, which has a coarse pea gravel surface beneath much of the play equipment. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. The program, run by the State’s Department of Natural Resources, offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires. The Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. Pursuant to that policy, the Department denied the Center’s application. In a letter rejecting that application, the Department explained that under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Although the Center ranked fifth out of the 44 applicants, it did not receive a grant because it is a church. Trinity Lutheran sued in Federal District Court, alleging that the Department’s failure to approve its application violated the Free Exercise Clause of the First Amendment. The District Court dismissed the suit. The Free Exercise Clause, the court stated, prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion. The District Court likened the case before it to Locke v. Davey, 540 U. S. 712 , where this Court upheld against a free exercise challenge a State’s decision not to fund degrees in devotional theology as part of a scholarship program. The District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to Trinity Lutheran. A divided panel of the Eighth Circuit affirmed. The fact that the State could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the Federal Constitution, the court ruled, did not mean that the Free Exercise Clause compelled the State to disregard the broader antiestablishment principle reflected in its own Constitution. Held: The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. . (a) This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, in McDaniel v. Paty, 435 U. S. 618 , the Court struck down a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention. A plurality recognized that such a law discriminated against McDaniel by denying him a benefit solely because of his “status as a ‘minister.’ ” Id., at 627. In recent years, when rejecting free exercise challenges to neutral laws of general applicability, the Court has been careful to distinguish such laws from those that single out the religious for disfavored treatment. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439 ; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 ; and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 . It has remained a fundamental principle of this Court’s free exercise jurisprudence that laws imposing “special disabilities on the basis of . . . religious status” trigger the strictest scrutiny. Id., at 533. . (b) The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. Like the disqualification statute in McDaniel, the Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. When the State conditions a benefit in this way, McDaniel says plainly that the State has imposed a penalty on the free exercise of religion that must withstand the most exacting scrutiny. 435 U. S., at 626, 628. The Department contends that simply declining to allocate to Trinity Lutheran a subsidy the State had no obligation to provide does not meaningfully burden the Church’s free exercise rights. Absent any such burden, the argument continues, the Department is free to follow the State’s antiestablishment objection to providing funds directly to a church. But, as even the Department acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng, 485 U. S., at 450. Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. . (c) The Department tries to sidestep this Court’s precedents by arguing that this case is instead controlled by Locke v. Davey. It is not. In Locke, the State of Washington created a scholarship program to assist high-achieving students with the costs of postsecondary education. Scholarship recipients were free to use state funds at accredited religious and non-religious schools alike, but they could not use the funds to pursue a devotional theology degree. At the outset, the Court made clear that Locke was not like the cases in which the Court struck down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” 540 U. S., at 720–721. Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church. The Court in Locke also stated that Washington’s restriction on the use of its funds was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy, an “essentially religious endeavor,” id., at 721. Here, nothing of the sort can be said about a program to use recycled tires to resurface playgrounds. At any rate, the Court took account of Washington’s antiestablishment interest only after determining that the scholarship program did not “require students to choose between their religious beliefs and receiving a government benefit.” Id., at 720–721. There is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. . (d) The Department’s discriminatory policy does not survive the “most rigorous” scrutiny that this Court applies to laws imposing special disabilities on account of religious status. Lukumi, 508 U. S., at 546. That standard demands a state interest “of the highest order” to justify the policy at issue. McDaniel, 435 U. S., at 628 (internal quotation marks omitted). Yet the Department offers nothing more than Missouri’s preference for skating as far as possible from religious establishment concerns. In the face of the clear infringement on free exercise before the Court, that interest cannot qualify as compelling. . 788 F. 3d 779, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, except as to footnote 3. Kennedy, Alito, and Kagan, JJ., joined that opinion in full, and Thomas and Gorsuch, JJ., joined except as to footnote 3. Thomas, J., filed an opinion concurring in part, in which Gorsuch, J., joined. Gorsuch, J., filed an opinion concurring in part, in which Thomas, J., joined. Breyer, J., filed an opinion concurring in the judgment. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.

The Missouri Department of Natural Resources (Department) offers grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church of Columbia, Inc. v. Pauley, 976 F. Supp. 2d 1137, reversed and remanded. Held: The Department has a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program. . (a) Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order. Everson v. Board of Education of Ewing, 330 U. S. 1 (1947) (plurality opinion). See, e.g., McDaniel v. Paty, 435 U.S. 618, 628. Here, Trinity Lutheran is a member of the community, and the State's decision to exclude it for purposes of this public program must withstand the strictest scrutiny. Cf. Church of Lukumi Babalu Aye v. Hialeah, 533, 542. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church (solely because it is a church) to compete with secular organizations for a grant. P.. (b) The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. See Lukumi, supra; McDaniel, supra, at 532. In the face of the clear infringement on free exercise before this Court by the State, the interest in achieving a greater degree of separation of church and state interests cannot qual-ify as compelling. Moreover, the State has not subjected anyone to chains or torture on account of religion, and there is nothing in the record to show that merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights, since it has not carried the heavy burden of making it absolutely clear that it could not revert to its policy of excluding religious organizations. Ibid. Thus, the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it was a church, is odious to the Constitution all the same, and cannot stand. United States Court of Appeals, reversing and remanding. 788 F. 3d 779, reversed in part and reversed. REHNQUIST, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in Parts I, II-A, III, and IV of which BRENNAN, MARSHALL, and O'CONNOR, joined. DOUGLAS J., filed a dissenting opinion, post, p..

2016_15-1503

https://www.oyez.org/cases/2016/15-1503

. In Brady v. Maryland, 373 U. S. 83 (1963) , this Court held that the government violates the Constitution’s Due Process Clause “if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain, 565 U. S. 73, 75 (2012) (emphasis added) (summarizing Brady holding). In 1985 the seven petitioners in these cases were tried together in the Superior Court for the District of Columbia for the kidnaping, armed robbery, and murder of Catherine Fuller. Long after petitioners’ convictions became final, it emerged that the Government possessed certain evidence that it failed to disclose to the defense. The only question before us here is whether that withheld evidence was “material” under Brady. The D. C. Superior Court, after a 16-day evidentiary hearing, determined that the withheld evidence was not material. Catlett v. United States, Crim. No. 8617–FEL–84 etc. (Aug. 6, 2012), App. to Pet. for Cert. in No. 15–1503, pp. 84a, n. 4, 81a–131a. The D. C. Court of Appeals reviewed the record, reached the same conclusion, and affirmed the Superior Court. 116 A. 3d 894 (2015). After reviewing the record, we reach the same conclusion as did the lower courts. I In these fact-intensive cases, we set out here only a basic description of the record facts along with our reasons for reaching our conclusion. We refer those who wish more detail to the opinions of the lower courts. App. to Pet. for Cert. in No. 15–1503, at 81a–131a; 116 A. 3d 894. A The Trial On March 22, 1985, a grand jury indicted the seven petitioners—Timothy Catlett, Russell Overton, Levy Rouse, Kelvin Smith, Charles Turner, Christopher Turner, and Clifton Yarborough—and several others for the kidnaping, robbery, and murder of Catherine Fuller. The evidence produced at their joint trial showed that on October 1, 1984, at around 4:30 p.m., Catherine Fuller left her home to go shopping. At around 6 p.m., William Freeman, a street vendor, found Fuller’s body inside an alley garage between Eighth and Ninth Street N. E., just a few blocks from Fuller’s home. See Appendix, infra (showing a map of the area in which the murder was committed). Fuller had been robbed, severely beaten, and sodomized with an object that caused extensive internal injuries. The Government advanced the theory at trial that Fuller had been attacked in the alley by a large group of individuals, including petitioners; codefendants Steve Webb, Alfonso Harris, and Felicia Ruffin; as well as by Calvin Alston and Harry Bennett. The Government’s evidentiary centerpiece consisted of testimony by Alston and Bennett, who confessed to participating in the offense and who cooperated with the Government in return for leniency. Although the testimony of Alston and Bennett diverged on minor details, it was consistent in stating that, and describing how, Fuller was attacked by a siz-able group of individuals, including petitioners and they themselves. Alston testified that at about 4:10 p.m. on the day of the murder, he arrived in a park located on H Street between Eighth and Ninth Streets. He said he found a group of people gathered there. It included petitioners Levy Rouse, Russell Overton, Christopher Turner, Charles Turner, Kelvin Smith, Clifton Yarborough, and Timothy Catlett, as well as several codefendants and others. Those in the group were talking and singing while Catlett was banging out a beat. Alston suggested “getting paid” by robbing someone. App. A467. Catlett, Overton, Rouse, Smith, Charles Turner, Christopher Turner, Yarborough, and several others agreed. Alston pointed at Catherine Fuller, who was walking on the other side of H Street near the corner of H and Eighth Streets. Those in the group said they were “game for getting paid.” Id., at A471–A472. Alston, Rouse, Yarborough, and Charles Turner crossed H Street moving toward Eighth Street and followed Fuller down Eighth Street. The rest of the group crossed H Street and moved toward Ninth Street. When Alston’s group approached Fuller, Charles Turner shoved her into an alley that runs between Eighth and Ninth Streets. Charles Turner, Rouse, and Alston began punching Fuller. They were soon joined by Christopher Turner, Smith, and others. All of them continued to hit and kick Fuller until she fell to the ground. Rouse and Charles Turner then carried Fuller to the center of the alley and dropped her in front of a garage located at the point where the alley joins another, perpendicular alley that runs toward I Street. Someone dragged Fuller into the garage. Alston, Rouse, Charles Turner, Overton, Yarborough, and Catlett followed. Others stood outside. Members of the group tore Fuller’s clothes off and struggled over her change purse. Overton and Charles Turner then held Fuller’s legs, and Alston, Catlett, Harris, and Yarborough stood around her while Rouse sodomized her with a foot-long pipe. Shortly after, the group dispersed and left the alley. Harry Bennett’s testimony was similar. Bennett also described a group attack. He said that he had gone to the H Street park, where he saw Rouse, Overton, Christopher Turner, Smith, Catlett, and others gathered. Alston was talking to the group about “[g]etting paid” and said “let’s go get that lady.” Id., at A368–A370. At that point Alston, Rouse, Overton, and Webb crossed H Street and approached Fuller, while Catlett, Christopher Turner, Charles Turner, and Harris followed in a separate group. Bennett added that he himself went to the corner of Eighth and H Streets to watch for police. He then went into the alley and joined the group in kicking and beating Fuller. He testified that at least 12 people were there, with some beating Fuller and others watching or picking up her jewelry. Overton then dragged Fuller into the garage, and Bennett, Rouse, Christopher Turner, Charles Turner, Catlett, Smith, Harris, and Webb followed, as did some “girls.” Id., at A402–A405. Alston and Steve Webb held Fuller’s legs, and Rouse sodomized her with a pole. The group then dispersed from the garage and alley. The Government presented several other witnesses who corroborated aspects of Alston’s and Bennett’s testimony, including the fact that Fuller was attacked by a group. Melvin Montgomery testified that he was in the H Street park on the afternoon of the murder. He saw Overton, Catlett, Rouse, Charles Turner, and others gathered there. The group was being noisy and singing a song about needing money. Somebody then said they were “going to get that one,” and Montgomery saw that Overton was pointing to a woman standing on the corner of Eighth Street. Id., at 77–79. Overton, Catlett, Rouse, Charles Turner, and others crossed H Street. Some headed toward Eighth Street while others went toward Ninth Street. Montgomery did not follow them. Maurice Thomas, then 14 years old, testified that he witnessed the attack itself. Thomas lived in the neighborhood and knew many of the defendants. As he was walking home, he glanced down the Eighth Street alley and saw a group surrounding Fuller. Thomas saw Catlett pat Fuller down and then hit her. He then saw everyone in the group join in hitting her. Thomas said he knew Catlett, Yarborough, Rouse, Charles Turner, Christopher Turner, and Smith and recognized them in the group. Thomas heard Fuller calling for help. He ran home where he found his aunt, who told him not to tell anyone what he saw. Later that day, Thomas saw Catlett at a corner store, and heard Catlett say to someone that they “had to kill her” because “she spotted someone he was with.” Id., at 127–128. On the afternoon of the murder, Carrie Eleby and Linda Jacobs were looking for petitioner Smith, who was Eleby’s boyfriend, near the corner of H and Eighth Streets. They heard screams coming from where a “gang of boys” was beating somebody near the garage in the alley. Id., at A539–A541. Eleby and Jacobs approached the group. Eleby recognized Christopher Turner, Smith, Catlett, Rouse, Overton, Alston, and Webb kicking Fuller while Yarborough stood nearby. Both Eleby and Jacobs testified that they saw Rouse sodomize Fuller with a pole. Eleby added that Overton held Fuller’s legs. Finally, the Government played a videotape of a recorded statement that Yarborough, one of the petitioners, had given to detectives on December 9, 1984, approximately two months after the murder. Names were redacted. The video shows Yarborough describing in detail how he was part of a large group that forced Fuller into the alley, jointly robbed and assaulted her, and dragged her into the garage. None of the defendants testified, nor did any of them try, through witnesses or other evidence, to rebut the prosecution witnesses’ claim that Fuller was killed in a group attack. Rather, each petitioner pursued what was essentially a “not me, maybe them” defense, namely, that he was not part of the group that attacked Fuller. Each tried to establish this defense by impeaching witnesses who had placed that particular petitioner at the scene. Some, for example, provided evidence that Eleby and Jacobs had used PCP the day of Fuller’s murder. Some also tried to establish alibis for the time of Fuller’s death. The jury convicted all seven petitioners, along with codefendant Steve Webb (who subsequently died). The jury acquitted codefendants Alfonso Harris and Felicia Ruffin. On direct appeal, the D. C. Court of Appeals affirmed petitioners’ convictions, though it remanded for resentencing. 545 A. 2d 1202, 1219 (1988). The trial court resentenced petitioners to the same amount of prison time. App. to Pet. for Cert. in No. 15–1503, at 82a, n. 2. B The Brady Claims Beginning in 2010, petitioners pursued postconviction proceedings in which they sought to vacate their convictions or to be granted a new trial. App. to Pet. for Cert. in No. 15–1503, at 84a, n. 4. After petitioners’ convictions became final, it emerged that the Government possessed certain evidence that it had withheld from the defense at the time of trial. Petitioners discovered other withheld evidence in their review of the trial prosecutor’s case file, which the Government turned over to petitioners in the course of the postconviction proceedings. Among other postconviction claims, petitioners contended that the withheld evidence was both favorable and material, entitling them to relief under Brady. The D. C. Superior Court considered petitioners’ Brady claims as part of a 16-day evidentiary hearing. It rejected those claims, finding that “none of the undisclosed information was material.” App. to Pet. for Cert. in No. 15–1503, at 130a. The D. C. Court of Appeals affirmed. 116 A. 3d, at 901. It similarly concluded that the withheld evidence was not material under Brady. 116 A. 3d, at 913–926. At issue in those proceedings were the following seven specific pieces of evidence: 1. The identity of James McMillan. Freeman, the vendor who discovered Fuller’s body in the alley garage, testified at trial that, while he was waiting for police to arrive, he saw two men run into the alley and stop near the garage for about five minutes before running away when an officer approached. One of the men had a bulge under his coat. Early in the trial, codefendant Harris’ counsel had requested the identity of the two men to confirm that her client was not one of them. But the Government refused to disclose the men’s identity. In their postconviction review of the prosecutor’s files, petitioners learned that Freeman had identified the two men he saw in the alley as James McMillan and Gerald Merkerson. McMillan lived in a house which opens in the back onto a connecting alley. In the weeks following Fuller’s murder, but before petitioners’ trial, McMillan was arrested for beating and robbing two women in the neighborhood. Neither attack included a sexual assault. Separately, petitioners learned that seven years after petitioners’ trial, McMillan had robbed, sodomized, and murdered a young woman in an alley. 2. The interview with Willie Luchie. The prosecutor’s notes also recorded an undisclosed interview with Willie Luchie, who told the prosecutor that he and three others walked through the alley on their way to an H Street liquor store between 5:30 and 5:45 p.m. on the evening of the murder. As the group walked by the garage, Luchie “heard several groans” and “remembers the doors to the garage being closed.” App. 25. Another person in the group recalled “hear[ing] some moans,” while the other two persons did not recall hearing anything unusual. Id., at 27, 53; id., at A992. The group continued walking without looking into the garage or otherwise investigating the source of the sounds. They did not see McMillan or any other person in the alley when they passed through. 3. The interviews with Ammie Davis. Undisclosed notes written by a police officer and the prosecutor refer to two interviews with Ammie Davis, who had been arrested for disorderly conduct a few weeks after Fuller’s murder. Davis initially told a police investigator that she had seen another individual, James Blue, beat Fuller to death in the alley. Shortly thereafter, she said she only saw Blue grab Fuller and push her into the alley. Davis also said that a girlfriend, whom she did not name, accompanied her. She promised to call the investigator with more details, but she did not do so. About 9 months later (after petitioners were indicted but approximately 11 weeks before their trial), a prosecutor learned of the investigator’s notes and interviewed Davis. The prosecutor’s notes state that Davis did not provide any more details, except to say that the girlfriend who accompanied her was nicknamed “ ‘Shorty.’ ” Id., at 267–268. About two months later, which was shortly before petitioners’ trial, Blue murdered Davis in an unrelated drug dispute. During the postconviction evidentiary hearing, the prosecutor who interviewed Davis testified that he did not disclose Davis’ statement because she acted “playful” and “not serious” during the interview and he found her to be “totally incredible.” Id., at 269–272. Additionally, the prosecutor stated that he knew Davis had previously falsely accused Blue of a different murder, and on another occasion had falsely accused a different individual of a different murder. 4. Impeachment of Kaye Porter and Carrie Eleby. Kaye Porter accompanied Eleby during an initial interview with homicide detectives. Porter agreed with Eleby that she had also heard Alston state that he was involved in robbing Fuller. An undisclosed prosecutorial note states that in a later interview with detectives, Porter stated that she did not actually recall hearing Alston’s statement and just went along with what Eleby said. The note also states that Eleby likewise admitted that she had lied about Porter being present during Alston’s statement and had asked Porter to support her. 5. Impeachment of Carrie Eleby. A prosecutor’s un-disclosed note revealed that Eleby said she had beenhigh on PCP during a January 9, 1985, meeting with investigators. 6. Impeachment of Linda Jacobs. An undisclosed note of an interview with Linda Jacobs said that the detective had “question[ed] her hard,” and that she had “vacillated” about what she saw. Id., at A1009. The prosecutor recalled that the detective “kept raising his voice” and was “smacking his hand on the desk” during the interview. Id., at A2298–A2299. 7. Impeachment of Maurice Thomas. An undisclosed note of an interview with Maurice Thomas’ aunt stated that she “does not recall Maurice ever telling her anything such as this.” Id., at A1010; see id., at 295–296. II A The Government does not contest petitioners’ claim that the withheld evidence was “favorable to the accused, either because it is exculpatory, or because it is impeaching.” Strickler v. Greene, 527 U. S. 263 –282 (1999). Neither does the Government contest petitioners’ claim that it “suppressed” the evidence, “either willfully or inadvertently.” Id., at 282. It does, as it must, concede that the Brady rule’s “ ‘overriding concern [is] with the justice of the finding of guilt,’ ” United States v. Bagley, 473 U. S. 667, 678 (1985) (quoting United States v. Agurs, 427 U. S. 97, 112 (1976) ), and that the Government’s “ ‘interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done,’ ” Kyles v. Whitley, 514 U. S. 419, 439 (1995) (quoting Berger v. United States, 295 U. S. 78, 88 (1935) ). Consistent with these principles, the Government assured the Court at oral argument that subsequent to petitioners’ trial, it has adopted a “generous policy of discovery” in criminal cases under which it discloses any “information that a defendant might wish to use.” Tr. of Oral Arg. 47–48. As we have recognized, and as the Government agrees, ibid., “[t]his is as it should be.” Kyles, supra, at 439 (explaining that a “ ‘prudent prosecutor[’s]’ ” better course is to take care to disclose any evidence favorable to the defendant (quoting Agurs, supra, at 108)). Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449 –470 (2009) (citing Bagley, supra, at 682). “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “ ‘undermines confidence in the outcome of the trial.’ ” Kyles, supra, at 434 (quoting Bagley, supra, at 678). In other words, petitioners here are entitled to a new trial only if they “establis[h] the prejudice necessary to satisfy the ‘materiality’ inquiry.” Strickler, supra, at 282. Consequently, the issue before us here is legally simple but factually complex. We must examine the trial record, “evaluat[e]” the withheld evidence “in the context of the entire record,” Agurs, supra, at 112, and determine in light of that examination whether “there is a reasonable prob-ability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone, supra, at 470 (citing Bagley, supra, at 682). Having done so, we agree with the lower courts that there was no such reasonable probability. B Petitioners’ main argument is that, had they known about McMillan’s identity and Luchie’s statement, they could have challenged the Government’s basic theory that Fuller was killed in a group attack. Petitioners contend that they could have raised an alternative theory, namely, that a single perpetrator (or two at most) had attacked Fuller. According to petitioners, the groans that Luchie and his companion heard when they walked through the alley between 5:30 and 5:45 p.m. suggest that the attack was taking place inside the garage at that moment. The added facts that the garage was small and that Luchie’s group saw no one in the alley could bolster a “single attacker” theory. Freeman’s recollection that one garage door was open when he found Fuller’s body at around 6 p.m., combined with Luchie’s recollection that both doors were shut around 5:30 or 5:45 p.m., could suggest that one or two perpetrators were in the garage when Luchie walked by but left before Freeman arrived. McMillan’s identity as one of the men Freeman saw enter the alley after Freeman discovered Fuller’s body would have revealed McMillan’s criminal convictions in the months before petitioners’ trial. Petitioners argue that together, this evidence would have permitted the defense to knit together a theory that the group attack did not occur at all—and that it was actually McMillan, alone or with an accomplice, who murdered Fuller. They add that they could have used the investigators’ failure to follow up on Ammie Davis’ claim about James Blue, and the various pieces of withheld impeachment evidence, to suggest that an incomplete investigation had ended up accusing the wrong persons. Considering the withheld evidence “in the context of the entire record,” however, Agurs, supra, at 112, we conclude that it is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards. As petitioners recognize, McMillan’s guilt (or that of any other single, or near single, perpetrator) is inconsistent with petitioners’ guilt only if there was no group attack. But a group attack was the very cornerstone of the Government’s case. The witnesses may have differed on minor details, but virtually every witness to the crime itself agreed as to a main theme: that Fuller was killed by a large group of perpetrators. The evidence at trial was such that, even though petitioners knew that Freeman saw two men enter the alley after he discovered Fuller’s body, that one appeared to have a bulky object hidden under his coat, and that both ran when the police arrived, none of the petitioners attempted to mount a defense that implicated those men as alternative perpetrators acting alone. Is it reasonably probable that adding McMillan’s identity, and Luchie’s ambiguous statement that he heard groans but saw no one, could have led to a different result at trial? We conclude that it is not. The problem for petitioners is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and, through coordinated effort or coincidence, gave a highly similar account of how it occurred; that Thomas, a disinterested witness who recognized petitioners when he happened upon the attack and heard Catlett refer to it later that night, wholly fabricated his story; that both Eleby and Jacobs likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave the park to rob her. With respect to the undisclosed impeachment evidence, the record shows that it was largely cumulative of impeachment evidence petitioners already had and used at trial. For example, the jury heard multiple times about Eleby’s frequent PCP use, including Eleby’s own testimony that she and Jacobs had smoked PCP shortly before they witnessed Fuller’s attack. In this context, it would not have surprised the jury to learn that Eleby used PCP on yet another occasion. Porter was a minor witness who was also impeached at trial with evidence about changes in her testimony over time, leaving little added significance to the note that she changed her mind about having agreed with Eleby’s claims. The jury was also well aware of Jacobs’ vacillation, as she was impeached on the stand with her shifting stories about what she witnessed. Knowledge that a detective raised his voice during an interview with her would have added little more. Nor do we see how the note about the statement by Thomas’ aunt could have mattered much, given the facts that neither side chose to call the aunt as a witness and that the jury already knew, from Thomas’ testimony, that his aunt had told him not to tell anyone what he saw. As for James Blue, petitioners argue that the investigators’ delay in following up on Ammie Davis’ statement could have led the jury to doubt the thoroughness of the investigation. But this likelihood is seriously undercut by notes about Davis’ demeanor and lack of detail, and by her prior false accusations that Blue committed a different murder and that yet another person committed yet a different murder. We of course do not suggest that impeachment evidence is immaterial with respect to a witness who has already been impeached with other evidence. See Wearry v. Cain, 577 U. S. ___, ___–___ (2016) (per curiam) (slip op., at 7–9). We conclude only that in the context of this trial, with respect to these witnesses, the cumulative effect of the withheld evidence is insufficient to “ ‘undermine confidence’ ” in the jury’s verdict, Smith, 565 U. S., at 75–76 (quoting Kyles, 514 U. S., at 434; brackets omitted). III On the basis of our review of the record, we agree with the lower courts that there is not a “reasonable probability” that the withheld evidence would have changed the outcome of petitioners’ trial, id., at 434 (internal quotation marks omitted). The judgment of the D. C. Court of Appeals, accordingly, is affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of these cases. APPENDIX

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 TURNER et al. v. UNITED STATES certiorari to the district of columbia court of appeals No. 15–1503. Argued March 29, 2017—Decided June 22, 2017[1] Petitioners—Timothy Catlett, Russell Overton, Levy Rouse, Kelvin Smith, Charles and Christopher Turner, and Clifton Yarborough—and several others were indicted for the kidnaping, robbery, and murder of Catherine Fuller. At trial, the Government advanced the theory that Fuller was attacked by a large group of individuals. Its evidentiary centerpiece consisted of the testimony of Calvin Alston and Harry Bennett, who confessed to participating in a group attack and cooperated with the Government in return for leniency. Several other Government witnesses corroborated aspects of Alston’s and Bennett’s testimony. Melvin Montgomery testified that he was in a park among a group of people, heard someone say they were “going to get that one,” saw petitioner Overton pointing to Fuller, and saw several persons, including some petitioners, cross the street in her direction. Maurice Thomas testified that he saw the attack, identified some petitioners as participants, and later overheard petitioner Catlett say that they “had to kill her.” Carrie Eleby and Linda Jacobs testified that they heard screams coming from an alley where a “gang of boys” was beating someone near a garage, approached the group, and saw some petitioners participating in the attack. Finally, the Government played a videotape of petitioner Yarborough’s statement to detectives, describing how he was part of a large group that carried out the attack. None of the defendants rebutted the prosecution witnesses’ claims that Fuller was killed in a group attack. The seven petitioners were convicted. Long after their convictions became final, petitioners discovered that the Government had withheld evidence from the defense at the time of trial. In postconviction proceedings, they argued that seven specific pieces of withheld evidence were both favorable to the defense and material to their guilt under Brady v. Maryland, 373 U. S. 83 . This evidence included the identity of a man seen running into the alley after the murder and stopping near the garage where Fuller’s body had already been found; the statement of a passerby who claimed to hear groans coming from a closed garage; and evidence tending to impeach witnesses Eleby, Jacobs, and Thomas. The D. C. Superior Court rejected petitioners’ Brady claims, finding that the withheld evidence was not material. The D. C. Court of Appeals affirmed. Held: The withheld evidence is not material under Brady. . (a) The Government does not contest petitioners’ claim that the withheld evidence was “favorable to the defense.” Petitioners and the Government, however, do contest the materiality of the undisclosed Brady information. Such “evidence is ‘material’ . . . when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449 –470. “A ‘reasonable probability’ of a different result” is one in which the suppressed evidence “ ‘undermines confidence in the outcome of the trial.’ ” Kyles v. Whitley, 514 U. S. 419 . To make that determination, this Court “evaluate[s]” the withheld evidence “in the context of the entire record.” United States v. Agurs, 427 U. S. 97 . . (b) Petitioners’ main argument is that, had they known about the withheld evidence, they could have challenged the Government’s basic group attack theory by raising an alternative theory, namely, that a single perpetrator (or two at most) had attacked Fuller. Considering the withheld evidence “in the context of the entire record,” Agurs, supra, at 112, that evidence is too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards. A group attack was the very cornerstone of the Government’s case, and virtually every witness to the crime agreed that Fuller was killed by a large group of perpetrators. It is not reasonably probable that the withheld evidence could have led to a different result at trial. Petitioners’ problem is that their current alternative theory would have had to persuade the jury that both Alston and Bennett falsely confessed to being active participants in a group attack that never occurred; that Yarborough falsely implicated himself in that group attack and yet gave a highly similar account of how it occurred; that Thomas, an otherwise disinterested witness, wholly fabricated his story; that both Eleby and Jacobs likewise testified to witnessing a group attack that did not occur; and that Montgomery in fact did not see petitioners and others, as a group, identify Fuller as a target and leave together to rob her. As for the undisclosed impeachment evidence, the record shows that it was largely cumulative of impeachment evidence petitioners already had and used at trial. This is not to suggest that impeachment evidence is immaterial with respect to a witness who has already been impeached with other evidence, see Wearry v. Cain, 577 U. S. ___, ___–___. But in the context of this trial, with respect to these witnesses, the cumulative effect of the withheld evidence is insufficient to undermine confidence in the jury’s verdict, see Smith v. Cain, 565 U. S. 73 –76. . 116 A. 3d 894, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Alito, and Sotomayor, JJ., joined. Kagan, J., filed a dissenting opinion, in which Ginsburg, J., joined. Gorsuch, J., took no part in the consideration or decision of the cases.Notes 1 Together with No. 15–1504, Overton v. United States, also on certiorari to the same court.

In 1985, petitioners were tried together in the District of Columbia Superior Court for the kidnaping, armed robbery, and murder of Catherine Fuller. The evidence produced at their joint trial showed that, on October 1, 1984, at around 4:30 p.m., Fuller left her home to go shopping. She was murdered by a large group of individuals, including petitioners. The Government advanced the theory that Fuller had been attacked by a group of petitioners, including several codefendants and others. The District Court, after a 16-day evidentiary hearing, determined that the withheld evidence was not material under Brady v. Maryland, 373 U. S. 83 (1963), which held that the government violates the Constitution's Due Process Clause if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment. The D. C. Court of Appeals affirmed petitioners' convictions, but remanded for resentencing. Held: 1. In the context of this trial, with respect to these witnesses, the cumulative effect of withheld evidence is insufficient to establish confidence in the jury's verdict. . 2. On the basis of the record in this case, there is not a reasonable probability (as was shown by the lower courts) that such withheld evidence would have changed the outcome of the petitioners’ trial. P.. 3. There was no reasonable probability that, had petitioners known about their identity and Luchie’s statement, they could have challenged the Government, or that a single perpetrator (or two at most) had attacked Fuller, that the attack was taking place inside the garage at that moment. McMillan, whose guilt (or that of any other single, or near single, perpetrator) is inconsistent with petitioners guilt only if there was no group attack, would have been inconsistent only if it was, but a group attack was the cornerstone of the Government case, and virtually every witness to the crime agreed as to a main theme: that Fuller was killed by a massive group of perpetrators. Moreover, the evidence at trial was such that, even though petitioners knew that Freeman saw two men enter the alley after he discovered Fuller's body, that one appeared to have a bulky object hidden under his coat, and that both ran when the police arrived, none of them attempted to mount a defense that implicated those men as alternative perpetrators acting alone. Thus, it is reasonably probable that adding McMillane, his identity, and his ambiguous statement that he heard groans but saw no one, could have led to a different result at the trial, and it is doubtful that it would have occurred. With respect to the impeachment evidence, it shows that it was largely used and used largely that petitioners already had and had already used it, and is not immaterial to a witness who has already been impeached with other evidence. ,. 545 A. 2d 1202, affirmed. 116 A. 3d 894 (CA3, certiorari affirmed. JUSTICE GOUGLAS, J., took no part in the consideration or decision of these cases.

2016_15-423

https://www.oyez.org/cases/2016/15-423

. The Foreign Sovereign Immunities Act of 1976 (FSIA or Act), provides, with specified exceptions, that a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States . . . .” 28 U. S. C. §1604. One of the jurisdictional exceptions—the expropriation exception—says that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . (3) in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency orinstrumentality of the foreign state . . . engaged ina commercial activity in the United States.” §1605(a)(3). The question here concerns the phrase “case . . . in which rights in property taken in violation of international law are in issue.” Does this phrase mean that, to defeat sovereign immu-nity, a party need only make a “nonfrivolous” argument that the case falls within the scope of the exception? Once made, does the existence of that nonfrivolous argument mean that the court retains jurisdiction over the case until the court decides, say, the merits of the case? Or does a more rigorous jurisdictional standard apply? To put the question more generally: What happens in a case where the party seeking to rely on the expropriation exception makes a nonfrivolous, but ultimately incorrect, claim that his property was taken in violation of international law? In our view, a party’s nonfrivolous, but ultimately incorrect, argument that property was taken in violation of international law is insufficient to confer jurisdiction. Rather, state and federal courts can maintain jurisdiction to hear the merits of a case only if they find that the property in which the party claims to hold rights was indeed “property taken in violation of international law.” Put differently, the relevant factual allegations must make out a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). A good argument to that effect is not sufficient. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that prop-erty; those questions remain for the merits phase of the litigation. Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity’s basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 –494 (1983). I Since the mid-1970’s a wholly owned Venezuela-incorporated subsidiary (Subsidiary) of an American company (Parent) supplied oil rigs to oil development entities that were part of the Venezuelan Government. In 2011 the American Parent company and its Venezuelan Subsidiary (the respondents here) brought this lawsuit in federal court against those foreign government entities. (The entities go by their initials, PDVSA, but we shall normally refer to them as “Venezuela” or the “Venezuelan Government.”) The American Parent and the Venezuelan Subsidiary claimed that the Venezuelan Government had unlawfully expropriated the Subsidiary’s oil rigs. And they sought compensation. According to stipulated facts, by early 2010 the Venezuelan Government had failed to pay more than $10 million that it owed the Subsidiary. At that point the government sent troops to the equipment yard where the rigs were stored, prevented the Subsidiary from removing the rigs, and issued a “ ‘Decree of Expropriation’ ” nationalizing the rigs. App. 72–74. Subsequently, the president of the oil development entities led a rally at the Subsidiary’s offices, where he referred to the Venezuelan Subsidiary as an “ ‘American company’ ” with “ ‘foreign gentlemen investors.’ ” Id., at 54. Venezuela asked the court to dismiss the case on the ground that Venezuela possessed sovereign immunity and that the court consequently lacked “jurisdiction” to hear the case. See 28 U. S. C. §1604; Fed. Rules Civ. Proc. 12(b)(1) and (b)(2); Verlinden, supra, at 485, n. 5 (explaining that a court lacks “subject-matter” and “personal” jurisdiction over a foreign sovereign unless an FSIA exception applies). The companies replied that the case falls within the expropriation exception. Venezuela in turn argued that the Subsidiary’s expropriation claim did not satisfy the exception because “ ‘international law does not cover expropriations of property belonging to a country’s own nationals’ ”; the taking was not “ ‘in violation of international law,’ ” and the exception thus does not apply. Record in No. 11–cv–01735 (D DC), Doc. 22, p. 13. Venezuela further argued that the American Parent’s nationality makes no difference because, “as a corporate parent, [it] does not own [the Subsidiary’s] assets.” Id., Doc. 24,at 12. The parties agreed that the District Court should then decide whether the exception applies, and it should do so on the basis of governing law, taking all of the plaintiffs’ well-pleaded allegations as true and construing the complaint in the light most favorable to the plaintiffs. App. 119. The court decided, in relevant part, that the exception did not apply to the Venezuelan Subsidiary’s claim because the Subsidiary was a national of Venezuela. See 971 F. Supp. 2d 49, 57–61 (2013). The court concluded that Venezuela consequently possessed sovereign immu-nity, and it dismissed the Subsidiary’s claim on jurisdictional grounds. It rejected, however, Venezuela’s argument that the Parent had no rights in property in the Subsidiary. It concluded that Venezuela’s “actions have deprived [the Parent], individually, of its essential and unique rights as sole shareholder . . . by dismantling its voting power, destroying its ownership, and frustrating its control over the company.” Id., at 73. The Venezuelan Subsidiary appealed the dismissal of its expropriation claim, and Venezuela appealed the court’s refusal to dismiss the Parent’s claim. The Court of Appeals for the District of Columbia Circuit reversed in part and affirmed in part the District Court’s conclusions. It decided that both the Subsidiary’s and the Parent’s claims fell within the exception. With respect to the Subsidiary’s claim, the court agreed that a sovereign’s taking of its own nationals’ property normally does not violate international law. But, the court said, there is an “exception” to this rule. And that exception applies when a sovereign’s expropriation unreasonably discriminates on the basis of a company’s shareholders’ nationality, 784 F. 3d 804, 812 (CADC 2015) (citing Banco Nacional de Cuba v. Sabbatino, 307 F. 2d 845 (CA2 1962)). That exception, it added, might apply here, in which case the expropriation would violate international law, the FSIA’s expropriation exception would apply, and the federal courts would possess jurisdiction over the case. 784 F. 3d, at 813. With respect to the Parent’s expropriation claim, the court agreed with the District Court that the expropriation exception applied because the Parent had “ ‘put its rights in property in issue in a non-frivolous way.’ ” Id., at 816. For present purposes, it is important to keep in mind that the Court of Appeals did not decide (on the basis of the stipulated facts) that the plaintiffs’ allegations are sufficient to show their property was taken in violation of international law. It decided instead that the plaintiffs might have such a claim. And it made clear the legal standard that it would apply. It said that, in deciding whether the expropriation exception applies, it would set an “exceptionally low bar.” Id., at 812. Any possible, i.e., “ ‘non-frivolous,’ ” ibid., claim of expropriation is sufficient, in the Court of Appeals’ view, to bring a case within the scope of the FSIA’s exception. In particular: If a plaintiff alleges facts and claims that permit the plaintiff to make an expropriation claim that is not “ ‘wholly insubstantial or frivolous,’ ” then the exception permits the suit and the sovereign loses its immunity. Ibid. (emphasis added). Given the factual stipulations, the Court of Appeals did not suggest further factfinding on this jurisdictional issue but, rather, decided that the Subsidiary had “satisfied this Circuit’s forgiving standard for surviving a motion to dismiss in an FSIA case.” Id., at 813. Venezuela filed a petition for certiorari asking us to decide whether the Court of Appeals had applied the correct standard in deciding that the companies had met the expropriation exception’s requirements. We agreed to do so. II Foreign sovereign immunity is jurisdictional in this case because explicit statutory language makes it so. See §1604 (“[A] foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided” by the FSIA’s exceptions); §1605(a) (“A foreign state shall not be immune from the jurisdiction” of federal and state courts if the exception at issue here is satisfied). Given the parties’ stipulations as to all relevant facts, our inquiry poses a “ ‘pure question of statutory construction,’ ” Republic of Austria v. Altmann, 541 U. S. 677, 701 (2004) .In our view, the expropriation exception grants jurisdiction only where there is a valid claim that “property” has been “taken in violation of international law.” §1605(a)(3). A nonfrivolous argument to that effect is insufficient. For one thing, the provision’s language, while ambiguous, supports such a reading. It says that there is jurisdiction in a “case . . . in which rights in property taken in violation of international law are in issue.” Ibid. Such language would normally foresee a judicial decision about the jurisdictional matter. And that matter is whether a certain kind of “right” is “at issue,” namely, a property right taken in violation of international law. To take a purely hypothetical example, a party might assert a claim to a house in a foreign country. If the foreign country nationalized the house and, when sued, asserted sovereign immunity, then the claiming party would as a jurisdictional matter prove that he claimed “property” (which a house obviously is) and also that the property was “taken in violation of international law.” He need not show as a jurisdictional matter that he, rather than someone else, owned the house. That question is part of the merits of the case and remains “at issue.” We recognize that merits and jurisdiction will sometimes come intertwined. Suppose that the party asserted a claim to architectural plans for the house. It might be necessary to decide whether the law recognizes the kind of right that he asserts, or whether it is a right in “property” that was “taken in violation of international law.” Perhaps that is the only serious issue in the case. If so, the court must still answer the jurisdictional question. If to do so, it must inevitably decide some, or all, of the merits issues, so be it. Our reading of the statute is consistent with its language. The case is one which the existence of “rights” remains “at issue” until the court decides the merits of the case. But whether the rights asserted are rights of a certain kind, namely, rights in “property taken in violation of international law,” is a jurisdictional matter that the court must typically decide at the outset of the case, or as close to the outset as is reasonably possible. Precedent offers a degree of support for our interpretation. In Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193 (2007) , we interpreted a different FSIA exception for cases “in which . . . rights in immovable property situated in the United States are in issue.” §1605(a)(4). We held that there was jurisdiction over the case because the plaintiff’s lawsuit to enforce a tax lien “directly implicate[d]” the property rights described by the FSIA exception. See id., at 200–201. We did not simply rely upon a finding that the plaintiff had made a nonfrivolous argument that the exception applied. For another thing, one of the FSIA’s basic objectives, as shown by its history, supports this reading. The Act for the most part embodies basic principles of international law long followed both in the United States and elsewhere. See Schooner Exchange v. McFaddon, 7 Cranch 116, 136–137 (1812); see also Verlinden, 461 U. S., at 493 (explaining that the Act “comprehensively regulat[es] the amen-ability of foreign nations to suit in the United States”). Our courts have understood, as international law itself understands, foreign nation states to be “independent sovereign” entities. To grant those sovereign entities an immunity from suit in our courts both recognizes the “absolute independence of every sovereign authority” and helps to “ ‘induc[e]’ ” each nation state, as a matter of “ ‘international comity,’ ” to “ ‘respect the independence and dignity of every other,’ ” including our own. Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562, 575 (1926) (quoting The Parlement Belge, [1880] 5 P. D. 197, 214–215 (appeal taken from Admiralty Div.)). In the mid-20th century, we, like many other nations, began to treat nations acting in a commercial capacity like other commercial entities. See Permanent Mission, supra, at 199–200. And we consequently began to limit our recognition of sovereign immunity, denying that immunity in cases “arising out of a foreign state’s strictly commercial acts,” but continuing to apply that doctrine in “suits involving the foreign sovereign’s public acts,” Verlinden, 461 U. S., at 487 (emphasis added). At first, our courts, aware of the expertise of the Executive Branch in matters of foreign affairs, relied heavily upon the advice of that branch when deciding just when and how this “restrictive” sovereign immunity doctrine applied. Ibid. See also H. R. Rep. No. 94–1487, pp. 8–9 (1976) (similar). But in 1976, Congress, at the urging of the Department of State and Department of Justice, began to codify the doctrine. The resulting statute, the FSIA, “starts from a premise of immunity and then creates exceptions to the general principle.” Id., at 17; Verlinden, supra, at 493. Almost all the exceptions involve commerce or immovable property located in the United States. E.g., §§1605(a)(2) and (4); see also §1602 (expressing the finding that “[u]nder international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned”). The statute thereby creates a doctrine that by and large continues to reflect basic principles of international law, in particular those principles embodied in what jurists refer to as the “restrictive” theory of sovereign immunity. See, e.g., Restatement (Third) of Foreign Relations Law of the United States §451, and Comment a (1986) (describing the restrictive theory of immunity); United Nations General Assembly, Convention on Jurisdictional Immunities of States and Their Property, Res. 59/38, Arts. 5, 10–12 (Dec. 2, 2004) (adopting a restrictive theory of immunity and withdrawing immunity for loss of property where, among other requirements, “the act or omission occurred in whole or in part in the territory of th[e] other State”); United Nations General Assembly, Report of the Ad Hoc Committee on Jurisdictional Immunities of States and Their Property, Supp. A/59/22 No. 1, pp. 7–11 (Mar. 1–5, 2004) (same). We have found nothing in the history of the statute that suggests Congress intended a radical departure from these basic principles. To the contrary, the State Department, which helped to draft the FSIA’s language (and to whose views on sovereign immunity this Court, like Congress, has paid special attention, Altmann, 541 U. S., at 696), told Congress that the Act was “drafted keeping in mind what we believe to be the general state of the law internationally, so that we conform fairly closely . . . to our accepted international standards,” Hearing on H. R. 3493 before the Subcommittee on Claims and Governmental Relations of the House of Representatives Committee on the Judiciary, 93d Cong., 1st Sess., 18 (1973). The Department added that, by doing so, we would diminish the likelihood that other nations would each go their own way, thereby “subject[ing]” the United States “abroad” to more claims “than we permit in this country . . . .” Ibid. It is consequently not surprising to find that the expropriation exception on its face emphasizes conformity with international law by requiring not only a commercial connection with the United States but also a taking of property “in violation of international law.” We emphasize this point, embedded in the statute’s language, history, and structure, because doing so reveals a basic objective of our sovereign immunity doctrine, which a “nonfrivolous-argument” reading of the expropriation exception would undermine. A sovereign’s taking or regulating of its own nationals’ property within its own territory is often just the kind of foreign sovereign’s public act (a “jure imperii”) that the restrictive theory of sovereign immunity ordinarily leaves immune from suit. See Permanent Mission, 551 U. S., at 199 (describing the FSIA’s distinction between public acts, or jure imperii, and purely commercial ones); Restatement (Third) of Foreign Relations Law of the United States §712, at 196 (noting that, under international law, a state is responsible for a “taking of the property of a national of another state” (emphasis added)). See also Restatement (Fourth) of Foreign Relations Law of the United States §455, Reporter’s Note 12, p. 9 (Tent. Draft No. 2, Mar. 22, 2016) (noting that “[n]o provision comparable” to the exception “has yet been adopted in the domestic immunity statutes of other countries” and that expropriations are considered acts jure imperii); United States v. Belmont, 301 U. S. 324, 332 (1937) ; B. Cheng & G. Schwarzberger, General Principles of Law as Applied by International Courts and Tribunals 37–38 (1953) (collecting cases describing “the power of the sovereign State to expropriate” (internal quotation marks omitted)); Jurisdictional Immunities of the State (Germany v. Italy), 2012 I. C. J. 99, 123–125, ¶¶56–60 (Judgt. of Feb. 3) (noting consistent state practice in respect to the distinction between public and commercial acts and describing an international law of immunity recognizing such a difference); Altmann, supra, at 708 (Breyer, J., concurring) (describing the French Court of Appeals’ decision about whether a King who has abdicated the throne is “ ‘entitled to claim . . . immunity’ ” as “ ‘Hea[d] of State’ ” when his sovereign status at the time of suit was in doubt (quoting Ex-King Farouk of Egypt v. Christian Dior, 84 Clunet 717, 24 I. L. R. 228, 229 (CA Paris 1957))). To be sure, there are fair arguments to be made that a sovereign’s taking of its own nationals’ property sometimes amounts to an expropriation that violates international law, and the expropriation exception provides that the general principle of immunity for these otherwise public acts should give way. But such arguments are about whether such an expropriation does violate international law. To find jurisdiction only where a taking does violate international law is thus consistent with basic international law and the related statutory objectives and principles that we have mentioned. But to find jurisdiction where a taking does not violate international law (e.g., where there is a nonfrivolous but ultimately incorrect argument that the taking violates international law) is inconsistent with those objectives. And it is difficult to understand why Congress would have wanted that result. Moreover, the “nonfrivolous-argument” interpretation would, in many cases, embroil the foreign sovereign in an American lawsuit for an increased period of time. It would substitute for a more workable standard (“violation of international law”) a standard limited only by the bounds of a lawyer’s (nonfrivolous) imagination. It would create increased complexity in respect to a jurisdictional matter where clarity is particularly important. Hertz Corp. v. Friend, 559 U. S. 77 –95 (2010). And clarity is doubly important here where foreign nations and foreign lawyers must understand our law. Finally, the Solicitor General and the Department of State also warn us that the nonfrivolous-argument interpretation would “affron[t]” other nations, producing friction in our relations with those nations and leading some to reciprocate by granting their courts permission to embroil the United States in “expensive and difficult litigation, based on legally insufficient assertions that sovereign immunity should be vitiated.” Brief for United States as Amicus Curiae 21–22. (At any given time the Department of Justice’s Office of Foreign Litigation represents the United States in about 1,000 cases in 100 courts around the world. Ibid.) See also National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 362 (1955) (noting that our grant of immunity to foreign sovereigns dovetails with our own interest in receiving similar treatment). III The plaintiffs make two important arguments to the contrary. First, they point to the federal statute that gives federal courts jurisdiction over cases “arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331. They note that in Bell v. Hood, 327 U. S. 678 (1946) , this Court held that the “arising under” statute confers jurisdiction if a plaintiff can make a nonfrivolous argument that a federal law provides the relief he seeks—even if, in fact, it does not. See id., at 685 (jurisdiction exists where, if the “Constitution and laws of the United States are given one construction,” a claim will be “sustained,” but if the laws are given a different construction, the claim “will be defeated”). And the plaintiffs say we should treat the expropriation exception similarly. Section 1331, however, uses different language from the expropriation exception (“arising under”) and focuses on different concerns. Section 1331 often simply determines which court’s doors are open (federal or state). Cf. Mims v. Arrow Financial Services, LLC, 565 U. S. 368 –379 (2012). Unlike the FSIA, neither that jurisdictional section nor related jurisdictional sections seeks to provide a sovereign foreign nation (or any party) with immunity—the basic FSIA objective. See Dole Food Co. v. Patrickson, 538 U. S. 468, 479 (2003) (FSIA’s objective is to give “protection from the inconvenience of suit as a gesture of comity”); Republic of Philippines v. Pimentel, 553 U. S. 851, 866 (2008) . And unlike the expropriation exception, the “arising under” statute’s language does not suggest that consistency with international law is of particular importance. Moreover, this Court has interpreted other jurisdictional statutes differently. Where jurisdiction depends on diversity of citizenship, for example, courts will look to see whether the parties are in fact diverse, not simply whether they are arguably so. See Indianapolis v. Chase Nat. Bank, 314 U. S. 63, 69 (1941) ; McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936) ; see also 13E C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3611 (2009). We do not believe either jurisdictional analogy ( 28 U. S. C. §1331 or §1332) is particularly helpful, but the expropriation exception’s substantive goals suggest that the diversity jurisdiction example provides a marginally closer analogy. Second, the plaintiffs argue that the nonfrivolous-argument approach will work little harm. They say that a court faced with an arguable, but ultimately incorrect, claim of jurisdiction can simply decide the same question—say, whether there was a “violation of international law”—as part of its decision on the merits. Thus a foreign sovereign defendant (in court because a plaintiff has made a nonfrivolous but incorrect argument that its property was taken in violation of international law) can simply move for judgment on the merits under Rule 12(b)(6), which provides for judgment where a plaintiff does not “state a claim upon which relief can be granted.” Or the defendant could move for summary judgment under Rule 56. In a word, the defendant may not need to undergo a full trial and judgment, remaining in court until the bitter end. These alternatives, however, have their own problems. For one thing, they will sometimes mean increased delay, imposing increased burdens of time and expense upon the foreign nation. For another, where a district court decides that there is a “violation of international law” as a matter of jurisdiction, then (according to the Courts of Appeals) the losing sovereign nation can immediately appeal the decision as a collateral order. But the same decision made to dispose of, say, a Rule 12(b)(6) motion or a Rule 56 motion would not be a “collateral order.” It would be a decision on the “merits.” And the foreign sovereign would not enjoy a right to take an immediate appeal. See Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (permitting interlocutory appeal of a collateral order that “resolve[s] an important issue completely separate from the merits of the action”); Will v. Hallock, 546 U. S. 345, 349 (2006) (same). See also Intel Corp. v. Commonwealth Scientific, 455 F. 3d 1364, 1366 (CA Fed. 2006) (permitting collateral appeal of an FSIA jurisdictional decision denying immunity); Rubin v. Islamic Republic of Iran, 637 F. 3d 783, 785 (CA7 2011) (same); Compania Mexicana de Aviacion v. Central Dist. of Cal., 859 F. 2d 1354, 1356 (CA9 1988) (per curiam) (same); Foremost-McKesson v. Islamic Republic of Iran, 905 F. 2d 438, 443 (CADC 1990) (same). Moreover, what is a court to do in a case where a “violation of international law,” while a jurisdictional prerequisite, is not an element of the claim to be decided on the merits? The Circuit has suggested that they arise when the plaintiffs’ claim is not an “expropriation claim,” but rather a simple common-law claim of conversion, restitution, or breach of contract, the merits of which do not involve the merits of international law. See Simon v. Republic of Hungary, 812 F. 3d 127, 141–142 (2016). The Circuit has recognized that there are such cases, id., at 141, and a cursory survey of the principal district courts in which these cases are brought confirms the reality of the problem. See, e.g., Philipp v. Federal Republic of Ger-many, ___ F. Supp. 3d ___, 2017 WL 1207408 (DC, Mar. 31, 2017) (deciding whether the expropriation exception is satisfied where the complaint pleads only common-law or statutory claims for relief); De Csepel v. Hungary, 169 F. Supp. 3d 143 (DC 2016) (similar); Pablo Star Ltd. v. Welsh Government, 170 F. Supp. 3d 597 (SDNY 2016) (similar); Chettri v. Nepal, 2014 WL 4354668 (SDNY, Sept. 2, 2014) (similar); Order Granting Defendants’ Motion To Dismiss in Lu v. Central Bank of Republic ofChina, No. 2:12–cv–317 (CD Cal., June 13, 2013) (similar); Orkin v. Swiss Confederation, 770 F. Supp. 2d 612 (SDNY 2011) (similar); Hammerstein v. Federal Republic of Germany, 2011 WL 9975796 (EDNY, Aug. 1, 2011) (similar); Cassirer v. Kingdom of Spain, 461 F. Supp. 2d 1157 (CD Cal. 2006) (similar). Indeed, cases in which the jurisdictional inquiry does not overlap with the elements of a plaintiff’s claims have been the norm in cases arising under other exceptions to the FSIA. E.g., Republic of Argentina v. Weltover, Inc., 504 U. S. 607, 610 (1992) (deciding whether a plaintiffs’ breach-of-contractclaim satisfied the jurisdictional requirements of the commercial-activity exception, §1605(a)(2)). To address the problem raised by these cases in which the “jurisdictional and merits inquiries” are not fully “overlap[ping],” the Circuit has held that a district court is not to apply its nonfrivolous-argument standard in such cases. Simon, 812 F. 3d, at 141. Rather, a court is to ask “whether the plaintiffs’ allegations satisfy the jurisdictional standard.” Ibid. We can understand why the Circuit has departed from its nonfrivolous-argument standard in these latter cases. For, unless it did so, how could a foreign nation ever obtain a decision on the merits of the nonfrivolous argument that a plaintiff has advanced? But what in the statutory provision suggests that sometimes courts should, but sometimes they should not, simply look to the existence of a nonfrivolous argument when they decide whether the requirements of the expropriation exception are satisfied? It is difficult, if not impossible, to reconcile this bifurcated approach with the statute’s language. It receives little, if any, support from the statute’s history or purpose. And, it creates added complexity, making it more difficult for judges and lawyers, domestic and foreign, to understand the intricacies of the law. IV We conclude that the nonfrivolous-argument standard is not consistent with the statute. Where, as here, the facts are not in dispute, those facts bring the case within the scope of the expropriation exception only if they do show (and not just arguably show) a taking of property in violation of international law. Simply making a nonfrivolous argument to that effect is not sufficient. Moreover, as we have previously stated, a court should decide the foreign sovereign’s immunity defense “[a]t the threshold” of the action. Verlinden, 461 U. S., at 493. As we have said, given the parties’ stipulations as to all relevant facts, the question before us is purely a legal one and can be resolved at the outset of the case. If a decision about the matter requires resolution of factual disputes, the court will have to resolve those disputes, but it should do so as near to the outset of the case as is reasonably possible. * * * 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. Justice Gorsuch 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 BOLIVARIAN REPUBLIC OF VENEZUELA et al. v. HELMERICH & PAYNE INTERNATIONAL DRILLING CO. et al. certiorari to the united states court of appeals for the district of columbia circuit No. 15–423. Argued November 2, 2016—Decided May 1, 2017 The Foreign Sovereign Immunities Act (FSIA) shields foreign states from suits in United States Courts, 28 U. S. C. §1604, with specified exceptions. The expropriation exception applies to “any case . . . in which rights in property taken in violation of international law are in issue and that property . . . is owned or operated by an agency or instrumentality of the foreign state . . . engaged in a commercial activity in the United States.” §1605(a)(3). A wholly owned Venezuelan subsidiary (Subsidiary) of an American company (Parent) has long supplied oil rigs to oil development entities that were part of the Venezuelan Government. The American Parent and its Venezuelan Subsidiary (plaintiffs) filed suit in federal court against those entities (Venezuela), claiming that Venezuela had unlawfully expropriated the Subsidiary’s rigs by nationalizing them. Venezuela moved to dismiss the case on the ground that its sovereign immunity deprived the District Court of jurisdiction. Plaintiffs argued that the case falls within the expropriation exception, but Venezuela claimed that international law did not cover the expropriation of property belonging to a country’s nationals like the Subsidiary and that the American Parent did not have property rights in the Subsidiary’s assets. The District Court agreed as to the Subsidiary, dismissing its claim on jurisdictional grounds. But it rejected the claim that the Parent had no rights in the Subsidiary’s property. The District of Columbia Circuit reversed in part and affirmed in part, finding that both claims fell within the exception. With respect to the Subsidiary’s claim, it concluded that a sovereign’s taking of its own nationals’ property would violate international law if the expropriation unreasonably discriminated based on a company’s shareholders’ nationality. With respect to the Parent’s claim, it held that the exception applied because the Parent had raised its rights in a nonfrivolous way. The court decided only whether the plaintiffs might have a nonfrivolous expropriation claim, making clear that, under its standard, a nonfrivolous argument would be sufficient to bring a case within the scope of the exception. Given the factual stipulations, the court concluded, the Subsidiary had satisfied that standard for purposes of surviving a motion to dismiss. Held: The nonfrivolous-argument standard is not consistent with the FSIA. A case falls within the scope of the expropriation exception only if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” A court should decide the foreign sovereign’s immunity defense “[a]t the threshold” of the action, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 , resolving any factual disputes as near to the outset of the case as is reasonably possible. . (a) The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. This reading is supported by the provision’s language, which applies in a “case. . . in which rights in property taken in violation of international law are in issue.” Such language would normally foresee a judicial decision about the jurisdictional matter. This interpretation is supported by precedent. See, e.g., Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193 –202. It is also supported by a basic objective of the FSIA, which is to follow international law principles, namely, that granting foreign sovereigns immunity from suit both recognizes the “absolute independence of every sovereign authority” and helps to “induc[e]” each nation state, as a matter of “international comity,” to “respect the independence and dignity of every other,” Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562 . Nothing in the FSIA’s history suggests that Congress intended a radical departure from these principles in codifying the mid-20th-century doctrine of “restrictive” sovereign immunity, which denies immunity in cases “arising out of a foreign state’s strictly commercial acts,” but applies immunity in “suits involving the foreign sovereign’s public acts,” Verlinden, supra, at 487. It is thus not surprising that the expropriation exception on its face emphasizes conformity with international law, requiring both a commercial connection with the United States and a taking of property “in violation of international law.” A “nonfrivolous-argument” reading of the exception would undermine the objectives embedded in the statute’s language, history, and structure. It could also embroil a foreign sovereign in an American lawsuit for some time by adopting a standard limited only by the bounds of a lawyer’s (nonfrivolous) imagination. And it could cause friction with other nations, leading to reciprocal actions against this country. . (b) Plaintiffs’ arguments to the contrary are unpersuasive. They suggest that the expropriation exception should be treated similarly to 28 U. S. C. §1331’s “arising under” jurisdiction, which applies if a plaintiff can make a nonfrivolous argument that a federal law provides the relief sought—even if, in fact, it does not, Bell v. Hood, 327 U. S. 678 685. But §1331 differs from the exception in language and concerns. Section 1331 often simply determines which court doors—federal or state—are open, and neither it nor related jurisdictional sections seek to provide a sovereign foreign nation with immunity—the FSIA’s basic objective. Nor does the text of §1331 suggest that consistency with international law is of particular importance. Plaintiffs also claim that the nonfrivolous-argument approach will work little harm since the matter could be resolved by motion practice before the sovereign bears the expense of a full trial. But resolving a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or summary judgment under Rule 56 may impose increased burdens of time and expense upon the foreign nation. And a district court’s decision that there is a “violation of international law” as a matter of jurisdiction may be immediately appealable as a collateral order, while the same decision made pursuant to a Rule 12(b)(6) or Rule 56 motion would be a decision on the “merits” not subject to immediate appeal. Moreover, the Circuit would part with its nonfrivolous-argument standard where a “violation of international law” is not an element of the claim to be decided on the merits. This bifurcated approach is difficult to reconcile with the statute’s language, history, or purpose; and it creates needless complexity for judges and lawyers, domestic and foreign. . 784 F. 3d 804, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

A wholly owned Venezuela-incorporated subsidiary (Subsidiary) of an American company (Parent) supplied oil rigs to oil development entities that were part of the Venezuelan Government. In 2011, the American Parent company and its Venezuelan Subsidiary (respondents here) brought a lawsuit in Federal District Court against those foreign government entities, claiming that the Government had unlawfully expropriated, and seeking compensation. The District Court dismissed the claim on jurisdictional grounds, holding that Venezuela consequently possessed sovereign immu-nity, and that the expropriation exception did not apply. The Court of Appeals reversed in part and affirmed in part the District Court conclusions. It agreed that both the Subsidiaries' claims fell within the exception to the jurisdictional rule that a foreign state shall not be immune from the jurisdiction of federal and state courts in any case in which rights in property taken in violation of international law are in issue and that property is owned or operated by an agency orinstrumentality of the foreign state... engaged ina commercial activity in the United States. Held: 1. The doctrine of the Foreign Sovereign Immunities Act of 1976 (FSIA or Act) grants jurisdiction only where there is a valid claim that the property in which the party claims to hold rights has been taken in a certain way. The relevant factual allegations must make out a legally valid claim of a certain kind of right (property rights) and of the relevant property was taken in such a way. But a court normally need not resolve, as a jurisdictional matter, disputes about whether a party actually held rights in that prop-erty; those questions remain for the merits phase of the litigation. Moreover, where jurisdictional questions turn upon further factual development, the trial judge may take evidence and resolve relevant factual disputes. But, consistent with foreign sovereign immunity's basic objective, namely, to free a foreign sovereign from suit, the court should normally resolve those factual disputes and reach a decision about immunity as near to the outset of the case as is reasonably possible. . 2. The nonfrivolous-argument standard is not consistent with the Act. Where, as here, the facts are not in dispute, those facts bring the case within the scope of the question. Pp. 462 U.S. 603-672. (a) The language of the Act embodies the basic principles for international law, and the most important part of that is conformity with both federal and foreign law. To the contrary, the Act often emphasizes the common law objective of regulating the taking of foreign property within the territory of the sovereign nation. See, e.g., Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193 (2007). P.. (b) The argument that a court faced with an arguable, but ultimately incorrect, claim of jurisdiction can simply decide the same question as part of its decision on the merits, is insufficient to confer jurisdiction. Rather, a court must ask whether the plaintiffs' allegations satisfy that jurisdictional standard. Such an approach will result in increased delay, imposing increased burdens of time and expense upon the foreign nation, and would inevitably frustrate other nations by producing friction in our relations with those nations and leading some to reciprocate by granting their courts permission to embroil them in expensive and difficult litigation based on legally insufficient assertions that sovereign immunity should be vitiated. It is difficult, if not impossible, to reconcile the bifurcated approach with the statute, which receives little, if any, support from the statute's history or purpose, and creates added complexity, making it more difficult for judges and lawyers, domestic and foreign, to understand the intricacies of the law.. 789 F. 3d 804, vacated and remanded. JUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, II-A, III-B, IV-C, and V, concluding that:(1) A district court is not required to apply its nonfrovolous argument standard in cases in which a company shareholders' nationality is involved. Here, the case is one which the existence of rights remains at issue until the court decides the case merits, but whether the rights asserted are rights of a specified kind, such rights, such as rights in foreign property, does not matter. There is nothing in the history of the statute that suggests Congress intended a radical departure from these basic principles. Nor is there any merit to the argument that, in deciding whether the expatriation exception applies, a district court should not simply look to the existence of a nonfrivous argument when it decides whether the requirements of the exception are satisfied. And, if the argument is frivolous, then the case should be resolved as to the factual issue at the outset. If the factual stipulations of this case are sufficient to show a violation of foreign law, they do not require a decision

2016_16-254

https://www.oyez.org/cases/2016/16-254

. This case concerns the scope of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U. S. T. 361, T. I. A. S. No. 6638. The purpose of that multilateral treaty is to simplify, standardize, and generally improve the process of serving documents abroad. Preamble, ibid.; see Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U. S. 694, 698 (1988) . To that end, the Hague Service Convention specifies certain approved methods of service and “pre-empts inconsistent methods of service” wherever it applies. Id., at 699. Today we address a question that has divided the lower courts: whether the Convention prohibits service by mail. We hold that it does not. I A Petitioner Water Splash is a corporation that produces aquatic playground systems. Respondent Menon is a former employee of Water Splash. In 2013, Water Splash sued Menon in state court in Texas, alleging that she had begun working for a competitor while still employed by Water Splash. 472 S. W. 3d 28, 30 (Tex. App. 2015). Water Splash asserted several causes of action, including unfair competition, conversion, and tortious interference with business relations. Because Menon resided in Can-ada, Water Splash sought and obtained permission to effect service by mail. Ibid. After Menon declined to answer or otherwise enter an appearance, the trial court issued a default judgment in favor of Water Splash. Menon moved to set aside the judgment on the ground that she had not been properly served, but the trial court denied the motion. Ibid. Menon appealed, arguing that service by mail does not “comport with the requirements of the Hague Service Convention.” Ibid. The Texas Court of Appeals majority sided with Menon and held that the Convention prohibits service of process by mail. Id., at 32. Justice Christopher dissented. Id., at 34. The Court of Appeals declined to review the matter en banc, App. 95–96, and the Texas Supreme Court denied discretionary review, id., at 97–98. The disagreement between the panel majority and Justice Christopher tracks a broader conflict among courts as to whether the Convention permits service through postal channels. Compare, e.g., Bankston v. Toyota Motor Corp., 889 F. 2d 172, 173–174 (CA8 1989) (holding that the Convention prohibits service by mail), and Nuovo Pignone, SpA v. Storman Asia M/V, 310 F. 3d 374, 385 (CA5 2002) (same), with, e.g., Brockmeyer v. May, 383 F. 3d 798, 802 (CA9 2004) (holding that the Convention allows service by mail), and Ackermann v. Levine, 788 F. 2d 830, 838–840 (CA2 1986) (same). We granted certiorari to resolve that conflict. 580 U. S. ___ (2016). B The “primary innovation” of the Hague Service Convention—set out in Articles 2–7—is that it “requires each state to establish a central authority to receive requests for service of documents from other countries.” Schlunk, supra, at 698. When a central authority receives an appropriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service, Art. 6. Submitting a request to a central authority is not, however, the only method of service approved by the Convention. For example, Article 8 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not otherwise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the Convention. At issue in this case is Article 10 of the Convention, the English text of which reads as follows: “Provided the State of destination does not object, the present Convention shall not interfere with— “(a) the freedom to send judicial documents, by postal channels, directly to persons abroad, “(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, “(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” 20 U. S. T., at 363. Articles 10(b) and 10(c), by their plain terms, address additional methods of service that are permitted by the Convention (unless the receiving state objects). By contrast, Article 10(a) does not expressly refer to “service.” The question in this case is whether, despite this textual difference, the Article 10(a) phrase “send judicial documents” encompasses sending documents for the purposes of service. II A In interpreting treaties, “we begin with the text of the treaty and the context in which the written words are used.” Schlunk, 486 U. S., at 699 (internal quotation marks omitted). For present purposes, the key word in Article 10(a) is “send.” This is a broad term,[1] and there is no apparent reason why it would exclude the transmission of documents for a particular purpose (namely, service). Moreover, the structure of the Hague Service Convention strongly counsels against such a reading. The key structural point is that the scope of the Convention is limited to service of documents. Several elements of the Convention indicate as much. First, the preamble states that the Convention is intended “to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time.” (Emphasis added.) And Article 1 defines the Convention’s scope by stating that the Convention “shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (Emphasis added.) Even the Convention’s full title reflects that the Convention concerns “Service Abroad.” We have also held as much. Schlunk, 486 U. S., at 701 (stating that the Convention “applies only to documents transmitted for service abroad”). As we explained, a preliminary draft of Article 1 was criticized “because it suggested that the Convention could apply to transmissions abroad that do not culminate in service.” Ibid. The final version of Article 1, however, “eliminates this possibility.” Ibid. The wording of Article 1 makes clear that the Convention “applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended.” Ibid. In short, the text of the Convention reveals, and we have explicitly held, that the scope of the Convention is limited to service of documents. In light of that, it would be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents. Indeed, under that reading, Article 10(a) would be superfluous. The function of Article 10 is to ensure that, absent objection from the receiving state, the Convention “shall not interfere” with the activities described in 10(a), 10(b) and 10(c). But Article 1 already “eliminates [the] possibility” that the Convention would apply to any communications that “do not culminate in service,” id., at 701, so it is hard to imagine how the Convention could interfere with any non-service communications. Accordingly, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service. Menon attempts to avoid this superfluity problem by suggesting that Article 10(a) does refer to serving documents—but only some documents. Specifically, she makes a distinction between two categories of service. According to Menon, Article 10(a) does not apply to service of process (which we have defined as “a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action,” id., at 700)). But Article 10(a) does apply, Menon suggests, to the service of “post-answer judicial documents” (that is, any additional documents which may have to be served later in the litigation). Brief for Respondent 30–31. The problem with this argument is that it lacks any plausible textual footing in Article 10.[2] If the drafters wished to limit Article 10(a) to a particular subset of documents, they presumably would have said so—as they did, for example, in Article 15, which refers to “a writ of summons or an equivalent document.” Instead, Article 10(a) uses the term “judicial documents”—the same term that is featured in 10(b) and 10(c). Accord-ingly, the notion that Article 10(a) governs a different set of documents than 10(b) or 10(c) is hard to fathom. And it certainly derives no support from the use of the word “send,” whose ordinary meaning is broad enough to cover the transmission of any judicial documents (including litigation-initiating documents). Nothing about the word “send” suggests that Article 10(a) is narrower than 10(b) and 10(c), let alone that Article 10(a) is somehow limited to “post-answer” documents. Ultimately, Menon wishes to read the phrase “send judicial documents” as “serve a subset of judicial documents.” That is an entirely atextual reading, and Menon offers no sustained argument in support of it. Therefore, the only way to escape the conclusion that Article 10(a) includes service of process is to assert that it does not cover service of documents at all—and, as shown above, that reading is structurally implausible and renders Article 10(a) superfluous. B The text and structure of the Hague Service Convention, then, strongly suggest that Article 10(a) pertains to service of documents. The only significant counterargument is that, unlike many other provisions in the Convention, Article 10(a) does not include the word “service” or any of its variants. The Article 10(a) phrase “send judicial documents,” the argument goes, should mean something different than the phrase “effect service of judicial documents” in the other two subparts of Article 10. This argument does not win the day for several reasons. First, it must contend with the compelling structural considerations discussed above. See Air France v. Saks, 470 U. S. 392, 397 (1985) (treaty interpretation must take account of the “context in which the written words are used”); cf. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 13) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices”). Second, the argument fails on its own terms. Assume for a second that the word “send” must mean something other than “serve.” That would not imply that Article 10(a) must exclude service. Instead, “send[ing]” could be a broader concept that includes service but is not limited to it. That reading of the word “send” is probably more plausible than interpreting it to exclude service, and it does not create the same superfluity problem.[3] Third, it must be remembered that the French version of the Convention is “equally authentic” to the English version. Schlunk, 486 U. S., at 699. Menon does not seri-ously engage with the Convention’s French text. But the word “adresser”—the French counterpart to the word “send” in Article 10(a)—“has been consistently interpreted as meaning service or notice.” Hague Conference on Private Int’l Law, Practical Handbook on the Operation of the Service Convention ¶279, p. 91 (4th ed. 2016). In short, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(a)’s meaning. And when a treaty provision is ambiguous, the Court “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Schlunk, supra, at 700 (internal quotation marks omitted). As discussed below, these traditional tools of treaty interpretation comfortably resolve any lingering ambiguity in Water Splash’s favor. III Three extratextual sources are especially helpful in ascertaining Article 10(a)’s meaning: the Convention’s drafting history, the views of the Executive, and the views of other signatories. Drafting history has often been used in treaty interpretation. See Medellín v. Texas, 552 U. S. 491, 507 (2008) ; Saks, supra, at 400; see also Schlunk, supra, at 700 (analyzing the negotiating history of the Hague Service Convention). Here, the Convention’s drafting history strongly suggests that Article 10(a) allows service through postal channels. Philip W. Amram was the member of the United States delegation who was most closely involved in the drafting of the Convention. See S. Exec. Rep. No. 6, 90th Cong., 1st Sess. 5 (App.) (1967) (S. Exec. Rep.) (statement of State Department Deputy Legal Adviser Richard D. Kearney). A few months before the Convention was signed, he published an article describing and summarizing it. In that article, he stated that “Article 10 permits direct service by mail . . . unless [the receiving] state objects to such service.” The Proposed International Convention on the Service of Documents Abroad, 51 A. B. A. J. 650, 653 (1965).[4] Along similar lines, the Rapporteur’s report on a draft version of Article 10—which did not materially differ from the final version—stated that the “provision of paragraph 1 also permits service . . . by telegram” and that the drafters “did not accept the proposal that postal channels be limited to registered mail.” 1 Ristau §4–3–5(a), at 149. In other words, it was clearly understood that service by postal channels was permissible, and the only question was whether it should be limited to registered mail. The Court also gives “great weight” to “the Executive Branch’s interpretation of a treaty.” Abbott v. Abbott, 560 U. S. 1, 15 (2010) (internal quotation marks omitted). In the half century since the Convention was adopted, the Executive has consistently maintained that the Hague Service Convention allows service by mail. When President Johnson transmitted the Convention to the Senate for its advice and consent, he included a report by Secretary of State Dean Rusk. That report stated that “Article 10 permits direct service by mail . . . unless [the receiving] state objects to such service.” Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Message From the President of the United States, S. Exec. Doc. C, 90th Cong., 1st Sess., 5 (1967). In 1989, the Eighth Circuit issued Bankston, the first Federal Court of Appeals decision holding that the Hague Service Convention prohibits service by mail. 889 F. 2d, at 174. The State Department expressed its disagreement with Bankston in a letter addressed to the Administrative Office of the U. S. Courts and the National Center for State Courts. See Notice of Other Documents (1), United States Department of State Opinion Regarding the Bankston Case and Service by Mail to Japan Under the Hague Service Convention, 30 I. L. M. 260, 260–261 (1991) (excerpts of Mar. 14, 1990, letter). The letter stated that “Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country.” Id., at 261. The State Department takes the same position on its website.[5] Finally, this Court has given “considerable weight” to the views of other parties to a treaty. Abbott, 560 U. S., at 16 (internal quotation marks omitted); see Lozano v. Montoya Alvarez, 572 U. S. ___, ___ (2014) (slip op., at 9) (noting the importance of “read[ing] the treaty in a manner consistent with the shared expectations of the contracting parties” (internal quotation marks omitted)). And other signatories to the Convention have consistently adopted Water Splash’s view. Multiple foreign courts have held that the Hague Service Convention allows for service by mail.[6] In addition, several of the Convention’s signatories have either objected, or declined to object, to service by mail under Article 10, thereby acknowledging that Article 10 encompasses service by mail.[7] Finally, several Special Commissions—comprising numerous contracting States—have expressly stated that the Convention does not prohibit service by mail.[8] By contrast, Menon identifies no evidence that any signatory has ever rejected Water Splash’s view. * * * In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with . . . the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law. See Brockmeyer, 383 F. 3d, at 803–804. Because the Court of Appeals concluded that the Convention prohibited service by mail outright, it had no occasion to consider whether Texas law authorizes the methods of service used by Water Splash. We leave that question, and any other remaining issues, to be considered on remand to the extent they are properly preserved. For these reasons, we vacate the judgment of the Court of Appeals, and we remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.Notes 1 See Black’s Law Dictionary 1568 (10th ed. 2014) (defining “send,” in part, as “[t]o cause to be moved or conveyed from a present location to another place; esp., to deposit (a writing or notice) in the mail”). 2 The argument also assumes that the scope of the Convention is not limited to service of process (otherwise, Article 10(a) would be superfluous even under Menon’s reading). Schlunk can be read to suggest that this assumption is wrong. 486 U. S., at 700–701; see 1 B. Ristau, International Judicial Assistance §4–1–4(2), p. 112 (1990 rev. ed.) (Ristau) (stating that the English term “service” in the Convention “means the formal delivery of a legal document to the addressee in such a manner as to legally charge him with notice of the institution of a legal proceeding”). For the purposes of this discussion, we will assume, arguendo, that Menon’s assumption is correct. 3 Another plausible explanation for the distinct terminology of Article 10(a) is that it is the only provision in the Convention that specifically contemplates direct service, without the use of an intermediary. See Brief for United States as Amicus Curiae 13 (“[I]n contrast to Article 10(a), all other methods of service identified in the Convention require the affirmative engagement of an intermediary to effect ‘service’ ”). The use of the word “send” may simply have been intended to reflect that distinction. 4 Two years later, Amram testified to the same effect before the Senate Foreign Relations Committee. S. Exec. Rep., at 13 (stating that service by central authority “is not obligatory,” and that other available techniques included “direct service by mail”). 5 Dept. of State, Legal Considerations: International Judicial Assistance: Service of Process (stating that “[s]ervice by registered . . . mail . . . is an option in many countries in the world,” but that it “should . . . not be used in the countries party to the Hague Service Conven-tion that objected to the method described in Article 10(a) (postal channels)”), online at https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (all Internet materials as last visited May 19, 2017). 6 See, e.g., Wang v. Lin, [2016] 132 O. R. 3d 48, 61 (Can. Ont. Sup. Ct. J.); Crystal Decisions (U. K.), Ltd. v. Vedatech Corp., EWHC (Ch) 1872 (2004), 2004 WL 1959749 ¶21 (High Court, Eng.); R. v. Re Recognition of an Italian Judgt., 2000 WL 33541696, ¶4 (D. F. Thes. 2000); Case C–412/97, ED Srl v. Italo Fenocchio, 1999 E. C. R. I–3845, 3877–3878, ¶6 [2000] 3 C. M. L. R. 855; see also Brockmeyer v. May, 383 F. 3d 798, 802 (CA9 2004) (noting that foreign courts are “essentially unanimous” in the view “that the meaning of ‘send’ in Article 10(a) includes ‘serve’ ”). 7 Canada, for example, has stated that it “does not object to service by postal channels.” By contrast, the Czech Republic has adopted Czechoslovakia’s position that “judicial documents may not be served . . . through postal channels.” Dutch Govt. Treaty Database: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: Parties With Reservations, Declarationsand Objections, (entries for Canada and the Czech Republic) on-line at https://treatydatabase.overheid.nl/en/Verdrag/Details/004235_b; see also, e.g., ibid. (entries for Latvia, Australia, and Slovenia). In addition, some states have objected to all of the channels of transmission listed in Article 10, referring to them collectively with the term “service.” See, e.g., ibid. (entries for Bulgaria, Hungary, Kuwait, and Turkey). 8 Hague Conference on Private International Law, Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions ¶55, p. 11 (Oct. 28–Nov. 4, 2003) (“reaffirm[ing]” the Special Commission’s “clear understanding that the term ‘send’ in Article 10(a) is to be understood as meaning ‘service’ through postal channels”), online at https://assets.hcch.net/upload/wop/lse_concl_e.pdf; Hague Conference on Private International Law, Report on the Work of the Special Commission of April 1989 on the Operation of the Hague Conventions of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters ¶16, p. 5 (Apr. 1989) (criticizing “certain courts in the United States” which “had concluded that service of process abroad by mail was not permitted under the Convention”), online at https://assets.hcch.net/upload/scrpt89e_20.pdf; Report on the Work of the Special Commission on the Operation of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 21–25 1977, 17 I. L. M. 312, 326 (1978) (observing that “most of the States made no objection to the service of judicial documents coming from abroad directly by mail in their territory” (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 WATER SPLASH, INC. v. MENON certiorari to the court of appeals of texas, fourteenth district No. 16–254. Argued March 22, 2017—Decided May 22, 2017 Petitioner Water Splash sued respondent Menon, a former employee, in a Texas state court, alleging that she had begun working for a competitor while still employed by Water Splash. Because Menon resided in Canada, Water Splash obtained permission to effect service by mail. After Menon declined to answer or otherwise enter an appearance, the trial court issued a default judgment for Water Splash. That court subsequently denied Menon’s motion to set aside the judgment on the ground that she had not been properly served. On appeal, Menon argued that service by mail does not comport with the requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention), which seeks to simplify, standardize, and generally improve the process of serving documents abroad, specifying certain approved methods of service and preempting “inconsistent methods of service” wherever it applies, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U. S. 694 . The Texas Court of Appeals agreed with Menon, holding that the Convention prohibited service of process by mail. Article 10, the provision at issue, consists of Articles 10(b) and 10(c), which plainly address permissible methods of “service,” and Article 10(a), which provides that the Convention will not interfere with “the freedom to send judicial documents, by postal channels, directly to persons abroad,” but does not expressly refer to “service.” Held: The Hague Service Convention does not prohibit service of process by mail. . (a) This Court begins its analysis by looking to the treaty’s text and the context in which its words are used. See Schlunk, 486 U. S., at 699. The key word in Article 10(a)—“send”—is a broad term, and there is no apparent reason why it would exclude the transmission of documents for the purpose of service. The structure of the Convention strongly counsels against such an exclusion. The Convention’s preamble and Article 1 limit the scope of the Convention to service of documents abroad, and its full title includes the phrase “Service Abroad.” This Court has also held that the scope of the Convention is limited to service of documents. Id., at 701. It would thus be quite strange if Article 10(a)—apparently alone among the Convention’s provisions—concerned something other than service of documents. Indeed, such a reading would render Article 10(a) superfluous. Article 10’s function is to ensure that, generally, the Convention “shall not interfere” with the activities described in 10(a), 10(b), and 10(c). But since Article 1 already “eliminates [the] possibility” that the Convention would apply to any communications that “do not culminate in service,” id., at 701, in order for Article 10(a) to do any work, it must pertain to sending documents for the purposes of service. Menon’s attempt to avoid this superfluity problem by suggesting that Article 10(a) applies not to service of process but only to the service of “post-answer judicial documents” lacks any plausible textual footing in Article 10. If the drafters wished to limit Article 10(a) to a particular subset of documents, they could have said so—as they did, e.g., in Article 15, which refers to “a writ of summons or an equivalent document.” Instead, Article 10(a) uses the term “judicial documents”—the same term featured in 10(b) and 10(c). And the ordinary meaning of the word “send” is broad enough to cover the transmission of any judicial documents. Accordingly, the text and structure of the Convention indicate that Article 10(a) encompasses service by mail. . (b) The main counterargument—that Article 10(a)’s phrase “send judicial documents” should mean something different than the phrase “effect service of judicial documents” in Article 10(b) and Article 10(c)—is unpersuasive. First, it must contend with the compelling structural considerations strongly suggesting that Article 10(a) pertains to service of documents. Second, reading the word “send” as a broad concept that includes, but is not limited to, service is probably more plausible than interpreting the word to exclude service, and it does not create the same superfluity problem. Third, the French version of the Convention, which is “equally authentic” to the English version, Schlunk, supra, at 699, uses the word “adresser,” which has consistently been understood to mean service or notice. At best, Menon’s argument creates an ambiguity as to Article 10(a)’s meaning. The Court thus turns to additional tools of treaty interpretation, which comfortably resolve any lingering ambiguity in Water Splash’s favor. . (c) Three extratextual sources are especially helpful in ascertaining Article 10(a)’s meaning. First, the Convention’s drafting history strongly suggests that the drafters understood that service by postal channels was permissible. Second, in the half-century since the Convention was adopted, the Executive Branch has consistently maintained that the Hague Service Convention allows service by mail. Finally, other signatories to the Convention have consistently adopted Water Splash’s view. . (d) The fact that Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under otherwise-applicable law. Because the Court of Appeals concluded that the Convention prohibited service by mail, it did not consider whether Texas law authorizes the methods of service used by Water Splash. That and any other remaining issues are left to be considered on remand to the extent they are properly preserved. P. 12. 472 S. W. 3d 28, vacated and remanded. Alito, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the case.

Article 10(a) of the Hague Service Convention (HSC) requires each state to establish a central authority to receive requests for service of documents from other countries, and, when that authority receives an appropriate request, it must serve the documents or arrange for their service, Art. 5, and then provide a certificate of service. Art. 6 permits service through diplomatic and consular agents; Article 11 provides that any two states can agree to methods of service not otherwise specified in the Convention; and Article 19 clarifies that the Convention does not preempt any internal laws of its signatories that permit service from abroad via methods not otherwise allowed by the Convention. Respondent Menon, a former employee of petitioner corporation that produces aquatic playground systems, sued petitioner in a Texas state court, alleging, inter alia, unfair competition, conversion, and tortious interference with business relations. Because she resided in Can-ada, petitioner sought and obtained permission to effect service by mail. After respondent declined to answer or otherwise enter an appearance, the trial court issued a default judgment in petitioner's favor. The trial court denied petitioner's motion to set aside the judgment on the ground that she had not been properly served, but the Texas Court of Appeals affirmed. Held: Service by mail does not violate the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 20 U.S. T. 361, T. I. A. S. No. 6638. (Hague Service Convention) is designed to simplify, standardize, and generally improve the process of serving documents abroad, and the Convention's structure strongly counsels against such a reading. For example, the Convention preamble states that it is intended to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time, and Article 1 defines the Convention as applying in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. Even the Convention has stated that it applies only when there is both transmission of a document from the requesting state to the receiving state, and service upon the person for whom it is intended. See, e.g., Bankston v. Toyota Motor Corp., 889 F. 2d 172, 173-174 (CA8 1989), and Nuovo Pignone, SpA v. Storman Asia M/V, 310 F. 3d 374, 385 (CA5 2002). . (1) The traditional tools of treaty interpretation -- such as extratextual sources such as the Convention drafting history, the Executive Branch's views of other signatories, the views of the Convention drafters, and its views of all signatories -- unmistakably demonstrate that Article 10 (a) encompasses service by mail. To be clear, this does not mean that it does not apply to service of process, which is not the only method of service approved by the HSC, but rather simply provides that, as long as the receiving State does not object, that Convention does not interfere with the freedom to serve documents through postal channels. In other words, in cases governed by the Hague service Convention, service by mails is permissible if two conditions are met: (1) the receiving receiving state has not objected to service by mail; and (2) service by mail is authorized under otherwise-applicable law. Here, in this case, the drafting history strongly suggests that Article10(a), which is the only provision in Article 10 that specifically contemplates direct service, without the use of an intermediary, includes service.... The argument fails on its own terms. Assume for a second that the word means something other than service, that it would not imply that it must exclude service. Instead, it could be a broader concept that includes service but is not limited to it. Moreover, the word "adresser," the French counterpart to the word, has been consistently interpreted as meaning service or notice. Thus, the most that could possibly be said for this argument is that it creates an ambiguity as to Article 10(b)s meaning. And when a treaty provision is ambiguous, the Court may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. Menon identifies no evidence that any signatory has ever rejected Water Splash Co. v. Texas,,. Pp. 486 U. S., at 699. (2) The text and structure of a Hague service convention strongly suggest that, unlike many other provisions in that Convention, Article 10 does not include the word service or any of its variants. It is not clear from the language of the Article that the term "send judicial documents" in the English term "serve a subset of judicial documents," and that this reading is structurally implausible and

2016_16-240

https://www.oyez.org/cases/2016/16-240

. During petitioner’s trial on state criminal charges, the courtroom was occupied by potential jurors and closed to the public for two days of the jury selection process. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. And the case comes to the Court on the assumption that, in failing to object, defense counsel provided ineffective assistance. In the direct review context, the underlying constitutional violation—the courtroom closure—has been treated by this Court as a structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice. The question is whether invalidation of the conviction is required here as well, or if the prejudice inquiry is altered when the structural error is raised in the context of an ineffective-assistance-of-counsel claim. I In 2003, a 15-year-old boy was shot and killed in Boston. A witness saw a young man fleeing the scene of the crime and saw him pull out a pistol. A baseball hat fell off of his head. The police recovered the hat, which featured a distinctive airbrushed Detroit Tigers logo on either side. The hat’s distinctive markings linked it to 16-year-old Kentel Weaver. He is the petitioner here. DNA obtained from the hat matched petitioner’s DNA. Two weeks after the crime, the police went to petitioner’s house to question him. He admitted losing his hat around the time of the shooting but denied being involved. Petitioner’s mother was not so sure. Later, she questioned petitioner herself. She asked whether he had been at the scene of the shooting, and he said he had been there. But when she asked if he was the shooter, or if he knew who the shooter was, petitioner put his head down and said nothing. Believing his response to be an admission of guilt, she insisted that petitioner go to the police station to confess. He did. Petitioner was indicted in Massachusetts state court for first-degree murder and the unlicensed possession of a handgun. He pleaded not guilty and proceeded to trial. The pool of potential jury members was large, some 60 to 100 people. The assigned courtroom could accommodate only 50 or 60 in the courtroom seating. As a result, the trial judge brought all potential jurors into the courtroom so that he could introduce the case and ask certain preliminary questions of the entire venire panel. Many of the potential jurors did not have seats and had to stand in the courtroom. After the preliminary questions, the potential jurors who had been standing were moved outside the courtroom to wait during the individual questioning of the other potential jurors. The judge acknowledged that the hallway was not “the most comfortable place to wait” and thanked the potential jurors for their patience. 2 Tr. II–103 (Apr. 10, 2006). The judge noted that there was simply not space in the courtroom for everybody. As all of the seats in the courtroom were occupied by the venire panel, an officer of the court excluded from the courtroom any member of the public who was not a potential juror. So when petitioner’s mother and her minister came to the courtroom to observe the two days of jury selection, they were turned away. All this occurred before the Court’s decision in Presley v. Georgia, 558 U. S. 209 (2010) (per curiam). Presley made it clear that the public-trial right extends to jury selection as well as to other portions of the trial. Id., at 213–215. Before Presley, Massachusetts courts would often close courtrooms to the public during jury selection, in particular during murder trials. In this case petitioner’s mother told defense counsel about the closure at some point during jury selection. But counsel “believed that a courtroom closure for [ jury selection] was constitutional.” Crim. No. 2003–11293 (Super. Ct. Mass., Feb. 22, 2013), App. to Pet. for Cert. 49a. As a result, he “did not discuss the matter” with petitioner, or tell him “that his right to a public trial included the [ jury voir dire],” or object to the closure. Ibid. During the ensuing trial, the government presented strong evidence of petitioner’s guilt. Its case consisted of the incriminating details outlined above, including petitioner’s confession to the police. The jury convicted petitioner on both counts. The court sentenced him to life in prison on the murder charge and to about a year in prison on the gun-possession charge. Five years later, petitioner filed a motion for a new trial in Massachusetts state court. As relevant here, he argued that his attorney had provided ineffective assistance by failing to object to the courtroom closure. After an evidentiary hearing, the trial court recognized a violation of the right to a public trial based on the following findings: The courtroom had been closed; the closure was neither de minimis nor trivial; the closure was unjustified; and the closure was full rather than partial (meaning that all members of the public, rather than only some of them, had been excluded from the courtroom). The trial court further determined that defense counsel failed to object because of “serious incompetency, inefficiency, or inattention.” Id., at 63a (quoting Massachusetts v. Chleikh, 82 Mass. App. 718, 722, 978 N. E. 2d 96, 100 (2012)). On the other hand, petitioner had not “offered any evidence or legal argument establishing prejudice.” App. to Pet. for Cert. 64a. For that reason, the court held that petitioner was not entitled to relief. Petitioner appealed the denial of the motion for a new trial to the Massachusetts Supreme Judicial Court. The court consolidated that appeal with petitioner’s direct appeal. As noted, there had been no objection to the closure at trial; and the issue was not raised in the direct appeal. The Supreme Judicial Court then affirmed in relevant part. Although it recognized that “[a] violation of the Sixth Amendment right to a public trial constitutes structural error,” the court stated that petitioner had “failed to show that trial counsel’s conduct caused prejudice warranting a new trial.” 474 Mass. 787, 814, 54 N. E. 3d 495, 520 (2016). On this reasoning, the court rejected petitioner’s claim of ineffective assistance of counsel. There is disagreement among the Federal Courts of Appeals and some state courts of last resort about whether a defendant must demonstrate prejudice in a case like this one—in which a structural error is neither preserved nor raised on direct review but is raised later via a claim alleging ineffective assistance of counsel. Some courts have held that, when a defendant shows that his attorney unreasonably failed to object to a structural error, the defendant is entitled to a new trial without further inquiry. See, e.g., Johnson v. Sherry, 586 F. 3d 439, 447 (CA6 2009); Owens v. United States, 483 F. 3d 48, 64–65 (CA1 2007); Littlejohn v. United States, 73 A. 3d 1034, 1043–1044 (D. C. 2013); State v. Lamere, 327 Mont. 115, 125, 112 P. 3d 1005, 1013 (2005). Other courts have held that the defendant is entitled to relief only if he or she can show prejudice. See, e.g., Purvis v. Crosby, 451 F. 3d 734, 738 (CA11 2006); United States v. Gomez, 705 F. 3d 68, 79–80 (CA2 2013); Reid v. State, 286 Ga. 484, 487, 690 S. E. 2d 177, 180–181 (2010). This Court granted certio-rari to resolve that disagreement. 580 U. S. ___ (2017). The Court does so specifically and only in the context of trial counsel’s failure to object to the closure of the courtroom during jury selection. II This case requires a discussion, and the proper application, of two doctrines: structural error and ineffective assistance of counsel. The two doctrines are intertwined; for the reasons an error is deemed structural may influence the proper standard used to evaluate an ineffective-assistance claim premised on the failure to object to that error. A The concept of structural error can be discussed first. In Chapman v. California, 386 U. S. 18 (1967) , this Court “adopted the general rule that a constitutional error does not automatically require reversal of a conviction.” Ari-zona v. Fulminante, 499 U. S. 279, 306 (1991) (citing Chap-man, supra). If the government can show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” the Court held, then the error is deemed harmless and the defendant is not entitled to reversal. Id., at 24. The Court recognized, however, that some errors should not be deemed harmless beyond a reasonable doubt. Id., at 23, n. 8. These errors came to be known as structural errors. See Fulminante, 499 U. S., at 309–310. The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it “affect[s] the framework within which the trial proceeds,” rather than being “simply an error in the trial process itself.” Id., at 310. For the same reason, a structural error “def[ies] analysis by harmless error standards.” Id., at 309 (internal quotation marks omitted). The precise reason why a particular error is not amen-able to that kind of analysis—and thus the precise reason why the Court has deemed it structural—varies in a significant way from error to error. There appear to be at least three broad rationales. First, an error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant’s right to conduct his own defense, which, when exercised, “usu-ally increases the likelihood of a trial outcome unfavorable to the defendant.” McKaskle v. Wiggins, 465 U. S. 168 , n. 8 (1984). That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. See Faretta v. California, 422 U. S. 806, 834 (1975) . Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error. See United States v. Gonzalez-Lopez, 548 U. S. 140 , n. 4 (2006). Second, an error has been deemed structural if the effects of the error are simply too hard to measure. For example, when a defendant is denied the right to select his or her own attorney, the precise “effect of the violation cannot be ascertained.” Ibid. (quoting Vasquez v. Hillery, 474 U. S. 254, 263 (1986) ). Because the government will, as a result, find it almost impossible to show that the error was “harmless beyond a reasonable doubt,” Chapman, supra, at 24, the efficiency costs of letting the government try to make the showing are unjustified. Third, an error has been deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. See Gideon v. Wainwright, 372 U. S. 335 –345 (1963) (right to an attorney); Sullivan v. Louisiana, 508 U. S. 275 (1993) (right to a reasonable-doubt instruction). It therefore would be futile for the government to try to show harmlessness. These categories are not rigid. In a particular case, more than one of these rationales may be part of the explanation for why an error is deemed to be structural. See e.g., id., at 280–282. For these purposes, however, one point is critical: An error can count as structural even if the error does not lead to fundamental unfairness in every case. See Gonzalez-Lopez, supra, at 149, n. 4 (rejecting as “inconsistent with the reasoning of our precedents” the idea that structural errors “always or necessarily render a trial fundamentally unfair and unreliable” (emphasis deleted)). B As noted above, a violation of the right to a public trial is a structural error. See supra, at 1, 4. It is relevant to determine why that is so. In particular, the question is whether a public-trial violation counts as structural because it always leads to fundamental unfairness or for some other reason. In Waller v. Georgia, 467 U. S. 39 (1984) , the state court prohibited the public from viewing a weeklong suppression hearing out of concern for the privacy of persons other than those on trial. See id., at 41–43. Although it recognized that there would be instances where closure was justified, this Court noted that “such circumstances will be rare” and that the closure in question was unjustified. Id., at 45, 48. Still, the Court did not order a new trial. Id., at 49–50. Instead it ordered a new suppression hearing that was open to the public. Id., at 50. If the same evidence was found admissible in that renewed pretrial proceeding, the Court held, no new trial as to guilt would be neces-sary. Ibid. This was despite the structural aspect of the violation. Some 25 years after the Waller decision, the Court issued its per curiam ruling in Presley v. Georgia. 558 U. S. 209 . In that case, as here, the courtroom was closed to the public during jury voir dire. Id., at 210. Unlike here, however, there was a trial objection to the closure, and the issue was raised on direct appeal. Id., at 210–211. On review of the State Supreme Court’s decision allowing the closure, this Court expressed concern that the state court’s reasoning would allow the courtroom to be closed during jury selection “whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators.” Id., at 215 (internal quotation marks omitted). Although the Court expressly noted that courtroom closure may be ordered in some circumstances, the Court also stated that it was “still incumbent upon” the trial court “to consider all reasonable alternatives to closure.” Id., at 215–216. These opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified. The problems that may be encountered by trial courts in deciding whether some closures are necessary, or even in deciding which members of the public should be admitted when seats are scarce, are difficult ones. For example, there are often preliminary instructions that a judge may want to give to the venire as a whole, rather than repeating those instructions (perhaps with unintentional differences) to several groups of potential jurors. On the other hand, various constituencies of the public—the family of the accused, the family of the victim, members of the press, and other persons—all have their own interests in observing the selection of jurors. How best to manage these problems is not a topic discussed at length in any decision or commentary the Court has found. So although the public-trial right is structural, it is subject to exceptions. See Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2219–2222 (2014) (discussing situations in which a trial court may order a courtroom closure). Though these cases should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so. See Waller, supra, at 45. The fact that the public-trial right is subject to these exceptions suggests that not every public-trial violation results in fundamental unfairness. A public-trial violation can occur, moreover, as it did in Presley, simply because the trial court omits to make the proper findings before closing the courtroom, even if those findings might have been fully supported by the evidence. See 558 U. S., at 215. It would be unconvincing to deem a trial fundamentally unfair just because a judge omitted to announce factual findings before making an otherwise valid decision to order the courtroom temporarily closed. As a result, it would be likewise unconvincing if the Court had said that a public-trial violation always leads to a fundamentally unfair trial. Indeed, the Court has not said that a public-trial violation renders a trial fundamentally unfair in every case. In the two cases in which the Court has discussed the reasons for classifying a public-trial violation as structural error, the Court has said that a public-trial violation is structural for a different reason: because of the “difficulty of assessing the effect of the error.” Gonzalez-Lopez, 548 U. S., at 149, n. 4; see also Waller, supra, at 49, n. 9. The public-trial right also protects some interests that do not belong to the defendant. After all, the right to an open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused. See, e.g., Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501 –510 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 –573 (1980). So one other factor leading to the classification of structural error is that the public-trial right furthers interests other than protecting the defendant against unjust conviction. These precepts confirm the conclusion the Court now reaches that, while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant’s standpoint. III The Court now turns to the proper remedy for addressing the violation of a structural right, and in particular the right to a public trial. Despite its name, the term “structural error” carries with it no talismanic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was “harmless beyond a reasonable doubt.” Chapman, 386 U. S., at 24. Thus, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant gener-ally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” Neder v. United States, 527 U. S. 1, 7 (1999) . The question then becomes what showing is necessary when the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim. To obtain relief on the basis of ineffective assistance of counsel, the defendant as a general rule bears the burden to meet two standards. First, the defendant must show deficient performance—that the attorney’s error was “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U. S. 668, 687 (1984) . Second, the defendant must show that the attorney’s error “prejudiced the defense.” Ibid. The prejudice showing is in most cases a necessary part of a Strickland claim. The reason is that a defendant has a right to effective representation, not a right to an attorney who performs his duties “mistake-free.” Gonzalez-Lopez, 548 U. S., at 147. As a rule, therefore, a “violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.” Ibid. (emphasis deleted); see also Premo v. Moore, 562 U. S. 115, 128 (2011) ; Lockhart v. Fretwell, 506 U. S. 364, 370 (1993) . That said, the concept of prejudice is defined in different ways depending on the context in which it appears. In the ordinary Strickland case, prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U. S., at 694. But the Strickland Court cautioned that the prejudice inquiry is not meant to be applied in a “mechanical” fashion. Id., at 696. For when a court is evaluating an ineffective-assistance claim, the ultimate inquiry must concentrate on “the fundamental fairness of the proceeding.” Ibid. Petitioner therefore argues that under a proper interpretation of Strickland, even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the convicted person shows that attorney errors rendered the trial fundamentally unfair. For the analytical purposes of this case, the Court will assume that petitioner’s interpretation of Strickland is the correct one. In light of the Court’s ultimate holding, however, the Court need not decide that question here. As explained above, not every public-trial violation will in fact lead to a fundamentally unfair trial. See supra, at 10. Nor can it be said that the failure to object to a public-trial violation always deprives the defendant of a reason-able probability of a different outcome. Thus, when a de-fendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, see supra, at 11, to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair. Neither the reasoning nor the holding here calls into question the Court’s precedents determining that certain errors are deemed structural and require reversal because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process. See Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791, 1813, 1822 (2017) (noting that the “eclectic normative objectives of criminal procedure” go beyond protecting a defendant from erroneous conviction and include ensuring “ ‘that the administration of justice should reasonably appear to be disinterested’ ” (quoting Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847 –870 (1988))). Those precedents include Sullivan v. Louisiana, 508 U. S., at 278–279 (failure to give a reasonable-doubt instruction); Tumey v. Ohio, 273 U. S. 510, 535 (1927) (biased judge); and Vasquez v. Hillery, 474 U. S., at 261–264 (exclusion of grand jurors on the basis of race). See Neder, supra, at 8 (describing each of these errors as structural). This Court, in addition, has granted automatic relief to defendants who prevailed on claims alleging race or gender discrimination in the selection of the petit jury, see Batson v. Kentucky, 476 U. S. 79, 100 (1986) ; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 –146 (1994), though the Court has yet to label those errors structural in express terms, see, e.g., Neder, supra, at 8. The errors in those cases necessitated automatic reversal after they were preserved and then raised on direct appeal. And this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review. The reason for placing the burden on the petitioner in this case, however, derives both from the nature of the error, see supra, at 11–12, and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective-assistance-of-counsel claim. As explained above, when a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed. See supra, at 8–9. When a defendant first raises the closure in an ineffective-assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure. Furthermore, when state or federal courts adjudicate errors objected to during trial and then raised on direct review, the systemic costs of remedying the error are diminished to some extent. That is because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for witness memories still to be accurate and physical evidence not to be lost. There are also advantages of direct judicial supervision. Reviewing courts, in the regular course of the appellate process, can give instruction to the trial courts in a familiar context that allows for elaboration of the relevant principles based on review of an adequate record. For instance, in this case, the factors and circumstances that might justify a temporary closure are best considered in the regular appellate process and not in the context of a later proceeding, with its added time delays. When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases. The finality interest is more at risk, see Strickland, 466 U. S., at 693–694 (noting the “profound importance of finality in criminal proceedings”), and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel. In sum, “[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial,” thus undermining the final-ity of jury verdicts. Harrington v. Richter, 562 U. S. 86, 105 (2011) . For this reason, the rules governing ineffective-assistance claims “must be applied with scrupulous care.” Premo, 562 U. S., at 122. IV The final inquiry concerns the ineffective-assistance claim in this case. Although the case comes on the assumption that petitioner has shown deficient performance by counsel, he has not shown prejudice in the ordinary sense, i.e., a reasonable probability that the jury would not have convicted him if his attorney had objected to the closure. It is of course possible that potential jurors might have behaved differently if petitioner’s family had been present. And it is true that the presence of the public might have had some bearing on juror reaction. But here petitioner offered no “evidence or legal argument establishing prejudice” in the sense of a reasonable probability of a different outcome but for counsel’s failure to object. App. to Pet. for Cert. 64a; see Strickland, 466 U. S., at 694. In other circumstances a different result might obtain. If, for instance, defense counsel errs in failing to object when the government’s main witness testifies in secret, then the defendant might be able to show prejudice with little more detail. See ibid. Even in those circumstances, however, the burden would remain on the defendant to make the prejudice showing, id., at 694, 696, because a public-trial violation does not always lead to a fundamentally unfair trial, see supra, at 10. In light of the above assumption that prejudice can be shown by a demonstration of fundamental unfairness, see supra, at 11, the remaining question is whether petitioner has shown that counsel’s failure to object rendered the trial fundamentally unfair. See Strickland, supra, at 696. The Court concludes that petitioner has not made the showing. Although petitioner’s mother and her minister were indeed excluded from the courtroom for two days during jury selection, petitioner’s trial was not conducted in secret or in a remote place. Cf. In re Oliver, 333 U. S. 257 , n. 22 (1948). The closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers rather than the judge; there were many members of the venire who did not become jurors but who did observe the proceedings; and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself. There has been no showing, furthermore, that the potential harms flowing from a courtroom closure came to pass in this case. For example, there is no suggestion that any juror lied during voir dire; no suggestion of misbehavior by the prosecutor, judge, or any other party; and no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands. It is true that this case comes here on the assumption that the closure was a Sixth Amendment violation. And it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our Nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness. In sum, petitioner has not shown a reasonable probability of a different outcome but for counsel’s failure to object, and he has not shown that counsel’s shortcomings led to a fundamentally unfair trial. He is not entitled to a new trial. * * * In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective-assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing. The judgment of the Massachusetts Supreme Judicial 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 WEAVER v. MASSSACHUSETTS certiorari to the supreme judicial court of massachusetts No. 16–240. Argued April 19, 2017—Decided June 22, 2017 When petitioner was tried in a Massachusetts trial court, the courtroom could not accommodate all the potential jurors. As a result, for two days of jury selection, an officer of the court excluded from the courtroom any member of the public who was not a potential juror, including petitioner’s mother and her minister. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. Petitioner was convicted of murder and a related charge. Five years later, he filed a motion for a new trial in state court, arguing, as relevant here, that his attorney had provided ineffective assistance by failing to object to the courtroom closure. The trial court ruled that he was not entitled to relief. The Massachusetts Supreme Judicial Court affirmed in relevant part. Although it recognized that the violation of the right to public trial was a structural error, it rejected petitioner’s ineffective-assistance claim because he had not shown prejudice. Held: 1. In the context of a public-trial violation during jury selection, where the error is neither preserved nor raised on direct review but is raised later via an ineffective-assistance-of-counsel claim, the defendant must demonstrate prejudice to secure a new trial. . (a) This case requires an examination of the proper application of the doctrines of structural error and ineffective assistance of counsel. They are intertwined, because the reasons an error is deemed structural may influence the proper standard used to evaluate an ineffective-assistance claim premised on the failure to object to that error. . (1) Generally, a constitutional error that “did not contribute to the verdict obtained” is deemed harmless, which means the defendant is not entitled to reversal. Chapman v. California, 386 U. S. 18 . However, a structural error, which “affect[s] the framework within which the trial proceeds,” Arizona v. Fulminante, 499 U. S. 279 , defies harmless error analysis, id., at 309. Thus, when a structural error is objected to and then raised on direct review, the defendant is entitled to relief without any inquiry into harm. There appear to be at least three broad rationales for finding an error to be structural. One is when the right at issue does not protect the defendant from erroneous conviction but instead protects some other interest—like the defendant’s right to conduct his own defense—where harm is irrelevant to the basis underlying the right. See United States v. Gonzalez-Lopez, 548 U. S. 140 , n. 4. Another is when the error’s effects are simply too hard to measure—e.g., when a defendant is denied the right to select his or her own attorney—making it almost impossible for the government to show that the error was “harmless beyond a reasonable doubt,” Chapman, supra, at 24. Finally, some errors always result in fundamental unfairness, e.g., when an indigent defendant is denied an attorney, see Gideon v. Wainwright, 372 U. S. 335 –345. For purposes of this case, a critical point is that an error can count as structural even if it does not lead to fundamental unfairness in every case. See Gonzalez-Lopez, supra, at 149, n. 4. . (2) While a public-trial violation counts as structural error, it does not always lead to fundamental unfairness. This Court’s opinions teach that courtroom closure is to be avoided, but that there are some circumstances when it is justified. See Waller v. Georgia, 467 U. S. 39 ; Presley v. Georgia, 558 U. S. 209 –216. The fact that the public-trial right is subject to exceptions suggests that not every public-trial violation results in fundamental unfairness. Indeed, the Court has said that a public-trial violation is structural because of the “difficulty of assessing the effect of the error.” Gonzalez-Lopez, supra, at 149, n. 4. The public-trial right also furthers interests other than protecting the defendant against unjust conviction, including the rights of the press and of the public at large. See, e.g., Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501 –510. Thus, an unlawful closure could take place and yet the trial will still be fundamentally fair from the defendant’s standpoint. . (b) The proper remedy for addressing the violation of the right to a public trial depends on when the objection was raised. If an objection is made at trial and the issue is raised on direct appeal, the defendant generally is entitled to “automatic reversal” regardless of the error’s actual “effect on the outcome.” Neder v. United States, 527 U. S. 1 . If, however, the defendant does not preserve a structural error on direct review but raises it later in the context of an ineffective-assistance claim, the defendant generally bears the burden to show deficient performance and that the attorney’s error “prejudiced the defense.” Strickland v. Washington, 466 U. S. 668 . To demonstrate prejudice in most cases, the defendant must show “a reasonable probability that . . . the result of the proceeding would have been different” but for attorney error. Id., at 694. For the analytical purposes of this case, the Court will assume, as petitioner has requested, that even if there is no showing of a reasonable probability of a different outcome, relief still must be granted if the defendant shows that attorney errors rendered the trial fundamentally unfair. Not every public-trial violation will lead to a fundamentally unfair trial. And the failure to object to that violation does not always deprive the defendant of a reasonable probability of a different outcome. Thus, a defendant raising a public-trial violation via an ineffective-assistance claim must show either a reasonable probability of a different outcome in his or her case or, as assumed here, that the particular violation was so serious as to render the trial fundamentally unfair. Neither this reasoning nor the holding here calls into question the Court’s precedents deeming certain errors structural and requiring reversal because of fundamental unfairness, see Sullivan v. Louisiana, 508 U. S., at 278–279; Tumey v. Ohio, 273 U. S. 510 ; Vasquez v. Hillery, 474 U. S., at 261–264, or those granting automatic relief to defendants who prevailed on claims of race or gender discrimination in jury selection, e.g., Batson v. Kentucky, 476 U. S. 79 . The errors in each of these cases were preserved and then raised on direct appeal. The reason for placing the burden on the petitioner here, however, derives both from the nature of the error and the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective-assistance claim. When a defendant objects to a courtroom closure, the trial court can either order the courtroom opened or explain the reasons for keeping it closed, but when a defendant first raises the closure in an ineffective-assistance claim, the trial court has no chance to cure the violation. The costs and uncertainties of a new trial are also greater because more time will have elapsed in most cases. And the finality interest is more at risk. See Strickland, supra, at 693–694. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or in an ineffective-assistance claim. . 2. Because petitioner has not shown a reasonable probability of a different outcome but for counsel’s failure to object or that counsel’s shortcomings led to a fundamentally unfair trial, he is not entitled to a new trial. Although potential jurors might have behaved differently had petitioner’s family or the public been present, petitioner has offered no evidence suggesting a reasonable probability of a different outcome but for counsel’s failure to object. He has also failed to demonstrate fundamental unfairness. His mother and her minister were indeed excluded during jury selection. But his trial was not conducted in secret or in a remote place; closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial; the closure decision apparently was made by court officers, not the judge; venire members who did not become jurors observed the proceedings; and the record of the proceedings indicates no basis for concern, other than the closure itself. There was no showing, furthermore, that the potential harms flowing from a courtroom closure came to pass in this case, e.g., misbehavior by the prosecutor, judge, or any other party. Thus, even though this case comes here on the assumption that the closure was a Sixth Amendment violation, the violation here did not pervade the whole trial or lead to basic unfairness. . 474 Mass. 787, 54 N. E. 3d 495, affirmed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Sotomayor, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Alito, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined.

Petitioner was convicted in a Massachusetts state court of first-degree murder and the unlicensed possession of a handgun, and the Massachusetts Supreme Judicial Court denied his motion for a new trial on the ground that defense counsel had failed to object to the courtroom closure. The court held that petitioner was not entitled to relief. Held: In the direct review context, the underlying constitutional violation of the right to a public trial is a structural error, i.e., an error entitling the defendant to automatic reversal without any inquiry into prejudice. . (a) A structural error can count as structural even if the error does not lead to fundamental unfairness in every case. Cf. Ari-zona v. Fulminante, 499 U. S. 279,; cf. Chapman v. California, 386 U.S. 18 (1967)). The reason for placing the burden on petitioner derives both from the nature of the error, and from the difference between a public-trial violation preserved and then raised on direct review and a nonstructural error raised as an ineffective-assistance-of-counsel claim. Here, petitioner has not shown a reasonable probability of a different outcome but for counsel's failure to object, and he has also not shown that counsel's shortcomings led to a fundamentally unfair trial. He is not entitled, therefore, to a new Trial. Pp. 474 Mass. 787, 54 N. E. 3d 495, affirmed. (b) The two doctrines of structural error and ineffective assistance of counsel are intertwined. First, an error is deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. Because harm is irrelevant to the basis underlying the right, the right has deemed a violation of that right structural error. Second, if the errors in question are too hard to measure, the efficiency costs of letting the government try to make the showing are unjustified. Third, an error has been deemed structural if the effects of the errors are too difficult to measure. See, e.g., Chapman, supra, at 10. When a defendant shows that his attorney unreasonably failed to object to a structural error, the defendant is entitled to new trial without further inquiry. In this case, however, petitioner offered no evidence or legal argument establishing prejudice, and there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself. Moreover, there was no suggestion that any juror lied during voir dire or that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands. Petitioner was not shown to have shown prejudice in the ordinary sense. The court concluded that the closure was not fundamentally unfair, and that no new trial would be fundamentally unfair if the same evidence was found admissible in the renewed pretrial proceeding. On the other hand, the trial court made no showing that the potential harms flowing from a courtroom closure came to pass, and petitioner has thus not shown the required prejudice showing. Thus, he cannot be presumed to have made the required showing. 474 Mass. 87,54 N.E. 3rd 495 (CA2), affirmed. MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART J., filed an opinion concurring in the judgment, post, p..

2016_15-1358

https://www.oyez.org/cases/2016/15-1358

, except as to Part IV–B. After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) . Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws. The suit was commenced in the United States District Court for the Eastern District of New York. After this Court’s decision in Ashcroft v. Iqbal, 556 U. S. 662 (2009) , a fourth amended complaint was filed; and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel—and a second unsigned dissent from the court’s declining to rehear the suit en banc, joined by Judge Raggi and five other judges—the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty, 789 F. 3d 218 (2015) (panel decision); Turkmen v. Hasty, 808 F. 3d 197 (2015) (en banc decision). The Court granted certiorari to consider these rulings. 580 U. S. ___ (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioners here. The former detainees who seek relief under the fourth amended complaint are the respondents. The various claims and theories advanced for recovery, and the grounds asserted for their dismissal as insufficient as a matter of law, will be addressed in turn. I Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. See Iqbal, 556 U. S., at 678. A In the weeks following the September 11, 2001, terrorist attacks—the worst in American history—the Federal Bureau of Investigation (FBI) received more than 96,000 tips from members of the public. See id., at 667. Some tips were based on well-grounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents “questioned more than 1,000 people with suspected links to the [September 11] attacks in particular or to terrorism in general.” Ibid. While investigating the tips—including the less substantiated ones—the FBI encountered many aliens who were present in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on immigration charges. Ibid. If the FBI designated an alien as not being “of interest” to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as “of interest” to the investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a “hold-until-cleared policy.” The aliens were held without bail. Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The complaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “ ‘tiny cells for over 23 hours a day.’ ” 789 F. 3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells. Some of the harsh conditions in the Unit were not imposed pursuant to official policy. According to the complaint, prison guards engaged in a pattern of “physical and verbal abuse.” Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion. B Respondents are six men of Arab or South Asian descent. Five are Muslims. Each was illegally in this country, arrested during the course of the September 11 investigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States. Respondents then sued on their own behalf, and on behalf of a putative class, seeking compensatory and punitive damages, attorney’s fees, and costs. Respondents, it seems fair to conclude from the arguments presented, acknowledge that in the ordinary course aliens who are present in the United States without legal authorization can be detained for some period of time. But here the challenge is to the conditions of their confinement and the reasons or motives for imposing those conditions. The gravamen of their claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions. As relevant here, respondents sued two groups of federal officials in their official capacities. The first group consisted of former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. This opinion refers to these three petitioners as the “Executive Officials.” The other petitioners named in the complaint were the MDC’s warden, Dennis Hasty, and associate warden, James Sherman. This opinion refers to these two petitioners as the “Wardens.” Seeking to invoke the Court’s decision in Bivens, respondents brought four claims under the Constitution itself. First, respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the substantive due process component of the Fifth Amendment. Second, respondents alleged that petitioners detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment. Third, respondents alleged that the Wardens subjected them to punitive strip searches unrelated to any legitimate penological interest, in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment. Fourth, respondents alleged that the Wardens knowingly allowed the guards to abuse respondents, in violation of the substantive due process component of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. Respondents alleged that petitioners conspired with one another to hold respondents in harsh conditions because of their actual or apparent race, religion, or national origin. C The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Court of Appeals affirmed in most respects as to the Wardens, though it held that the prisoner abuse claim against Sherman (the associate warden) should have been dismissed. 789 F. 3d, at 264–265. As to the Executive Officials, however, the Court of Appeals reversed, reinstating respondents’ claims. Ibid. As noted above, Judge Raggi dissented. She would have held that only the prisoner abuse claim against Hasty should go forward. Id., at 295, n. 41, 302 (opinion concurring in part in judgment and dissenting in part). The Court of Appeals declined to rehear the suit en banc, 808 F. 3d, at 197; and, again as noted above, Judge Raggi joined a second dissent along with five other judges, id., at 198. This Court granted certiorari. 580 U. S. ___ (2016). II The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent. A In 1871, Congress passed a statute that was later codified at Rev. Stat. §1979, 42 U. S. C. §1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not pro-vide a specific damages remedy for plaintiffs whose con-stitutional rights were violated by agents of the Federal Government. In 1971, and against this background, this Court decided Bivens. The Court held that, even absent statutoryauthorization, it would enforce a damages remedy to compensate persons injured by federal officers who vio-lated the prohibition against unreasonable search and sei-zures. See 403 U. S., at 397. The Court acknowledged that the Fourth Amendment does not provide for money damages “in so many words.” Id., at 396. The Court noted, however, that Congress had not foreclosed a damages remedy in “explicit” terms and that no “special factors” suggested that the Judiciary should “hesitat[e]” in the face of congressional silence. Id., at 396–397. The Court, accordingly, held that it could authorize a remedy under general principles of federal jurisdiction. See id., at 392 (citing Bell v. Hood, 327 U. S. 678, 684 (1946) ). In the decade that followed, the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Passman, 442 U. S. 228 (1979) , an administrative assistant sued a Congressman for firing her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination. Id., at 248–249. And in Carlson v. Green, 446 U. S. 14 (1980) , a prisoner’s estate sued federal jailers for failing to treat the prisoner’s asthma. The Court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id., at 19. These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself. B To understand Bivens and the two other cases implying a damages remedy under the Constitution, it is necessary to understand the prevailing law when they were decided. In the mid-20th century, the Court followed a different approach to recognizing implied causes of action than it follows now. During this “ancien regime,” Alexander v. Sandoval, 532 U. S. 275, 287 (2001) , the Court assumed it to be a proper judicial function to “provide such remedies as are necessary to make effective” a statute’s purpose, J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964) . Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e.g., id., at 430–432; Allen v. State Bd. of Elections, 393 U. S. 544, 557 (1969) ; Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 239 (1969) (“The existence of a statutory right implies the existence of all necessary and appropriate remedies”). These statutory decisions were in place when Bivens recognized an implied cause of action to remedy a constitutional violation. Against that background, the Bivens decision held that courts must “adjust their remedies so as to grant the necessary relief” when “federally protected rights have been invaded.” 403 U. S., at 392 (quoting Bell, supra, at 678); see also 403 U. S., at 402 (Harlan, J., concurring) (discussing cases recognizing implied causes of action under federal statutes). In light of this interpretive framework, there was a possibility that “the Court would keep expanding Bivens until it became the substantial equivalent of 42 U. S. C. §1983.” Kent, Are Damages Different?: Bivens and National Security, 87 S. Cal. L. Rev. 1123, 1139–1140 (2014). C Later, the arguments for recognizing implied causes of action for damages began to lose their force. In cases decided after Bivens, and after the statutory implied cause-of-action cases that Bivens itself relied upon, the Court adopted a far more cautious course before finding implied causes of action. In two principal cases under other statutes, it declined to find an implied cause of action. See Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 –46 (1977); Cort v. Ash, 422 U. S. 66 –69 (1975). Later, in Cannon v. University of Chicago, 441 U. S. 677 (1979) , the Court did allow an implied cause of action; but it cautioned that, where Congress “intends private litigants to have a cause of action,” the “far better course” is for Congress to confer that remedy in explicit terms. Id., at 717. Following this expressed caution, the Court clarified in a series of cases that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Sandoval, 532 U. S., at 286. If the statute itself does not “displa[y] an intent” to create “a private remedy,” then “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Id., at 286–287; see also Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 –16, 23–24 (1979); Karahalios v. Federal Employees, 489 U. S. 527 –537 (1989). The Court held that the judicial task was instead “limited solely to determining whether Congress intended to create the private right of action asserted.” Touche Ross & Co. v. Redington, 442 U. S. 560, 568 (1979) . If the statute does not itself so provide, a private cause of action will not be created through judicial mandate. See Transamerica, supra, at 24. The decision to recognize an implied cause of action under a statute involves somewhat different considerations than when the question is whether to recognize an implied cause of action to enforce a provision of the Constitution itself. When Congress enacts a statute, there are specific procedures and times for considering its terms and the proper means for its enforcement. It is logical, then, to assume that Congress will be explicit if it intends to create a private cause of action. With respect to the Constitution, however, there is no single, specific congressional action to consider and interpret. Even so, it is a significant step under separation-of-powers principles for a court to determine that it has the authority, under the judicial power, to create and enforce a cause of action for damages against federal officials in order to remedy a constitutional violation. When determining whether traditional equitable powers suffice to give necessary constitutional protection—or whether, in addition, a damages remedy is necessary—there are a number of economic and governmental concerns to con-sider. Claims against federal officials often create sub-stantial costs, in the form of defense and indemnification. Congress, then, has a substantial responsibility to determine whether, and the extent to which, monetary and other liabilities should be imposed upon individual officers and employees of the Federal Government. In addition, the time and administrative costs attendant upon intrusions resulting from the discovery and trial process are significant factors to be considered. In an analogous context, Congress, it is fair to assume, weighed those concerns in deciding not to substitute the Government as defendant in suits seeking damages for constitutional violations. See 28 U. S. C. §2679(b)(2)(A) (providing that certain provisions of the Federal Tort Claims Act do not apply to any claim against a federal employee “which is brought for a violation of the Constitution”). For these and other reasons, the Court’s expressed caution as to implied causes of actions under congressional statutes led to similar caution with respect to actions in the Bivens context, where the action is implied to enforce the Constitution itself. Indeed, in light of the changes to the Court’s general approach to recognizing implied damages remedies, it is possible that the analysis in the Court’s three Bivens cases might have been different if they were decided today. To be sure, no congressional enactment has disapproved of these decisions. And it must be understood that this opinion is not intended to cast doubt on the continued force, or even the necessity, of Bivens in the search-and-seizure context in which it arose. Bivens does vindicate the Constitution by allowing some redress for injuries, and it provides instruction and guidance to federal law enforcement officers going forward. The settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere. Given the notable change in the Court’s approach to recognizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a “disfavored” judicial activity. Iqbal, 556 U. S., at 675. This is in accord with the Court’s observation that it has “consistently refused to extend Bivens to any new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001) . Indeed, the Court has refused to do so for the past 30 years. For example, the Court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas, 462 U. S. 367, 390 (1983) ; a race-discrimination suit against military officers, Chappell v. Wallace, 462 U. S. 296 –305 (1983); a substantive due process suit against military officers, United States v. Stanley, 483 U. S. 669 –672, 683–684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U. S. 412, 414 (1988) ; a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U. S. 471 –474 (1994); an Eighth Amendment suit against a private prison operator, Malesko, supra, at 63; a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins, 551 U. S. 537 –548, 562 (2007); and an Eighth Amendment suit against prison guards at a private prison, Minneci v. Pollard, 565 U. S. 118, 120 (2012) . When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts? Bush, 462 U. S., at 380. The answer most often will be Congress. When an issue “ ‘involves a host of considerations that must be weighed and appraised,’ ” it should be committed to “ ‘those who write the laws’ ” rather than “ ‘those who interpret them.’ ” Ibid. (quoting United States v. Gilman, 347 U. S. 507 –513 (1954)). In most instances, the Court’s precedents now instruct, the Legislature is in the better position to consider if “ ‘the public interest would be served’ ” by imposing a “ ‘new substantive legal liability.’ ” Schweiker, supra, at 426–427 (quoting Bush, supra, at 390). As a result, the Court has urged “caution” before “extending Bivens remedies into any new context.” Malesko, supra, at 74. The Court’s precedents now make clear that a Bivens remedy will not be available if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, 446 U. S., at 18 (quoting Bivens, 403 U. S., at 396). This Court has not defined the phrase “special factors counselling hesitation.” The necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to be a “special factor counselling hesitation,” a factor must cause acourt to hesitate before answering that question in the affirmative. It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case. Sometimes there will be doubt because the case arises in a context in which Congress has designed its regulatory authority in a guarded way, making it less likely that Congress would want the Judiciary to interfere. See Chappell, supra, at 302 (military); Stanley, supra, at 679 (same); Meyer, supra, at 486 (public purse); Wilkie, supra, at 561–562 (federal land). And sometimes there will be doubt because some other feature of a case—difficult to predict in advance—causes a court to pause before acting without express congressional authorization. In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III. In a related way, if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created “any alternative, existing process for protecting the [injured party’s] interest” that itself may “amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, supra, at 550; see also Bush, supra, at 385–388 (recognizing that civil-service regulations provided alternative means for relief); Malesko, 534 U. S., at 73–74 (recognizing that state tort law provided alternative means for relief); Minneci, supra, at 127–130 (same). III It is appropriate now to turn first to the Bivens claims challenging the conditions of confinement imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. The Court will refer to these claims as the “detention policy claims.” The detention policy claims allege that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement; the claims further allege that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The term “detention policy claims” does not include respondents’ claim alleging that Warden Hasty allowed guards to abuse the detainees. That claim will be considered separately, and further, below. At this point, the question is whether, having considered the relevant special factors in the whole context of the detention policy claims, the Court should extend a Bivens-type remedy to those claims. A Before allowing respondents’ detention policy claims to proceed under Bivens, the Court of Appeals did not perform any special factors analysis at all. 789 F. 3d, at 237. The reason, it said, was that the special factors analysis is necessary only if a plaintiff asks for a Bivens remedy in a new context. 789 F. 3d, at 234. And in the Court of Appeals’ view, the context here was not new. Id., at 235. To determine whether the Bivens context was novel, the Court of Appeals employed a two-part test. First, it asked whether the asserted constitutional right was at issue in a previous Bivens case. 789 F. 3d, at 234. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous Bivens case. 789 F. 3d, at 234. Under the Court of Appeals’ approach, if the answer to both questions is “yes,” then the context is not new and no special factors analysis is required. Ibid. That approach is inconsistent with the analysis in Malesko. Before the Court decided that case, it had approved a Bivens action under the Eighth Amendment against federal prison officials for failure to provide medical treatment. See Carlson, 446 U. S., at 16, n. 1, 18–19. In Malesko, the plaintiff sought relief against a private prison operator in almost parallel circumstances. 534 U. S., at 64. In both cases, the right at issue was the same: the Eighth Amendment right to be free from cruel and unusual punishment. And in both cases, the mechanism of injury was the same: failure to provide adequate medical treatment. Thus, if the approach followed by the Court of Appeals is the correct one, this Court should have held that the cases arose in the same context, obviating any need for a special factors inquiry. That, however, was not the controlling analytic framework in Malesko. Even though the right and the mechanism of injury were the same as they were in Carlson, the Court held that the contexts were different. 534 U. S., at 70, and n. 4. The Court explained that special factors counseled hesitation and that the Bivens remedy was therefore unavailable. 534 U. S., at 74. For similar reasons, the holding of the Court of Appeals in the instant suit is inconsistent with this Court’s ana-lytic framework in Chappell. In Davis, decided before the Court’s cautionary instructions with respect to Bivens suits, see supra, at 11–12, the Court had held that an employment-discrimination claim against a Congressman could proceed as a Bivens-type action. Davis, 442 U. S., at 230–231. In Chappell, however, the cautionary rules were applicable; and, as a result, a similar discrimination suit against military officers was not allowed to proceed. It is the Chappell framework that now controls; and, under it, the Court of Appeals erred by holding that this suit did not present a new Bivens context. The proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. In the present suit, respondents’ detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil. Those claims bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma. See Bivens, 403 U. S. 388 ; Davis, 442 U. S. 228 ; Chappell, 462 U. S. 296 . The Court of Appeals therefore should have held that this was a new Bivens context. Had it done so, it would have recognized that a special factors analysis was required before allowing this damages suit to proceed. B After considering the special factors necessarily implicated by the detention policy claims, the Court now holds that those factors show that whether a damages action should be allowed is a decision for the Congress to make, not the courts. With respect to the claims against the Executive Officials, it must be noted that a Bivens action is not “a proper vehicle for altering an entity’s policy.” Malesko, supra, at 74. Furthermore, a Bivens claim is brought against the individual official for his or her own acts, not the acts of others. “The purpose of Bivens is to deter the officer.” Meyer, 510 U. S., at 485. Bivens is not designed to hold officers responsible for acts of their subordinates. See Iqbal, 556 U. S., at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”). Even if the action is confined to the conduct of a particular Executive Officer in a discrete instance, these claims would call into question the formulation and implementation of a general policy. This, in turn, would necessarily require inquiry and discovery into the whole course of the discussions and deliberations that led to the policies and governmental acts being challenged. These consequences counsel against allowing a Bivens action against the Executive Officials, for the burden and demand of litigation might well prevent them—or, to be more precise, future officials like them—from devoting the time and effort required for the proper discharge of their duties. See Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 382 (2004) (noting “the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties”). A closely related problem, as just noted, is that the discovery and litigation process would either border upon or directly implicate the discussion and deliberations that led to the formation of the policy in question. See Federal Open Market Comm. v. Merrill, 443 U. S. 340, 360 (1979) (noting that disclosure of Executive Branch documents “could inhibit the free flow of advice, including analysis, reports, and expression of opinion within an agency”). Allowing a damages suit in this context, or in a like context in other circumstances, would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch. See Clinton v. Jones, 520 U. S. 681, 701 (1997) (recognizing that “ ‘[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties’ ” (quoting Loving v. United States, 517 U. S. 748, 757 (1996) )). These considerations also counsel against allowing a damages claim to proceed against the Executive Officials. See Cheney, supra, at 385 (noting that “special considerations control” when a case implicates “the Executive Branch’s interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications”). In addition to this special factor, which applies to the claims against the Executive Officials, there are three other special factors that apply as well to the detention policy claims against all of the petitioners. First, respondents’ detention policy claims challenge more than standard “law enforcement operations.” United States v. Verdugo-Urquidez, 494 U. S. 259, 273 (1990) . They challenge as well major elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security. Were this inquiry to be allowed in a private suit for damages, the Bivens action would assume dimensions far greater than those present in Bivens itself, or in either of its two follow-on cases, or indeed in any putative Bivens case yet to come before the Court. National-security policy is the prerogative of the Congress and President. See U. S. Const., Art. I, §8; Art. II, §1, §2. Judicial inquiry into the national-security realm raises “concerns for the separation of powers in trenching on matters committed to the other branches.” Christopher v. Harbury, 536 U. S. 403, 417 (2002) . These concerns are even more pronounced when the judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking injunctive or other equitable relief. The risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national-security policy. For these and other reasons, courts have shown deference to what the Executive Branch “has determined . . . is ‘essential to national security.’ ” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 24, 26 (2008) . Indeed, “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs” unless “Congress specifically has provided otherwise.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988) . Congress has not provided otherwise here. There are limitations, of course, on the power of the Executive under Article II of the Constitution and in the powers authorized by congressional enactments, even with respect to matters of national security. See, e.g., Hamdi v. Rumsfeld, 542 U. S. 507 –537 (2004) (plurality opinion) (“Whatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake”); Boumediene v. Bush, 553 U. S. 723, 798 (2008) (“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law”). And national-security concerns must not become a talisman used to ward off inconvenient claims—a “label” used to “cover a multitude of sins.” Mitchell v. Forsyth, 472 U. S. 511, 523 (1985) . This “ ‘danger of abuse’ ” is even more heightened given “ ‘the difficulty of defining’ ” the “ ‘security interest’ ” in domestic cases. Ibid. (quoting United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 –314 (1972)). Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396. Furthermore, in any inquiry respecting the likely or probable intent of Congress, the silence of Congress is relevant; and here that silence is telling. In the almost 16 years since September 11, the Federal Government’s responses to that terrorist attack have been well documented. Congressional interest has been “frequent and intense,” Schweiker, supra, at 425, and some of that interest has been directed to the conditions of confinement at issue here. Indeed, at Congress’ behest, the Department of Justice’s Office of the Inspector General compiled a 300-page report documenting the conditions in the MDC in great detail. See 789 F. 3d, at 279 (opinion of Raggi, J.) (noting that the USA PATRIOT Act required “the Department’s Inspector General to review and report semi-annually to Congress on any identified abuses of civil rights and civil liberties in fighting terrorism”). Nevertheless, “[a]t no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit.” Schweiker, 487 U. S., at 426. This silence is notable because it is likely that high-level policies will attract the attention of Congress. Thus, when Congress fails to provide a damages remedy in circumstances like these, it is much more difficult to believe that “congressional inaction” was “inadvertent.” Id., at 423. It is of central importance, too, that this is not a case like Bivens or Davis in which “it is damages or nothing.” Bivens, supra, at 410 (Harlan, J., concurring in judgment); Davis, 442 U. S., at 245. Unlike the plaintiffs in those cases, respondents do not challenge individual instances of discrimination or law enforcement overreach, which due to their very nature are difficult to address except by way of damages actions after the fact. Respondents instead challenge large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief. And in addition to that, we have left open the question whether they might be able to challenge their confinement conditions via a petition for a writ of habeas corpus. See Bell v. Wolfish, 441 U. S. 520, 526, n. 6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 411 U. S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal”). Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately; yet this dam-ages suit remains unresolved some 15 years later. (As in Bell and Preiser, the Court need not determine the scope or availability of the habeas corpus remedy, a question that is not before the Court and has not been briefed or argued.) In sum, respondents had available to them “ ‘other alternative forms of judicial relief.’ ” Minneci, 565 U. S.,at 124. And when alternative methods of relief are available, a Bivens remedy usually is not. See Bush, 462 U. S., at 386–388; Schweiker, supra, at 425–426; Malesko, 534 U. S., at 73–74; Minneci, supra, at 125–126. There is a persisting concern, of course, that absent a Bivens remedy there will be insufficient deterrence to prevent officers from violating the Constitution. In circumstances like those presented here, however, the stakes on both sides of the argument are far higher than in past cases the Court has considered. If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril. Cf. Stanley, supra, at 681 (noting that the special-factors analysis in that case turned on “how much occasional, unintended impairment of military discipline one is willing to tolerate”). The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens. IV A One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents. The warden argues, as an initial matter, that the complaint does not “ ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U. S., at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 570 (2007) ). Applying its precedents, the Court of Appeals held that the substantive standard for the sufficiency of the claim is whether the warden showed “deliberate indifference” to prisoner abuse. 789 F. 3d, at 249–250. The parties appear to agree on this standard, and, for purposes of this case, the Court assumes it to be correct. The complaint alleges that guards routinely abused respondents; that the warden encouraged the abuse by referring to respondents as “terrorists”; that he prevented respondents from using normal grievance procedures; that he stayed away from the Unit to avoid seeing the abuse; that he was made aware of the abuse via “inmate complaints, staff complaints, hunger strikes, and suicide attempts”; that he ignored other “direct evidence of [the] abuse, including logs and other official [records]”; that he took no action “to rectify or address the situation”; and that the abuse resulted in the injuries described above, see supra, at 4. These allegations—assumed here to be true, subject to proof at a later stage—plausibly show the warden’s deliberate indifference to the abuse. Consistent with the opinion of every judge in this case to have considered the question, including the dissenters in the Court of Appeals, the Court concludes that the prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation if a Bivens remedy is to be implied. Warden Hasty argues, however, that Bivens ought not to be extended to this instance of alleged prisoner abuse. As noted above, the first question a court must ask in a case like this one is whether the claim arises in a new Bivens context, i.e., whether “the case is different in a meaningful way from previous Bivens cases decided by this Court.” Supra, at 16. It is true that this case has significant parallels to one of the Court’s previous Bivens cases, Carlson v. Green, 446 U. S. 14 . There, the Court did allow a Bivens claim for prisoner mistreatment—specifically, for failure to provide medical care. And the allegations of injury here are just as compelling as those at issue in Carlson. This is especially true given that the complaint alleges serious violations of Bureau of Prisons policy. See 28 CFR §552.20 (2016) (providing that prison staff may use force “only as a last alternative after all other reasonable efforts to resolve a situation have failed” and that staff may “use only that amount of force necessary to [ensure prison safety and security]”); §552.22(j) (“All incidents involving the use of force . . . must be carefully documented”); §542.11 (requiring the warden to investigate certain complaints of inmate abuse). Yet even a modest extension is still an extension. And this case does seek to extend Carlson to a new context. As noted above, a case can present a new context for Bivens purposes if it implicates a different constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or if there are potential special factors that were not considered in previous Bivens cases. See supra, at 13. The constitutional right is different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth. See 446 U. S., at 16. And the judicial guidance available to this warden, with respect to his supervisory duties, was less developed. The Court has long made clear the standard for claims alleging failure to provide medical treatment to a prisoner—“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U. S. 97, 104 (1976) . The standard for a claim alleging that a warden allowed guards to abuse pre-trial detainees is less clear under the Court’s precedents. This case also has certain features that were not considered in the Court’s previous Bivens cases and that might discourage a court from authorizing a Bivens remedy. As noted above, the existence of alternative remedies usually precludes a court from authorizing a Bivens action. Supra, at 14. And there might have been alternative remedies available here, for example, a writ of habeas corpus, Wolfish, 441 U. S., at 526, n. 6; an injunction requiring the warden to bring his prison into compliance with the regulations discussed above; or some other form of equitable relief. Furthermore, legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation. See supra, at 14. Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. See 42 U. S. C. §1997e. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to rem-edy those wrongs. This Court has said in dicta that the Act’s exhaustion provisions would apply to Bivens suits. See Porter v. Nussle, 534 U. S. 516, 524 (2002) . But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson dam-ages remedy to cases involving other types of prisoner mistreatment. The differences between this claim and the one in Carlson are perhaps small, at least in practical terms. Given this Court’s expressed caution about extending the Bivens remedy, however, the new-context inquiry is easily satisfied. Some differences, of course, will be so trivial that they will not suffice to create a new Bivens context. But here the differences identified above are at the very least meaningful ones. Thus, before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy” in a suit like this one. Supra, at 15. B Although the Court could perform that analysis in the first instance, the briefs have concentrated almost all of their efforts elsewhere. Given the absence of a comprehensive presentation by the parties, and the fact that the Court of Appeals did not conduct the analysis, the Court declines to perform the special factors analysis itself. The better course is to vacate the judgment below, allowing the Court of Appeals or the District Court to do so on remand. V One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3). Unlike the prisoner abuse claim just discussed, this claim implicates the activities of all the petitioners—the Executive Officials as well as the Wardens—in creating the conditions of confinement at issue here. The civil-conspiracy prohibition contained in §1985(3) was enacted as a significant part of the civil rights legislation passed in the aftermath of the Civil War. See Carpenters v. Scott, 463 U. S. 825 –837 (1983) (detailing the legislative history of §1985(3)); Griffin v. Breckenridge, 403 U. S. 88 –101 (1971) (same); Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 379 (1979) (Powell, J., concurring) (describing §1985(3) as a “Civil War Era remedial statute”). The statute imposes liability on two or more persons who “conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.” §1985(3). In the instant suit, respondents allege that petitioners violated the statute by “agreeing to implement a policy” under which respondents would be detained in harsh conditions “because of their race, religion, ethnicity, and national origin.” Assuming these allegations to be true and well pleaded, the question is whether petitioners are entitled to qualified immunity. A The qualified immunity rule seeks a proper balance between two competing interests. On one hand, damages suits “may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982) . “On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Anderson v. Creighton, 483 U. S. 635, 638 (1987) . As one means to accommodate these two objectives, the Court has held that Government officials are entitled to qualified immunity with respect to “discretionary functions” performed in their official capacities. Ibid. The doctrine of qualified immunity gives officials “breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U. S. 731, 743 (2011) . The Court’s cases provide additional instruction to define and implement that immunity. Whether qualified immunity can be invoked turns on the “objective legal reasonableness” of the official’s acts. Harlow, supra, at 819. And reasonableness of official action, in turn, must be “assessed in light of the legal rules that were clearly established at the time [the action] was taken.” Anderson, supra, at 639 (internal quotation marks omitted); see also Mitchell, 472 U. S., at 528. This requirement—that an official loses qualified immunity only for violating clearly established law—protects officials accused of violating “extremely abstract rights.” Anderson, supra, at 639. The Fourth Amendment provides an example of how qualified immunity functions with respect to abstract rights. By its plain terms, the Amendment forbids unreasonable searches and seizures, yet it may be difficult for an officer to know whether a search or seizure will be deemed reasonable given the precise situation encountered. See Saucier v. Katz, 533 U. S. 194, 205 (2001) (“It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts”). For this reason, “[t]he dispositive question is ‘whether the violative nature of particular conduct is clearly established.’ ” Mullenix v. Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 5) (quoting Ashcroft, supra, at 742). It is not necessary, of course, that “the very action in question has previously been held unlawful.” Anderson, supra, at 640. That is, an officer might lose qualified immunity even if there is no reported case “directly on point.” Ashcroft, supra, at 741. But “in the light of pre-existing law,” the unlawfulness of the officer’s conduct “must be apparent.” Anderson, supra, at 640. To subject officers to any broader liability would be to “disrupt the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties.” Davis v. Scherer, 468 U. S. 183, 195 (1984) . For then, both as a practical and legal matter, it would be difficult for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Ibid. In light of these concerns, the Court has held that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U. S. 335, 341 (1986) . To determine whether a given officer falls into either of those two categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted.” Saucier, supra, at 202. If so, then the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however—i.e., if a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability. B Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged. At least two aspects of the complaint indicate that petitioners’ potential liability for this statutory offense would not have been known or anticipated by reasonable officials in their position. First, the conspiracy recited in the complaint is alleged to have been between or among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice). Second, the discussions were the preface to, and the outline of, a general and far-reaching policy. As to the fact that these officers were in the same Department, an analogous principle discussed in the context of antitrust law is instructive. The Court’s precedent indicates that there is no unlawful conspiracy when officers within a single corporate entity consult among themselves and then adopt a policy for the entity. See Copperweld Corp v. Independence Tube Corp., 467 U. S. 752 ,769–771 (1984). Under this principle—sometimes called the intracorporate-conspiracy doctrine—an agreement between or among agents of the same legal entity, when the agents act in their official capacities, is not an unlawful conspiracy. Ibid. The rule is derived from the nature of the conspiracy prohibition. Conspiracy requires an agreement—and in particular an agreement to do an unlawful act—between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their official duties, how-ever, as a practical and legal matter their acts are attributed to their principal. And it then follows that there has not been an agreement between two or more separate people. See id., at 771 (analogizing to “a multiple team of horses drawing a vehicle under the control of a single driver”). To be sure, this Court has not given its approval to this doctrine in the specific context of §1985(3). See Great American, 442 U. S., at 372, n. 11. There is a division in the courts of appeals, moreover, respecting the validity or correctness of the intracorporate-conspiracy doctrine with reference to §1985 conspiracies. See Hull v. Shuck, 501 U. S. 1261 –1262 (1991) (White, J., dissenting from denial of certiorari) (discussing the Circuit split); Bowie v. Maddox, 642 F. 3d 1122, 1130–1131 (CADC 2011) (detailing a longstanding split about whether the intracorporate-conspiracy doctrine applies to civil rights conspiracies). Nothing in this opinion should be interpreted as either approving or disapproving the intracorporate-conspiracy doctrine’s application in the context of an alleged §1985(3) violation. The Court might determine, in some later case, that different considerations apply to a conspiracy respecting equal protection guarantees, as distinct from a conspiracy in the antitrust context. Yet the fact that the courts are divided as to whether or not a §1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established. When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability. See Wilson v. Layne, 526 U. S. 603, 618 (1999) (noting that it would be “unfair” to subject officers to damages liability when even “judges . . . disagree”); Reichle v. Howards, 566 U. S. 658 –670 (2012) (same). In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conver-sations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under §1985(3). To state a claim under §1985(3), a plaintiff must first show that the defendants conspired—that is, reached an agreement—with one another. See Carpenters, 463 U. S., at 828 (stating that the elements of a §1985(3) claim include “a conspiracy”). Thus, a §1985(3) claim against federal officials by necessity implicates the substance of their official discussions. As indicated above with respect to other claims in this suit, open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue. See supra, at 17–18. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies. See Cheney, 542 U. S., at 383 (discussing the need for confidential communications among Executive Branch officials); Merrill, 443 U. S., at 360 (same). These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that §1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier, 533 U. S., at 202. Petitioners are entitled to qualified immunity with respect to the claims under 42 U. S. C. §1985(3). * * * If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis. Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above. The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative. The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings. It is so ordered. Justice Sotomayor, Justice Kagan, and Justice Gorsuch took no part in the consideration or decision of these 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 ZIGLAR v. ABBASI et al. certiorari to the united states court of appeals for the second circuit No. 15–1358. Argued January 18, 2017—Decided June 19, 2017[1] In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , alleging that petitioners detained them in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents’ claims. Held: The judgment is reversed in part and vacated and remanded in part. 789 F. 3d 218, reversed in part and vacated and remanded in part. Justice Kennedy delivered the opinion of the Court, except as to Part IV–B, concluding: 1. The limited reach of the Bivens action informs the decision whether an implied damages remedy should be recognized here. . (a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U. S. 228 , and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14 . These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself. . (b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “provide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426 . The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275 . If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560 , no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662 . When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367 . Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. . 2. Considering the relevant special factors here, a Bivens-type remedy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. . (a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. . (b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed. With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61 , and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete conduct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U. S. 367 . The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681 . Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into national-security issues. National-security policy, however, is the prerogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518 . Thus, Congress’ failure to provide a damages remedy might be more than mere oversight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412 . That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118 , including injunctions and habeas petitions. The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. . 3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse allegations against Warden Hasty state a plausible ground to find a constitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s expressed caution about extending the Bivens remedy, this context must be regarded as a new one. . 4. Petitioners are entitled to qualified immunity with respect to respondents’ claims under 42 U. S. C. §1985(3). . (a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800 , “assessed in light of the legal rules that were ‘clearly established’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635 . If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted,” Saucier v. Katz, 533 U. S. 194 , the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is entitled to qualified immunity. . (b) Here, reasonable officials in petitioners’ positions would not have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clearly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach consensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. . Kennedy, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which Roberts, C. J., and Thomas and Alito, JJ., joined, and an opinion with respect to Part IV–B, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Sotomayor, Kagan, and Gorsuch, JJ., took no part in the consideration or decision of the cases. Notes 1 Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

Respondents, six men of Arab or South Asian descent, were unlawfully detained in the Administrative Maximum Special Housing Unit (Unit) of the Federal Bureau of Investigation (FBI) for more than three weeks following the September 11, 2001, attacks. Some of the claims sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and a claim under 42 U.S. C. §1985(3), which allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws. The District Court dismissed the claims against the Executive Officials, but allowed the claim against the Wardens to go forward. The Court of Appeals reversed, reinstating respondents' claims, but declined to rehear the suit en banc. Held: 1. Given the present procedural posture of the suit, the Court accepts as true the facts alleged in the complaint. . (a) In defining the limits of damages under §1983, Congress did not create an analogous statute for federal officials leading up to her injury, nor did it foreclose a damages remedy inexplicit terms. Even absent statutoryauthorization, Congress could authorize a remedy under general principles of federal jurisdiction, and the judicial task was instead limited solely to determining whether Congress intended to create a private right of action asserted. See, e.g., ibid., at 392. Here, the gravamen of respondents claims was that the Government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions. Given the fact that the courts are divided as to whether or not a §1985 (3) conspiracy can arise from official discussions between or among agents of the same legal entity, the necessary inference is that the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Thus, to determine whether a given officer falls into either of those categories, a court must ask whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted. If so, the defendant officer must have been either incompetent or else a knowing violator of the law, and thus not entitled to qualified immunity. If not, however, the officer might not have known for certain that the conduct in question was unlawful. Pp. 442 U. N. 662. (b) It follows that reasonable officials in petitioners' positions would not be able to know, and could not have predicted, that §1986(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged. At least two aspects of the complaint indicate that petitioners potential liability for this statutory offense would not have been known or anticipated by reasonable officers in their position. First, the conspiracy recited here is alleged to have been between and among officers in the same branch of the Government (the Executive Branch) and the same Department (the Department of Justice), an analogous principle discussed in the context of antitrust law. Second, the alleged conspiracy was the preface to, and was the outline of, a general and far-reaching policy. These and other considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Moreover, the factors discussed above suggest that Congress would want the Judiciary to entertain a damages suit in a given case, and would require courts to interfere in an intrusive way in which a regulatory agency would interfere with the way the Executive Branch exercises its constitutional powers. Finally, there are three other special factors that apply as well to the detention policy claims against all of the petitioners: (1) respondents challenge more than standard "law enforcement operations"; (2) the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors (such as special factors) that may make it less probable that Congress will want the courts to entertain the suit in the given case. In addition, such considerations counsel against allowing a BivENS action against the warden, for the burden and demand of litigation might well prevent him or other officials like him from devoting the time and effort required for the proper discharge of their duties. Furthermore, the possibility that Congress might interfere with a special means of discipline when it acts in a case such as this one is too great to contemplate. And, in addition to allowing such a claim to proceed under a general rule of law, there is a special factor that counsels hesitation against allowing such an action.

2017_17-586

https://www.oyez.org/cases/2017/17-586

. Before us for review are orders of a three-judge court in the Western District of Texas effectively directing the State not to conduct this year’s elections using districting plans that the court itself adopted some years earlier. The court developed those plans for use in the 2012 elections pursuant to our directions in Perry v. Perez, 565 U. S. 388 (2012) (per curiam). We instructed the three-judge court to start with the plans adopted by the Texas Legislature in 2011 but to make adjustments as required by the Constitution and the Voting Rights Act. Id., at 392–396. After those plans were used in 2012, the Texas Legislature enacted them (with only minor modifications) in 2013, and the plans were used again in both 2014 and 2016. Last year, however, the three-judge court reversed its prior analysis and held that some of the districts in those plans are unlawful. After reviewing the repealed 2011 plans, which had never been used, the court found that they were tainted by discriminatory intent and that the 2013 Legislature had not “cured” that “taint.” We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. When the congressional and state legislative districts are reviewed under the proper legal standards, all but one of them, we conclude, are lawful. I A The 2010 decennial census revealed that the population of Texas had grown by more than 20% and the State was therefore apportioned four additional seats in the United States House of Representatives. C. J. S. 369a.[1] To accommodate this new allocation and the population changes shown by the census, the Legislature adopted a new congressional districting plan, as well as new districting maps for the two houses of the State Legislature. Redistricting is never easy, and the task was especially complicated in Texas in 2011. Not only was the Legislature required to draw districts that were substantially equal in population, see Perry, supra, at 391–392; Rey- nolds v. Sims, 377 U. S. 533 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964), and to comply with special state-law districting rules,[2] but federal law imposed complex and delicately balanced requirements regarding the consideration of race. Then, as now, federal law restricted the use of race in making districting decisions. The Equal Protection Clause forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. Shaw v. Reno, 509 U. S. 630, 641 (1993). It also prohibits intentional “vote dilution”—“invidiously . . . minimiz[ing] or cancel[ing] out the voting potential of racial or ethnic minorities.” Mobile v. Bolden, 446 U. S. 55, 66–67 (1980) (plurality opinion). While the Equal Protection Clause imposes these important restrictions, its application in the field of districting is complicated. For one thing, because a voter’s race sometimes correlates closely with political party preference, see Cooper v. Harris, 581 U. S. ___, ___–___ (2017) (slip op., at 19–20); Easley v. Cromartie, 532 U. S. 234, 243 (2001), it may be very difficult for a court to determine whether a districting decision was based on race or party preference. Here, the three-judge court found that the two factors were virtually indistinguishable.[3] At the same time that the Equal Protection Clause restricts the consideration of race in the districting process, compliance with the Voting Rights Act of 1965, 79Stat. 437, as amended, 52 U. S. C. §10301 et seq. (VRA), pulls in the opposite direction: It often insists that districts be created precisely because of race. Two provisions of the VRA exert such demands, and in 2011, Texas was subject to both. At that time, Texas was covered by §5 of the VRA[4] and was thus barred from making any districting changes unless it could prove that they did not result in “retrogression” with respect to the ability of racial minorities to elect the candidates of their choice. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 3). That showing obviously demanded consideration of race. On top of this, Texas was (and still is) required to comply with §2 of the VRA. A State violates §2 if its districting plan provides “ ‘less opportunity’ ” for racial minorities “ ‘to elect representatives of their choice.’ ” League of United Latin American Citizens v. Perry, 548 U. S. 399, 425 (2006) (LULAC). In a series of cases tracing back to Thornburg v. Gingles, 478 U. S. 30 (1986), we have interpreted this standard to mean that, under certain circumstance, States must draw “opportunity” districts in which minority groups form “effective majorit[ies],” LULAC, supra, at 426. Since the Equal Protection Clause restricts consideration of race and the VRA demands consideration of race, a legislature attempting to produce a lawful districting plan is vulnerable to “ ‘competing hazards of liability.’ ” Bush v. Vera, 517 U. S. 952, 977 (1996) (plurality opinion). In an effort to harmonize these conflicting demands, we have assumed that compliance with the VRA may justify the consideration of race in a way that would not otherwise be allowed. In technical terms, we have assumed that complying with the VRA is a compelling state interest, see, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 13); Shaw v. Hunt, 517 U. S. 899, 915 (1996), and that a State’s consideration of race in making a districting decision is narrowly tailored and thus satisfies strict scrutiny if the State has “ ‘good reasons’ ” for believing that its decision is necessary in order to comply with the VRA. Cooper, supra, at ___ (slip op., at 3). B Facing this legal obstacle course, the Texas Legislature in 2011 adopted new districting plans, but those plans were immediately tied up in litigation and were never used. Several plaintiff groups quickly filed challenges in the District Court for the Western District of Texas, arguing that some of the districts in the new plans were racial gerrymanders, some were based on intentional vote dilution, and some had the effect of depriving minorities of the equal opportunity to elect the candidates of their choice. This case was assigned to a three-judge court, as required by 28 U. S. C. §2284(a). (We will call this court “the Texas court” or simply “the District Court.”) The situation was further complicated by the requirement that Texas obtain preclearance of its new plans. To do this, Texas filed for a declaratory judgment in the District Court for the District of Columbia. See Texas v. United States, 887 F. Supp. 2d 133 (2012). (We will call this court “the D. C. court.”) By early 2012, the D. C. court had not yet issued a decision, and Texas needed usable plans for its rapidly approaching primaries. Accordingly, the Texas court drew up interim plans for that purpose. Perez v. Perry, 835 F. Supp. 2d 209 (2011). In creating those plans, the majority of the Texas court thought that it was not “required to give any deference to the Legislature’s enacted plan.” Id., at 213. Instead, it based its plans on what it called “neutral principles that advance the interest of the collective public good.” Id., at 212.[5] Texas challenged those court-ordered plans in this Court, and we reversed. Perry v. Perez, 565 U. S. 388 (2012) (per curiam). Noting that “[r]edistricting is ‘primarily the duty and responsibility of the State,’ ” we held that the Texas court should have respected the legislative judgments embodied in the 2011 plans to the extent allowed by the Constitution and the VRA. Id., at 392–399. We remanded the case with very specific instructions. The Texas court was told to start with the plans adopted by the Legislature but to modify those plans as needed so as “not to incorporate . . . any legal defects.” Id., at 394. With respect to claims under the Constitution or §2 of the VRA, the District Court was told to change a district if the plaintiffs were likely to succeed on the merits of their challenge. Ibid. And with respect to §5 claims, the court was instructed to make whatever changes were needed to obviate any legal claim that was “not insubstantial.”[6] Id., at 395. Thus, our instructions, in an abundance of caution, demanded changes in the challenged 2011 plans without proof that those changes were actually required by either the Constitution or the VRA. On remand, the Texas court ordered additional briefing and heard two more days of argument. App. 29a, 35a–50a; Order in Civ. No. 11–cv–00360, Doc. No. 616. It issued two opinions, totaling more than 70 pages, and analyzed disputed districts in detail. C. J. S. 367a–423a; H. J. S. 300a–315a. While stressing the preliminary nature of its determinations, see C. J. S. 368a; H. J. S. 314a–315a, the court found that some districts required change and that others were lawful, C. J. S. 367a–423a; H. J. S. 300a–315a. The court then adopted plans for the State’s congressional districts and for both houses of the State Legislature. (The plan for the State Senate is not at issue.) Both the congressional plan and the plan for the Texas House departed significantly from the State’s 2011 plans. At least 8 of the 36 congressional districts were markedly altered, and 21 districts in the plan for the Texas House were “substantially” changed. H. J. S. 314a; C. J. S. 397a–408a. In August 2012, the D. C. court denied preclearance of the plans adopted by the Legislature in 2011, see Texas v. United States, supra, so the State conducted the 2012 elections under the interim plans devised by the Texas court. At the same time, Texas filed an appeal in this Court contesting the decision of the D. C. court,[7] but that appeal ultimately died for two reasons. First, the 2011 plans were repealed. The Texas attorney general urged the Legislature to pass new redistricting plans, C. J. S. 429a, and in his view, the “best way to remedy the violations found by the D. C. court” was to “adopt the [Texas court’s] interim plans as the State’s permanent redistricting maps.” Id., at 432a. Doing so, he said, would “confirm the legislature’s intent” to adopt “a redistricting plan that fully comports with the law.” Id., at 429a. The Governor called a special session to do just that, and the Legislature complied. One of the legislative sponsors, Senator Seliger, explained that, although “ ‘the Texas Legislature remains confident that the legislatively-drawn maps adopted in 2011 are fair and legal . . . , there remain several outstanding legal questions regarding these maps that undermine the stability and predictability of the electoral process in Texas.’ ” 274 F. Supp. 3d 624, 649, n. 40 (2017). Counsel for one of the plaintiff groups, the Mexican American Legal Defense and Education Fund (MALDEF), testified in favor of the plans. C. J. S. 436a–439a. The 2013 Legislature then repealed the 2011 plans and enacted the Texas court’s interim plans with just a few minor changes. The federal congressional plan was not altered at all, and only small modifications were made to the plan for the Texas House. C. J. S. Findings 231a–232a. On the day after the Legislature passed the new plans and the day before the Governor signed them, this Court issued its decision in Shelby County v. Holder, 570 U. S. 529 (2013), which invalidated the coverage formula in §4 of the Voting Rights Act. Now no longer subject to §5, Texas obtained a vacatur of the D. C. court’s order on preclearance. 274 F. Supp. 3d, at 634–635, and n. 11. With the never-effective 2011 plans now repealed and any preclearance issues overcome by events, the State argued in the Texas court that the plaintiffs’ case against the 2011 plans was moot. In September 2013, the Texas court allowed the plaintiffs to amend their complaints to challenge the 2013 plans, but the court held that their challenges to the 2011 plans were still alive, reasoning that the repeal of the 2011 plans represented the “voluntary cessation” of allegedly unconstitutional conduct.[8] Texas conducted its 2014 and 2016 elections under the plans that had been preliminarily approved by the Texas court and subsequently adopted (with only minor changes) by the Legislature in 2013. But in March and April 2017, after multiple trials, the Texas court issued a pair of rulings on the defunct 2011 plans. The court reaffirmed the conclusions it had reached in 2012 about defects in the 2011 plans, and it went further. Contrary to its earlier decision, it held that Congressional District (CD) 35 is an impermissible racial gerrymander and that CD27 violates §2 of the Voting Rights Act because it has the effect of diluting the electoral opportunities of Latino voters. C. J. S. 181a, 193a–194a. Previously, the court had provided detailed reasons for rejecting the very arguments that it now accepted. Id., at 409a–423a. Similarly, the court held that multiple districts in the plan for the Texas House were the result of intentional vote dilution. These included districts in the counties of Nueces (House District (HD) 32, HD34), Bell (HD54, HD55), and Dallas (HD103, HD104, HD105). H. J. S. 275a–276a.[9] In August 2017, having ruled on the repealed 2011 plans, the Texas court finally turned its attention to the plans then in effect—i.e., the plans that had been developed by the court, adopted by the Legislature in 2013, and used in both the 2014 and 2016 elections. The court invalidated the districts in those plans that correspond to districts in the 2011 plan that it had just held to be unlawful, i.e., CD27, CD35, HD32, HD34, HD54, HD55, HD103, HD104, and HD105. See 274 F. Supp. 3d 624 (2017) (No. 17–586) and 267 F. Supp. 3d 750 (2017) (No. 17–626). In reaching these conclusions, the court pointed to the discriminatory intent allegedly harbored by the 2011 Legislature, and it attributed this same intent to the 2013 Legislature because it had failed to “engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.” 274 F. Supp. 3d, at 645–652; 267 F. Supp. 3d, at 757. The court saw “no indication that the Legislature looked to see whether any discriminatory taint remained in the plans.” 274 F. Supp. 3d, at 649. And it faulted the State because it “did not accept [findings of the D. C. court] and instead appealed to the Supreme Court.” Ibid. Seeing no evidence that the State had undergone “a change of heart,” the court concluded that the Legislature’s “decision to adopt the [District Court’s] plans” was a “litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities.” Id., at 649–650. Finally, summarizing its analysis, the court reiterated that the 2011 Legislature’s “discriminatory taint was not removed by the [2013] Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.” Id., at 686. The Texas court’s decisions about CD35 and all but three of the Texas House districts were based entirely on its finding that the 2013 Legislature had not purged its predecessor’s discriminatory intent. However, the court also held that three districts—CD27, HD32, and HD34—were invalid under §2 of the Voting Rights Act because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. Id., at 682–686; 267 F. Supp. 3d, at 775–783. And the court found independent proof that HD90 was a racial gerrymander. Id., at 788–794. The court held that violations in all these districts “must be remedied.” 274 F. Supp. 3d, at 686; see also 267 F. Supp. 3d, at 795 (describing State House district violations that “must be remedied”). Mindful that October 1 was the deadline for the Texas Secretary of State to provide voter registration templates to the State’s counties, App. 380a–381a, the court took steps to bring about prompt remedial action. In two orders issued on August 15 and 24, the Texas attorney general was instructed to advise the court, within three days, “whether the Legislature intends to take up redistricting in an effort to cure these violations.” 274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795. If the Legislature chose not to do so, the court warned, it would “hold a hearing to consider remedial plans.” Ibid. After the Governor made clear that the State would not act, the court ordered the parties to proceed with a hearing on the congressional plan on September 5, as well as a hearing on the plan for the Texas House on September 6. 274 F. Supp. 3d, at 686; 267 F. Supp. 3d, at 795; App. 134a–136a; Defendants’ Opposed Motion To Stay Order on Plan C235 Pending Appeal or Final Judgment in Civ. No. 11–cv–00360, Doc. 1538, pp. 3–4; Defendants’ Opposed Motion To Stay Order on Plan H358 Pending Appeal or Final Judgment, Doc. No. 1550, pp. 4–5. Texas applied for stays of both orders, but the District Court denied the applications. App. 134a–136a. Texas then asked this Court to stay the orders, and we granted that relief. After receiving jurisdictional statements, we postponed consideration of jurisdiction and set the cases for consolidated argument. 583 U. S. ___ (2018). II Before reaching the merits of these appeals, we must assure ourselves that we have jurisdiction to review the orders at issue. Appellants claim that the orders amount to injunctions and are therefore appealable to this Court under 28 U. S. C. §1253. Appellees disagree, contending that the orders do not qualify as injunctions. We hold that we have jurisdiction because the orders were effectively injunctions in that they barred Texas from using the districting plans now in effect to conduct this year’s elections. A The Judiciary Act of 1789, 1Stat. 73, “established the general principle that only final decisions of the federal district courts would be reviewable on appeal.” Carson v. American Brands, Inc., 450 U. S. 79, 83 (1981) (emphasis deleted). But because “rigid application of this principle was found to create undue hardship in some cases,” Congress created exceptions. Ibid. Two are relevant here. We have jurisdiction under 28 U. S. C. §1253 to hear an appeal from an order of a three-judge district court “granting or denying . . . an interlocutory or permanent injunction.” Similarly, §1292(a)(1) gives the courts of appeals jurisdiction over “[i]nterlocutory orders of the district courts” “granting, continuing, modifying, refusing or dissolving injunctions,” “except where a direct review may be had in the Supreme Court.” The orders in these cases fall within §1253. To be sure, the District Court did not call its orders “injunctions”—in fact, it disclaimed the term, App. 134a–136a—but the label attached to an order is not dispositive. We have previously made clear that where an order has the “practical effect” of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction. Carson, supra, at 83; see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 287–288 (1988). We applied this test in Carson, holding that an order that declined to enter a consent decree prohibiting certain conduct could be appealed under §1292(a)(1) because it was the practical equivalent of an order denying an injunction and threatened serious and perhaps irreparable harm if not immediately reviewed. 450 U. S., at 83–84, 86–90. This “practical effect” rule serves a valuable purpose. If an interlocutory injunction is improperly granted or denied, much harm can occur before the final decision in the district court. Lawful and important conduct may be barred, and unlawful and harmful conduct may be allowed to continue. Recognizing this, Congress authorized interlocutory appellate review of such orders. But if the availability of interlocutory review depended on the district court’s use of the term “injunction” or some other particular language, Congress’s scheme could be frustrated. The harms that Congress wanted to avoid could occur so long as the district court was careful about its terminology. The “practical effect” inquiry prevents such manipulation. In analogous contexts, we have not allowed district courts to “shield [their] orders from appellate review” by avoiding the label “injunction.” Sampson v. Murray, 415 U. S. 61, 87 (1974). For instance, in Sampson, we held that an order labeled a temporary restraining order (which is not appealable under §1292(a)(1)) should be treated as a “preliminary injunction” (which is appealable) since the order had the same practical effect as a preliminary injunction. Id., at 86–88. Appellees and the dissent contend that the “practical effect” approach should be confined to §1292(a)(1), but we see no good reason why it should not apply to §1253 as well. Appellees note that we “narrowly constru[e]” §1253, Goldstein v. Cox, 396 U. S. 471, 478 (1970), but we also construe §1292(a)(1) “narrowly,” Carson, supra, at 84. In addition, the relevant language in the two provisions is nearly identical;[10] both provisions serve the same purpose; and we have previously called them “analogous.” Goldstein, supra, at 475. The provisions are also textually interlocked. Section 1292(a)(1) does not apply where “direct review may be had in the Supreme Court,” i.e., where §1253 applies. If the “practical effects” test applied under §1292(a)(1) but not §1253, the consequences would be unfortunate and strange. We would have to identify the magic language needed for an order to qualify as an order granting or denying an injunction, and that standard would hardly constitute the sort of “[s]imple” rule that the dissent prizes. See post, at 14 (opinion of Sotomayor, J.). Then, having developed that standard, we would have to apply it in any case in which a party took an appeal to us from an order of a three-judge court that clearly had the practical effect of an injunction. If we concluded that the magic-words test was not met, the order would appear to be appealable to one of the courts of appeals under §1292(a)(1). In the language of that provision, the order would be an “orde[r] of [a] district cour[t] of the United States . . . granting [an] injunctio[n].” And because this Court would lack jurisdiction under §1253, the appeal would not fall within §1292(1)’s exception for cases “where a direct review may be had in the Supreme Court.” Having taken pains to provide for review in this Court, and not in the courts of appeals, of three-judge court orders granting injunctions Congress surely did not intend to produce that result.[11] Appellees argue that an order denying an injunction (the situation in Carson) and an order granting an injunction (the situation here) should be treated differently, Brief for Appellees in No. 17–586, p. 27, but they offer no convincing reason for doing so. No authority supports their argument. The language of §§1253 and 1292(a)(1) makes no such distinction, and we have stated that the “practical effect” analysis applies to the “granting or denying” of injunctions. Gulfstream, supra, at 287–288. In addition, appellees’ suggested distinction would put appellate courts in an awkward position. Suppose that a district court granted an injunction that was narrower than the one requested by the moving party. Would an appellate court (whether this Court or a court of appeals) have jurisdiction to rule on only part of that decision? Suppose the appellate court concluded that the district court was correct in refusing to give the movant all the injunctive relief it sought because the movant’s entire claim was doomed to fail. Would the appellate court be limited to holding only that the lower court properly denied the relief that was withheld? The rule advocated by the appellees would needlessly complicate appellate review.[12] Finally, appellees point in passing to Rule 65(d) of the Federal Rules of Civil Procedure, which requires that an injunction “state its terms specifically” and “describe in reasonable detail . . . the act or acts restrained or required.” Rules 65(d)(1)(B), (C); see Brief for Appellees in No. 17–586, at 27. But as explained in Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, 389, n. 4 (1970), we have never suggested that a failure to meet the specificity requirements of Rule 65(d) would “deprive the Court of jurisdiction under §1253.” A contrary holding would be perverse. Rule 65(b) protects the party against which an injunction is issued by requiring clear notice as to what that party must do or refrain from doing. Where a vague injunction does not comply with Rule 65(b), the aggrieved party has a particularly strong need for appellate review. It would be odd to hold that there can be no appeal in such a circumstance. For these reasons, we hold that we have jurisdiction under §1253 to hear an appeal from an order that has the same practical effect as one granting or denying an injunction. B With these principles settled, we conclude that the orders in these cases qualify as interlocutory injunctions under §1253. The text of the orders and the context in which they were issued make this clear. The orders are unequivocal that the current legislative plans “violate §2 and the Fourteenth Amendment” and that these violations “must be remedied.” 274 F. Supp. 3d, at 686; see also, e.g., 267 F. Supp. 3d, at 795 (“[V]iolations found by this Court in its Order on [the State House plan] now require a remedy”); ibid. (“In Bell County, the intentional discrimination previously found by the Court must be remedied”); ibid. (“In Dallas County, the intentional discrimination previously found by the Court must be remedied”). We do not suggest that this language alone is sufficient to show that the orders had the practical effect of enjoining use of the current plans in this year’s elections, but the court did not stop with these pronouncements. As we have noted, the orders required the Texas attorney general to inform the court within three days whether the Legislature would remedy the violations, and the orders stated that if the Legislature did not intend to adopt new plans, the court would hold remedial hearings. The short time given the Legislature to respond is strong evidence that the three-judge court did not intend to allow the elections to go ahead under the plans it had just condemned. The Legislature was not in session, so in order to take up the task of redistricting, the Governor would have been required to convene a special session—which is no small matter. And, when the Governor declined to call a special session, the court moved ahead with its scheduled hearings and invited the parties to continue preparing for them even after this Court administratively stayed the August 15 order. The import of these actions is unmistakable: The court intended to have new plans ready for use in this year’s elections. Nothing in the record even hints that the court contemplated the possibility of allowing the elections to proceed under the 2013 plans. What is more, Texas had reason to believe that it would risk deleterious consequences if it defied the court and attempted to conduct the elections under the plans that the court had found to be based on intentional racial discrimination. In the very orders at issue, the court inferred discriminatory intent from Texas’s choice to appeal the D. C. court’s preclearance decision rather than immediately taking steps to bring its plans into compliance with that decision. 274 F. Supp. 3d, at 649; see Part III, infra. Reading such an order, Texas had reason to fear that if it tried to conduct elections under plans that the court had found to be racially discriminatory, the court would infer an evil motive and perhaps subject the State once again to the strictures of preclearance under §3(c) of the Voting Rights Act.[13] This is a remedy that the plaintiffs hoped to obtain, see, e.g., App. 177a, and that the District Court seemed inclined to consider, see C. J. S. 122a–123a (declining to declare moot the challenges to the long-since-repealed 2011 plans because “there remains the possibility of declaratory and equitable relief under §3(c)”). Contending that the orders here do not qualify under §1253, appellees analogize this case to Gunn, 399 U. S. 383, but there is no relevant similarity. In Gunn, anti-war protesters were charged with violating a Texas “disturbing-the-peace statute,” id., at 384, and they challenged the constitutionality of the statute in federal court. After the state charges were dismissed, the District Court issued a “discursive” opinion “expressing the view that [the statute was] constitutionally invalid.” Id., at 386–387. But the court then refrained from going any further, “pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.” University Comm. to End War in Viet Nam v. Gunn, 289 F. Supp. 469, 475 (WD Tex. 1968). The defendants appealed to this Court, and at the time of our decision two years later, neither the Legislature nor the District Court had taken any further action. We therefore held that we lacked jurisdiction under §1253. The District Court order in that case did not have the same practical effect as an injunction. Indeed, it had no practical effect whatsoever and is thus entirely different from the orders now before us.[14] Appellees suggest that appellate jurisdiction is lacking in this case because we do not know at this point “what a remedy would entail, who it would affect, and when it would be implemented.” Brief for Appellees in No. 17–586, at 27. The dissent makes a similar argument with respect to two of the Texas House districts. Post, at 13–14.[15] But the issue here is whether this year’s elections can be held under the plans enacted by the Legislature, not whether any particular remedies would have ulti- mately been ordered by the District Court. Appellees and the dissent also fret that this Court will be inundated with redistricting appeals if we accept jurisdiction here, Brief for Appellees in No. 17–626, p. 34; post, at 15–16, and n. 8, but there is no reason to fear such a flood. Because §1253 expressly authorizes “interlocutory” appeals, there is no question that there can be more than one appeal in a case challenging a redistricting plan. District courts sometimes expressly enjoin the use of districting plans before moving on to the remedial phase. See, e.g., Whitford v. Gill, No. 3:15–cv–421, Doc. No. 190 (WD Wis., Feb. 22, 2017); Harris v. McCrory, No. 1:13–cv–949, Doc. No. 143 (MDNC, Feb. 5, 2016). But appeals from such orders have not overwhelmed our docket. Our holding here will affect only a small category of additional cases.[16] It should go without saying that our decision does not mean that a State can always appeal a district court order holding a redistricting plan unlawful. A finding on liability cannot be appealed unless an injunction is granted or denied, and in some cases a district court may see no need for interlocutory relief. If a plan is found to be unlawful long before the next scheduled election, a court may defer any injunctive relief until the case is completed. And if a plan is found to be unlawful very close to the election date, the only reasonable option may be to use the plan one last time. We appreciate our obligation to heed the limits of our jurisdiction, and we reiterate that §1253 must be strictly construed. But it also must be sensibly construed, and here the District Court’s orders, for all intents and purposes, constituted injunctions barring the State from conducting this year’s elections pursuant to a statute enacted by the Legislature. Unless that statute is unconstitutional, this would seriously and irreparably harm[17] the State, and only an interlocutory appeal can protect that State interest. See Carson, supra, at 89–90. As a result, §1253 provides jurisdiction. III We now turn to the merits of the appeal. The primary question is whether the Texas court erred when it required the State to show that the 2013 Legislature somehow purged the “taint” that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011. A Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481 (1997). This rule takes on special significance in districting cases. Redistricting “is primarily the duty and responsibility of the State,” and “[f]ederal-court review of districting legislation represents a serious intrusion on the most vital of local functions.” Miller v. Johnson, 515 U. S. 900, 915 (1995) (internal quotation marks omitted). “[I]n assessing the sufficiency of a challenge to a districting plan,” a court “must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” Id., at 915–916. And the “good faith of [the] state legislature must be presumed.” Id., at 915. The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination. “[P]ast discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful.” Mobile, 446 U. S., at 74 (plurality opinion). The “ultimate question remains whether a discriminatory intent has been proved in a given case.” Ibid. The “historical background” of a legislative enactment is “one evidentiary source” relevant to the question of intent. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). But we have never suggested that past discrimination flips the evidentiary burden on its head. Neither the District Court nor appellees have pointed to any authority that would justify shifting the burden. The appellees rely primarily on Hunter v. Underwood, 471 U. S. 222 (1985), but that case addressed a very different situation. Hunter involved an equal protection challenge to an article of the Alabama Constitution adopted in 1901 at a constitutional convention avowedly dedicated to the establishment of white supremacy. Id., at 228–230. The article disenfranchised anyone convicted of any crime on a long list that included many minor offenses. Id., at 226–227. The court below found that the article had been adopted with discriminatory intent, and this Court accepted that conclusion. Id., at 229. The article was never repealed, but over the years, the list of disqualifying offenses had been pruned, and the State argued that what remained was facially constitutional. Id., at 232–233. This Court rejected that argument because the amendments did not alter the intent with which the article, including the parts that remained, had been adopted. Id., at 233. But the Court specifically declined to address the question whether the then-existing version would have been valid if “[re]enacted today.” Ibid. In these cases, we do not confront a situation like the one in Hunter. Nor is this a case in which a law originally enacted with discriminatory intent is later reenacted by a different legislature. The 2013 Texas Legislature did not reenact the plan previously passed by its 2011 predecessor. Nor did it use criteria that arguably carried forward the effects of any discriminatory intent on the part of the 2011 Legislature. Instead, it enacted, with only very small changes, plans that had been developed by the Texas court pursuant to instructions from this Court “not to incorporate . . . any legal defects.” Perry, 565 U. S., at 394. Under these circumstances, there can be no doubt about what matters: It is the intent of the 2013 Legislature. And it was the plaintiffs’ burden to overcome the presumption of legislative good faith and show that the 2013 Legislature acted with invidious intent. The Texas court contravened these basic principles. Instead of holding the plaintiffs to their burden of overcoming the presumption of good faith and proving discriminatory intent, it reversed the burden of proof. It imposed on the State the obligation of proving that the 2013 Legislature had experienced a true “change of heart” and had “engage[d] in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.” 274 F. Supp. 3d, at 649. The Texas court’s references to the need to “cure” the earlier Legislature’s “taint” cannot be dismissed as stray comments. On the contrary, they were central to the court’s analysis. The court referred repeatedly to the 2013 Legislature’s duty to expiate its predecessor’s bad intent, and when the court summarized its analysis, it drove the point home. It stated: “The discriminatory taint [from the 2011 plans] was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy.” Id., at 686.[18] The dissent labors to explain away all these references to the 2013’s Legislature’s supposed duty to purge its predecessor’s allegedly discriminatory intent, but the dissent loses track of its own argument and characterizes the District Court’s reasoning exactly as we have. Indeed, the dissent criticizes us on page 33 of its opinion for saying precisely the same thing that it said 11 pages earlier. On page 33, the dissent states: “[T]he majority quotes the orders as requiring proof that the Legislature “ ‘engage[d] in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.’ ” But the District Court did not put the burden on Texas to make that affirmative showing.” Post, at 33–34 (quoting supra, at 23, in turn quoting 274 F. Supp. 3d, at 649; citations omitted). But earlier, the dissent itself describes the District Court’s analysis as follows: “Despite knowing of the discrimination in its 2011 maps, ‘the Legislature did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans.’ ” Post, at 22 (quoting 274 F. Supp. 3d, at 649). And this is not just a single slip of the pen. The dissent writes that the District Court was required “to assess how the 2013 Legislature addressed the known discrimination that motivated” the districts approved by that Court in 2012. Post, at 31. The dissent quotes the District Court’s statement that “ ‘there is no indication that the Legislature looked to see whether any discriminatory taint remained in the plans.’ ” Post, at 24 (quoting 274 F. Supp. 3d, at 649). And there is also this: “Texas was just ‘not truly interested in fixing any remaining discrimination in [its 2011 maps].’ ” Post, at 22 (quoting 274 F. Supp. 3d, at 651, n. 45). The District Court’s true mode of analysis is so obvious that the dissent cannot help but repeat it. And that approach was fundamentally flawed and demands reversal. While a district court’s finding of fact on the question of discriminatory intent is reviewed for clear error, see Cromartie, 532 U. S., at 242, whether the court applied the correct burden of proof is a question of law subject to plenary review, U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___ (2018) (slip op., at 5); Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___ (2014) (slip op., at 4). And when a finding of fact is based on the application of an incorrect burden of proof, the finding cannot stand. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 501 (1984) (“An appellate cour[t has] power to correct errors of law, including those that . . . infect . . . a finding of fact that is predicated on a misunderstanding of the governing rule of law”). B In holding that the District Court disregarded the presumption of legislative good faith and improperly reversed the burden of proof, we do not suggest either that the intent of the 2011 Legislature is irrelevant or that the plans enacted in 2013 are unassailable because they were previously adopted on an interim basis by the Texas court. Rather, both the intent of the 2011 Legislature and the court’s adoption of the interim plans are relevant to the extent that they naturally give rise to—or tend to refute—inferences regarding the intent of the 2013 Legislature. They must be weighed together with any other direct and circumstantial evidence of that Legislature’s intent. But when all the relevant evidence in the record is taken into account, it is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.[19] See, e.g., Ricci v. DeStefano, 557 U. S. 557, 585 (2009); McCleskey v. Zant, 499 U. S. 467, 497 (1991). There is thus no need for any further prolongation of this already protracted litigation. The only direct evidence brought to our attention suggests that the 2013 Legislature’s intent was legitimate. It wanted to bring the litigation about the State’s districting plans to an end as expeditiously as possible. The attorney general advised the Legislature that the best way to do this was to adopt the interim, court-issued plans. The sponsor of the 2013 plans voiced the same objective, and the Legislature then adopted the court-approved plans. On its face, this explanation of the Legislature’s intent is entirely reasonable and certainly legitimate. The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another. (The plaintiffs’ conflicting positions with regard to some of the districts in the plans now before us bear this out.) Litigating districting cases is expensive and time consuming, and until the districts to be used in the next election are firmly established, a degree of uncertainty clouds the electoral process. Wishing to minimize these effects is understandable and proper. The court below discounted this direct evidence, but its reasons for doing so are not sound. The court stated that the “strategy” of the 2013 Legislature was to “insulate [the plans] from further challenge, regardless of [the plans’] legal infirmities.” 274 F. Supp. 3d, at 650; see also id., at 651, n. 45. But there is no evidence that the Legislature’s aim was to gain acceptance of plans that it knew were unlawful.[20] Indeed, there is no evidence that the Legislature thought that the plans were invalid—and as we will explain, the Legislature had sound reasons to believe just the opposite.[21] The District Court found it significant that the Legislature must have realized that enacting the interim plans would not “end the litigation,” because it knew that at least some plaintiffs would pursue their challenges anyway. Id., at 651, n. 45. But even if, as seems likely, the Legislature did not think that all the plaintiffs would immediately abandon all their claims, it does not follow that the Legislature was insincere in stating that it adopted the court-approved plan with the aim of bringing the litigation to a close. It was reasonable for the Legislature to think that approving the court-approved plans might at least reduce objections and thus simplify and expedite the conclusion of the litigation.[22] That MALDEF, counsel for one of the plaintiff groups, testified in favor of the plans is evidence that the Legislature’s objective was reasonable. C. J. S. 436a–439a. Not only does the direct evidence suggest that the 2013 Legislature lacked discriminatory intent, but the circumstantial evidence points overwhelmingly to the same conclusion. Consider the situation when the Legislature adopted the court-approved interim plans. First, the Texas court had adopted those plans, and no one would claim that the court acted with invidious intent when it did so. Second, the Texas court approved those plans only after reviewing them and modifying them as required to comply with our instructions. Not one of the judges on that court expressed the view that the plans were unlawful. Third, we had directed the Texas court to make changes in response to any claims under the Equal Protection Clause and §2 of the Voting Rights Act if those claims were merely likely to prevail. Perry, 565 U. S., at 394. And the Texas court was told to accommodate any claim under §5 of the VRA unless it was “insubstantial.” Id., at 395. Fourth, the Texas court had made a careful analysis of all the claims, had provided a detailed examination of individual districts, and had modified many districts. Its work was anything but slapdash. All these facts gave the Legislature good reason to believe that the court-approved interim plans were legally sound. Is there any evidence from which a contrary inference can reasonably be drawn? Appellees stress the preliminary nature of the Texas court’s approval of the interim plans, and as we have said, that fact is relevant. But in light of our instructions to the Texas court and the care with which the interim plans were developed, the court’s approval still gave the Legislature a sound basis for thinking that the interim plans satisfied all legal requirements. The court below and the dissent infer bad faith because the Legislature “pushed the redistricting bills through quickly in a special session.” 274 F. Supp. 3d, at 649. But we do not see how the brevity of the legislative process can give rise to an inference of bad faith—and certainly not an inference that is strong enough to overcome the presumption of legislative good faith (a concept to which the dissent pays only the briefest lip service, post, at 21). The “special session” was necessary because the regular session had ended. As explained, the Legislature had good reason to believe that the interim plans were sound, and the adoption of those already-completed plans did not require a prolonged process. After all, part of the reason for adopting those plans was to avoid the time and expense of starting from scratch and leaving the electoral process in limbo while that occurred.[23] The District Court and the dissent also err when they charge that Representative Darby, the chair of the Texas House Redistricting Committee at the time in question, “ ‘willfully ignored those who pointed out deficiencies’ ” in the plans. Post, at 23 (quoting 274 F. Supp. 3d, at 651, n. 45). This accusation is not only misleading, it misses the point. The Legislature adopted the interim plans in large part because they had the preliminary approval of the District Court, and Darby was open about the fact that he wanted to minimize amendments to the plans for that reason. See, e.g., Joint Exh. 17.3, pp. S1–S2. That Darby generally hoped to minimize amendments—so that the plans would remain legally compliant—hardly shows that he, or the Legislature, acted with discriminatory intent. In any event, it is misleading to characterize this attitude as “willfu[l] ignor[ance].” The record shows that, al- though Darby hoped to minimize amendments, he did not categorically refuse to consider changes. This is illustrated by his support for an amendment to HD90, which was offered by the then-incumbent, Democrat Lon Burnam, precisely because it fixed an objection raised by the Mexican-American Legal Caucus (MALC) that the district’s Latino population was too low. 267 F. Supp. 3d, at 790.[24] The Texas court faulted the 2013 Legislature for failing to take into account the problems with the 2011 plans that the D. C. court identified in denying preclearance, ibid., but the basis for that criticism is hard to understand. One of the 2013 Legislature’s principal reasons for adopting the court-approved plans was to fix the problems identified by the D. C. court. The attorney general advised the Legislature to adopt the interim plans because he thought that was the “best way to remedy the violations found by the D. C. court.” C. J. S. 432a. Chairman Darby similarly stated that the 2013 plans fixed the errors found by the D. C. court, Tr. 1498, 1584–1585 (July 14, 2017), as did Senator Seliger, Joint Exh. 26.2, p. A–5. There is nothing to suggest that the Legislature proceeded in bad faith—or even that it acted unreasonably—in pursuing this strategy. Recall that we instructed the Texas court, in developing the interim plans, to remedy any §5 claim that was “not insubstantial.” Perry, 565 U. S., at 395. And that is just what the interim plans, which the Legislature later enacted, attempted to do. For instance, the D. C. court held that the congressional plan had one too few “ability to elect” districts for Latinos, largely because of changes to CD23, Texas, 887 F. Supp. 2d, at 156–159; the interim plan (and, by extension, the 2013 plan) amended CD23, C. J. S. 397a–399a. Similarly, in the plan for the Texas House, the D. C. court found §5 retrogression with respect to HD35, HD117, and HD149, Texas, supra, at 167–175, and all of those districts were changed in the 2013 plans, H. J. S. 305a–307a, 312a. Although the D. C. court found that the 2011 Legislature acted with discriminatory intent in framing the congressional plan, that finding was based on evidence about districts that the interim plan later changed. The D. C. court was concerned about the intent reflected in the drawing of CDs 9, 18, and 30, but all those districts were amended by the Texas court. Texas, supra, at 159–160; C. J. S. 406a–408a. With respect to the plan for the Texas House, the D. C. court made no intent findings, but its areas of concern were generally addressed by the Texas court and the 2013 plans. Compare Texas, supra, at 178 (noting evidence of unlawful intent in HD117), with H. J. S. 307a (amending HD117).[25] It is indicative of the District Court’s mistaken approach that it inferred bad faith from Texas’s decision to take an appeal to this Court from the D. C. court’s decision denying preclearance. See 274 F. Supp. 3d, at 649 (“Defendants did not accept [these findings] and instead appealed to the Supreme Court”). Congress gave the State the right to appeal, and no bad motive can be inferred from its decision to make use of this right—unless of course the State had no reasonable grounds for appeal. Before our decision in Shelby County mooted Texas’s appeal to this Court from the D. C. court’s preclearance decision, Texas filed a jurisdictional statement claiming that the D. C. court made numerous errors, but the Texas court made no attempt to show that Texas’s arguments were frivolous. As a final note, appellees assert that the 2013 Legislature should have either defended the 2011 plans in litigation or gone back to the drawing board and devised en- tirely new plans, Brief for Appellees in No. 17–626, at 45, but there is no reason why the Legislature’s options should be limited in this way. It was entirely permissible for the Legislature to favor a legitimate option that promised to simplify and reduce the burden of litigation. That the Legislature chose this course is not proof of discriminatory intent. IV Once the Texas court’s intent finding is reversed, there remain only four districts that were invalidated on alternative grounds. For three of these districts, the District Court relied on the “effects” test of §2. We reverse as to each of these, but we affirm the District Court’s final holding that HD90 is a racial gerrymander. A To make out a §2 “effects” claim, a plaintiff must establish the three so-called “Gingles factors.” These are (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. Gingles, 478 U. S., at 48–51; LULAC, 548 U. S., at 425. If a plaintiff makes that showing, it must then go on to prove that, under the totality of the circumstances, the district lines dilute the votes of the members of the minority group. Id., at 425–426. 1 The Texas court held that CD27 violates §2 of the VRA because it has the effect of diluting the votes of Latino voters in Nueces County. C. J. S. 191a. CD27 is anchored in Nueces County (home to Corpus Christi) and follows the Gulf of Mexico to the northeast before taking a turn inland to the northwest in the direction of Austin. Nueces County contains a Latino population of roughly 200,000 (a little less than one-third the size of an ideal Texas congressional district), and the court held that the Nueces County Latinos should have been included in a Latino opportunity district, rather than CD27, which is not such a district. The court found that an area centered on Nueces County satisfies the Gingles factors and that, under the totality of the circumstances, the placement of the Nueces County Latinos in CD27 deprives them of the equal opportunity to elect candidates of their choice. C. J. S. 181a–195a. The problem with this holding is that plaintiffs could not establish a violation of §2 of the VRA without showing that there is a “ ‘possibility of creating more than the existing number of reasonably compact’ ” opportunity districts. LULAC, supra, at 430. And as the Texas court itself found, the geography and demographics of south and west Texas do not permit the creation of any more than the seven Latino opportunity districts that exist under the current plan. 274 F. Supp. 3d, at 684, and n. 85. Attempting to get around this problem, the Texas court relied on our decision in LULAC, but it misapplied our holding. In LULAC, we held that the State should have created six proper Latino opportunity districts but instead drew only five. 548 U. S., at 435. Although the State claimed that the plan actually included a sixth opportunity district, that district failed to satisfy the Gingles factors. 548 U. S., at 430. We held that a “State’s creation of an opportunity district for those without a §2 right offers no excuse for its failure to provide an opportunity district for those with a §2 right.” Ibid. Here, the Texas court concluded that Texas committed the same violation as in LULAC: It created “an opportu-nity district for those without a §2 right” (the Latinos in CD35), while failing to create such a district “for those with a §2 right” (the Latinos of Nueces County). Ibid. This holding is based on a flawed analysis of CD35. CD35 lies to the north of CD27 and runs along I–35 from San Antonio up to Austin, the center of Travis County. In the District Court’s view, the Latinos of CD35 do not have a §2 right because one of the Gingles factors, majority bloc voting, is not present. The Court reached this conclusion because the non-Latino voters of Travis County tend to favor the same candidates as the great majority of Latinos. There are two serious problems with the District Court’s analysis. First, the Court took the wrong approach in evaluating the presence of majority bloc voting in CD35. The Court looked at only one, small part of the district, the portion that falls within Travis County. 274 F. Supp. 3d, at 683; C. J. S. 175a–176a. But Travis County makes up only 21% of the district. We have made clear that redistricting analysis must take place at the district level. Bethune-Hill, 580 U. S., at ___ (slip op., at 12). In failing to perform that district-level analysis, the District Court went astray. Second, here, unlike in LULAC, the 2013 Legislature had “good reasons” to believe that the district at issue (here CD35) was a viable Latino opportunity district that satisfied the Gingles factors. CD35 was based on a concept proposed by MALDEF, C. J. S. Findings 315a–316a, and the Latino Redistricting Task Force (a plaintiff group) argued that the district is mandated by §2. C. J. S. 174a. The only Gingles factor disputed by the court was majority bloc voting, and there is ample evidence that this factor is met. Indeed, the court found that majority bloc voting exists throughout the State. C. J. S. Findings 467a. In addition, the District Court extensively analyzed CD35 in 2012 and determined that it was likely not a racial gerrymander and that even if it was, it likely satisfied strict scrutiny. C. J. S. 415a. In other words, the 2013 Legislature justifiably thought that it had placed a viable opportunity district along the I–35 corridor. 2 The District Court similarly erred in holding that HD32 and HD34 violate §2. These districts make up the entirety of Nueces County, which has a population that is almost exactly equal to twice the population of an ideal Texas House district. (It can fit 2.0295 ideal districts. H. J. S. Findings 91a.) In 2010, Latinos made up approximately 56% of the voting age population of the county. Ibid. The 2013 plan created two districts that lie wholly within the county; one, HD34, is a Latino opportunity district, but the other, HD32, is not. 267 F. Supp. 3d, at 767. Findings made by the court below show that these two districts do not violate §2 of the Voting Rights Act. Under Gingles, the ultimate question is whether a districting decision dilutes the votes of minority voters, see LULAC, supra, at 425–426, and it is hard to see how this standard could be met if the alternative to the districting decision at issue would not enhance the ability of minority voters to elect the candidates of their choice. The only plaintiff that pressed a §2 claim with respect to HD32 and HD34 was MALC, 267 F. Supp. 3d, at 767, and as the District Court recognized, that group’s own expert determined that it was not possible to divide Nueces County into more than one performing Latino district. In his analysis, the expert relied on Nueces County election returns for statewide elections between 2010 and 2016. Id., at 775–776. Based on this data, he calculated that when both HD32 and HD34 were maintained as Latino-majority districts, one performed for Latinos in only 7 out of 35 relevant elections, and the other did so in none of the 35 elections. Ibid. In order to create two performing districts in that area, it was necessary, he found, to break county lines in multiple places, id., at 778, but the District Court held that “breaking the County Line Rule” in the Texas Constitution, see Art. III, §26, to “remove Anglos and incorporate even more Hispanics to improve electoral outcomes goes beyond what §2 requires.” 267 F. Supp. 3d, at 783. So if Texas could not create two performing districts in Nueces County and did not have to break county lines, the logical result is that Texas did not dilute the Latino vote. The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature,[26] and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. Id., at 783. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. The only other reason provided by the court was the observation that MALC “failed to show” that two majority-Latino districts in Nueces County would not perform. Id., at 782. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established.[27] Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013, LULAC, supra, at 429. The dissent charges us with ignoring the District Court’s “ ‘intensely local appraisal” ’ of Nueces County, post, at 44, but almost none of the “findings” that the District Court made with respect to HD32 and HD34 referred to present local conditions, and none cast any significant light on the question whether another opportunity district is possible at the present time. For instance, what the dissent describes as Texas’s “long ‘history of voting-related discrimination,’ ” ibid., in no way undermines—or even has any logical bearing on—the conclusions reached by MALC’s expert about whether Latino voters would have a real opportunity to elect the candidates of their choice if the county was divided into two districts with narrow majorities of Latino citizens of voting age. The same is true with respect to the District Court’s findings regarding racially polarized voting in the county and Latinos’ “continuing pattern of disadvantage relative to” non-Latinos. 267 F. Supp. 3d, at 779 (internal quotation marks omitted). Perhaps recognizing as much, both the District Court and the dissent point to the anticipated future growth in the percentage of eligible voters of Latino descent, but the districts now at issue would not necessar-ily be used beyond 2020, after which time the 2020 census would likely require redistricting once again. B HD90 is a district in Tarrant County that, unlike the other districts at issue in this appeal, was not copied from the District Court’s interim plans. Instead, the 2013 Legislature substantially modified the district developed by the District Court, and the District Court held that the 2013 Legislature’s creation is an invalid racial gerrymander. 267 F. Supp. 3d, at 794. In drawing HD90, the Legislature was pulled in opposite directions by competing groups. In 2011, the Legislature, responding to pressure from MALDEF, increased the Latino population of the district in an effort to make it a Latino opportunity district. H. J. S. Findings 258a–262a. In the process of doing so, the Legislature moved the community of Como, which is predominantly African-American, out of the district. But Como residents and the member of the Texas House who represented the district, Lon Burnam, objected, and in 2013, the Legislature moved Como back into the district. 267 F. Supp. 3d, at 788–789. That change was opposed by MALC because it decreased the Latino population below 50%. App. 398a–399a. So the Legislature moved Latinos into the district to bring the Latino population back above 50%. 267 F. Supp. 3d, at 789–790. In light of these maneuvers, Texas does not dispute that race was the predominant factor in the design of HD90, but it argues that this was permissible because it had “ ‘good reasons to believe’ ” that this was necessary to satisfy §2 of the Voting Rights Act.” Bethune-Hill, 580 U. S., at ___ (slip op., at 14). Texas offers two pieces of evidence to support its claim. The first—that one of the plaintiffs, MALC, demanded as much—is insufficient. A group that wants a State to create a district with a particular design may come to have an overly expansive understanding of what §2 demands. So one group’s demands alone cannot be enough. The other item of evidence consists of the results of the Democratic primaries in 2012 and 2014. In 2012, Representative Burnham, who was not the Latino candidate of choice, narrowly defeated a Latino challenger by 159 votes. And in 2014, the present representative, Ramon Romero, Jr., beat Burnam by 110 votes. See Brief for Appellants 70. These election returns may be suggestive, but standing alone, they were not enough to give the State good reason to conclude that it had to alter the district’s lines solely on the basis of race. And putting these two evidentiary items together helps, but it is simply too thin a reed to support the drastic decision to draw lines in this way. We have previously rejected proffers of evidence that were at least as strong as Texas’s here. For example, in Cooper, 581 U. S., at ___ (slip op., at 11), we analyzed North Carolina’s justification for deliberately moving “African-American voters” into a district to “ensure . . . the district’s racial composition” in the face of its expansion in size. North Carolina argued that its race-based decisions were necessary to comply with §2, but the State could point to “no meaningful legislative inquiry” into “whether a new, enlarged” district, “created without a focus on race, . . . could lead to §2 liability.” Id., at ___ (slip op., at 15). North Carolina pointed to two expert reports on “voting patterns throughout the State,” but we rejected that evidence as insufficient. Id., at ___, n. 5 (slip op., at 15, n. 5). Here, Texas has pointed to no actual “legislative inquiry” that would establish the need for its manipulation of the racial makeup of the district. By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary mapdrawer “discussed the district with incumbents from other majority-minority districts[,] . . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population. 580 U. S., at ___ (slip op., at 15). The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Id., at ___ (slip op., at 14). Texas’s showing here is not equivalent. Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time. * * * Except with respect to one Texas House district, we hold that the court below erred in effectively enjoining the use of the districting maps adopted by the Legislature in 2013. We therefore reverse with respect to No. 17–586; reverse in part and affirm in part with respect to No. 17–626; and remand for proceedings consistent with this opinion. It is so ordered. Notes 1 There are several appendixes in these cases. We use “App.” to refer to the joint appendix filed at the merits stage. We use “C. J. S.” and “H. J. S.” to refer to the appendixes attached to Texas’s jurisdictional statements in No. 17–586 and No. 17–626, respectively. We use “C. J. S. Findings” and “H. J. S. Findings” to refer to appellees’ supplemental appendixes in No. 17–586 and No. 17–626. 2 See, e.g., Tex. Const., Art. III, §25 (Senate), §26 (House). 3 The court found: “[I]t is difficult to differentiate an intent to affect Democrats from an intent to affect minority voters. Making minorities worse off will likely make Democrats worse off, and vice versa.” C. J. S. Findings 467a (citation omitted). “This correlation is so strong that [an expert] assessed whether districts were minority opportunity districts by looking at Democratic results/wins (noting that in Texas, minority candidates of choice means Democrats).” Ibid. 4 See Shelby County v. Holder, 570 U. S. 529 (2013). 5 Judge Smith dissented, arguing that the majority had produced a “runaway plan” that “award[ed] judgment on the pleadings in favor of one side—a slam-dunk victory for the plaintiffs.” Perez v. Perry, 835 F. Supp. 2d 209, 218 (WD Tex. 2011). 6 The Texas court was given more leeway to make changes to districts challenged under §5 because it would have been inappropriate for that court to address the “merits of §5 challenges,” a task committed by statute to the District Court for the District of Columbia. Perez, 565 U. S., at 394. 7 Notice of Appeal in Texas v. United States, Civ. No. 11–cv–1303, Doc. No. 234 (D DC, Aug. 31, 2012). 8 We express no view on the correctness of this holding. 9 Judge Smith again dissented, on both mootness and the merits. On mootness, Judge Smith explained that, “[s]ix years later, we are still enveloped in litigation over plans that have never been used and will never be implemented.” C. J. S. 349a. On the merits, Judge Smith argued that the majority erroneously inferred a “complex, widespread conspiracy of scheming and plotting, by various legislators and staff, carefully designed to obscure the alleged race-based motive,” when the intent was in fact partisan. H. J. S. 294a; C. J. S. 351a. 10 In relevant part, §1253 applies to “an order granting . . . an interlocutory . . . injunction.” Section 1292(a)(1) applies to “[i]nterlocutory orders . . . granting . . . injunctions.” Although the similarity is obvious, the dissent perceives some unspecified substantive difference. 11 The dissent sees nothing strange about such a result because we held in Mitchell v. Donovan, 398 U. S. 427 (1970) (per curiam), that we lacked jurisdiction under §1253 to hear an appeal from a three-judge court order denying a declaratory judgment. The decision in Donovan was based on the plain language of §1253, which says nothing about orders granting or denying declaratory judgments. By contrast, §1253 gives us jurisdiction to hear appeals from orders granting or denying injunctions. The same goes for Rockefeller v. Catholic Medical Center of Brooklyn & Queens, Inc., 397 U. S. 820 (1970) (per curiam), also cited by the dissent. In that case, the District Court issued a declaratory judgment, not an injunction. Again, the text of §1253 says nothing about declaratory judgments. 12 The inquiry required by the practical effects test is no more difficult when the question is whether an injunction was effectively granted than it is when the question is whether an injunction was effectively denied. Lower courts have had “no problem concluding that [certain orders have] the practical effect of granting an injunction.” I. A. M. Nat. Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F. 2d 21, 24 (CADC 1986); see also Andrew v. American Import Center, 110 A. 3d 626, 634 (D. C. 2015) (“[G]ranting a stay pending arbitration does have the ‘practical effect’ of enjoining the party opposing arbitration”). 13 Section 3(c) provides that if “the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief,” the court “shall retain jurisdiction for such period as it may deem appropriate and during such period no voting” practice shall go into effect unless first precleared by the court or the United States Attorney General. 52 U. S. C. §10302(c). 14 The other authority cited by the dissent is a footnote in Whitcomb v. Chavis, 403 U. S. 124 (1971), a case that came to us in an exceedingly complicated procedural posture. In Whitcomb, the District Court held in August 1969 that Indiana’s legislative districting scheme was unconstitutional, but the court made it clear that it would take no further action for two months. See Chavis v. Whitcomb, 305 F. Supp. 1364, 1392 (SD Ind. 1969). The Governor nevertheless appealed to this Court, but by the time we ruled, the Governor had taken another appeal from a later order, entered in December 1969, prohibiting the use of Indiana’s current plans and requiring the use of court-created plans in the 1970 elections. See 403 U. S., at 139; Juris. Statement in Whitcomb v. Chavis, O. T. 1970, No. 92, pp. 1–3. And to further complicate matters, by the time we reviewed the case, the Indiana Legislature had enacted new plans. Whitcomb, 403 U. S., at 140. This Court entertained the later appeal and reversed, but the Court dismissed the earlier—and by then, entirely superfluous—appeal, stating that, at the time when it was issued, “no judgment had been entered and no injunction had been granted or denied.” Id., at 138, n. 19. But that cursory conclusion has little relevance here, where the District Court’s orders were far more specific, immediate, and likely to demand compliance. 15 While we think it clear that the District Court effectively enjoined the use of these districts as currently configured for this year’s elections, even if the Court had not done so, that would not affect our jurisdiction to review the Court’s order with respect to all otherdistricts. 16 The dissent cites exactly two cases (Gunn and Whitcomb) decided during the past half-century in which a party attempted to take an appeal to this Court from a three-judge court order holding a state statute unconstitutional but declining to issue an injunction. 17 The dissent argues that we give “short shrift” to the irreparable harm question, post, at 16, but the inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State, see, e.g., Maryland v. King, 567 U. S. 1301 (2012) (Roberts, C. J., in chambers). 18 The dissent attempts to rehabilitate this statement by focusing on the last part of this sentence, in which the District Court stated that the Legislature “intended [the] taint to be maintained but safe from remedy.” Post, at 34–35. In making this argument, the dissent, like the District Court, refuses to heed the presumption of legislative good faith and the allocation of the burden of proving intentional discrimination. We do not dispute that the District Court purportedly found that the 2013 Legislature acted with discriminatory intent. The problem is that, in making that finding, it relied overwhelmingly on what it perceived to be the 2013 Legislature’s duty to show that it had purged the bad intent of its predecessor. 19 The dissent is simply wrong in claiming over and over that we have not thoroughly examined the record. See post, at 19, 27, 28, 30, 31, 35, 39–40, 43, 47. The dissent seems to think that the repetition of these charges somehow makes them true. It does not. On the contrary, it betrays the substantive weakness of the dissent’s argument. 20 The dissent and the District Court attach much meaning to the attorney general’s use of the term “insulate” when he advised the Legislature to adopt the District Court’s plans to avoid further legal challenge. Setting aside that the word “insulate” is a common term used to describe minimizing legal concerns, the context of the letter makes clear that the attorney general was trying to make the point that adopting these plans was the best method of obtaining legal compliance, not the start of a grand conspiracy to trick the District Court. Indeed, if his plan was to dupe the District Court, shouting it to the world in a public letter was an odd way to go about it. 21 In any event, the Texas court was simply wrong that Texas believed its plans would be free from any legal challenge. 274 F. Supp. 3d 624, 651 (2017). Texas consistently acknowledged that effects claims would continue to be available and responded in detail to those arguments in both the District Court and this Court. See Brief for Appellants 64; Defendants’ Post-Trial Brief, Doc. No. 1526, p. 53. Moreover, Texas has not argued that intentional discrimination claims are unavailable; it has instead argued that intent must be assessed with respect to the 2013 Legislature, the Legislature that actually enacted the plans at issue. 22 The 2013 Legislature had no reason to believe that the District Court would spend four years examining moot plans before reversing its own previous decisions by imputing the intent of the 2011 Legislature to the 2013 Legislature. At the very least, the 2013 Legislature had good reason to believe that adopting the court-approved plans would lessen the time, expense, and complexity of further litigation (even if that belief turned out to be wrong). 23 Moreover, in criticizing the Legislature for moving too quickly, the dissent downplays the significant time and effort that went into consideration of the 2013 plans. Legislative committees held multiple field hearings in four cities, Tr. 1507 (July 14, 2017), and the legislative actors spent significant time considering the legislation, as well as accepting and rejecting amendments, see, e.g., Joint Exh. 17.3, p. S29; Joint Exh. 24.4, p. 21. 24 The dissent tries to minimize the relevance of this amendment by arguing that it turned HD90 into a racial gerrymander. See post, at 23, n. 12. But again this is misleading. The Legislature adopted changes to HD90 at the behest of minority groups, not out of a desire to discriminate. See Part IV–B, infra. That is, Darby was too solicitous of changes with respect to HD90. 25 In assessing the significance of the D. C. court’s evaluation of intent, it is important not to forget that the burden of proof in a preclearance proceeding was on the State. Texas v. United States, 887 F. Supp. 2d 133, 151 (DC 2012). Particularly where race and partisanship can so often be confused, see supra, at 3, and n. 3, the burden of proof may be crucial. 26 The District Court also purported to find a violation of the “one person, one vote” principle in Nueces County, 267 F. Supp. 3d 750, 783 (2017); H. J. S. 254a–255a, but that finding was in actuality a restatement of its racial discrimination finding. The population deviations from the ideal are quite small (0.34% in HD32 and 3.29% in HD34, id., at 254a), and the District Court relied solely on the “evidence of the use of race in drawing the lines in Nueces County” to find a one person, one vote violation. Id., at 255a; see also id., at 254a (“[T]he State intentionally discriminated against minority voters by overpopulating minority districts and underpopulating Anglo districts”). Even assuming that a court could find a one person, one vote violation on the basis of such a small deviation, cf. Brown v. Thomson, 462 U. S. 835, 842–843 (1983) (noting that deviations under 10% are generally insufficient to show invidious discrimination), the District Court erred in relying on its unsound finding regarding racial discrimination. Moreover, plaintiffs rejected any separate one person, one vote claims before the District Court, Tr. 22 (July 10, 2017), and they have not mentioned such a claim as a separate theory in their briefing in this Court. 27 The District Court’s belief that simple Latino majorities in Nueces County might be sufficient to create opportunity districts—and that Texas should have known as much—conflicts with other parts of its decision. With respect to numerous other districts, the District Court chided Texas for focusing on bare numbers and not considering real opportunity to elect. See, e.g., C. J. S. 134a (“[T]he court rejects [the] bright-line rule that any HCVAP-majority district is by definition a Latino opportunity district” because it “may still lack real electoral opportunity” (internal quotation marks omitted)); H. J. S. 121a (Texas “increase[d the Latino population] while simultaneously ensuring that election success rates remained minimally improved”).

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 Abbott, Governor of Texas, et al. v. Perez et al. appeal from the united states district court for the western district of texas No. 17–586. Argued April 24, 2018—Decided June 25, 2018[1] In 2011, the Texas Legislature adopted a new congressional districting plan and new districting maps for the two houses of the State Legislature to account for population growth revealed in the 2010 census. To do so, Texas had to comply with a complicated legal regime. The Equal Protection Clause of the Fourteenth Amendment forbids “racial gerrymandering,” that is, intentionally assigning citizens to a district on the basis of race without sufficient justification. Shaw v. Reno, 509 U. S. 630, 641. But other legal requirements tend to require that state legislatures consider race in drawing districts. Like all States, Texas is subject to §2 of the Voting Rights Act of 1965 (VRA), which is violated when a state districting plan provides “less opportunity” for racial minorities “to elect representatives of their choice,” League of United Latin American Citizens v. Perry, 548 U. S. 399, 425. And at the time, Texas was also subject to §5, which barred it from making any districting changes unless it could prove that they did not result in retrogression with respect to the ability of racial minorities to elect the candidates of their choice, Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. In an effort to harmonize these conflicting demands, the Court has assumed that compliance with the VRA is a compelling State interest for Fourteenth Amendment purposes, see, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___; and a State’s consideration of race in making a districting decision is narrowly tailored if the State has “good reasons” for believing that its decision is necessary in order to comply with the VRA, Cooper v. Harris, 581 U. S. ___, ___. The Texas Legislature’s 2011 plans were immediately tied up in litigation and never used. The case was assigned to a three-judge court (Texas court). Texas also submitted the plans for preclearance to the District Court for the District of Columbia (D. C. court). The Texas court drew up interim plans for the State’s rapidly approaching primaries, giving no deference to the Legislature’s plans. Texas challenged the court-ordered plans in this Court, which reversed and remanded with instructions for the Texas court to start with the Texas Legislature’s 2011 plans but to make adjustments as required by the Constitution and the VRA. The Texas court then adopted new interim plans. After the D. C. court denied preclearance of the 2011 plans, Texas used the Texas court’s interim plans for the 2012 elections. In 2013, the Legislature repealed the 2011 plans and enacted the Texas court’s plans (with minor modifications). After Shelby County v. Holder, 570 U. S. 529, was decided, Texas, no longer covered by §5, obtained a vacatur of the D. C. court’s preclearance order. But the Texas court did not dismiss the case against the 2011 plans as moot. Instead, it allowed the plaintiffs to amend their complaint to challenge the 2013 plans and held that their challenges to the 2011 plans were live. Texas conducted its 2014 and 2016 elections under the 2013 plans. In 2017, the Texas court found defects in several of the districts in the 2011 federal congressional and State House plans (the State Senate plan is not at issue here). Subsequently, it also invalidated multiple Congressional (CD) and House (HD) Districts in the 2013 plans, holding that the Legislature failed to cure the “taint” of discriminatory intent allegedly harbored by the 2011 Legislature. And the court relied on that finding to invalidate several challenged 2013 districts. The court also held that three districts—CD27, HD32, and HD34—were invalid under §2 of the VRA because they had the effect of depriving Latinos of the equal opportunity to elect their candidates of choice. And it found that HD90 was a racial gerrymander based on changes made by the 2013 Legislature. It gave the state attorney general three days to tell the court whether the Legislature would remedy the violations; and if the Legislature did not intend to adopt new plans, the court would hold remedial hearings. Held: 1. This Court has jurisdiction to review the orders at issue. . (a) The Texas court’s orders fall within 28 U. S. C. §1253, which gives the Court jurisdiction to hear an appeal from an order of a three-judge district court “granting or denying . . . an interlocutory or permanent injunction.” The Texas court did not call its orders “injunctions,” but where an order has the “practical effect” of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction. Carson v. American Brands, Inc., 450 U. S. 79, 83. . (b) The text of the orders and the context in which they were issued make clear that they qualify as interlocutory injunctions under §1253. The orders were unequivocal that the current legislative plans “violate §2 and the Fourteenth Amendment” and that these violations “must be remedied.” And the short time frame the attorney general was given to act is strong evidence that the court did not intend to allow the elections to go ahead under the plans it had just condemned. The unmistakable import of these actions is that the court intended to have new plans ready for use in this year’s elections. Texas also had reason to fear that if it tried to conduct elections under those plans, the court would infer an evil motive and perhaps subject the State to the strictures of preclearance under §3(c) of the VRA. These cases differ from Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, where the order did not have the same practical effect as an injunction. Nor does it matter that the remedy is not yet known. The issue here is whether this year’s elections can be held under the plans enacted by the Legislature, not whether any particular remedies should ultimately be ordered if it is determined that the current plans are flawed. Section 1253 must be strictly, but sensibly construed, and here the District Court’s orders, for all intents and purposes, constituted injunctions. Thus, §1253 provides jurisdiction. . 2. The Texas court erred in requiring the State to show that the 2013 Legislature purged the “taint” that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011. . (a) Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481. In redistricting cases, the “good faith of [the] state legislature must be presumed.” Miller v. Johnson, 515 U. S. 900, 915. The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination, which is but “one evidentiary source” relevant to the question of intent. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267. Here, the 2011 plans were repealed, and not reenacted, by the 2013 Legislature. Nor did it use criteria that arguably carried forward the effects of the 2011 Legislature’s discriminatory intent. Instead, it enacted, with only small changes, the Texas court plans developed pursuant to this Court’s instructions. The Texas court contravened these basic burden of proof principles, referring, e.g., to the need to “cure” the earlier Legislature’s “taint” and concluding that the Legislature had engaged in no deliberative process to do so. This fundamentally flawed approach must be reversed. . (b) Both the 2011 Legislature’s intent and the court’s interim plans are relevant to the extent that they give rise to—or tend to refute—inferences about the 2013 Legislature’s intent, but they must be weighed together with other relevant direct and circumstantial evidence of the Legislature’s intent. But when this evidence is taken into account, the evidence in the record is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination. . 3. Once the Texas court’s intent finding is reversed, there remain only four districts that were invalidated on alternative grounds. The Texas court’s holding as to the three districts in which it relied on §2’s “effects” test are reversed, but its holding that HD90 is a racial gerrymander is affirmed. . (a) To make out a §2 “effects” claim, a plaintiff must establish the three “Gingles factors”: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. Thornburg v. Gingles, 478 U. S. 30, 48–51. A plaintiff who makes that showing must then prove that, under the totality of the circumstances, the district lines dilute the votes of the members of the minority group. . (1) The Texas court held that CD27 violates §2 because it has the effect of diluting the votes of Nueces County Latino voters, who, the court concluded, should have been included in a Latino opportunity district rather than CD27, which is not such a district. Plaintiffs, however, could not show that an additional Latino opportunity district could be created in that part of Texas. . (2) The Texas court similarly erred in holding that HD32 and HD34, which make up the entirety of Nueces County, violate §2. The 2013 plan created two districts that lie wholly within the county: HD34 is a Latino opportunity district, but HD32 is not. The court’s findings show that these two districts do not violate §2, and it is hard to see how the ultimate Gingles vote dilution standard could be met if the alternative plan would not enhance the ability of minority voters to elect the candidates of their choice. . (b) HD90 is an impermissible racial gerrymander. HD90 was not copied from the Texas court’s interim plans. Instead, the 2013 legislature substantially modified that district. In 2011, the Legislature, responding to pressure from counsel to one of the plaintiff groups, increased the district’s Latino population in an effort to make it a Latino opportunity district. It also moved the city of Como, which is predominantly African-American, out of the district. When Como residents and their Texas House representative objected, the Legislature moved Como back. But that decreased the Latino population, so the Legislature moved more Latinos into the district. Texas argues that its use of race as the predominant factor in HD90’s design was permissible because it had “good reasons to believe” that this was necessary to satisfy §2, Bethune-Hill, 580 U. S., at ___. But it is the State’s burden to prove narrow tailoring, and Texas did not do so on the record here. . No. 17–586, 274 F. Supp. 3d 624, reversed; No. 17–626, 267 F. Supp. 3d 750, reversed in part and affirmed in part; and cases remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined. Notes 1 Together with No. 17–626, Abbott, Governor of Texas, et al. v. Perez et al., also on appeal from the same court.

In light of the census showing that the population of Texas had grown by more than 20% and the State was therefore apportioned four additional seats in the United States House of Representatives, the Texas Legislature in 2011 adopted new districting plans, but those plans were immediately tied up in litigation and never used. After this Court reversed the District Court on the ground that some of the new plans were racially gerrymanders, some were based on intentional vote dilution, and some had the effect of depriving minorities of the equal opportunity to elect their candidates of their choice, the court adopted interim plans for that purpose. In the meantime, Texas filed for a declaratory judgment in Federal District Court under 28 U.S. C. §1253, which provides jurisdiction to hear an appeal from an order of a three-judge district court granting or denying an interlocutory or permanent injunction, and the courts of appeals have jurisdiction over such orders under §1292(a)(1) of the Federal Rules of Civil Procedure, which authorizes such an appeal if the districting plan violates §2 of the Voting Rights Act. Appellees contend that the orders constituted injunctions barring the State from conducting this year's elections pursuant to a statute enacted by the Legislature. The District Court, however, did not call its new plans "injunctions," but rather relied on its own expert, who determined that it was Texas' intent to have new plans ready for use in the elections. This conclusion was based on a flawed analysis of the Democratic primaries in 2012 and 2014, in which the court found that the 2013 Legislature had good reasons to believe that the district at issue was a viable Latino opportunity district that satisfied the Gingles factors, and that the non-Latino voters of Travis County tend to favor the same candidates as the great majority of Latinos. When the Texas court denied preclearance of the plans, the plaintiffs filed an appeal in this Court contesting the court's decision, but that appeal ultimately died for two reasons: (1) it was the plaintiffs' burden to show that the Texas legislature acted with discriminatory intent when it enacted the plans that the court itself had produced, and (2) the court erred in concluding that Texas committed the same violation as in LULAC, since it inferred discriminatory intent from Texas' choice to appeal the court, rather than immediately taking steps to bring its plans into compliance with that decision. . (a) Where an order has the "practical effect" of granting and denying an injunction, it should be treated as such for purposes of appellate jurisdiction. The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination. Here, Texas has pointed to no actual legislative inquiry that would establish the need for its manipulation of the racial makeup of the district. P.. (b) Where, as in this case, the orders issued by the court below were unequivocal in their practical effect, they were issued in the context of the legislative intent of the legislature, and were not intended to comply with the requirements of Rule 65(d), which requires that an injunction state its terms specifically anddescribe in reasonable detail the act or acts restrained or required. See, e.g., Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, n. 4, id., at 475. Moreover, the relevant language in the two provisions is nearly identical; both provisions serve the same purpose; the provisions are textually interlocked, and may be applied in any case in which a party takes an appeal to this Court from an interim basis by the Texas Court. However, when all the relevant evidence in the record is taken into account, it is plainly insufficient to prove that the Legislature acted in bad faith and engaged in intentional discrimination.. 274 F. Supp. 3d 624, affirmed in part and reversed in part. Reported below: 1. This Court has jurisdiction to review the orders at issue. Although the orders in these cases amount to injunctions, they are effectively injunctions in that they barred Texas from using the current plans to conduct the elections in this year. Cf. Gunn, supra, at 83. There is no merit to appellees' contention that an order denying the injunction (the situation in Carson) or an order granting an injunction should not be treated differently because they were previously adopted on an interim basis by a different legislature. Neither the language nor the legislative history of the statutes supports such a contention. Nor is there any merit to the argument that the legislature should have either defended the 2011 plans in litigation or gone back to the drawing board and devised en- tirely new plans. It was entirely permissible for the Legislature to favor a legitimate option that promised to simplify and reduce the burdens of litigation. That the Legislature chose this course is not proof of discriminatory intent. On remand, the

2017_16-1220

https://www.oyez.org/cases/2017/16-1220

. When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally “no,” ruling that federal courts are “bound to defer” to a foreign government’s construction of its own law, whenever that construction is “reasonable.” In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (2016). We hold otherwise. A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements. Instead, Federal Rule of Civil Procedure 44.1 instructs that, in determining foreign law, “the court may consider any relevant material or source . . . whether or not submitted by a party.” As “[t]he court’s determination must be treated as a ruling on a question of law,” Fed. Rule Civ. Proc. 44.1, the court “may engage in its own research and consider any relevant material thus found,” Advisory Committee’s 1966 Note on Fed. Rule Civ. Proc. 44.1, 28 U. S. C. App., p. 892 (hereinafter Advisory Committee’s Note). Because the Second Circuit ordered dismissal of this case on the ground that the foreign government’s statements could not be gainsaid, we vacate that court’s judgment and remand the case for further consideration. I Petitioners, U. S.-based purchasers of vitamin C (hereinafter U. S. purchasers), filed a class-action suit against four Chinese corporations that manufacture and export the nutrient (hereinafter Chinese sellers). The U. S. purchasers alleged that the Chinese sellers, two of whom are respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States from China, in violation of §1 of the Sherman Act, 15 U. S. C. §1. More particularly, the U. S. purchasers stated that the Chinese sellers had formed a cartel “facilitated by the efforts of their trade association,” the Chamber of Commerce of Medicines and Health Products Importers and Exporters (Chamber). Complaint in No. 1:05–CV–453, Docket No. 1, ¶43. The Judicial Panel on Multidistrict Litigation consolidated the instant case and related suits for pretrial proceedings in the United States District Court for the Eastern District of New York. The Chinese sellers moved to dismiss the U. S. purchasers’ complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports. Therefore, the Chinese sellers urged, they are shielded from liability under U. S. antitrust law by the act of state doctrine, the foreign sovereign compulsion doctrine, and principles of international comity. The Ministry of Commerce of the People’s Republic of China (Ministry) filed a brief as amicus curiae in support of the Chinese sellers’ motion. The Ministry’s brief stated that the Ministry is “the highest administrative authority in China authorized to regulate foreign trade,” App. to Pet. for Cert. 190a; that the Chamber is “an entity under the Ministry’s direct and active supervision” and is authorized to regulate vitamin C exports, id., at 196a; and that the conspiracy in restraint of trade alleged by the U. S. purchasers was in fact “a regulatory pricing regime mandated by the government of China,” id., at 197a.[1] In response, the U. S. purchasers disputed that Chinese law required the Chinese sellers to engage in price fixing. Among other things, the U. S. purchasers noted that the Ministry had not identified any written law or regulation expressly ordering the Chinese sellers’ price agreement.[2] They also highlighted a Chamber announcement that the manufacturers “were able to reach a self-regulated agreement . . . whereby they would voluntarily control the quantity and pace of exports . . . without any government intervention.” App. 109. In addition, the U. S. purchasers presented expert testimony that the Chinese Government’s authorization of a Vitamin C Subcommittee within the Chamber did not necessarily mean that the subcommittee’s price fixing was mandated by law. The District Court denied the Chinese sellers’ motion to dismiss the complaint in relevant part. In re Vitamin C Antitrust Litigation, 584 F. Supp. 2d 546, 559 (EDNY 2008). That court acknowledged that the Ministry’s amicus brief was “entitled to substantial deference.” Id., at 557. The court, however, did not regard the Ministry’s statements as “conclusive,” emphasizing particularly that the U. S. purchasers had submitted evidence suggesting that the price fixing was voluntary. Ibid. The record, the District Court determined, was “too ambiguous to foreclose further inquiry into the voluntariness of [the Chinese sellers’] actions.” Id., at 559. After further discovery, focused on whether Chinese law compelled the Chinese sellers to enter into a price-fixing agreement, the Chinese sellers moved for summary judgment. See In re Vitamin C Antitrust Litigation, 810 F. Supp. 2d 522, 525–526 (EDNY 2011). The Ministry submitted an additional statement, reiterating that “the Ministry specifically charged the Chamber . . . with the authority and responsibility . . . for regulating, through consultation, the price of vitamin C manufactured for export.” App. 133. The Chinese sellers tendered expert testimony in accord with the Ministry’s account, which stressed that the Ministry’s “interpretation of its own regulations and policies carries decisive weight under Chinese law.” Id., at 142. The U. S. purchasers, in response, cited further materials supporting their opposing view, including China’s statement to the World Trade Organization (WTO) that it “gave up export administration of . . . vitamin C” in 2002. 810 F. Supp. 2d, at 532 (internal quotation marks omitted). Denying the Chinese sellers’ motion for summary judgment, the District Court held that Chinese law did not require the sellers to fix the price or quantity of vitamin C exports. Id., at 525. The case was then tried to a jury, which returned a verdict for the U. S. purchasers. The jury found that the Chinese sellers had agreed to fix the prices and quantities of vitamin C exports, see App. to Pet. for Cert. 276a–279a, and further found that the Chinese sellers were not “actually compelled” by China to enter into those agreements, id., at 278a. In accord with the jury’s verdict, the District Court entered judgment for the U. S. purchasers, awarding some $147 million in treble damages and enjoining the Chinese sellers from further violations of the Sherman Act. The Court of Appeals for the Second Circuit reversed, holding that the District Court erred in denying the Chinese sellers’ motion to dismiss the complaint. In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 178, 195–196 (2016). The Court of Appeals determined that the propri- ety of dismissal hinged on whether the Chinese sellers could adhere to both Chinese law and U. S. antitrust law. See id., at 186. That question, in turn, depended on “the amount of deference” owed to the Ministry’s characterization of Chinese law. Ibid. Cognizant of “competing authority” on this question, ibid., the Court of Appeals settled on a highly deferential rule: “[W]hen a foreign government, acting through counsel or otherwise, directly participates in U. S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government’s] laws and regulations, which is reasonable under the circumstances presented, a U. S. court is bound to defer to those statements,” id., at 189. The appeals court “note[d] that[,] if the Chinese Government had not appeared in this litigation, the [D]istrict [C]ourt’s careful and thorough treatment of the evidence before it in analyzing what Chinese law required at both the motion to dismiss and summary judgment stages would have been entirely appropriate.” Id., at 191, n. 10. Applying its highly deferential rule, the Court of Appeals concluded that the Ministry’s account of Chinese law was “reasonable.” In so concluding, the Court of Appeals inspected only the Ministry’s brief and sources cited therein. Id., at 189–190. Because it thought that “a U. S. court [must] not embark on a challenge to a foreign government’s official representation,” id., at 189, the Court of Appeals disregarded the submissions made by the U. S. purchasers casting doubt on the Ministry’s account of Chinese law, id., at 189–190. Based solely on the Ministry’s statements, the Court of Appeals held that “Chinese law required [the Chinese sellers] to engage in activities in China that constituted antitrust violations here in the United States.” Ibid. We granted certiorari to resolve a Circuit conflict over this question: Is a federal court determining foreign law under Rule 44.1 required to treat as conclusive a submission from the foreign government describing its own law? 583 U. S. ___ (2018).[3] II At common law, the content of foreign law relevant to a dispute was treated “as a question of fact.” Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617–619 (1967) (Miller). In 1801, this Court endorsed the common-law rule, instructing that “the laws of a foreign nation” must be “proved as facts.” Talbot v. Seeman, 1 Cranch 1, 38 (1801); see, e.g., Church v. Hubbart, 2 Cranch 187, 236 (1804) (“Foreign laws are well understood to be facts.”). Ranking questions of foreign law as questions of fact, however, “had a number of undesir- able practical consequences.” 9A C. Wright & A. Miller, Federal Practice and Procedure §2441, p. 324 (3d ed. 2008) (Wright & Miller). Foreign law “had to be raised in the pleadings” and proved “in accordance with the rules of evidence.” Ibid. Appellate review was deferential and limited to the record made in the trial court. Ibid.; see also Miller 623. Federal Rule of Civil Procedure 44.1, adopted in 1966, fundamentally changed the mode of determining foreign law in federal courts. The Rule specifies that a court’s determination of foreign law “must be treated as a ruling on a question of law,” rather than as a finding of fact.[4] Correspondingly, in ascertaining foreign law, courts are not limited to materials submitted by the parties; instead, they “may consider any relevant material or source . . . , whether or not . . . admissible under the Federal Rules of Evidence.” Ibid. Appellate review, as is true of domestic law determinations, is de novo. Advisory Committee’s Note, at 892. Rule 44.1 frees courts “to reexamine and amplify material . . . presented by counsel in partisan fashion or in insufficient detail.” Ibid. The “obvious” purpose of the changes Rule 44.1 ordered was “to make the process of determining alien law identical with the method of ascertaining domestic law to the extent that it is possible to do so.” Wright & Miller §2444, at 338–342. Federal courts deciding questions of foreign law under Rule 44.1 are sometimes provided with the views of the relevant foreign government, as they were in this case through the amicus brief of the Ministry. See supra, at 2–3. As the Court of Appeals correctly observed, Rule 44.1 does not address the weight a federal court determining foreign law should give to the views presented by the foreign government. See 837 F. 3d, at 187. Nor does any other rule or statute. In the spirit of “international comity,” Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 543, and n. 27 (1987), a federal court should carefully consider a foreign state’s views about the meaning of its own laws. See United States v. McNab, 331 F. 3d 1228, 1241 (CA11 2003); cf. Bodum USA, Inc. v. La Cafetière, Inc., 621 F. 3d 624, 638–639 (CA7 2010) (Wood, J., concurring). But the appropriate weight in each case will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. When a foreign government makes conflicting statements, see supra, at 5, or, as here, offers an account in the context of litigation, there may be cause for caution in evaluating the foreign government’s submission. Given the world’s many and diverse legal systems, and the range of circumstances in which a foreign government’s views may be presented, no single formula or rule will fit all cases in which a foreign government describes its own law. Relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions. Judged in this light, the Court of Appeals erred in deeming the Ministry’s submission binding, so long as facially reasonable. That unyielding rule is inconsistent with Rule 44.1 (determination of an issue of foreign law “must be treated as a ruling on a question of law”; court may consider “any relevant material or source”) and, tellingly, with this Court’s treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of “the State’s highest court,” that decision is “binding on the federal courts.” Wainwright v. Goode, 464 U. S. 78, 84 (1983) (per curiam); see Mullaney v. Wilbur, 421 U. S. 684, 691 (1975). But views of the State’s attorney general, while attracting “respectful consideration,” do not garner controlling weight. Arizonans for Official English v. Arizona, 520 U. S. 43, 76–77, n. 30 (1997); see, e.g., Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 393–396 (1988). Furthermore, because the Court of Appeals riveted its attention on the Ministry’s submission, it did not address other evidence, including, for example, China’s statement to the WTO that China had “g[i]ve[n] up export administration . . . of vitamin C” at the end of 2001. 810 F. Supp. 2d, at 532 (internal quotation marks omitted).[5] The Court of Appeals also misperceived this Court’s decision in United States v. Pink, 315 U. S. 203 (1942). See 837 F. 3d, at 186–187, 189. Pink, properly comprehended, is not compelling authority for the attribution of controlling weight to the Ministry’s brief. We note, first, that Pink was a pre-Rule 44.1 decision. Second, Pink arose in unusual circumstances. Pink was an action brought by the United States to recover assets of the U. S. branch of a Russian insurance company that had been nationalized in 1918, after the Russian revolution. 315 U. S., at 210–211. In 1933, the Soviet Government assigned the nationalized assets located in this country to the United States. Id., at 211–212. The disposition of the case turned on the extraterritorial effect of the nationalization decree—specifically, whether the decree reached assets of the Russian insurance company located in the United States, or was instead limited to property in Russia. Id., at 213–215, 217. To support the position that the decree reached all of the company’s assets, the United States obtained an “official declaration of the Commissariat for Justice” of the Russian Socialist Federal Soviet Republic. Id., at 218. The declaration certified that the nationalization decree reached “the funds and property of former insurance companies . . . irrespective of whether [they were] situated within the territorial limits of [Russia] or abroad.” Id., at 220 (internal quotation marks omitted). This Court determined that “the evidence supported [a] finding” that “the Commissariat for Justice ha[d] power to interpret existing Russian law.” Ibid. “That being true,” the Court concluded, the “official declaration [wa]s conclusive so far as the intended extraterritorial effect of the Russian decree [wa]s concerned.” Ibid. This Court’s treatment of the Commissariat’s submission as conclusive rested on a document obtained by the United States, through official “diplomatic channels.” Id., at 218. There was no indication that the declaration was inconsistent with the Soviet Union’s past statements. Indeed, the Court emphasized that the declaration was consistent with expert evidence in point. See ibid. That the Commissariat’s declaration was deemed “conclusive” in the circumstances Pink presented scarcely suggests that all submissions by a foreign government are entitled to the same weight. The Court of Appeals also reasoned that a foreign government’s characterization of its own laws should be afforded “the same respect and treatment that we would expect our government to receive in comparable matters.” 837 F. 3d, at 189. The concern for reciprocity is sound, but it does not warrant the Court of Appeals’ judgment. Indeed, the United States, historically, has not argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources.[6] The understanding that a government’s expressed view of its own law is ordinarily entitled to substantial but not conclusive weight is also consistent with two international treaties that establish formal mechanisms by which one government may obtain from another an official statement characterizing its laws. Those treaties specify that “[t]he information given in the reply shall not bind the judicial authority from which the request emanated.” European Convention on Information on Foreign Law, Art. 8, June 7, 1968, 720 U. N. T. S. 154; see Inter-American Convention on Proof of and Information on Foreign Law, Art. 6, May 8, 1979, O. A. S. T. S. 1439 U. N. T. S. 111 (similar). Al- though the United States is not a party to those treaties, they reflect an international practice inconsistent with the Court of Appeals’ “binding, if reasonable” resolution. * * * Because the Court of Appeals concluded that the District Court was bound to defer to the Ministry’s brief, the court did not consider the shortcomings the District Court identified in the Ministry’s position or other aspects of “the [D]istrict [C]ourt’s careful and thorough treatment of the evidence before it.” 837 F. 3d, at 191, n. 10. The correct interpretation of Chinese law is not before this Court, and we take no position on it. But the materials identified by the District Court were at least relevant to the weight the Ministry’s submissions should receive and to the question whether Chinese law required the Chinese sellers’ conduct. We therefore vacate the judgment of the Court of Appeals and remand the case for renewed consideration consistent with this opinion. It is so ordered. Notes 1 The Ministry told the District Court: For much of the 20th century, China allowed only state-owned entities to export products. App. to Pet. for Cert. 198a. When China started to allow private enterprises to obtain export licenses, the Ministry established the Chamber to regulate exports under the Ministry’s authority and direction. Ibid. In 1997, the Ministry authorized the establishment of the Chamber’s Vitamin C Subcommittee. Id., at 202a. That year, the Ministry promulgated a regulation authorizing and requiring the subcommittee to limit the production of vitamin C for export and to set export prices. Id., at 202a–204a. Under the regulation delineating this “Export Licensing System,” the Ministry issued export licenses only to manufacturers whose export volume and price complied with the output quota and price coordinated by the Vitamin C Subcommittee. Id., at 204a. In 2002, the Ministry replaced the Export Licensing System with a “Verification and Chop System.” Id., at 208a. As set forth in a 2002 Ministry Notice, the Chamber itself—instead of the Ministry—would inspect each export contract and certify its compliance with the coordinated quotas and price by affixing a special seal, known as a “chop.” Id., at 208a–209a. China’s Customs would allow export only if the exporter presented its contract bearing the Chamber’s “chop.” Id., at 209a. According to the Ministry, it was implicit in this arrangement that vitamin C exporters would remain under an obligation to fix prices and volumes. Id., at 208a. The effect of China’s regime on the Chinese sellers’ liability under the Sherman Act, we note, is not an issue before the Court today. 2 The complaint, the U. S. purchasers emphasized, was directed only at conduct occurring after December 2001. As they understood the Ministry’s 2002 Notice, see supra, at 3, n. 1, vitamin C exporters could have lawfully opted out of price fixing. Beyond that, the Vitamin C Subcommittee had replaced its 1997 Charter with a new 2002 Charter, App. 182–197, which eliminated the 1997 Charter’s requirement that subcommittee members “[s]trictly execute” the “coordinated price” set by the Chamber, compare id., at 85, with id., at 185, and granted members an express “[r]igh[t]” to “freely resign from the Subcommittee,” id., at 186. 3 Compare In re Vitamin C Antitrust Litigation, 837 F.3d 175 (CA2 2016) (case below), with In re Oil Spill by Amoco Cadiz, 954 F.2d 1279, 1311–1313 (CA7 1992) (adopting French Government’s interpretation of French law, but only after considering all of the circumstances, including the French Government’s statements in other contexts); United States v. McNab, 331 F.3d 1228, 1239–1242 (CA11 2003) (noting Honduran Government’s shift in position on the question of Honduran law and determining that the original position stated the proper interpretation); McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101, 1108–1109 (CADC 2001), vacated in part on other grounds, 320 F.3d 280 (CADC 2003) (declining to adopt the view of Iranian law advanced by Iranian Government because it was not supported by the affidavits submitted by Iran’s experts). 4 Federal Rule of Criminal Procedure 26.1 establishes “substantially the same” rule for criminal cases. Advisory Committee’s 1966 Note on Fed. Rule Crim. Proc. 26.1, 18 U. S. C. App., p. 709. 5 The Court of Appeals additionally mischaracterized the Ministry’s brief as a “sworn evidentiary proffer.” 837 F. 3d, at 189. In so describing the Ministry’s submission, the Court of Appeals overlooked that a court’s resolution of an issue of foreign law “must be treated as a ruling on a question of law.” Fed. Rule Civ. Proc. 44.1. The Ministry’s brief, while a probative source for resolving the legal question at hand, was not an attestation to facts. 6 The Chinese sellers assert, see Supp. Brief for Respondents 7–8, that the United States sought a greater degree of deference in a 2002 submission to a World Trade Organization panel. In fact, the submission acknowledged that “the Panel is not bound to accept the interpretation [of U. S. law] presented by the United States.” Brief for United States as Amicus Curiae 29, n. 6 (quoting Second Written Submission of the United States of America, United States—Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221 ¶11 (Mar. 8, 2002)).

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 Animal Science Products, Inc., et al. v. Hebei Welcome Pharmaceutical Co. Ltd. et al. certiorari to the united states court of appeals for the second circuit No. 16–1220. Argued April 24, 2018—Decided June 14, 2018 Petitioners, U. S.-based purchasers of vitamin C (U. S. purchasers), filed a class-action suit, alleging that four Chinese corporations that manufacture and export the nutrient (Chinese sellers), including the two respondents here, had agreed to fix the price and quantity of vitamin C exported to the United States, in violation of §1 of the Sherman Act. The Chinese sellers moved to dismiss the complaint on the ground that Chinese law required them to fix the price and quantity of vitamin C exports, thus shielding them from liability under U. S. antitrust law. The Ministry of Commerce of the People’s Republic of China (Ministry) filed an amicus brief in support of the motion, explaining that it is the administrative authority authorized to regulate foreign trade, and stating that the alleged conspiracy in restraint of trade was actually a pricing regime mandated by the Chinese Government. The U. S. purchasers countered that the Ministry had identified no law or regulation ordering the Chinese sellers’ price agreement, highlighted a publication announcing that the Chinese sellers had agreed to control the quantity and rate of exports without government intervention, and presented supporting expert testimony. The District Court denied the Chinese sellers’ motion in relevant part, concluding that it did not regard the Ministry’s statements as “conclusive,” particularly in light of the U. S. purchasers’ evidence. When the Chinese sellers subsequently moved for summary judgment, the Ministry submitted another statement, reiterating its stance, and the U. S. purchasers pointed to China’s statement to the World Trade Organization that it ended its export administration of vitamin C in 2002. The court denied this motion as well. The case was then tried to a jury, which returned a verdict for the U. S. purchasers. The Second Circuit reversed, holding that the District Court erred by denying the Chinese sellers’ motion to dismiss the complaint. When a foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, the court concluded, federal courts are “bound to defer” to the foreign government’s construction of its own law, whenever that construction is “reasonable.” Inspecting only the Ministry’s brief and the sources cited therein, the court found the Ministry’s account of Chinese law “reasonable.” Held: A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements. Rule 44.1 fundamentally changed the mode of determining foreign law in federal courts. Before adoption of the rule in 1966, a foreign nation’s laws had to be “proved as facts.” Talbot v. Seeman, 1 Cranch 1, 38. Rule 44.1, in contrast, specifies that a court’s determination of foreign law “must be treated as a ruling on a question of law.” And in ascertaining foreign law, courts are not limited to materials submitted by the parties, but “may consider any relevant material or source.” Appellate review, as is true of domestic law determinations, is de novo. The purpose of these changes was to align, to the extent possible, the process for determining alien law and the process for determining domestic law. Neither Rule 44.1 nor any other rule or statute addresses the weight a federal court determining foreign law should give to the views presented by a foreign government. In the spirit of “international comity,” Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 543, and n. 27, a federal court should carefully consider a foreign state’s views about the meaning of its own laws. The appropriate weight in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions. Judged in this light, the Second Circuit’s unyielding rule is inconsistent with Rule 44.1 and, tellingly, with this Court’s treatment of analogous submissions from States of the United States. If the relevant state law is established by a decision of “the State’s highest court,” that decision is “binding on the federal courts,” Wainwright v. Goode, 464 U. S. 78, 84, but views of the State’s attorney general, while attracting “respectful consideration,” do not garner controlling weight, Arizonans for Official English v. Arizona, 520 U. S. 43, 76–77, n. 30. Furthermore, because the Second Circuit riveted its attention on the Ministry’s submission, it did not address evidence submitted by the U. S. purchasers. The court also misperceived the pre-Rule 44.1 decision of United States v. Pink, 315 U. S. 203. Under the particular circumstances of that case, this Court found conclusive a declaration from the government of the Russian Socialist Federal Soviet Republic on the extraterritorial effect of a decree nationalizing assets: The declaration was obtained by the United States through official “diplomatic channels,” id., at 218; there was no indication that the declaration was inconsistent with the Russian Government’s past statements; and the declaration was consistent with expert evidence in point. The Second Circuit expressed concern about reciprocity, but the United States has not historically argued that foreign courts are bound to accept its characterizations or precluded from considering other relevant sources. International practice is also inconsistent with the Second Circuit’s rigid rule. . 837 F. 3d 175, vacated and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.

When foreign law is relevant to a case instituted in a federal court, and the foreign government whose law is in contention submits an official statement on the meaning and interpretation of its domestic law, may the federal court look beyond that official statement? The Court of Appeals for the Second Circuit answered generally with respect to Federal Rule of Civil Procedure 44.1, ruling that federal courts are "bound to defer" to a foreign government's construction of its own law, whenever that construction is "reasonable...." In re Vitamin C Antitrust Litigation, 837 F. 3d 175, 189 (CA 2), vacated and remanded. Held: A federal court should accord respectful consideration to the submission of a foreign official, but is not bound to accord conclusive effect to the foreign official's statements. Instead, Rule 44. 1 instructs that, in determining foreign law, the court may consider any relevant material or source, whether or not submitted by a party. . (a) At common law, questions of foreign law as questions of fact were treated as a question of law. At federal law, such questions had a number of undesir- able practical consequences. However, at the time of the enactment of the common law rule, foreign law was treated as facts, and foreign law had to be raised in the pleadings, and proved in accordance with the rules of evidence. Appellate review was deferential and limited to the record made in the trial court. In contrast to the rule in this case, which specifies that a court must treat a foreign court determination as a ruling on a law question, rather than as a finding of fact, and that courts are not limited to materials submitted by the parties, but may consider the relevant material and source whether admissible under the Federal Rules of Evidence, the court here erred in denying the motion to dismiss the complaint on the ground that Chinese law required the Chinese sellers to fix the price or quantity of vitamin C exports. United States v. Pink, 315 U. S. 203 (1942), distinguished. Although the United States is not a party to the Common Law rule, it reflects an international practice inconsistent with the Court of Appeals' binding, if reasonable, resolution. Pp. (b) The materials identified by the District Court were at least relevant to the weight the Ministry of Commerce of the Communist Party of the Soviet Union (Ministry) should receive and to the question whether Chinese law requires the sellers to conduct. Thus, the case is remanded for renewed consideration consistent with this opinion. ;. (c) The case is directed only at conduct occurring after December 2001, when vitamin C exporters could have lawfully opted out of price fixing. Beyond that, the Vitamin C Subcommittee had replaced its 1997 Charter with a new charter, which eliminated the 1997 Charter requirement that subcommittee members execute thecoordinated price set by the Chamber, and granted members an express discharge to resign from the Subcommittee. The Government of the People's Republic of China filed a brief as amicus curiae in support of the motion, stating that the Ministry is the highest administrative authority in China authorized to regulate foreign trade; that the Chamber is an entity under the Ministry's direct and active supervision and is authorized to supervise the vitamin C industry; and that, if the relevant state law is established by a decision of the State's highest court, that decision is binding on the federal courts. Moreover, the brief, while a probative source for resolving the legal question at hand, was not an attestation to facts, since views of the Attorney General, while attracting respectful consideration, do not garner controlling weight. Furthermore, because the court of Appeals riveted its attention on the Ministry brief, it did not address other evidence, including China's statement to the World Trade Organization (WTO) that it had "g[i]ve[n] up export administration of... vitamin C" at the end of 2001. It misperceived this Court-Appellate decision in United States Pink, at 837 3d 175 (CA2), in which it was held that, although it was a pre-Rule 44-1 decision, it was not entitled to the same weight as all foreign government submissions are entitled to, and should be afforded in the same way that all foreign governments are afforded in a given case. Given the wide range of legal systems and systems in the world, a reviewing court may include in its consideration all foreign submissions, but it should not receive the same treatment of foreign laws as it would ordinarily receive from its own. A reviewing court is not entitled, in the context of a single case, to receive a review that is consistent with a rule of law, but that it may also receive from other sources, including this Court, which is entitled to a different weight than that of the Government. This Court will not accept the Government-appliced submission

2017_16-460

https://www.oyez.org/cases/2017/16-460

. The Supplemental Jurisdiction statute, 28 U. S. C. §1367, enables federal district courts to entertain claims not otherwise within their adjudicatory authority when those claims “are so related to claims . . . within [federal-court competence] that they form part of the same case or controversy.” §1367(a). Included within this supplemental jurisdiction are state claims brought along with federal claims arising from the same episode. When district courts dismiss all claims independently qualifying for the exercise of federal jurisdiction, they ordinarily dismiss as well all related state claims. See §1367(c)(3). A district court may also dismiss the related state claims if there is a good reason to decline jurisdiction. See §1367(c)(1), (2), and (4). This case concerns the time within which state claims so dismissed may be refiled in state court. Section 1367(d), addressing that issue, provides: “The period of limitations for any [state] claim [ joined with a claim within federal-court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” The question presented: Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case? Petitioner urges the first, or stop-the-clock, reading. Respondent urges, and the District of Columbia Court of Appeals adopted, the second, or grace-period, reading. In the case before us, plaintiff-petitioner Stephanie C. Artis refiled her state-law claims in state court 59 days after dismissal of her federal suit.[1] Reading §1367(d) as a grace-period prescription, her complaint would be time barred. Reading §1367(d) as stopping the limitations clock during the pendency of the federal-court suit, her complaint would be timely. We hold that §1367(d)’s instruction to “toll” a state limitations period means to hold it in abeyance, i.e., to stop the clock. Because the D. C. Court of Appeals held that §1367(d) did not stop the D. C. Code’s limitations clock, but merely provided a 30-day grace period for refiling in D. C. Superior Court, we reverse the D. C. Court of Appeals’ judgment. I A Section 1367, which Congress added to Title 28 as part of the Judicial Improvements Act of 1990, 104Stat. 5089, codifies the court-developed pendent and ancillary jurisdiction doctrines under the label “supplemental jurisdiction.” See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546 –558 (2005) (describing the development of pendent and ancillary jurisdiction doctrines and subsequent enactment of §1367); id., at 579–584 (Ginsburg, J., dissenting) (same). The House Report accompanying the Act explains that Congress sought to clarify the scope of federal courts’ authority to hear claims within their supplemental jurisdiction, appreciating that “[s]upplemental jurisdiction has enabled federal courts and litigants to . . . deal economically—in single rather than multiple litigation—with related matters.” H. R. Rep. No. 101–734, p. 28 (1990) (H. R. Rep.). Section 1367(a) provides, in relevant part, that a district court with original jurisdiction over a claim “shall have supplemental jurisdiction over all other claims . . . form[ing] part of the same case or controversy.” “[N]ot every claim within the same ‘case or controversy’ as the claim within the federal courts’ original jurisdiction will be decided by the federal court.” Jinks v. Richland County, 538 U. S. 456, 459 (2003) . Section 1367(c) states: “The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— “(1) the claim raises a novel or complex issue of State law, “(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, “(3) the district court has dismissed all claims over which it has original jurisdiction, or “(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” If a district court declines to exercise jurisdiction over a claim asserted under §1367(a) and the plaintiff wishes to continue pursuing it, she must refile the claim in state court. If the state court would hold the claim time barred, however, then, absent a curative provision, the district court’s dismissal of the state-law claim without prejudice would be tantamount to a dismissal with prejudice. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 352 (1988) (under the doctrine of pendent jurisdiction, if the statute of limitations on state-law claims expires before the federal court “relinquish[es] jurisdiction[,] . . . a dismissal will foreclose the plaintiff from litigating his claims”). To prevent that result, §1367(d) supplies “a tolling rule that must be applied by state courts.” Jinks, 538 U. S., at 459. Section 1367(d) provides: “The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” This case requires us to determine how §1367(d)’s tolling rule operates. B Petitioner Artis worked as a health inspector for respondent, the District of Columbia (the “District”). In November 2010, Artis was told she would lose her job. Thirteen months later, Artis sued the District in the United States District Court for the District of Columbia, alleging that she had suffered employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 78Stat. 253, as amended, 42 U. S. C. §2000e et seq. She also asserted three allied claims under D. C. law: retaliation in violation of the District of Columbia Whistleblower Act, D. C. Code §1–615.54 (2001); termination in violation of the District of Columbia False Claims Act, §2–381.04; and wrongful termination against public policy, a common-law claim. Artis alleged that she had been subjected to gender discrimination by her supervisor, and thereafter encountered retaliation for reporting the supervisor’s unlawful activities. See Artis v. District of Columbia, 51 F. Supp. 3d 135, 137 (2014). On June 27, 2014, the District Court granted the District’s motion for summary judgment on the Title VII claim. Having dismissed Artis’ sole federal claim, the District Court, pursuant to §1367(c)(3), declined to exercise supplemental jurisdiction over her remaining state-law claims. “Artis will not be prejudiced,” the court noted, “because 28 U. S. C. §1367(d) provides for a tolling of the statute of limitations during the period the case was here and for at least 30 days thereafter.” Id., at 142. Fifty-nine days after the dismissal of her federal action, Artis refiled her state-law claims in the D. C. Superior Court, the appropriate local court. The Superior Court granted the District’s motion to dismiss, holding that Artis’ claims were time barred, because they were filed 29 days too late. See App. to Pet. for Cert. 14a. When Artis first asserted her state-law claims in the District Court, nearly two years remained on the applicable three-year statute of limitations.[2] But two and a half years passed before the federal court relinquished jurisdiction. Unless §1367(d) paused the limitations clock during that time, Artis would have had only 30 days to refile. The Superior Court rejected Artis’ stop-the-clock reading of §1367(d), reasoning that Artis could have protected her state-law claims by “pursuing [them] in a state court while the federal court proceeding [was] pending.” Ibid. In tension with that explanation, the court noted that duplicative filings in federal and state court are “generally disfavored . . . as ‘wasteful’ and . . . ‘against [the interests of] judicial efficiency.’ ” Id., at 14a, n. 1 (quoting Stevens v. Arco Management of Wash. D.C., Inc., 751 A. 2d 995, 1002 (D. C. 2000); alteration in original). The D. C. Court of Appeals affirmed. That court began by observing that two “competing approaches [to §1367(d)] have evolved nationally”: the stop-the-clock reading and the grace-period reading. 135 A. 3d 334, 337 (2016).[3] Without further comment on §1367(d)’s text, the D. C. Court of Appeals turned to the legislative history. Section 1367(d)’s purpose, the court noted, was “to prevent the loss of claims to statutes of limitations where state law might fail to toll the running of the period of limitations while a supplemental claim was pending in federal court.” Id., at 338 (quoting H. R. Rep., at 30; internal quotation marks omitted). Following the lead of the California Supreme Court, the D. C. Court of Appeals determined that Congress had intended to implement a 1969 recommendation by the American Law Institute (ALI) to allow refiling in state court “within 30 days after dismissal.” 135 A. 3d, at 338 (quoting Los Angeles v. County of Kern, 59 Cal. 4th 618, 629, 328 P. 3d 56, 63 (2014)). The D. C. Court of Appeals also concluded that the grace-period approach “better accommodates federalism concerns,” by trenching significantly less on state statutes of limitations than the stop-the-clock approach. 135 A. 3d, at 338–339. Construing §1367(d) as affording only a 30-day grace period, the court commented, was “consistent with [its] presumption favoring narrow interpretations of federal preemption of state law.” Id., at 339. To resolve the division of opinion among State Supreme Courts on the proper construction of §1367(d), see supra, at 6, n. 3, we granted certiorari. 580 U. S. ___ (2017). II A As just indicated, statutes that shelter from time bars claims earlier commenced in another forum generally employ one of two means. First, the period (or statute) of limitations may be “tolled” while the claim is pending elsewhere.[4] Ordinarily, “tolled,” in the context of a time prescription like §1367(d), means that the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off. See Black’s Law Dictionary 1488 (6th ed. 1990) (“toll,” when paired with the grammatical object “statute of limitations,” means “to suspend or stop temporarily”). This dictionary definition captures the rule generally applied in federal courts. See, e.g., Chardon v. Fumero Soto, 462 U. S. 650, 652, n. 1 (1983) (Court’s opinion “use[d] the word ‘tolling’ to mean that, during the relevant period, the statute of limitations ceases to run”).[5] Our decisions employ the terms “toll” and “suspend” interchangeably. For example, in American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) , we characterized as a “tolling” prescription a rule “suspend[ing] the applicable statute of limitations,” id., at 554; accordingly, we applied the rule to stop the limitations clock, id., at 560–561.[6] We have similarly comprehended what tolling means in decisions on equitable tolling. See, e.g., CTS Corp. v. Waldburger, 573 U. S. ___, ___ (2014) (slip op., at 7) (describing equitable tolling as “a doctrine that pauses the running of, or ‘tolls’ a statute of limitations” (some internal quotation marks omitted)); United States v. Ibarra, 502 U. S. 1, 4, n. 2 (1991) ( per curiam) (“Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.”). In lieu of “tolling” or “suspending” a limitations period by pausing its progression, a legislature might elect sim- ply to provide a grace period. When that mode is adopted, the statute of limitations continues to run while the claim is pending in another forum. But the risk of a time bar is averted by according the plaintiff a fixed period in which to refile. A federal statute of that genre is 28 U. S. C. §2415. That provision prescribes a six-year limitations period for suits seeking money damages from the United States for breach of contract. §2415(a). The statute further provides: “In the event that any action . . . is timely brought and is thereafter dismissed without prejudice, the action may be recommenced within one year after such dismissal, regardless of whether the action would otherwise then be barred by this section.” §2415(e).[7] Many States have enacted similar grace-period provisions. See App. to Brief for National Conference of State Legislatures et al. as Amici Curiae 1a–25a. For example, Georgia law provides: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later . . . .” Ga. Code Ann. §9–2–61(a) (2007). Tellingly, the District has not identified any federal statute in which a grace-period meaning has been ascribed to the word “tolled” or any word similarly rooted. Nor has the dissent, for all its mighty strivings, identified even one federal statute that fits its bill, i.e., a federal statute that says “tolled” but means something other than “suspended,” or “paused,” or “stopped.” From what statutory text, then, does the dissent start? See post, at 5.[8] Turning from statutory texts to judicial decisions, only once did an opinion of this Court employ tolling language to describe a grace period: Hardin v. Straub, 490 U. S. 536 (1989) . In Hardin, we held that, in 42 U. S. C. §1983 suits, federal courts should give effect to state statutes sheltering claims from time bars during periods of a plaintiff’s legal disability. We there characterized a state statute providing a one-year grace period as “tolling” or “suspend[ing]” the limitations period “until one year after the disability has been removed.” 490 U. S., at 537. This atypical use of “tolling” or “suspending” to mean something other than stopping the clock on a limitations period is a feather on the scale against the weight of decisions in which “tolling” a statute of limitations signals stopping the clock. B In determining the meaning of a statutory provision, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U. S. 103, 108 (1990) (citation and internal quotation marks omitted). Section 1367(d) is phrased as a tolling provision. It suspends the statute of limitations for two adjacent time periods: while the claim is pending in federal court and for 30 days postdismissal. Artis urges that the phrase “shall be tolled” in §1367(d) has the same meaning it does in the statutes cited supra, at 7, n. 4. That is, the limitations clock stops the day the claim is filed in federal court and, 30 days postdismissal, restarts from the point at which it had stopped. The District reads “tolled” for §1367(d)’s purposes differently. To “toll,” the District urges, means to “remove or take away an effect.” Brief for Respondent 12–13. To “toll” a limitations period, then, would mean to “remov[e] the bar that ordinarily would accompany its expiration.” Id., at 14.[9] “[T]here is nothing special,” the District maintains, “about tolling limitations periods versus tolling any other fact, right, or consequence.” Id., at 13. But the District offers no reason why, in interpreting “tolled” as used in §1367(d), we should home in only on the word itself, ignoring the information about the verb’s ordinary meaning gained from its grammatical object. Just as when the object of “tolled” is “bell” or “highway traveler,” the object “period of limitations” sheds light on what it means to “be tolled.” The District’s reading, largely embraced by the dissent, is problematic for other reasons as well. First, it tenders a strained interpretation of the phrase “period of limitations.” In the District’s view, “period of limitations” means “the effect of the period of limitations as a time bar.” See id., at 18 (“Section 1367(d) . . . provides that ‘the period of limitations’—here its effect as a time bar—‘shall be [removed or taken away] while the claim is pending [in federal court] and for a period of 30 days after it is dismissed.’ ” (alterations in original)). Second, the first portion of the tolling period, the duration of the claim’s pendency in federal court, becomes superfluous under the District’s construction. The “effect” of the limitations period as a time bar, on the District’s reading, becomes operative only after the case has been dismissed. That being so, what need would there be to remove anything while the claim is pending in federal court? Furthermore, the District’s reading could yield an absurdity: It could permit a plaintiff to refile in state court even if the limitations period on her claim had expired before she filed in federal court. To avoid that result, the District’s proposed construction of “tolled” as “removed” could not mean simply “removed.” Instead, “removed” would require qualification to express “removed, unless the period of limitations expired before the claim was filed in federal court.” In sum, the District’s interpretation maps poorly onto the language of §1367(d), while Artis’ interpretation is a natural fit. C The D. C. Court of Appeals adopted the District’s grace-period construction primarily because it was convinced that in drafting §1367(d), Congress embraced an ALI recommendation. 135 A. 3d, at 338. Two decades before the enactment of §1367(d), the ALI, in its 1969 Study of the Division of Jurisdiction Between State and Federal Courts, did recommend a 30-day grace period for refiling certain claims. The ALI proposed the following statutory language: “If any claim in an action timely commenced in a federal court is dismissed for lack of jurisdiction over the subject matter of the claim, a new action on the same claim brought in another court shall not be barred by a statute of limitations that would not have barred the original action had it been commenced in that court, if such new action is brought in a proper court, federal or State, within thirty days after dismissal of the original claim has become final or within such longer period as may be available under applicable State law.” ALI, Study of the Division of Jurisdiction Between State and Federal Courts §1386(b), p. 65 (1969) (ALI Study). Congress, however, did not adopt the ALI’s grace-period formulation. Instead, it ordered tolling of the state limitations period “while the claim is pending” in federal court. Although the provision the ALI proposed, like §1367(d), established a 30-day federal floor on the time allowed for refiling, it did not provide for tolling the period of limitations while a claim is pending.[10] True, the House Report contained a citation to the ALI Study, but only in reference to a different provision, 28 U. S. C. §1391 (the general venue statute). There, Congress noted that its approach was “taken from the ALI Study.” H. R. Rep., at 23. Had Congress similarly embraced the ALI’s grace-period formulation in §1367(d), one might expect the House Report to have said as much.[11] D The District asks us to zero in on §1367(d)’s “express inclusion” of the “period of 30 days after the claim is dismissed” within the tolling period. Brief for Respondent 20 (internal quotation marks omitted). Under Artis’ stop-the-clock interpretation, the District contends, “the inclusion of 30 days within the tolling period would be relegated to insignificance in the mine-run of cases.” Id., at 21 (citation and internal quotation marks omitted). In §1367(d), Congress did provide for tolling not only while the claim is pending in federal court, but also for 30 days thereafter. Including the 30 days within §1367(d)’s tolling period accounts for cases in which a federal action is commenced close to the expiration date of the relevant state statute of limitations. In such a case, the added days give the plaintiff breathing space to refile in state court. Adding a brief span of days to the tolling period is not unusual in stop-the-clock statutes. In this respect, §1367(d) closely resembles 46 U. S. C. §53911, which provides, in a subsection titled “Tolling of limitations period,” that if a plaintiff submits a claim for war-related vessel damage to the Secretary of Transportation, “the running of the limitations period for bringing a civil action is suspended until the Secretary denies the claim, and for 60 days thereafter.” §53911(d). Numerous other statutes similarly append a fixed number of days to an initial tolling period. See, e.g., 22 U. S. C. §1631k(c) (“Statutes of limitations on assessments . . . shall be suspended with respect to any vested property . . . while vested and for six months thereafter. . . .”); 26 U. S. C. §6213(f )(1) (“In any case under title 11 of the United States Code, the running of the time prescribed by subsection (a) for filing a petition in the Tax Court with respect to any deficiency shall be suspended for the period during which the debtor is prohibited by reason of such case from filing a petition in the Tax Court with respect to such deficiency, and for 60 days thereafter.”); §6503(a)(1) (“The running of the period of limitations provided in section 6501 or 6502 . . . shall . . . be suspended for the period during which the Secretary is prohibited from making the assessment . . . and for 60 days thereafter.”); 50 U. S. C. §4000(c) (“The running of a statute of limitations against the collection of tax deferred under this section . . . shall be suspended for the period of military service of the servicemember and for an addi- tional period of 270 days thereafter.”). Thus, the “30 days” provision casts no large shadow on Artis’ interpretation. Section 1367(d)’s proviso, “unless State law provides for a longer tolling period,” could similarly aid a plaintiff who filed in federal court just short of the expiration of the state limitations period. She would have the benefit of §1367(d)’s 30-days-to-refile prescription, or such longer time as state law prescribes.[12] It may be that, in most cases, the state-law tolling period will not be longer than §1367(d)’s. But in some cases it undoubtedly will. For example, Indiana permits a plaintiff to refile within three years of dismissal. See Ind. Code §34–11–8–1 (2017). And Louisiana provides that after dismissal the limitations period “runs anew.” La. Civ. Code Ann., Arts. 3462, 3466 (West 2007). III Satisfied that Artis’ text-based arguments overwhelm the District’s, we turn to the District’s contention that the stop-the-clock interpretation of §1367(d) raises a significant constitutional question: Does the statute exceed Congress’ authority under the Necessary and Proper Clause, Art. I, §8, cl. 18, because its connection to Congress’ enumerated powers is too attenuated or because it is too great an incursion on the States’ domain? Brief for Respondent 46–49. To avoid constitutional doubt, the District urges, we should adopt its reading. “[W]here an alternative interpretation of [a] statute is fairly possible,” the District reminds, we have construed legislation in a manner that “avoid[s] [serious constitutional] problems” raised by “an otherwise acceptable construction.” INS v. St. Cyr, 533 U. S. 289 –300 (2001) (internal quotation marks omitted). But even if we regarded the District’s reading of §1367(d) as “fairly possible,” our precedent would undermine the proposition that §1367(d) presents a serious constitutional problem. See Jinks, 538 U. S., at 461–465. In Jinks, we unanimously rejected an argument that §1367(d) impermissibly exceeds Congress’ enumerated powers.[13] Section 1367(d), we held, “is necessary and proper for carrying into execution Congress’s power ‘[t]o constitute Tribunals inferior to the supreme Court,’ . . . and to assure that those tribunals may fairly and effi- ciently exercise ‘[t]he judicial Power of the United States.’ ” Id., at 462 (quoting U. S. Const., Art. I, §8, cl. 9, and Art. III, §1). In two principal ways, we explained, §1367(d) is “conducive to the due administration of justice in federal court.” 538 U. S., at 462 (internal quotation marks omitted). First, “it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court.” Ibid. Section 1367(d) thus “unquestionably promotes fair and efficient operation of the federal courts.” Id., at 463. Second, §1367(d) “eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal- and state-law claims” arising from the same episode. Ibid. With tolling available, a plaintiff disinclined to litigate simultaneously in two forums is no longer impelled to choose between forgoing either her federal claims or her state claims. Moreover, we were persuaded that §1367(d) was “plainly adapted” to Congress’ exercise of its enumerated power: there was no cause to suspect that Congress had enacted §1367(d) as a “ ‘pretext’ for ‘the accomplishment of objects not entrusted to [it],’ ”; nor was there reason to believe that the connection between §1367(d) and Congress’ authority over the federal courts was too attenuated. Id., at 464 (quoting McCulloch v. Maryland, 4 Wheat. 316, 423 (1819)). Our decision in Jinks also rejected the argument that §1367(d) was not “proper” because it violates principles of state sovereignty by prescribing a procedural rule for state courts’ adjudication of purely state-law claims. 538 U. S., at 464–465. “Assuming [without deciding] that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is ‘proper,’ between federal laws that regulate state-court ‘procedure’ and laws that change the ‘substance’ of state-law rights of action,” we concluded that the tolling of state limitations periods “falls on the [permissible] ‘substantive’ side of the line.” Ibid. The District’s contention that a stop-the-clock prescription serves “no federal purpose” that could not be served by a grace-period prescription is unavailing. Brief for Respondent 49. Both devices are standard, off-the-shelf means of accounting for the fact that a claim was timely pressed in another forum. Requiring Congress to choose one over the other would impose a tighter constraint on Congress’ discretion than we have ever countenanced. The concern that a stop-the-clock prescription entails a greater imposition on the States than a grace-period prescription, moreover, may be more theoretical than real. Consider the alternative suggested by the D. C. Superior Court. Plaintiffs situated as Artis was could simply file two actions and ask the state court to hold the suit filed there in abeyance pending disposition of the federal suit. See supra, at 6. Were the dissent’s position to prevail, cautious plaintiffs would surely take up the D. C. Superior Court’s suggestion. How it genuinely advances federalism concerns to drive plaintiffs to resort to wasteful, inefficient duplication to preserve their state-law claims is far from apparent. See, e.g., Stevens, 751 A. 2d, at 1002 (it “work[s] against judicial efficiency . . . to compel prudent federal litigants who present state claims to file duplicative and wasteful protective suits in state court”). We do not gainsay that statutes of limitations are “fundamental to a well-ordered judicial system.” Board of Regents of Univ. of State of N. Y. v. Tomanio, 446 U. S. 478, 487 (1980) . We note in this regard, however, that a stop-the-clock rule is suited to the primary purposes of limitations statutes: “preventing surprises” to defendants and “barring a plaintiff who has slept on his rights.” American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 554 (1974) (internal quotation marks omitted). Whenever §1367(d) applies, the defendant will have notice of the plaintiff’s claims within the state-prescribed limitations period. Likewise, the plaintiff will not have slept on her rights. She will have timely asserted those rights, endeavoring to pursue them in one litigation. * * * For the reasons stated, we resist unsettling the usual understanding of the word “tolled” as it appears in legislative time prescriptions and court decisions thereon. The judgment of the D. C. Court of Appeals is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The nonfederal claims Artis asserted arose under the D. C. Code and common law; on dismissal of her federal-court suit, she refiled those claims in D. C. Superior Court. For the purpose at hand, District of Columbia law and courts are treated as state law and courts. See 28 U. S. C. §1367(e) (“As used in this section, the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.”). 2 The D. C. False Claims Act and the tort of wrongful termination each have a three-year statute of limitations that started to run on the day Artis lost her job in November 2010. See D. C. Code §2–381.04(c) (2001) (D. C. False Claims Act); Stephenson v. American Dental Assn., 789 A. 2d 1248, 1249, 1252 (D. C. 2002) (tort of wrongful termination governed by D. C.’s catchall three-year limitations period and claim accrues on the date when plaintiff has unequivocal notice of termination). Artis’ whistleblower claim had a one-year limitations period, which began to accrue when Artis “first bec[a]m[e] aware” that she had been terminated for reporting her supervisor’s misconduct. D. C. Code §1–615.54(a)(2). The parties dispute the date the whistleblower claim accrued. See Brief for Petitioner 10, n. 2; Brief for Respondent 8, n. 2. 3 The high courts of Maryland and Minnesota, along with the Sixth Circuit, have held that §1367(d)’s tolling rule pauses the clock on the statute of limitations until 30 days after the state-law claim is dismissed. See In re Vertrue Inc. Marketing & Sales Practices Litigation, 719 F. 3d 474, 481 (CA6 2013); Goodman v. Best Buy, Inc., 777 N. W. 2d 755, 759–760 (Minn. 2010); Turner v. Kight, 406 Md. 167, 180–182, 957 A. 2d 984, 992–993 (2008). In addition to the D. C. Court of Appeals, the high courts of California and the Northern Mariana Islands have held that §1367(d) provides only a 30-day grace period for the refiling of otherwise time-barred claims. See Los Angeles v. County of Kern, 59 Cal. 4th 618, 622, 328 P. 3d 56, 58 (2014); Juan v. Commonwealth, 2001 MP 18, 6 N. Mar. I. 322, 327 (2001). 4 Among illustrations: 21 U. S. C. §1604 (allowing suits to proceed against certain biomaterial providers and providing that “[a]ny applicable statute of limitations shall toll during the period from the time a claimant files a petition with the Secretary under this paragraph until such time as either (i) the Secretary issues a final decision on the petition, or (ii) the petition is withdrawn,” §1604(b)(3)(C)); 28 U. S. C. §1332 (permitting the removal of “mass actions” to federal court and providing that “[t]he limitations periods on any claims asserted in a mass action that is removed to Federal court pursuant to this subsection shall be deemed tolled during the period that the action is pending in Federal court,” §1332(d)(11)(D)); 42 U. S. C. §233 (providing a remedy against the United States for certain injuries caused by employees of the Public Health Service, and stating that “[t]he time limit for filing a claim under this subsection . . . shall be tolled during the pendency of a[n] [administrative] request for benefits,” §233(p)(3)(A)(ii)). See also Wis. Stat. §893.15(3) (2011–2012) (“A Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of action is tolled from the period of commencement of the action in a non-Wisconsin forum until the time of its final disposition in that forum.”). The dissent maintains that “stop clock examples [from the U. S. Code] often involve situations where some disability prevents the plaintiff from proceeding to court.” Post, at 12, n. 7. Plainly, however, the several statutes just set out do not fit that description: They do not involve “disabilities.” Instead, like §1367(d), they involve claims earlier commenced in another forum. 5 As we recognized in Chardon v. Fumero Soto, 462 U. S. 650 (1983) , there may be different ways of “calculating the amount of time avail-able to file suit after tolling has ended.” Id., at 652, n. 1 (emphasis added). In addition to the “common-law” stop-the-clock effect, id., at 655, under which the plaintiff must file within the amount of time left in the limitations period, a statute might either provide for the limitations period to be “renewed,” so that “the plaintiff has the benefit of a new period as long as the original,” or “establish a fixed period such as six months or one year during which the plaintiff may file suit, without regard to the length of the original limitations period or the amount of time left when tolling began.” Id., at 652, n. 1. Notably, under each of the “tolling effect[s]” enumerated in Chardon, ibid., the word “tolled” means that the progression of the limitations clock is stopped for the duration of “tolling.” 6 The dissent’s notion that federal tolling periods may be understood as grace periods, not stop-the-clock periods, see post, at 7–8, is entirely imaginative. 7 Also illustrative, the Equal Credit Opportunity Act prescribes a five-year limitations period for certain suits. 15 U. S. C. §1691e(f ). Where a government agency has brought a timely suit, however, an individual may bring an action “not later than one year after the commencement of that proceeding or action.” Ibid. 8 Reasons of history, context, and policy, the dissent maintains, would have made it sensible for Congress to have written a grace-period statute. See post, at 4–5. But “[t]he controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written[,] . . . giving each word its ordinary, contemporary, common meaning.” Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S. ___, ___ (2017) (slip op., at 6) (internal quotation marks omitted). 9 This is indeed a definition sometimes used in reference to a right. See, e.g., Ricard v. Williams, 7 Wheat. 59, 120 (1822) (“[A]n adverse possession . . . toll[s] the right of entry of the heirs, and, consequently, extinguish[es], by the lapse of time, their right of action for the land.”). See also Black’s Law Dictionary 1488 (6th ed. 1990) (“toll” can mean “bar, defeat, or take away; thus, to toll the entry means to deny or take away the right of entry”). The dissent, also relying on this sense of the word “toll,” cites Chardon as support for the proposition that §1367(d)’s tolling instruction is ambiguous. See post, at 3; supra, at 8, n. 5. But, importantly, the grace-period statutes noted in Chardon, 462 U. S., at 660, n. 13, were precise about their operation. Chardon provides no support for the notion that a statute’s instruction that a “period of limitations shall be tolled” plausibly could mean that the limitations clock continues to run but its effect as a bar is removed during the tolling. See post, at 2–3. 10 The District emphasizes that the Reporter’s note accompanying the ALI’s proposed statute stated: “[A]ny governing statute of limitations is tolled by the commencement of an action in a federal court, and for at least thirty days following dismissal . . . in any case in which the dismissal was for lack of jurisdiction.” ALI Study 66. The similarity between this language and §1367(d), the District argues, rebuts any argument that Congress did not adopt the ALI’s recommendation. We are unpersuaded. The District offers no explanation why, if Congress wanted to follow the substance of the ALI’s grace-period recommendation, it would neither cite the ALI Study in the legislative history of §1367(d), see infra this page, nor adopt the precise language of either the proposed statute or the Reporter’s note. The ALI Study, moreover, cautions that the Reporter’s notes reflect “the Reporter’s work alone,” not a position taken by the Institute. ALI Study, p. x. 11 The dissent offers a history lesson on the ancient common-law principle of “journey’s account,” see post, at 5–6, and n. 4, but nothing suggests that the 101st Congress had any such ancient law in mind when it drafted §1367(d). Cf. post, at 9. More likely, Congress was mindful that “suspension” during the pendency of other litigation is “the common-law rule.” Chardon, 462 U. S., at 655. 12 The dissent, post, at 8–9, conjures up absurdities not presented by this case, for the District of Columbia has no law of the kind the dissent describes. All agree that the phrase “unless State law provides for a longer tolling period” leaves room for a more generous state-law regime. The dissent posits a comparison between the duration of the federal suit, plus 30 days, and a state-law grace period. But of course, as the dissent recognizes, post, at 9, the more natural comparison is between the amount of time a plaintiff has left to refile, given the benefit of §1367(d)’s tolling rule, and the amount of time she would have to refile under the applicable state law. Should the extraordinary circumstances the dissent envisions in fact exist in a given case, the comparison the dissent makes would be far from inevitable. 13 The dissent refers to an “understanding,” post, at 14, by the Court in Jinks v. Richland County, 538 U. S. 456 (2003) , that §1367(d) accords only a 30-day “window” for refiling in state court. Scattered characterizations in the Jinks briefing might be seen as conveying that understanding. See post, at 14, n. 9. The opinion itself, however, contains nary a hint of any such understanding. And indeed, one year earlier, we described §1367(d) as having the effect of stopping the clock, i.e., “toll[ing] the state statute of limitations for 30 days in addition to however long the claim had been pending in federal court.” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 542 (2002) .

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 ARTIS v. DISTRICT OF COLUMBIA certiorari to the district of columbia court of appeals No. 16–460. Argued November 1, 2017—Decided January 22, 2018 Federal district courts may exercise supplemental jurisdiction over state claims not otherwise within their adjudicatory authority if those claims are “part of the same case or controversy” as the federal claims the plaintiff asserts. 28 U. S. C. §1367(a). When a district court dismisses all claims independently qualifying for the exercise of federal jurisdiction, it ordinarily also dismisses all related state claims. See §1367(c)(3). Section 1367(d) provides that the “period of limitations for” refiling in state court a state claim so dismissed “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” When petitioner Artis filed a federal-court suit against respondent District of Columbia (District), alleging a federal employment-discrimination claim and three allied claims under D. C. law, nearly two years remained on the applicable statute of limitations for the D. C.-law violations. Two and a half years later, the Federal District Court ruled against Artis on her sole federal claim and dismissed the D. C.-law claims under §1367(c). Fifty-nine days after the dismissal, Artis refiled her state-law claims in the D. C. Superior Court, but that court dismissed them as time barred. The D. C. Court of Appeals affirmed, holding that §1367(d) accorded Artis only a 30-day grace period to refile in state court and rejecting her argument that the word “tolled” in §1367(d) means that the limitations period is suspended during the pendency of the federal suit. Held: 1. Section 1367(d)’s instruction to “toll” a state limitations period means to hold it in abeyance, i.e., to stop the clock. . (a) Statutes that shelter from time bars claims earlier commenced in another forum generally employ one of two means. First, the period of limitations may be “tolled,” i.e., suspended, while the claim is pending elsewhere; the time clock starts running again when the tolling period ends, picking up where it left off. A legislature may instead elect simply to provide a grace period, permitting the statute of limitations to run while the claim is pending in another forum and averting the risk of a time bar by according the plaintiff a fixed period in which to refile. The District has identified no federal statute in which a grace-period meaning has been ascribed to the word “tolled” or any word similarly rooted. And the one case in which this Court used tolling language to describe a grace period, see Hardin v. Straub, 490 U. S. 536 , is a feather on the scale against the weight of decisions in which “tolling” a statute of limitations signals stopping the clock. . (b) Considering first the ordinary meaning of the statutory language, §1367(d) is phrased as a tolling provision. It suspends the statute of limitations both while the claim is pending in federal court and for 30 days postdismissal. Artis’ interpretation is a natural fit with this language. The District, in contrast, reads “tolled” to mean to remove, temporarily, the bar that would ordinarily accompany the expiration of the limitations period. But the District offers no reason to home in only on the word “tolled” itself and ignore information about the verb’s ordinary meaning gained from its grammatical object, “period of limitations.” That object sheds light on what it means to “be tolled.” The District’s reading also tenders a strained interpretation of the phrase “period of limitations”; makes the first portion of the tolling period, the duration of the claim’s pendency in federal court, superfluous; and could yield an absurdity, permitting a plaintiff to refile in state court even if the limitations period on her claim had expired before she filed in federal court. . (c) The D. C. Court of Appeals erred in concluding that Congress adopted an American Law Institute (ALI) recommendation to allow refiling in state court only for 30 days after a dismissal. The ALI provision, like §1367(d), established a 30-day federal floor on the time allowed for refiling, but it did not provide for tolling “while the [state] claim is pending” in federal court. . (d) The 30-day provision casts no large shadow on Artis’ stop-the-clock interpretation. The provision accounts for cases in which a plaintiff commenced a federal action close to the expiration date of the relevant state statute of limitations, by giving such a plaintiff breathing space to refile in state court. Adding a brief span of days to the tolling period is not unusual in stop-the-clock statutes. See, e.g., 46 U. S. C. §53911. Section 1367(d)’s proviso “unless State law provides for a longer tolling period” could similarly aid a plaintiff who filed in federal court just short of the expiration of the state limitations period. . 2. The stop-the-clock interpretation of §1367(d) does not present a serious constitutional problem. In Jinks v. Richland County, 538 U. S. 456 , the Court rejected an argument that §1367(d) impermissibly exceeds Congress’ authority under the Necessary and Proper Clause. Id., at 464–465. The District contends that a stop-the-clock prescription serves “no federal purpose” that could not be served by a grace-period prescription. But both devices are standard, off-the-shelf means of accounting for the fact that a claim was timely pressed in another forum. Requiring Congress to choose one over the other would impose a tighter constraint on Congress’ discretion than this Court has countenanced. A concern that a stop-the-clock prescription entails a greater imposition on the States than a grace-period prescription may also be more theoretical than real. Finally, a stop-the-clock rule like §1367(d) is suited to the primary purposes of limitations statutes: “ ‘preventing surprises’ ” to defendants and “ ‘barring a plaintiff who has slept on his rights.’ ” American Pipe & Constr. Co. v. Utah, 414 U. S. 538 . . 135 A. 3d 334, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Sotomayor, and Kagan, JJ., joined. Gorsuch, J., filed a dissenting opinion, in which Kennedy, Thomas, and Alito, JJ., joined.

Section 1367(a) of the Supplemental Jurisdiction Act of 1990 (Act) enables federal district courts to entertain claims not otherwise within their adjudicatory authority when those claims are so related to claims within their competence that they form part of the same case or controversy. Included within this jurisdiction are state claims brought along with federal claims arising from the same episode. When district courts dismiss all claims independently qualifying for the exercise of federal jurisdiction, they ordinarily dismiss as well all related state claims. After petitioner Artis, a health inspector for respondent District of Columbia (District), was told she would lose her job, she filed suit in the District Court, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, and also asserted three allied claims under D. C. law. The District Court granted Artis a grace period of 30 days to refile her state-law claims in state court, but, pursuant to §1367(c)(3), declined to exercise supplemental jurisdiction over Artis' remaining claims. The Superior Court rejected her stop-the-clock reading, reasoning that Artis could have protected her state claims by suing in federal court by virtue of 28 U. S.C. §1366(d), which provides that a district court with original jurisdiction over a claim "shall have supplemental jurisdiction over all other claims... form[ing] part of a [case] or controversy within the same controversy or controversy as the federal court decided to exercise jurisdiction over the claim within the original claim or the case within the Federal court...." The District Court affirmed, concluding that Congress intended to implement a 1969 recommendation by the American Law Institute (ALI) to allow refiling in state courts within 30 days after dismissal of the federal case, and that the grace-period approach, by trenching significantly less on state statutes of limitations, accommodates federalism concerns. Held: The word "tolled" means suspended during the pendency of the Federal suit; or, although the limitations period continues to run, a plaintiff is accorded a 30-day grace period. See, e.g., Jinks v. Richland County, 538 U.S. 536. Although Artis refiled her state law claims 59 days after the dismissal of her federal suit, her complaint would be time barred. Reading the statute in abeyance of that period means to stop the limitations clock. . 135 A. 3d 334, reversed and remanded. PER CURIAM. THE CHIEF JUSTICE, in an opinion joined by JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE REHNQUIST, concluded in Jinks, supra, that: 1. Under Artis and JUSTICE BRENNAN, the word tolling means that the period (or statute) of limitations may be suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off. See Black's Law Dictionary 1488 (6th ed. 1990), which captures the rule generally applied in federal courts. See Moskal v. United States, 498 U. s. 103, 108. In determining the meaning of a statutory provision, this Court looks first to its language, giving the words used their ordinary meaning. Here, the District urges adoption of its reading that, under Artis-Bridgestone, the statute does not exceed Congress' authority under the Necessary and Proper Clause, Art. I, §8, cl. 18, because its connection to Congress' enumerated powers is too attenuated or because it is too great an incursion on the States' domain. Pp. 467. 2. Section 1367 (d) is phrased as a tolling provision. It suspends the statute of limitations for two adjacent time periods: while an equitable tolling claim is pending in Federal court and for 30 days postdismissal. Artis urges that the phrase "shall be tolled" has the same meaning it does in the statutes cited supra, at 7, n. 4. But, importantly, the grace period statutes noted in Chardon v. Fumero Soto,, are precise about their operation. Moreover, Congress did not adopt the ALI recommendation, but adopted a procedural rule for state courts' adjudication of purely state claims, see id., at 464. There is no merit to the argument that, since the District has no law of the kind the dissent describes, Congress embraced a recommendation that Congress embraced an ALI-recommended grace period, and since the Court of Appeals adopted the District's construction primarily because it was convinced that in drafting the statute, Congress had embraced such a recommendation, it should give effect to state statutes sheltering claims from time bars during periods of a plaintiff's legal disability. To avoid constitutional doubt, the

2017_16-6795

https://www.oyez.org/cases/2017/16-6795

. Petitioner Carlos Ayestas, who was convicted of murder and sentenced to death in a Texas court, argues that he was wrongfully denied funding for investigative services needed to prove his entitlement to federal habeas relief. Petitioner moved for funding under 18 U. S. C. §3599(f ), which makes funds available if they are “reasonably necessary,” but petitioner’s motion was denied. We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings. I A In 1997, petitioner was convicted of capital murder in a Texas court. Evidence at trial showed that he and two accomplices invaded the home of a 67-year-old Houston woman, Santiaga Paneque, bound her with duct tape and electrical cord, beat and strangled her, and then made off with a stash of her belongings. The jury also heard testimony from Henry Nuila regarding an incident that occurred about two weeks after the murder. Petitioner was drunk at the time, and he revealed to Nuila that he had recently murdered a woman in Houston. Petitioner then brandished an Uzi machinegun and threatened to murder Nuila if he did not help petitioner kill his two accomplices. Fortunately for Nuila, petitioner kept talking until he eventually passed out; Nuila then called the police, who arrested petitioner, still in possession of the gun. After the jury found petitioner guilty, it was asked to determine whether he should be sentenced to death or to life in prison. In order to impose a death sentence, Texas law required the jury to answer the following three questions. First, would petitioner pose a continuing threat to society? Second, had he personally caused the death of the victim, intended to kill her, or anticipated that she would be killed? Third, in light of all the evidence surrounding the crime and petitioner’s background, were there sufficient mitigating circumstances to warrant a sentence of life without parole instead of death? Tex. Code Crim. Proc. Ann., Art. 37.071, §§2(b), (e) (Vernon Cum. Supp. 2017). Only if the jury gave a unanimous yes to the first two questions, and a unanimous no to the third question, could a death sentence be imposed; otherwise, petitioner would receive a sentence of life without parole. See §§2(d)(2), (f )(2), (g). In asking the jury to impose a death sentence, the prosecution supplemented the trial record with evidence of petitioner’s criminal record and his encounter with a man named Candelario Martinez a few days after the murder. Martinez told the jury that he was standing in a hotel parking lot waiting for a friend when petitioner approached and began to make small talk. Before long, petitioner pulled out a machinegun and forced Martinez into a room where two of petitioner’s compatriots were holding Martinez’s friend at knifepoint. Ordered to lie down on the bathroom floor and await his execution, Martinez begged for his life while petitioner and his cohorts haggled about who would carry out the killing. Finally, petitioner relented, but he threatened to kill Martinez and his family if he contacted the police. Petitioner then stole Martinez’s truck. Petitioner’s trial counsel presented very little mitigation evidence. This was due, at least in part, to petitioner’s steadfast refusal for many months to allow his lawyers to contact his family members, who were living in Honduras and might have testified about his character and upbringing. Petitioner gave in on the eve of trial, and at that point, according to the state habeas courts, his lawyers “made every effort to contact [his] family.” App. 171. They repeatedly contacted petitioner’s family members and urged them to attend the trial; they requested that the U. S. Embassy in Honduras facilitate family members’ travel to the United States; and they met in person with the Honduran Consulate to seek assistance. But these efforts were to no avail. Petitioner’s sister told his legal team that the family would not leave Honduras because the journey would create economic hardship and because their father was ill and had killed one of their neighbors. A defense attorney who spoke to petitioner’s mother testified that she seemed unconcerned about her son’s situation. In general, the state habeas courts found, petitioner “did nothing to assist counsel’s efforts to contact his family and did not want them contacted by the consulate or counsel.” Id., at 174. In the end, the only mitigation evidence introduced by petitioner’s trial counsel consisted of three letters from petitioner’s English instructor. The letters, each two sentences long, described petitioner as “a serious and attentive student who is progressing well in English.” Ibid. The jury unanimously concluded that petitioner should be sentenced to death, and a capital sentence was imposed. Petitioner secured new counsel to handle his appeal, and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals in 1998. Ayestas v. State, No. 72,928, App. 115. Petitioner did not seek review at that time from this Court. B While petitioner’s direct appeal was still pending, a third legal team filed a habeas petition on his behalf in state court. This petition included several claims of trial-level ineffective assistance of counsel, but the petition did not assert that trial counsel were ineffective for failing to investigate petitioner’s mental health and abuse of alcohol and drugs. Petitioner’s quest for state habeas relief ended unsuccessfully in 2008. Ex parte Ayestas, No. WR–69,674–01 (Tex. Ct. Crim. App., Sept. 10, 2008), 2008 WL 4151814 (per curiam) (unpublished). In 2009, represented by a fourth set of attorneys, petitioner filed a federal habeas petition under 28 U. S. C. §2254, and this time he did allege that his right to the effective assistance of counsel at trial was violated because his attorneys failed to conduct an adequate search for mitigation evidence. As relevant here, petitioner argued that trial counsel overlooked evidence that he was mentally ill and had a history of drug and alcohol abuse. Ayestas v. Thaler, Civ. Action No. H–09–2999 (SD Tex., Jan. 26, 2011), 2011 WL 285138, *4. Petitioner alleged that he had a history of substance abuse, and he noted that he had been diagnosed with schizophrenia while the state habeas proceeding was still pending. See Pet. for Writ of Habeas Corpus in Ayestas v. Quarterman, No. 4:09–cv–2999 (SD Tex.), Doc. 1, pp. 21–23. Petitioner claimed that trial counsel’s deficient performance caused prejudice because there was a reasonable chance that an adequate investigation would have produced mitigation evidence that would have persuaded the jury to spare his life. Among the obstacles standing between petitioner and federal habeas relief, however, was the fact that he never raised this trial-level ineffective-assistance-of-counsel claim in state court. The District Court therefore held that the claim was barred by procedural default, Ayestas v. Thaler, 2011 WL 285138, *4–*7, and the Fifth Circuit affirmed, Ayestas v. Thaler, 462 Fed. Appx. 474, 482 (2012) (per curiam). Petitioner sought review in this Court, and we vacated the decision below and remanded for reconsideration in light of two of our subsequent decisions, Martinez v. Ryan, 566 U. S. 1 (2012) , and Trevino v. Thaler, 569 U. S. 413 (2013) . Ayestas v. Thaler, 569 U. S. 1015 (2013) . Martinez held that an Arizona prisoner seeking federal habeas relief could overcome the procedural default of a trial-level ineffective-assistance-of-counsel claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding. 566 U. S., at 14. Trevino extended that holding to Texas prisoners, 569 U. S., at 416–417, and on remand, petitioner argued that he fell within Trevino because effective state habeas counsel would have uncovered evidence showing that trial counsels’ investigative efforts were deficient. To assist in developing these claims, petitioner filed an ex parte motion asking the District Court for $20,016 in funding to conduct a search for evidence supporting his petition. He relied on 18 U. S. C. §3599(f ), which provides in relevant part as follows: “Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor.” Petitioner averred that the funds would be used to conduct an investigation that would show that his trial counsel and his state habeas counsel were ineffective. Accordingly, he claimed, the investigation would establish both that his trial-level ineffective-assistance-of-counsel claim was not barred by procedural default and that he was entitled to resentencing based on the denial of his Sixth Amendment right to the effective assistance of trial counsel. The District Court refused the funding request and ultimately denied petitioner’s habeas petition. Ayestas v. Stephens, Civ. Action No. H–09–2999, (SD Tex., Nov. 18, 2014), 2014 WL 6606498, *6–*7. On the merits of petitioner’s new ineffective-assistance-of-trial-counsel claim, the District Court held that petitioner failed both prongs of the Strickland test. See Strickland v. Washington, 466 U. S. 668 (1984) . Noting that most of the evidence bearing on petitioner’s mental health had emerged only after he was sentenced, the court concluded that petitioner’s trial lawyers were not deficient in failing to find such evidence in time for the sentencing proceeding. 2014 WL 6606498, *5. In addition, the court found that state habeas counsel did not render deficient performance by failing to investigate petitioner’s history of substance abuse, and that, in any event, petitioner was not prejudiced at the sentencing phase of the trial or during the state habeas proceedings because the potential mitigation evidence at issue would not have made a difference to the jury in light of “the extremely brutal nature of [the] crime and [petitioner’s] history of criminal violence.” Ibid. With respect to funding, the District Court pointed to Fifth Circuit case law holding that a §3599(f ) funding applicant cannot show that investigative services are “ ‘reasonably necessary’ ” unless the applicant can show that he has a “ ‘substantial need’ ” for those services. Id., at *6. In addition, the court noted that “[t]he Fifth Circuit upholds the denial of funding” when, among other things, “a petitioner has . . . failed to supplement his funding request with a viable constitutional claim that is not procedurally barred.” Ibid. (internal quotation marks omitted). Given its holding that petitioner’s new ineffective-assistance-of-counsel claim was precluded by procedural default, this rule also doomed his request for funding. The District Court denied petitioner’s habeas petition and refused to grant him a certificate of appealability (COA). Id., at *7. On appeal, the Fifth Circuit held that a COA was not needed for review of the funding issue, but it rejected that claim for essentially the same reasons as the District Court, citing both the “substantial need” test and the rule that funding may be denied when a funding applicant fails to present “a viable constitutional claim that is not procedurally barred.” Ayestas v. Stephens, 817 F. 3d 888, 895–896 (2016) (internal quotation marks omitted). With respect to petitioner’s other claims, including his claim of ineffective assistance of trial counsel, the Fifth Circuit refused to issue a COA. Id., at 898. C We granted certiorari to decide whether the lower courts applied the correct legal standard in denying the funding request. 581 U. S. ___ (2017). II Before we reach that question, however, we must consider a jurisdictional argument advanced by respondent, the Director of the Texas Department of Criminal Justice.[1] Respondent contends that the District Court’s denial of petitioner’s funding request was an administrative, not a judicial, decision and therefore falls outside the scope of the jurisdictional provisions on which petitioner relied in seeking review in the Court of Appeals and in this Court. A When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U. S. C. §§1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court.[2] And when the Fifth Circuit affirmed, petitioner sought review in this Court under §1254, which gives us jurisdiction to review “[c]ases” in the courts of appeals.[3] As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial capacity. But we have recognized that not all decisions made by a fed- eral court are “judicial” in nature; some decisions are prop- erly understood to be “administrative,” and in that case they are “not subject to our review.” Hohn v. United States, 524 U. S. 236, 245 (1998) . The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U. S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9–10 (June 2017). Administering this operation requires many “decisions” in the ordinary sense of the term—decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett, 728 F. 3d 1033, 1037 (CA9 2013). It would be absurd to suggest that every “final decision” on any such matter is appealable under §1291 or reviewable in this Court under §1254. See Hohn, supra; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3903, pp. 134–135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders—i.e., decisions or orders made in a judicial capacity—to which the relevant jurisdictional provisions apply. Respondent argues that the denial of petitioner’s funding request was just such an administrative decision, but the District Court’s ruling does not remotely resemble the sort of administrative decisions noted above. Petitioner’s request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And as we will explain, resolution of the funding question requires the application of a legal standard—whether the funding is “reasonably necessary” for effective representation—that demands an evaluation of petitioner’s prospects of obtaining habeas relief. We have never held that a ruling like that is administrative and thus not subject to appellate review under the standard jurisdictional provisions. Respondent claims that two factors support the conclusion that the funding decision was administrative, but her argument is unpersuasive. B Respondent first argues as follows: Judicial proceedings must be adversarial; 18 U. S. C. §3599(f ) funding adjudications are not adversarial because the statute allows requests to be decided ex parte; therefore, §3599(f ) funding adjudications are not judicial in nature. This reasoning is flawed. It is certainly true that cases and controversies in our legal system are adversarial in nature, e.g., Bond v. United States, 564 U. S. 211, 217 (2011) ; Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 –241 (1937), but here, both the habeas proceeding as a whole and the adjudication of the specific issue of funding were adversarial. That the habeas proceeding was adversarial is beyond dispute. And on the funding question, petitioner and respondent plainly have adverse interests and have therefore squared off as adversaries. The motion for funding was formally noted as “opposed” on the Disrict Court’s docket. App. 341. That is not surprising: On one side, petitioner is seeking funding that he hopes will prevent his execution. On the other, respondent wants to enforce the judgment of the Texas courts and to do so without undue delay. Petitioner and respondent have vigorously litigated the funding question all the way to this Court. In arguing that the funding dispute is nonadversarial, respondent attaches too much importance to the fact that the request was made ex parte. As we have noted, the “ex parte nature of a proceeding has not been thought to imply that an act otherwise within a judge’s lawful jurisdiction was deprived of its judicial character.” Forrester v. White, 484 U. S. 219, 227 (1988) . In our adversary system, ex parte motions are disfavored, but they have their place. See, e.g., Hohn, supra, at 248 (application for COA); Dalia v. United States, 441 U. S. 238, 255 (1979) (application for a search warrant); 50 U. S. C. §1805(a) (application to conduct electronic surveillance for foreign intelligence); 18 U. S. C. §2518(3) (applications to intercept “wire, oral, or electronic communications”); 15 U. S. C. §1116(d)(1)(A) (application to seize certain goods and counterfeit marks involved in violations of the trademark laws); Fed. Rule Crim. Proc. 17(b) (application for witness subpoena); Fed. Rule Crim. Proc. 47(c) (generally recognizing ex parte motions and applications); Ullmann v. United States, 350 U. S. 422 –424, 434 (1956) (application for an order granting a witness immunity in exchange for self-incriminating testimony); United States v. Monsanto, 491 U. S. 600 –604 (1989) (motion to freeze defendant’s assets pending trial). Thus, the mere fact that a §3599 funding request may sometimes be made ex parte is hardly dispositive. See Hohn, 524 U. S., at 249; Tutun v. United States, 270 U. S. 568, 577 (1926) . C Respondent’s second argument is based on the vener- able principle “that Congress cannot vest review of the decisions of Article III courts in” entities other than “superior courts in the Article III hierarchy.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 –219 (1995) (citing Hayburn’s Case, 2 Dall. 409 (1792)). Respondent claims that §3599 funding decisions may be revised by the Director of the Administrative Office of the Courts and that this shows that such decisions must be administrative. This argument, however, rests on a faulty premise. Nothing in §3599 even hints that review by the Director of the Administrative Office is allowed. Respondent’s argument rests in part on a handful of old lower court cases that appear to have accepted Administrative Office review of Criminal Justice Act of 1964 (CJA) payments that had been authorized by a District Court and approved by the chief judge of the relevant Circuit. See United States v. Aadal, 282 F. Supp. 664, 665 (SDNY 1968); United States v. Gast, 297 F. Supp. 620, 621–622 (Del. 1969); see also United States v. Hunter, 385 F. Supp. 358, 362 (DC 1974). The basis for these decisions was a provision of the CJA, 18 U. S. C. §3006A(h) (1964 ed.), stating that CJA payments “shall be made under the supervision of the Director of the Administrative Office of the United States Courts.”[4] It is not clear whether these decisions correctly interpreted the CJA,[5] but in any event, no similar language appears in §3599. And respondent has not identified a single instance in which the Director of the Administrative Office or any other nonjudicial officer has attempted to review or alter a §3599 decision. Moreover, attorneys’ requests for CJA funds are markedly different from the funding application at issue here. Attorneys appointed under the CJA typically submit those requests after the conclusion of the case, and the prosecution has no stake in the resolution of the matter. The judgment in the criminal case cannot be affected by a decision on compensation for services that have been completed, and any funds awarded come out of the budget of the Judiciary, not the Executive. See 18 U. S. C. §3006A(i) (2012 ed.). Thus, the adversaries in the criminal case are not pitted against each other. In this case, on the other hand, as we have explained, petitioner and respondent have strong adverse interests. For these reasons, we reject respondent’s argument that the adjudication of the funding issue is nonadversarial and administrative. Respondent, however, claims that the funding decision is administrative for an additional reason. “A §3599(f ) funding determination is properly deemed administrative,” she contends, “because it . . . may be revised outside the traditional Article III judicial hierarchy.” Brief for Respondent 23. The basis for this argument is a provision of §3599 stating that funding in excess of the generally applicable statutory cap of $7,500 must be approved by the chief judge of the circuit or another designated circuit judge. §3599(g)(2). If a funding decision is judicial and not administrative, respondent suggests, it could not be reviewed by a single circuit judge as opposed to a panel of three. This argument confuses what is familiar with what is constitutionally required. Nothing in the Constitution ties Congress to the typical structure of appellate review established by statute. If Congress wishes to make certain rulings reviewable by a single circuit judge, rather than a panel of three, the Constitution does not stand in the way. III Satisfied that we have jurisdiction, we turn to the question whether the Court of Appeals applied the correct legal standard when it affirmed the denial of petitioner’s funding request. Section 3599(a) authorizes federal courts to provide funding to a party who is facing the prospect of a death sentence and is “financially unable to obtain adequate representation or investigative, expert, or other reason- ably necessary services.” The statute applies to defendants in federal cases, §3599(a)(1), as well as to state and federal prisoners seeking collateral relief in federal court, §3599(a)(2). Here we are concerned not with legal representation but with services provided by experts, investigators, and the like. Such services must be “reasonably necessary for the representation of the [applicant]” in order to be eligible for funding. §3599(f ). If the statutory standard is met, a court “may authorize the [applicant’s] attorneys to obtain such services on [his] behalf.” Ibid. The Fifth Circuit has held that individuals seeking funding for such services must show that they have a “substantial need” for the services. 817 F. 3d, at 896; Allen v. Stephens, 805 F. 3d 617, 626 (2015); Ward v. Stephens, 777 F. 3d 250, 266, cert. denied, 577 U. S. ___ (2015). Petitioner contends that this interpretation is more demanding than the standard—“reasonably necessary”—set out in the statute. And although the difference between the two formulations may not be great, petitioner has a point. In the strictest sense of the term, something is “necessary” only if it is essential. See Webster’s Third New International Dictionary 1510 (1993) (something is necessary if it “must be by reason of the nature of things,” if it “cannot be otherwise by reason of inherent qualities”); 10 Oxford English Dictionary 275–276 (2d ed. 1989) (OED) (defining the adjective “necessary” to mean “essential”). But in ordinary speech, the term is often used more loosely to refer to something that is merely important or strongly desired. (“I need a vacation.” “I need to catch up with an old friend.”) The term is sometimes used in a similar way in the law. The term “necessary” in the Necessary and Proper Clause does not mean “absolutely necessary,” McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819), and a “necessary” business expense under the Internal Revenue Code, 26 U. S. C. §162(a), may be an expense that is merely helpful and appropriate, Commissioner v. Tellier, 383 U. S. 687, 689 (1966) . As Black’s Law Dictionary puts it, the term “may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought.” Black’s Law Dictionary 928 (5th ed. 1979) (Black’s). Section 3599 appears to use the term “necessary” to mean something less than essential. The provision applies to services that are “reasonably necessary,” but it makes little sense to refer to something as being “reasonably essential.” What the statutory phrase calls for, we conclude, is a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important, guided by the considerations we set out more fully below. The Fifth Circuit’s test—“substantial need”—is arguably more demanding. We may assume that the term “need” is comparable to “necessary”—that is, that something is “needed” if it is “necessary.” But the term “substantial” suggests a heavier burden than the statutory term “reasonably.” Compare 13 OED 291 (defining “reasonably” to mean, among other things, “[s]ufficiently, suitably, fairly”; “[f ]airly or pretty well”) with 17 id., at 66–67 (defining “substantial,” with respect to “reasons, causes, evidence,” to mean “firmly or solidly established”); see also Black’s 1456 (10th ed. 2014) (defining “reasonable” to mean “[f ]air, proper, or moderate under the circumstances . . . See plausible”); id., at 1656 (defining “substantial” to mean, among other things, “[i]mportant, essential, and material”). The difference between “reasonably necessary” and “substantially need[ed]” may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.” 817 F. 3d, at 895 (internal quotation marks omitted). See also, e.g., Riley v. Dretke, 362 F. 3d 302, 307 (CA5 2004) (“A petitioner cannot show a substantial need when his claim is procedurally barred from review”); Allen, supra, at 638–639 (describing “ ‘our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review’ ” (quoting Crutsinger v. Stephens, 576 Fed. Appx. 422, 431 (CA5 2014) (per curiam)); Ward, supra, at 266 (“The denial of funding will be upheld . . . when the constitutional claim is procedurally barred”). The Fifth Circuit adopted this rule before our decision in Trevino, but after Trevino, the rule is too restrictive. Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective, 569 U. S., at 429, and it is possible that investigation might enable a petitioner to carry that burden. In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding. Congress has made it clear, however, that district courts have broad discretion in assessing requests for funding. Section 3599’s predecessor declared that district courts “shall authorize” funding for services deemed “reasonably necessary.” 21 U. S. C. §848(q)(9) (1988 ed.). Applying this provision, courts of appeals reviewed district court funding decisions for abuse of discretion. E.g., Bonin v. Calderon, 59 F. 3d 815, 837 (CA9 1995); In re Lindsey, 875 F. 2d 1502, 1507, n. 4 (CA11 1989); United States v. Alden, 767 F. 2d 314, 319 (CA7 1984). Then, as part of the Antiterrorism and Effective Death Penalty Act of 1996, 110Stat. 1226, Congress changed the verb from “shall” to “may,” and thus made it perfectly clear that determining whether funding is “reasonably necessary” is a decision as to which district courts enjoy broad discretion. See Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9). A natural consideration informing the exercise of that discretion is the likelihood that the contemplated services will help the applicant win relief. After all, the proposed services must be “reasonably necessary” for the applicant’s representation, and it would not be reasonable—in fact, it would be quite unreasonable—to think that services are necessary to the applicant’s representation if, realistically speaking, they stand little hope of helping him win relief. Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way. To be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks. But the “reasonably necessary” test requires an assessment of the likely utility of the services requested, and §3599(f ) cannot be read to guarantee that an applicant will have enough money to turn over every stone. Petitioner does not deny this. He agrees that an applicant must “articulat[e] specific reasons why the services are warranted”—which includes demonstrating that the underlying claim is at least “ ‘plausible’ ”—and he acknowledges that there may even be cases in which it would be within a court’s discretion to “deny funds after a finding of ‘reasonable necessity.’ ” Brief for Petitioner 43. These interpretive principles are consistent with the way in which §3599’s predecessors were read by the lower courts. See, e.g., Alden, supra, at 318–319 (explaining that it was “appropriate for the district court to satisfy itself that [the] defendant may have a plausible defense before granting the defendant’s . . . motion for psychiatric assistance to aid in that defense,” and that it is not proper to use the funding statute to subsidize a “ ‘fishing expedition’ ”); United States v. Hamlet, 480 F. 2d 556, 557 (CA5 1973) (per curiam) (upholding District Court’s refusal to fund psychiatric services based on the District Court’s conclusion that “the request for psychiatric services was . . . lacking in merit” because there was “no serious possibility that appellant was legally insane at any time pertinent to the crimes committed”). This abundance of precedent shows courts have plenty of experience making the determinations that §3599(f) contemplates. IV Perhaps anticipating that we might not accept the Fifth Circuit’s reading of §3599(f), respondent devotes a substantial portion of her brief to an alternative ground for affirmance that was neither presented nor passed on below. Respondent contends that whatever “reasonably necessary” means, funding is never “reasonably necessary” in a case like this one, where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record. Citing 28 U. S. C. §2254(e)(2), respondent contends that the fruits of any such investigation would be inadmissible in a federal habeas court. We decline to decide in the first instance whether respondent’s reading of §2254(e)(2) is correct. Petitioner agrees that the argument remains open for the Fifth Circuit to consider on remand. Tr. of Oral Arg. 6. * * * We conclude that the Fifth Circuit’s interpretation of §3599(f ) is not a permissible reading of the statute. We therefore vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 We also consider a jurisdictional issue not raised by the parties, namely, whether we have jurisdiction even though no COA has yet been issued. We do not have jurisdiction if jurisdiction was lacking in the Court of Appeals, and the jurisdiction of a court of appeals to entertain an appeal from a final order in a habeas proceeding is dependent on the issuance of a COA. See 28 U. S. C. §2253(c)(l); Gonzalez v. Thaler, 565 U. S. 134, 142 (2012) . In this case, petitioner appealed an order of the District Court that denied both his request for funding under 18 U. S. C. §3599 and his underlying habeas claims. The Court of Appeals denied a COA as to the merits of his request for habeas relief but held that a COA was not required insofar as petitioner challenged the District Court’s denial of funding under §3599. The Fifth Circuit relied on Harbison v. Bell, 556 U. S. 180 (2009) , in which a prisoner appealed from an order that denied counsel under §3599 for a state clemency proceeding but that did not address the merits of any habeas petition. This Court held that a COA was not required. Here, petitioner took his appeal from the final order in his habeas proceeding. The parties have not briefed whether that difference between Harbison and the present case is relevant or whether an appeal from a denial of a §3599 request for funding would fit within the COA framework, and we find it unnecessary to resolve the issue. Though we take no view on the merits, we will assume for the sake of argument that the Court of Appeals could not entertain petitioner’s §3599 claim without the issuance of a COA. We may review the denial of a COA by the lower courts. See, e.g., Miller-El v. Cockrell, 537 U. S. 322 –327 (2003). When the lower courts deny a COA and we conclude that their reason for doing so was flawed, we may reverse and remand so that the correct legal standard may be applied. See Slack v. McDaniel, 529 U. S. 473 –486, 489–490 (2000). We take that course here. As we will explain, the correctness of the rule applied by the District Court in denying the funding request was not only debatable; it was erroneous. 2 In relevant part §1291 declares that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.” Similarly, §2253 provides, as relevant, that “[i]n a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.” §2253(a). 3 “Cases in the courts of appeals may be reviewed by the Supreme Court by . . . writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree.” §1254(1). 4 This language now appears at 18 U. S. C. §3006A(i) (2012 ed.). 5 As far as we are aware, neither the Administrative Office nor any other nonjudicial entity currently claims the power to revise or reject a CJA compensation order issued by a court. Nothing in the CJA Guidelines suggests such a policy. See generally 7A Guide to Judiciary Policy (May 17, 2017).

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 Ayestas, aka Zelaya Corea v. Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division certiorari to the united states court of appeals for the fifth circuit No. 16–6795. Argued October 30, 2017—Decided March 21, 2018 Petitioner Ayestas was convicted of murder and sentenced to death in a Texas state court. He secured new counsel, but his conviction and sentence were affirmed on appeal. A third legal team sought, unsuccessfully, state habeas relief, claiming trial-level ineffective assistance of counsel but not counsel’s failure to investigate petitioner’s mental health and alcohol and drug abuse during the trial’s penalty phase. His fourth set of attorneys did raise that failure in a federal habeas petition, but because the claim had never been raised in state court, the District Court held, it was barred by procedural default. That decision was vacated and remanded for reconsideration in light of Martinez v. Ryan, 566 U. S. 1 —where this Court held that an Arizona prisoner seeking federal habeas relief could overcome the procedural default of a trial-level ineffective-assistance-of-counsel claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding—and Trevino v. Thaler, 569 U. S. 413 —which extended that holding to Texas prisoners. Petitioner filed an ex parte motion asking the District Court for funding to develop his claim that both his trial and state habeas counsel were ineffective, relying on 18 U. S. C. §3599(f), which provides, in relevant part, that a district court “may authorize” funding for “investigative, expert, or other services . . . reasonably necessary for the representation of the defendant.” The court found his claim precluded by procedural default and thus denied his funding request. The Fifth Circuit also rejected the funding claim under its precedent: that a §3599(f) funding applicant must show that he has a “substantial need” for investigative or other services, and that funding may be denied when an applicant fails to present “a viable constitutional claim that is not procedurally barred.” 817 F. 3d 888, 895–896. Held: 1. The District Court’s denial of petitioner’s funding request was a judicial decision subject to appellate review under the standard jurisdictional provisions. . (a) Title 28 U. S. C. §§1291, 2253, and 1254 confer jurisdiction to review decisions made by a district court in a judicial capacity. “Administrative” decisions—about, e.g., facilities, personnel, equipment, supplies, and rules of procedure—are “not subject to [this Court’s] review,” Hohn v. United States, 524 U. S. 236 , but the District Court’s ruling here does not remotely resemble such decisions. Petitioner’s request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And resolution of the funding question requires the application of a legal standard—whether the funding is “reasonably necessary” for effective representation—that demands an evaluation of petitioner’s prospects of obtaining habeas relief. . (b) Respondent’s arguments in support of her claim that §3599’s funding requests are nonadversarial and administrative are unpersuasive. First, that the requests can be decided ex parte does not make the proceeding nonadversarial. The habeas proceeding here was clearly adversarial. And petitioner and respondent plainly have adverse interests on the funding question and have therefore squared off as adversaries. The mere fact that a §3599 funding request may sometimes be made ex parte is thus hardly dispositive. Second, nothing in §3599 even hints that the funding decisions may be revised by the Director of the Administrative Office of the Courts. Lower court cases that appear to have accepted Administrative Office review of certain Criminal Justice Act (CJA) payments, even if a proper interpretation of the CJA, are inapposite. Finally, the fact that §3599(g)(2) requires funding in excess of the generally applicable statutory cap to be approved by the circuit’s chief judge or another designated circuit judge, instead of by a panel of three, does not make the proceeding administrative. If Congress wishes to make certain rulings reviewable by a single circuit judge, the Constitution does not stand in the way. . 2. The Fifth Circuit did not apply the correct legal standard in affirming the denial of petitioner’s funding request. Section 3599 authorizes funding for the “reasonably necessary” services of experts, investigators, and the like. But the Fifth Circuit’s requirement that applicants show a “substantial need” for the services is arguably a more demanding standard. Section 3599 appears to use the term “necessary” to mean something less than essential. Because it makes little sense to refer to something as being “reasonably essential,” the Court concludes that the statutory phrase calls for the district court to determine, in its discretion, whether a reasonable attorney would regard the services as sufficiently important, guided by considerations detailed in the opinion. The term “substantial” in the Fifth Circuit’s test, however, suggests a heavier burden. And that court exacerbated the difference by also requiring a funding applicant to present “a viable constitutional claim that is not procedurally barred.” That rule that is too restrictive after Trevino, see 569 U. S. at 429, because, in cases where funding stands a credible chance of enabling a habeas petitioner to overcome the procedural default obstacle, it may be error for a district court to refuse funding. That being said, district courts were given broad discretion in assessing funding requests when Congress changed the phrase “shall authorize” in §3599’s predecessor statute, see 21 U. S. C. §848(q)(9), to “may authorize” in §3599(f). A funding applicant must not be expected to prove that he will be able to win relief if given the services, but the “reasonably necessary” test does require an assessment of the likely utility of the services requested. Respondent’s alternative ground for affirmance—that funding is never “reasonably necessary” where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record—remains open for the Fifth Circuit to consider on remand. . 817 F. 3d 888, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined.

Petitioner Ayestas was convicted of capital murder and sentenced to death in a Texas court. At the time of his trial, he had secured new counsel to handle his appeal, and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals. While his direct appeal was still pending, a third legal team filed a habeas petition on his behalf in state court, alleging that his right to the effective assistance of counsel at trial was violated because his attorneys failed to conduct an adequate search for mitigation evidence. The District Court denied the claim on the ground that the claim was precluded by procedural default because there was a reasonable chance that an adequate investigation would have produced mitigation evidence that would have persuaded the jury to spare his life. The Court of Appeals affirmed. However, the court refused to issue a certificate of appealability (COA) for the first time, holding that a funding decision was not needed for review of the funding issue, but that, on the other hand, that decision was based on both the "substantial need" test and the rule that funding may be denied when a funding applicant fails to present a viable constitutional claim that is not procedurally barred. Held: 1. The lower courts applied the wrong legal standard in denying the funding request. . (a) The funding adjudication is nonadversarial and administrative. A natural consideration informing the exercise of that discretion is the likelihood that the contemplated services will help the applicant win relief. Proper application of that standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that he will be able to clear any procedural hurdles standing in the way. Here, the funding decision cannot be reviewed by a single circuit judge as opposed to a panel of three. This Court will not review the lower courts' denial of a COA insofar as the request was made ex parte. Cf. Harbison v. Bell, 556 U. S. 180 (CA7),; cf. United States v. Tuttle, 569 U.S. 219, 227. P.. (b) In this case, however, the adjudication of the fund funding issue is not adversarial. Judicial proceedings must be adversarial because the statute allows requests for funding to be decided ex- parte; therefore, §3599(f) funding adjudications are not judicial in nature. Petitioner and respondent plainly have adverse interests and have therefore squared off as adversaries.. 2. The court of appeals applied the correct legal standard when it affirmed the denial of the request, which was not an administrative, not a judicial, decision, and thus falls outside the scope of the jurisdictional provisions on which petitioner relied in seeking review in this Court. Nothing in the Constitution ties Congress to the typical structure of appellate review established by statute. If Congress wishes to make certain rulings reviewable by a district court, rather than a three-judge panel, the Constitution does not stand. See, e.g., id., at 248 (application for COA), n. 5. Similarly, a funding determination is not properly deemed administrative because it may be revised outside the traditional Article III judicial hierarchy. In this Court, the District Court did not deviate from the traditional rule set out in the statute, which allows a funding denial to be approved by the chief judge of the circuit or another designated circuit judge. Respondent contends that the funding funding decision is administrative for the additional reason that it may have a different legal standard from the one in question. That court, in reversing and remand, may review the denial by lower courts of a funding request by concluding that their reason for doing so was flawed, may reverse and remend so that the correct standard may be applied. But this course will not be completed, since the parties have not briefed whether that difference is relevant or whether an appeal from the denial would fit within the COA framework, and it will be unnecessary to resolve the issue. Moreover, the correctness of the rule applied by the district court in denying funding was not only debatable, it was erroneous, and, in any event, the argument remains open for the Fifth Circuit to consider on remand. 817 F. 3d 888, vacated and remanded. JUSTICE WHITE, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE REHNQUIST, concluded in Parts I and III of which: (1) that, under the standards set forth in Title III of the Constitution, funding is never "reasonably necessary" in a case like this one, where a federal prisoner seeking federal funding is seeking a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state court record, and (2) that the fruits of any

2017_16-1371

https://www.oyez.org/cases/2017/16-1371

. In September 2014, Pennsylvania State Troopers pulled over a car driven by petitioner Terrence Byrd. Byrd was the only person in the car. In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. For this reason, the troopers told Byrd they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Based on this conclusion, it appears that both the District Court and Court of Appeals deemed it unnecessary to consider whether the troopers had probable cause to search the car. This Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement. The Court now holds that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver. The Court concludes a remand is necessary to address in the first instance the Government’s argument that this general rule is inapplicable because, in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy. It is necessary to remand as well to determine whether, even if Byrd had a right to object to the search, probable cause justified it in any event. I On September 17, 2014, petitioner Terrence Byrd and Latasha Reed drove in Byrd’s Honda Accord to a Budget car-rental facility in Wayne, New Jersey. Byrd stayed in the parking lot in the Honda while Reed went to the Budget desk and rented a Ford Fusion. The agreement Reed signed required her to certify that she had a valid driver’s license and had not committed certain vehicle-related offenses within the previous three years. An addendum to the agreement, which Reed initialed, provides the following restriction on who may drive the rental car: “I understand that the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the renter’s permission, while on company business), or a person who appears at the time of the rental and signs an Additional Driver Form. These other drivers must also be at least 25 years old and validly licensed. “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.” App. 19. In filling out the paperwork for the rental agreement, Reed did not list an additional driver. With the rental keys in hand, Reed returned to the parking lot and gave them to Byrd. The two then left the facility in separate cars—she in his Honda, he in the rental car. Byrd returned to his home in Patterson, New Jersey, and put his personal belongings in the trunk of the rental car. Later that afternoon, he departed in the car alone and headed toward Pittsburgh, Pennsylvania. After driving nearly three hours, or roughly half the distance to Pittsburgh, Byrd passed State Trooper David Long, who was parked in the median of Interstate 81 near Harrisburg, Pennsylvania. Long was suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Long knew the Ford Fusion was a rental car because one of its windows contained a barcode. Based on these observations, he decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction. When Long approached the passenger window of Byrd’s car to explain the basis for the stop and to ask for identification, Byrd was “visibly nervous” and “was shaking and had a hard time obtaining his driver’s license.” Id., at 37. He handed an interim license and the rental agreement to Long, stating that a friend had rented the car. Long returned to his vehicle to verify Byrd’s license and noticed Byrd was not listed as an additional driver on the rental agreement. Around this time another trooper, Travis Martin, arrived at the scene. While Long processed Byrd’s license, Martin conversed with Byrd, who again stated that a friend had rented the vehicle. After Martin walked back to Long’s patrol car, Long commented to Martin that Byrd was “not on the renter agreement,” to which Martin replied, “yeah, he has no expectation of privacy.” 3 App. to Brief for Appellant in No. 16–1509 (CA3), at 21:40. A computer search based on Byrd’s identification returned two different names. Further inquiry suggested the other name might be an alias and also revealed that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant in New Jersey for a probation violation. After learning that New Jersey did not want Byrd arrested for extradition, the troopers asked Byrd to step out of the vehicle and patted him down. Long asked Byrd if he had anything illegal in the car. When Byrd said he did not, the troopers asked for his consent to search the car. At that point Byrd said he had a “blunt” in the car and offered to retrieve it for them. The officers understood “blunt” to mean a marijuana cigarette. They declined to let him retrieve it and continued to seek his consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The troopers then opened the passenger and driver doors and began a thorough search of the passenger compartment. Martin proceeded from there to search the car’s trunk, including by opening up and taking things out of a large cardboard box, where he found a laundry bag containing body armor. At this point, the troopers decided to detain Byrd. As Martin walked toward Byrd and said he would be placing him in handcuffs, Byrd began to run away. A third trooper who had arrived on the scene joined Long and Martin in pursuit. When the troopers caught up to Byrd, he surrendered and admitted there was heroin in the car. Back at the car, the troopers resumed their search of the laundry bag and found 49 bricks of heroin. In pretrial proceedings Byrd moved to suppress the evidence found in the trunk of the rental car, arguing that the search violated his Fourth Amendment rights. Al- though Long contended at a suppression hearing that the troopers had probable cause to search the car after Byrd stated it contained marijuana, the District Court denied Byrd’s motion on the ground that Byrd lacked “standing” to contest the search as an initial matter, 2015 WL 5038455, *2 (MD Pa., Aug. 26, 2015) (citing United States v. Kennedy, 638 F. 3d 159, 165 (CA3 2011)). Byrd later entered a conditional guilty plea, reserving the right to appeal the suppression ruling. The Court of Appeals affirmed in a brief summary opinion. 679 Fed. Appx. 146 (CA3 2017). As relevant here, the Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a search of the vehicle.” Id., at 150 (citing Kennedy, supra, at 167–168). The Court of Appeals did not reach the probable-cause question. This Court granted Byrd’s petition for a writ of certio- rari, 582 U. S. ___ (2017), to address the conflict among the Courts of Appeals over whether an unauthorized driver has a reasonable expectation of privacy in a rental car. Compare United States v. Seeley, 331 F. 3d 471, 472 (CA5 2003) (per curiam); United States v. Wellons, 32 F. 3d 117, 119 (CA4 1994); United States v. Roper, 918 F. 2d 885, 887–888 (CA10 1990), with United States v. Smith, 263 F. 3d 571, 581–587 (CA6 2001); Kennedy, supra, at 165–168, and with United States v. Thomas, 447 F. 3d 1191, 1196–1199 (CA9 2006); United States v. Best, 135 F. 3d 1223, 1225 (CA8 1998). II Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures. The Framers made that right explicit in the Bill of Rights following their experience with the indignities and invasions of privacy wrought by “general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.” Chimel v. California, 395 U. S. 752, 761 (1969). Ever mindful of the Fourth Amendment and its history, the Court has viewed with disfavor practices that permit “police officers unbridled discretion to rummage at will among a person’s private effects.” Arizona v. Gant, 556 U. S. 332, 345 (2009). This concern attends the search of an automobile. See Delaware v. Prouse, 440 U. S. 648, 662 (1979). The Court has acknowledged, however, that there is a diminished expectation of privacy in automobiles, which often permits officers to dispense with obtaining a warrant before conducting a lawful search. See, e.g., California v. Acevedo, 500 U. S. 565, 579 (1991). Whether a warrant is required is a separate question from the one the Court addresses here, which is whether the person claiming a constitutional violation “has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas v. Illinois, 439 U. S. 128, 133 (1978). Answering that question requires examination of whether the person claiming the constitutional violation had a “legitimate expectation of privacy in the premises” searched. Id., at 143. “Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.” Id., at 144, n. 12. Still, “property concepts” are instructive in “determining the presence or absence of the privacy interests protected by that Amendment.” Ibid. Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, which was derived from the second Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347 (1967), supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” Florida v. Jardines, 569 U. S. 1, 11 (2013). Perhaps in light of this clarification, Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Appeals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), it is generally unwise to consider arguments in the first instance, and the Court declines to reach Byrd’s contention that he was a second bailee. Reference to property concepts, however, aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement? III A One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. See Jones v. United States, 362 U. S. 257, 259 (1960); Katz, supra, at 352; Mancusi v. DeForte, 392 U. S. 364, 368 (1968); Minnesota v. Olson, 495 U. S. 91, 98 (1990). On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.” Rakas, 439 U. S., at 142; see also id., at 148 (“We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling”); Minnesota v. Carter, 525 U. S. 83, 91 (1998). Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U. S., at 144, n. 12. The two concepts in cases like this one are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” Ibid. (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1). This general property-based concept guides resolution of this case. B Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections. Byrd, by contrast, contends that the sole occupant of a rental car always has an expectation of privacy in it based on mere possession and control. There is more to recommend Byrd’s proposed rule than the Government’s; but, without qualification, it would include within its ambit thieves and others who, not least because of their lack of any property-based justification, would not have a reasonable expectation of privacy. 1 Stripped to its essentials, the Government’s position is that only authorized drivers of rental cars have expectations of privacy in those vehicles. This position is based on the following syllogism: Under Rakas, passengers do not have an expectation of privacy in an automobile glove compartment or like places; an unauthorized driver like Byrd would have been the passenger had the renter been driving; and the unauthorized driver cannot obtain greater protection when he takes the wheel and leaves the renter behind. The flaw in this syllogism is its major premise, for it is a misreading of Rakas. The Court in Rakas did not hold that passengers cannot have an expectation of privacy in automobiles. To the contrary, the Court disclaimed any intent to hold “that a passenger lawfully in an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it.” 439 U. S., at 150, n. 17 (internal quotation marks omitted). The Court instead rejected the argument that legitimate presence alone was sufficient to assert a Fourth Amendment interest, which was fatal to the petitioners’ case there because they had “claimed only that they were ‘legitimately on [the] premises’ and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched.” Ibid. What is more, the Government’s syllogism is beside the point, because this case does not involve a passenger at all but instead the driver and sole occupant of a rental car. As Justice Powell observed in his concurring opinion in Rakas, a “distinction . . . may be made in some circumstances between the Fourth Amendment rights of passengers and the rights of an individual who has exclusive control of an automobile or of its locked compartments.” Id., at 154. This situation would be similar to the defendant in Jones, supra, who, as Rakas notes, had a reasonable expectation of privacy in his friend’s apartment because he “had complete dominion and control over the apartment and could exclude others from it,” 439 U. S., at 149. Justice Powell’s observation was also consistent with the majority’s explanation that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude,” id., at 144, n. 12, an explanation tied to the majority’s discussion of Jones. The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. Tr. of Oral Arg. 48–49. 2 The Government further stresses that Byrd’s driving the rental car violated the rental agreement that Reed signed, and it contends this violation meant Byrd could not have had any basis for claiming an expectation of privacy in the rental car at the time of the search. As anyone who has rented a car knows, car-rental agreements are filled with long lists of restrictions. Examples include prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car—as even the Government agrees. Brief for United States 32. Despite this concession, the Government argues that permitting an unauthorized driver to take the wheel of a rental car is a breach different in kind from these others, so serious that the rental company would consider the agreement “void” the moment an unauthorized driver takes the wheel. Id., at 4, 15, 16, 27. To begin with, that is not what the contract says. It states: “Permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement. This may result in any and all coverage otherwise provided by the rental agreement being void and my being fully responsible for all loss or damage, including liability to third parties.” App. 24 (emphasis deleted). Putting the Government’s misreading of the contract aside, there may be countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it—perhaps the renter is drowsy or inebriated and the two think it safer for the friend to drive them to their destination. True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between private parties—violators might pay additional fees, lose insurance coverage, or assume liability for damage resulting from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she other- wise has lawful possession of and control over the car. 3 The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. Rakas makes clear that “ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legal- ity of the search.” 439 U. S., at 141, n. 9. “A burglar plying his trade in a summer cabin during the off season,” for example, “may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’ ” Id., at 143, n. 12. Likewise, “a person present in a stolen automobile at the time of the search may [not] object to the lawfulness of the search of the automobile.” Id., at 141, n. 9. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car. On this point, in its merits brief, the Government asserts that, on the facts here, Byrd should have no greater expectation of privacy than a car thief because he intentionally used a third party as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime. This argument is premised on the Government’s inference that Byrd knew he would not have been able to rent the car on his own, because he would not have satisfied the rental company’s requirements based on his criminal record, and that he used Reed, who had no intention of using the car for her own purposes, to procure the car for him to transport heroin to Pittsburgh. It is unclear whether the Government’s allegations, if true, would constitute a criminal offense in the acquisition of the rental car under applicable law. And it may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright. The Government did not raise this argument in the District Court or the Court of Appeals, however. It relied instead on the sole fact that Byrd lacked authorization to drive the car. And it is unclear from the record whether the Government’s inferences paint an accurate picture of what occurred. Because it was not addressed in the District Court or Court of Appeals, the Court declines to reach this question. The proper course is to remand for the argument and potentially further factual development to be considered in the first instance by the Court of Appeals or by the District Court. IV The Government argued in its brief in opposition to certiorari that, even if Byrd had a Fourth Amendment interest in the rental car, the troopers had probable cause to believe it contained evidence of a crime when they initiated their search. If that were true, the troopers may have been permitted to conduct a warrantless search of the car in line with the Court’s cases concerning the automobile exception to the warrant requirement. See, e.g., Acevedo, 500 U. S., at 580. The Court of Appeals did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. It is worth noting that most courts analyzing the question presented in this case, including the Court of Appeals here, have described it as one of Fourth Amendment “standing,” a concept the Court has explained is not distinct from the merits and “is more properly subsumed under substantive Fourth Amendment doctrine.” Rakas, supra, at 139. The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 129 (2011) (“To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution”); see also Rakas, supra, at 138–140. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim. On remand, then, the Court of Appeals is not required to assess Byrd’s reason- able expectation of privacy in the rental car before, in its discretion, first addressing whether there was probable cause for the search, if it finds the latter argument has been preserved. V Though new, the fact pattern here continues a well-traveled path in this Court’s Fourth Amendment jurisprudence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. The Court of Appeals has discretion as to the order in which these questions are best addressed. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Byrd v. United States certiorari to the united states court of appeals for the third circuit No. 16–1371. Argued January 9, 2018—Decided May 14, 2018 Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania. After stopping Byrd for a traffic infraction, Pennsylvania State Troopers learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car. The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with federal drug and other crimes. The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Held: 1. The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. . (a) Reference to property concepts is instructive in “determining the presence or absence of the privacy interests protected by [the Fourth] Amendment.” Rakas v. Illinois, 439 U. S. 128, 144, n. 12. . (b) While a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it, see, e.g., Jones v. United States, 362 U. S. 257, 259, legitimate presence on the premises, standing alone, is insufficient because it “creates too broad a gauge for measurement of Fourth Amendment rights,” Rakas, 439 U. S., at 142. The Court has not set forth a single metric or exhaustive list of relevant considerations, but “[l]egitimation of expectations of privacy must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 144, n. 12. These concepts may be linked. “One of the main rights attaching to property is the right to exclude others,” and “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” Ibid. This general property-based concept guides resolution of the instant case. . (c) The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy. . (1) The Government bases its claim that an unauthorized driver has no privacy interest in the vehicle on a misreading of Rakas. There, the Court disclaimed any intent to hold that passengers cannot have an expectation of privacy in automobiles, but found that the passengers there had not claimed “any legitimate expectation of privacy in the areas of the car which were searched.” 439 U. S., at 150, n. 17. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones, who had a reasonable expectation of privacy in his friend’s apartment because he “had complete dominion and control over the apartment and could exclude others from it.” Rakas, supra, at 149. The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence. . (2) The Government also contends that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have considered the agreement “void” once he took the wheel. But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage, and the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. . (3) Central, though, to reasonable expectations of privacy in these circumstances is the concept of lawful possession, for a “ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search,” Rakas, supra, at 141, n. 9. Thus, a car thief would not have a reasonable expectation of privacy in a stolen car no matter the degree of possession and control. The Court leaves for remand the Government’s argument that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief. . 2. Also left for remand is the Government’s argument that, even if Byrd had a right to object to the search, probable cause justified it in any event. The Third Circuit did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. That court has discretion as to the order in which the remanded questions are best addressed. . 679 Fed. Appx. 146, vacated and remanded. Kennedy, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Alito, J., filed a concurring opinion.

Pursuant to a rental agreement, Pennsylvania State Troopers learned that the car was rented and that petitioner was not listed on the agreement as an authorized driver. For this reason, they told petitioner they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. Petitioner moved to suppress the evidence as the fruit of an unlawful search, but the District Court denied the motion, and the Court of Appeals affirmed. Held:1. As a general rule, a driver in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as anauthorized driver. Cf. Rakas v. Illinois, 439 U. S. 128, 133. . (a) A driver need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectations of privacy. See Rakas, supra, at 144. Here, a person need not have the recognized common law property interest, as here in this case, in the places searched to claim such a reasonable expectation. P.. (b) In the circumstances here, petitioner had no greater expectation of privacy than a car thief, and it is necessary to remand as well to determine whether, even if petitioner had a right to object to the search, probable cause justified it in any event. On remand, the Court will not have to assess petitioner's reason- able expectation for privacy in the rental car before, in its discretion, first addressing whether there was probable cause for the search. This Court declines to reach petitioner's contention that he was a second bailee, since a court of review, not of first view, is generally unwise to consider arguments in the first instance, and since the case does not involve a passenger at all but the driver and sole occupant of rental car. Moreover, reference to property concepts, however, aids the Court in assessing the precise question here, since the mere fact that a driver is not listed as a authorized driver will not defeat his or her otherwise reasonable expectation, and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim. (c) Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence needs not be considered before addressing the other aspects, if petitioner is found the latter argument has been preserved. There is no reason why the Government should distinguish between a lawful rental car thief who would be permitted to exclude someone from his possession and someone who would not, depending on whether he owned the car or leased it, exclude someone else from its use. The Government stresses that, although Byrd could not have had any basis for claiming that he had a legitimate expectation privacy when he initiated the rental search, the troopers had probable cause to believe it contained evidence of a crime when they initiated their search, and thus may have been permitted to conduct a warrantless search in line with the Court's cases concerning the automobile exception to the warrant requirement. In any event, on remand the Court is not required to assess Byrd for reason of probable cause. Thus, the court will not assess him for reasons other than that raised in his petition for certio- rari, and is therefore left with the task of determining whether probable cause justifies the search if it finds the latter argument preserved.. 2. The question whether a driver who intention- ally uses a third party in a calculated plan to mislead the rental company from the very outset is no better situated than one who simply had complete dominion and control over the apartment and could exclude others from it. Although the Government concedes that Byrd may have had an expectation that he would have had a lower expectation privacy if he had signed the rental document, the Government contends that, on the facts here, he should have no such expectation, because he intentionally used a third-party as a strawman in the calculated plan, all to aid him in committing a crime. It is unclear whether the Government's allegations, if true, would constitute a criminal offense in the acquisition of the car under applicable law, or whether there should be no reason to distinguish between the type of person who obtains authorization to drive a vehicle from one who actually owned and leased it. And it is unclear what type of subterfuge occurred between the Government and petitioner who alleges authorization. Because the Government did not raise the question in its brief or in its opinion whether Byrd lacked an accurate or accurate explanation of what occurred in the course of the development of the factual infuge, the case is remanded for further proceedings consistent with this opinion. 587 Fed. Appx. 146, vacated and remanded. Reported below: 638 F. 3d 159, 165.

2017_16-402

https://www.oyez.org/cases/2017/16-402

. This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements. I A There are 396 million cell phone service accounts in the United States—for a Nation of 326 million people. Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas. Wireless carriers collect and store CSLI for their own business purposes, including finding weak spots in their network and applying “roaming” charges when another carrier routes data through their cell sites. In addition, wireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. While carriers have long retained CSLI for the start and end of incoming calls, in recent years phone companies have also collected location information from the transmission of text messages and routine data connections. Accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI. B In 2011, police officers arrested four men suspected of robbing a series of Radio Shack and (ironically enough) T-Mobile stores in Detroit. One of the men confessed that, over the previous four months, the group (along with a rotating cast of getaway drivers and lookouts) had robbed nine different stores in Michigan and Ohio. The suspect identified 15 accomplices who had participated in the heists and gave the FBI some of their cell phone numbers; the FBI then reviewed his call records to identify additional numbers that he had called around the time of the robberies. Based on that information, the prosecutors applied for court orders under the Stored Communications Act to obtain cell phone records for petitioner Timothy Carpenter and several other suspects. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d). Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. App. to Pet. for Cert. 60a, 72a. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days. The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day. Carpenter was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence. See 18 U. S. C. §§924(c), 1951(a). Prior to trial, Carpenter moved to suppress the cell-site data provided by the wireless carriers. He argued that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion. App. to Pet. for Cert. 38a–39a. At trial, seven of Carpenter’s confederates pegged him as the leader of the operation. In addition, FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used. With this information, Hess produced maps that placed Carpenter’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that Carpenter was “right where the . . . robbery was at the exact time of the robbery.” App. 131 (closing argument). Carpenter was convicted on all but one of the firearm counts and sentenced to more than 100 years in prison. The Court of Appeals for the Sixth Circuit affirmed. 819 F. 3d 880 (2016). The court held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. Given that cell phone users voluntarily convey cell-site data to their carriers as “a means of establishing communication,” the court concluded that the resulting business records are not entitled to Fourth Amendment protection. Id., at 888 (quoting Smith v. Maryland, 442 U. S. 735, 741 (1979)). We granted certiorari. 582 U. S. ___ (2017). II 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.” The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967). The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 27). In fact, as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution itself. Id., at ___–___ (slip op., at 27–28) (quoting 10 Works of John Adams 248 (C. Adams ed. 1856)). For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012). More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith, 442 U. S., at 740 (internal quotation marks and alterations omitted). Although no single rubric definitively resolves which expectations of privacy are entitled to protection,[1] the analysis is informed by historical understandings “of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.” Carroll v. United States, 267 U. S. 132, 149 (1925). On this score, our cases have recognized some basic guideposts. First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States, 116 U. S. 616, 630 (1886). Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U. S. 581, 595 (1948). We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34 (2001). For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Id., at 35. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home. Ibid. Likewise in Riley, the Court recognized the “immense storage capacity” of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone. 573 U. S., at ___ (slip op., at 17). We explained that while the general rule allowing warrantless searches incident to arrest “strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to” the vast store of sensitive information on a cell phone. Id., at ___ (slip op., at 9). B The case before us involves the Government’s acquisition of wireless carrier cell-site records revealing the location of Carpenter’s cell phone whenever it made or received calls. This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake. The first set of cases addresses a person’s expectation of privacy in his physical location and movements. In United States v. Knotts, 460 U. S. 276 (1983), we considered the Government’s use of a “beeper” to aid in tracking a vehicle through traffic. Police officers in that case planted a beeper in a container of chloroform before it was purchased by one of Knotts’s co-conspirators. The officers (with intermittent aerial assistance) then followed the automobile carrying the container from Minneapolis to Knotts’s cabin in Wisconsin, relying on the beeper’s signal to help keep the vehicle in view. The Court concluded that the “augment[ed]” visual surveillance did not constitute a search because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id., at 281, 282. Since the movements of the vehicle and its final destination had been “voluntarily conveyed to anyone who wanted to look,” Knotts could not assert a privacy interest in the information obtained. Id., at 281. This Court in Knotts, however, was careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance. The Court emphasized the “limited use which the government made of the signals from this particular beeper” during a discrete “automotive journey.” Id., at 284, 285. Significantly, the Court reserved the question whether “different constitutional principles may be applicable” if “twenty-four hour surveillance of any citizen of this country [were] possible.” Id., at 283–284. Three decades later, the Court considered more sophisticated surveillance of the sort envisioned in Knotts and found that different principles did indeed apply. In United States v. Jones, FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405. At the same time, five Justices agreed that related privacy concerns would be raised by, for example, “surreptitiously activating a stolen vehicle detection system” in Jones’s car to track Jones himself, or conducting GPS tracking of his cell phone. Id., at 426, 428 (Alito, J., concurring in judgment); id., at 415 (Sotomayor, J., concurring). Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large. Id., at 430 (opinion of Alito, J.); id., at 415 (opinion of Sotomayor, J.).[2] In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others. We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. That remains true “even if the information is revealed on the assumption that it will be used only for a limited purpose.” United States v. Miller, 425 U. S. 435, 443 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections. This third-party doctrine largely traces its roots to Miller. While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could “assert neither ownership nor possession” of the documents; they were “business records of the banks.” Id., at 440. For another, the nature of those records confirmed Miller’s limited expectation of privacy, because the checks were “not confidential communications but negotiable instruments to be used in commercial transactions,” and the bank statements contained information “exposed to [bank] employees in the ordinary course of business.” Id., at 442. The Court thus concluded that Miller had “take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government.” Id., at 443. Three years later, Smith applied the same principles in the context of information conveyed to a telephone com- pany. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. Noting the pen register’s “limited capabilities,” the Court “doubt[ed] that people in general entertain any actual expectation of privacy in the numbers they dial.” 442 U. S., at 742. Telephone subscribers know, after all, that the numbers are used by the telephone company “for a variety of legitimate business purposes,” including routing calls. Id., at 743. And at any rate, the Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.” Ibid. (internal quotation marks omitted). When Smith placed a call, he “voluntarily conveyed” the dialed numbers to the phone company by “expos[ing] that information to its equipment in the ordinary course of business.” Id., at 744 (internal quotation marks omitted). Once again, we held that the defendant “assumed the risk” that the company’s records “would be divulged to police.” Id., at 745. III The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements. We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.[3] A A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U. S., at 351–352. A majority of this Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Jones, 565 U. S., at 430 (Alito, J., concurring in judgment); id., at 415 (Sotomayor, J., concurring). Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” Id., at 429 (opinion of Alito, J.). For that reason, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id., at 430. Allowing government access to cell-site records contravenes that expectation. Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” Id., at 415 (opinion of Sotomayor, J.). These location records “hold for many Americans the ‘privacies of life.’ ” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630). And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier’s deep repository of historical location information at practically no expense. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones. Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time. A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. See id., at ___ (slip op., at 19) (noting that “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower”); contrast Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion) (“A car has little capacity for escaping public scrutiny.”). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user. Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few with- out cell phones could escape this tireless and absolute surveillance. The Government and Justice Kennedy contend, however, that the collection of CSLI should be permitted because the data is less precise than GPS information. Not to worry, they maintain, because the location records did “not on their own suffice to place [Carpenter] at the crime scene”; they placed him within a wedge-shaped sector ranging from one-eighth to four square miles. Brief for United States 24; see post, at 18–19. Yet the Court has already rejected the proposition that “inference insulates a search.” Kyllo, 533 U. S., at 36. From the 127 days of location data it received, the Government could, in combination with other information, deduce a detailed log of Carpenter’s movements, including when he was at the site of the robberies. And the Government thought the CSLI accurate enough to highlight it during the closing argument of his trial. App. 131. At any rate, the rule the Court adopts “must take account of more sophisticated systems that are already in use or in development.” Kyllo, 533 U. S., at 36. While the records in this case reflect the state of technology at the start of the decade, the accuracy of CSLI is rapidly approaching GPS-level precision. As the number of cell sites has proliferated, the geographic area covered by each cell sector has shrunk, particularly in urban areas. In addition, with new technology measuring the time and angle of signals hitting their towers, wireless carriers already have the capability to pinpoint a phone’s location within 50 meters. Brief for Electronic Frontier Foundation et al. as Amici Curiae 12 (describing triangulation methods that estimate a device’s location inside a given cell sector). Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reason- able expectation of privacy in the whole of his physical movements. B The Government’s primary contention to the contrary is that the third-party doctrine governs this case. In its view, cell-site records are fair game because they are “business records” created and maintained by the wireless carriers. The Government (along with Justice Kennedy) recognizes that this case features new technology, but asserts that the legal question nonetheless turns on a garden-variety request for information from a third-party witness. Brief for United States 32–34; post, at 12–14. The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today. The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information. The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of “diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” Riley, 573 U. S., at ___ (slip op., at 16). Smith and Miller, after all, did not rely solely on the act of sharing. Instead, they considered “the nature of the particular documents sought” to determine whether “there is a legitimate ‘expectation of privacy’ concerning their contents.” Miller, 425 U. S., at 442. Smith pointed out the limited capabilities of a pen register; as explained in Riley, telephone call logs reveal little in the way of “identifying information.” Smith, 442 U. S., at 742; Riley, 573 U. S., at ___ (slip op., at 24). Miller likewise noted that checks were “not confidential communications but negotiable instruments to be used in commercial transactions.” 425 U. S., at 442. In mechanically applying the third-party doctrine to this case, the Government fails to appreciate that there are no comparable limitations on the revealing nature of CSLI. The Court has in fact already shown special solicitude for location information in the third-party context. In Knotts, the Court relied on Smith to hold that an individual has no reasonable expectation of privacy in public movements that he “voluntarily conveyed to anyone who wanted to look.” Knotts, 460 U. S., at 281; see id., at 283 (discussing Smith). But when confronted with more pervasive tracking, five Justices agreed that longer term GPS monitoring of even a vehicle traveling on public streets constitutes a search. Jones, 565 U. S., at 430 (Alito, J., concurring in judgment); id., at 415 (Sotomayor, J., concurring). Justice Gorsuch wonders why “someone’s location when using a phone” is sensitive, post, at 3, and Justice Kennedy assumes that a person’s discrete movements “are not particularly private,” post, at 17. Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller. Neither does the second rationale underlying the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as one normally understands the term. In the first place, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Riley, 573 U. S., at ___ (slip op., at 9). Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates CSLI, including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily “assume[ ] the risk” of turning over a comprehensive dossier of his physical movements. Smith, 442 U. S., at 745. We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment. * * * Our decision today is a narrow one. We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security. As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944).[4] IV Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. Although the “ultimate measure of the constitutionality of a governmental search is ‘reasonableness,’ ” our cases establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652–653 (1995). Thus, “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley, 573 U. S., at ___ (slip op., at 5). The Government acquired the cell-site records pursuant to a court order issued under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls well short of the probable cause required for a warrant. The Court usually requires “some quantum of individualized suspicion” before a search or seizure may take place. United States v. Martinez-Fuerte, 428 U. S. 543, 560–561 (1976). Under the standard in the Stored Communications Act, however, law enforcement need only show that the cell-site evidence might be pertinent to an ongoing investigation—a “gigantic” departure from the probable cause rule, as the Government explained below. App. 34. Consequently, an order issued under Section 2703(d) of the Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant. Justice Alito contends that the warrant requirement simply does not apply when the Government acquires records using compulsory process. Unlike an actual search, he says, subpoenas for documents do not involve the direct taking of evidence; they are at most a “constructive search” conducted by the target of the subpoena. Post, at 12. Given this lesser intrusion on personal privacy, Justice Alito argues that the compulsory production of records is not held to the same probable cause standard. In his view, this Court’s precedents set forth a categorical rule—separate and distinct from the third-party doctrine—subjecting subpoenas to lenient scrutiny without regard to the suspect’s expectation of privacy in the records. Post, at 8–19. But this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy. Almost all of the examples Justice Alito cites, see post, at 14–15, contemplated requests for evidence implicating diminished pri- vacy interests or for a corporation’s own books.[5] The lone exception, of course, is Miller, where the Court’s analysis of the third-party subpoena merged with the application of the third-party doctrine. 425 U. S., at 444 (concluding that Miller lacked the necessary privacy interest to contest the issuance of a subpoena to his bank). Justice Alito overlooks the critical issue. At some point, the dissent should recognize that CSLI is an entirely different species of business record—something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers. When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents. See Riley, 573 U. S., at ___ (slip op., at 10) (“A search of the information on a cell phone bears little resemblance to the type of brief physical search considered [in prior precedents].”). If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement. Under Justice Alito’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” United States v. Morton Salt Co., 338 U. S. 632, 652 (1950). Justice Kennedy declines to adopt the radical implications of this theory, leaving open the question whether the warrant requirement applies “when the Government obtains the modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’ even when those papers or effects are held by a third party. ” Post, at 13 (citing United States v. Warshak, 631 F. 3d 266, 283–288 (CA6 2010)). That would be a sensible exception, because it would prevent the subpoena doctrine from overcoming any reasonable expectation of privacy. If the third-party doctrine does not apply to the “modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’ ” then the clear implication is that the documents should receive full Fourth Amendment protection. We simply think that such protection should extend as well to a detailed log of a person’s movements over several years. This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause. The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party. Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King, 563 U. S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence. 563 U. S., at 460, and n. 3. As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to bomb threats, active shootings, and child abductions. Our decision today does not call into doubt warrantless access to CSLI in such circumstances. While police must get a warrant when collecting CSLI to assist in the mine-run criminal investigation, the rule we set forth does not limit their ability to respond to an ongoing emergency. * * * As Justice Brandeis explained in his famous dissent, the Court is obligated—as “[s]ubtler and more far-reaching means of invading privacy have become available to the Government”—to ensure that the “progress of science” does not erode Fourth Amendment protections. Olmstead v. United States, 277 U. S. 438, 473–474 (1928). Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, “after consulting the lessons of history,” drafted the Fourth Amendment to prevent. Di Re, 332 U. S., at 595. We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Justice Kennedy believes that there is such a rubric—the “property-based concepts” that Katz purported to move beyond. Post, at 3 (dissenting opinion). But while property rights are often informative, our cases by no means suggest that such an interest is “fundamental” or “dispositive” in determining which expectations of privacy are legitimate. Post, at 8–9. Justice Thomas (and to a large extent Justice Gorsuch) would have us abandon Katz and return to an exclusively property-based approach. Post, at 1–2, 17–21 (Thomas J., dissenting); post, at 6–9 (Gorsuch, J., dissenting). Katz of course “discredited” the “premise that property interests control,” 389 U. S., at 353, and we have repeatedly emphasized that privacy interests do not rise or fall with property rights, see, e.g., United States v. Jones, 565 U. S. 400, 411 (2012) (refusing to “make trespass the exclusive test”); Kyllo v. United States, 533 U. S. 27, 32 (2001) (“We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property.”). Neither party has asked the Court to reconsider Katz in this case. 2 Justice Kennedy argues that this case is in a different category from Jones and the dragnet-type practices posited in Knotts because the disclosure of the cell-site records was subject to “judicial authorization.” Post, at 14–16. That line of argument conflates the threshold question whether a “search” has occurred with the separate matter of whether the search was reasonable. The subpoena process set forth in the Stored Communications Act does not determine a target’s expectation of privacy. And in any event, neither Jones nor Knotts purported to resolve the question of what authorization may be required to conduct such electronic surveillance techniques. But see Jones, 565 U. S., at 430 (Alito, J., concurring in judgment) (indicating that longer term GPS tracking may require a warrant). 3 The parties suggest as an alternative to their primary submissions that the acquisition of CSLI becomes a search only if it extends beyond a limited period. See Reply Brief 12 (proposing a 24-hour cutoff); Brief for United States 55–56 (suggesting a seven-day cutoff). As part of its argument, the Government treats the seven days of CSLI requested from Sprint as the pertinent period, even though Sprint produced only two days of records. Brief for United States 56. Contrary to Justice Kennedy’s assertion, post, at 19, we need not decide whether there is a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search. 4 Justice Gorsuch faults us for not promulgating a complete code addressing the manifold situations that may be presented by this new technology—under a constitutional provision turning on what is “reasonable,” no less. Post, at 10–12. Like Justice Gorsuch, we “do not begin to claim all the answers today,” post, at 13, and therefore decide no more than the case before us. 5 See United States v. Dionisio, 410 U. S. 1, 14 (1973) (“No person can have a reasonable expectation that others will not know the sound of his voice”); Donovan v. Lone Steer, Inc., 464 U. S. 408, 411, 415 (1984) (payroll and sales records); California Bankers Assn. v. Shultz, 416 U. S. 21, 67 (1974) (Bank Secrecy Act reporting requirements); See v. Seattle, 387 U. S. 541, 544 (1967) (financial books and records); United States v. Powell, 379 U. S. 48, 49, 57 (1964) (corporate tax records); McPhaul v. United States, 364 U. S. 372, 374, 382 (1960) (books and records of an organization); United States v. Morton Salt Co., 338 U. S. 632, 634, 651–653 (1950) (Federal Trade Commission reporting requirement); Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 189, 204–208 (1946) (payroll records); Hale v. Henkel, 201 U. S. 43, 45, 75 (1906) (corporate books and papers).

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 Carpenter v. United States certiorari to the united states court of appeals for the sixth circuit No. 16–402. Argued November 29, 2017—Decided June 22, 2018 Cell phones perform their wide and growing variety of functions by continuously connecting to a set of radio antennas called “cell sites.” Each time a phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store this information for their own business purposes. Here, after the FBI identified the cell phone numbers of several robbery suspects, prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act. Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the Government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day. Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers. Held: 1. The Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. . (a) The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Katz v. United States, 389 U. S. 347, 351. Thus, when an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith v. Maryland, 442 U. S. 735, 740 (internal quotation marks and alterations omitted). The analysis regarding which expectations of privacy are entitled to protection is informed by historical understandings “of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.” Carroll v. United States, 267 U. S. 132, 149. These Founding-era understandings continue to inform this Court when applying the Fourth Amendment to innovations in surveillance tools. See, e.g., Kyllo v. United States, 533 U. S. 27. . (b) The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements. See, e.g., United States v. Jones, 565 U. S. 400 (five Justices concluding that privacy concerns would be raised by GPS tracking). The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties. See United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company). . (c) Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones—it is detailed, encyclopedic, and effortlessly compiled. At the same time, however, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. Given the unique nature of cell-site records, this Court declines to extend Smith and Miller to cover them. . (1) A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which “hold for many Americans the ‘privacies of life,’ ” Riley v. California, 573 U. S. ___, ___—contravenes that expectation. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers. The Government contends that CSLI data is less precise than GPS information, but it thought the data accurate enough here to highlight it during closing argument in Carpenter’s trial. At any rate, the rule the Court adopts “must take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U. S., at 36, and the accuracy of CSLI is rapidly approaching GPS-level precision. . (2) The Government contends that the third-party doctrine governs this case, because cell-site records, like the records in Smith and Miller, are “business records,” created and maintained by wireless carriers. But there is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers. The third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. Smith and Miller, however, did not rely solely on the act of sharing. They also considered “the nature of the particular documents sought” and limitations on any “legitimate ‘expectation of privacy’ concerning their contents.” Miller, 425 U. S., at 442. In mechanically applying the third-party doctrine to this case the Government fails to appreciate the lack of comparable limitations on the revealing nature of CSLI. Nor does the second rationale for the third-party doctrine—voluntary exposure—hold up when it comes to CSLI. Cell phone location information is not truly “shared” as the term is normally understood. First, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Riley, 573 U. S., at ___. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up. . (d) This decision is narrow. It does not express a view on matters not before the Court; does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security. . 2. The Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls well short of the probable cause required for a warrant. Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause. A warrant is required only in the rare case where the suspect has a legitimate privacy interest in records held by a third party. And even though the Government will generally need a warrant to access CSLI, case-specific exceptions—e.g., exigent circumstances—may support a warrantless search. . 819 F. 3d 880, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Thomas, J., joined. Gorsuch, J., filed a dissenting opinion.

Petitioner Carpenter and others were arrested for robbing stores in Detroit and other cities. The police obtained orders under the Stored Communications Act to disclose cell-site sector information for Carpenter at call origination and call termination for incoming and outgoing calls during the four-month period when the string of robberies occurred. The first order sought 152 days of cellsite records from MetroPCS and Sprint; the second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter's phone was "roaming" in northeastern Ohio. The Government obtained 12,898 location points cataloging Carpenter's movements, an average of 101 data points per day. He was charged with six counts of robbery and an additional six of carrying a firearm during a federal crime of violence. At his trial in Federal District Court, the Government argued that the seizure of the records violated the Fourth Amendment because he had provided the warrant for the seizure. Holding that the resulting business records were not entitled to Fourth Amendment protection, the court held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI, and that, given that cell phone users voluntarily convey cellsite data to their carriers as a means of establishing communication, the resulting records are not entitled thereto. The Court of Appeals affirmed. Held: When the Government accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements, such records are entitled to a Fourth Amendment search. . (a) The Amendment seeks to secure the privacies of life against arbitrary power, and to protect certain expectations of privacy as well. When an individual seeks to preserve something as private, he has a limited expectation that he will be used for only a legitimate purpose. That expectation turns on the assumption that a third party will have the benefit of the limited information revealed to him. As a result, a Government typically is free to obtain such information from the recipient without triggering Fourth Amendment protections. Cf. United States v. Knotts, 460 U. S. 276 (1983). . (b) The Fourth Amendment searches are typically unreasonable where, as here, a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. Such search is reasonable only if it falls within a specific exception to the warrant requirement. Here, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller, which held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. However, the doctrine applies to telephone numbers and bank records, as well as to such records. Given the unique nature of cell phone location information, such information is fair game because they are "business records" created and maintained by the wireless carriers. Although the Government may, in the rare case, require a warrant when it acquires records using compulsory process, case-specific exceptions may support a warrantless search under certain circumstances. See id., at 10. (c) Given the deeply revealing nature of the information obtained from Carpenter, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, it does not negate Carpenter's anticipation of privacy in his physical location. Mapping a cell phone's location over the course of 127 days provides an all-encompassing record of the holder's whereabouts. As with GPS information, the time-stamped data provides an intimate window into a person's life, revealing not only his particular movements, but through hisfamilial, political, professional, religious, and sexual associations. Moreover, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools, such as security cameras and security cameras. Sprint Corporation and its competitors are not your typical witnesses. Similarly, there is a world of difference between a detailed log of a person’s movements over several years and the exhaustive chronicle of location information casually collected by wireless carriers today. Pp. 442 U.S. 632. 819 F. 3d 880, reversed and remanded. THE CHIEF JUSTICE, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in Parts I, II, III, and IV of which BRENNAN, MARSHALL, and STEVENS, joined. STEWART J., filed an opinion concurring in part and dissenting in part, post, p.. DOUGLAS J., took no part in the decision of the case.

2017_17-5639

https://www.oyez.org/cases/2017/17-5639

. This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines. Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’. The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence. The Court of Appeals held that the judge’s explanation was adequate. And we agree with the Court of Appeals. I A The Sentencing Guidelines require a sentencing judge to consider certain listed characteristics of the offender and the offense for which he was convicted. Those characteristics (and certain other factors) bring the judge to a Guidelines table that sets forth a range of punishments, for example, 135 to 168 months’ imprisonment. A sentencing judge often will choose a specific penalty from a Guidelines range. But a judge also has the legal authority to impose a sentence outside the range either because he or she “departs” from the range (as is permitted by certain Guidelines rules) or because he or she chooses to “vary” from the Guidelines by not applying them at all. See United States v. Booker, 543 U. S. 220, 258–265 (2005) (holding the Sentencing Guidelines are advisory). The judge, however, must always take account of certain statutory factors. See 18 U. S. C. §3553(a) (requiring the judge to consider the “seriousness of the offense” and the need to “afford adequate deterrence,” among other factors). And, of particular relevance here, the judge “shall state in open court the reasons for [the] imposition of the particular sentence.” §3553(c). If the sentence is outside the Guidelines range (whether because of a “departure” or a “variance”), the judge must state “the specific reason for the imposition of a . . . different” sentence. §3553(c)(2). If the sentence is within the Guidelines range, and the Guidelines range exceeds 24 months, the judge must also state “the reason for imposing a sentence at a particular point within the range.” §3553(c)(1). B We here consider one aspect of the judge’s obligation to provide reasons. In an earlier case, we set forth the law that governs the explanation requirement at sentencing. In Rita v. United States, 551 U. S. 338 (2007), the offender sought a downward departure from the Guidelines. The record, we said, showed that the sentencing judge “listened to each argument[,] . . . considered the supporting evidence[,] . . . was fully aware of defendant’s various physical ailments[,]” imposed a sentence at the bottom of the Guidelines range, and, having considered the §3553(a) factors, said simply that the sentence was “ ‘appropriate.’ ” Id., at 358. We held that where “a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.” Id., at 359. We also discussed more generally the judge’s obligation to explain. We wrote that the statute calls “for the judge to ‘state’ his ‘reasons.’ And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.” Id., at 356. But, we continued, “we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word ‘granted’ or ‘denied’ on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment.” Ibid. At bottom, the sentencing judge need only “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Ibid. When a judge applies a sentence within the Guidelines range, he or she often does not need to provide a lengthy explanation. As we said in Rita, “[c]ircumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of §3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.” Id., at 357. We have followed this same reasoning in other sentencing cases, including Gall v. United States, 552 U. S. 38 (2007), which we decided the same year as Rita. Cf. Kimbrough v. United States, 552 U. S. 85, 109 (2007) (suggesting a district judge’s decision to vary from the Guidelines range may be entitled to greater respect when the judge finds a particular case “ ‘outside the “heartland” ’ ” of the Guidelines). Indeed, the case before us differs from the Guidelines cases that Rita describes in only one significant respect. It concerns a limited form of resentencing. C The relevant lower court proceedings are not complicated. In 2013, petitioner pleaded guilty to a federal crime, namely, possessing methamphetamine with the intent to distribute it. The judge reviewed the Guidelines, determined that the applicable range was 135 to 168 months’ imprisonment and imposed a sentence at the bottom of that range: 135 months. Pursuant to its statutory authority, the Sentencing Commission subsequently lowered the relevant Guidelines range from 135 to 168 months to 108 to 135 months. United States Sentencing Commission, Guidelines Manual App. C, Amdt. 782 (Supp. Nov. 2012–Nov. 2016) (USSG); see also 28 U. S. C. §994(o). Petitioner then sought and obtained a sentence modification. See 18 U. S. C. §3582(c)(2); USSG §1B1.10. He asked the judge to lower his sentence to the bottom of the new range, namely 108 months. But the judge instead lowered it to 114 months, not 108 months. The order was entered on a form issued by the Administrative Office of the United States Courts. The form certified the judge had “considered” petitioner’s motion and “tak[en] into account” the §3553(a) factors and the relevant Guidelines policy statement. App. 106–107 (under seal). Petitioner appealed, claiming that the judge did not adequately explain why he rejected petitioner’s 108-month request. The Court of Appeals rejected his argument. 854 F. 3d 655 (CA10 2017). In its view, “absent any indication the court failed to consider the §3553(a) factors, a district court . . . need not explain choosing a particular guidelines-range sentence.” Id., at 659. Petitioner sought certiorari, and we granted his petition. II A The Government, pointing out that this is a sentence-modification case, argues that this fact alone should secure it a virtually automatic victory. That is because, unlike an ordinary Guidelines sentencing case, the statute governing sentence-modification motions does not insist that the judge provide a “reason for imposing a sentence at a particular point within the range.” Compare §3553(c)(1) with §3582(c)(2). It adds that sentence modifications also differ procedurally from sentencing in that the offender is not entitled to be present in court at the time the reduced sentence is imposed. See Dillon v. United States, 560 U. S. 817, 828 (2010) (citing Fed. Rule Crim. Proc. 43(b)(4)). As we have said before, “Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon, supra, at 826. These procedural features, the Government asserts, mean that “the court has no duty” to provide an “on-the-record explanation” of its reasons. Brief for United States 12, 19. We need not go so far. Even assuming (purely for argument’s sake) district courts have equivalent duties when initially sentencing a defendant and when later modifying the sentence, what the District Court did here was sufficient. At the original sentencing, the judge “must adequately explain the chosen sentence to allow for meaningful appellate review.” 552 U. S., at 50; see also Rita, 551 U. S., at 356 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority”). Just how much of an explanation this requires, however, depends, as we have said, upon the circumstances of the particular case. Id., at 356–357. In some cases, it may be sufficient for purposes of appellate review that the judge simply relied upon the record, while making clear that he or she has considered the parties’ arguments and taken account of the §3553(a) factors, among others. But in other cases, more explanation may be necessary (depending, perhaps, upon the legal arguments raised at sentencing, see id., at 357). That may be the case even when there is little evidence in the record affirmatively showing that the sentencing judge failed to consider the §3553(a) factors. If the court of appeals considers an explanation inadequate in a particular case, it can send the case back to the district court for a more complete explanation. Cf. Molina-Martinez v. United States, 578 U. S. ___, ___ (2016) (slip op., at 15) (“[A]ppellate courts retain broad discretion in determining whether a remand for resentencing is necessary”). B Petitioner argues that the judge should have explained more here because there is, or should be, some kind of presumption that the judge will choose a point within the new lower Guidelines range that is “proportional” to the point previously chosen in the older higher Guidelines range. We are not aware of any law or any convincing reason, however, suggesting that this is so. As a technical matter, determining just what “proportionality” means in this context would often prove difficult when the sentence is somewhere in the middle of the Guidelines range. The Sentencing Table calculates punishments according to a logarithmic scale. Take petitioner’s original and amended Guidelines ranges, for example. The original range was 135 to 168 months, a difference of 33 months. The amended range, by comparison, is 108 to 135 months, a difference of 27 months. And viewed logarithmically, what may seem the middle of a new lower range is not necessarily proportionate to what may seem the middle of the old higher range. Nothing in the Guidelines, or elsewhere, encourages arguments about such matters among lawyers or judges who are not experts in advanced mathematics. More importantly, the Guidelines ranges reflect to some degree what many, perhaps most, judges believed in the pre-Guidelines era was a proper sentence based upon the criminal behavior at issue and the characteristics of the offender. Thus, a judge’s choice among points on a range will often simply reflect the judge’s belief that the chosen sentence is the “right” sentence (or as close as possible to the “right” sentence) based on various factors, including those found in §3553(a). Insofar as that is so, it is unsurprising that changing the applicable range may lead a judge to choose a nonproportional point on the new range. We see nothing that favors the one or the other. So, as is true of most Guidelines sentences, the judge need not provide a lengthy explanation if the “context and the record” make clear that the judge had “a reasoned basis” for reducing the defendant’s sentence. Rita, supra, at 356, 359. C Turning to the facts of this case, we find that the District Court’s explanation satisfies the standard we used in Rita and Gall, assuming it applies to sentence modifications. In Rita, as we earlier said, we upheld as lawful a sentencing judge’s explanation that stated simply that the Guidelines sentence imposed was “ ‘appropriate.’ ” 551 U. S., at 358. We noted that, in respect to the brevity or length of the reasons the judge gives for imposing a particular Guidelines sentence, the “law leaves much” to “the judge’s own professional judgment.” Id., at 356. We pointed out that the sentencing judge in that case had “set forth enough to satisfy the appellate court that he ha[d] considered the parties’ arguments and ha[d] a reasoned basis for exercising his own legal decisionmaking author- ity.” Ibid. The same is true here. At petitioner’s original sentencing, he sought a variance from the Guidelines range (135 to 168 months) on the ground that his history and family circumstances warranted a lower sentence. The judge denied his request. In doing so, the judge noted that he had “consulted the sentencing factors of 18 U. S. C. 3553(a)(1).” He explained that the “reason the guideline sentence is high in this case, even the low end of 135 months, is because of the [drug] quantity.” He pointed out that petitioner had “distributed 1.7 kilograms of actual methamphetamine,” a “significant quantity.” And he said that “one of the other reasons that the penalty is severe in this case is because of methamphetamine.” He elaborated this latter point by stating that he had “been doing this a long time, and from what [he] gather[ed] and what [he had] seen, methamphetamine, it destroys individual lives, it destroys families, it can destroy communities.” App. 25. This record was before the judge when he considered petitioner’s request for a sentence modification. He was the same judge who had sentenced petitioner originally. Petitioner asked the judge to reduce his sentence to 108 months, the bottom of the new range, stressing various educational courses he had taken in prison. The Government pointed to his having also broken a moderately serious rule while in prison. The judge certified (on a form) that he had “considered” petitioner’s “motion” and had “tak[en] into account” the relevant Guidelines policy statements and the §3553(a) factors. Id., at 106–107 (under seal). He then reduced the sentence to 114 months. The record as a whole strongly suggests that the judge originally believed that, given petitioner’s conduct, 135 months was an appropriately high sentence. So it is unsurprising that the judge considered a sentence somewhat higher than the bottom of the reduced range to be appropriate. As in Rita, there was not much else for the judge to say. The dissent would have us ignore the record from the initial sentencing and consider only what the judge said when modifying petitioner’s sentence. See post, at 4-5 (opinion of Kennedy, J.). But, as we have made clear before, a sentence modification is “not a plenary resentencing proceeding.” Dillon, 560 U. S., at 826. We therefore need not turn a blind eye to what the judge said at petitioner’s initial sentencing. The dissent suggests the judge’s failure to grant petitioner a proportional reduction “limits the relevance of the initial sentencing proceeding.” Post, at 5. To the contrary, the record of the initial sentencing sheds light on why the court picked a point slightly above the bottom of the reduced Guidelines range when it modified petitioner’s sentence. Our decision is not (as the dissent claims) based on mere “speculation.” Post, at 7. Rather, we simply find the record as a whole satisfies us that the judge “considered the parties’ arguments and ha[d] a reasoned basis for exercising his own legal decisionmaking authority.” Rita, supra, at 356. This is not to say that a disproportionate sentence reduction never may require a more detailed explanation. It could be that, under different facts and a different record, the district court’s use of a barebones form order in response to a motion like petitioner’s would be inadequate. As we said above, the courts of appeals are well suited to request a more detailed explanation when necessary. See supra, at 6. The dissent asserts that appellate courts would not need to remand for further explanation if district courts provided an additional “short statement or check[ed] additional boxes” on the form order. Post, at 8. That may be so, and nothing in this decision prevents judges from saying more when, in their professional judgment, saying more is appropriate. Providing a more detailed statement of reasons often serves “a salutary purpose” separate and apart from facilitating appellate review. Rita, 551 U. S., at 357. But our task here is to decide the case before us. And given the simplicity of this case, the judge’s awareness of the arguments, his consideration of the relevant sentencing factors, and the intuitive reason why he picked a sentence above the very bottom of the new range, the judge’s explanation (minimal as it was) fell within the scope of the lawful professional judgment that the law confers upon the sentencing judge. See Id. at 356. The Court of Appeals concluded the same. Its judgment is therefore affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Chavez-Meza v. United States certiorari to the united states court of appeals for the tenth circuit No. 17–5639. Argued April 23, 2018—Decided June 18, 2018 The Federal Sentencing Guidelines require a sentencing judge to first identify the recommended Guidelines sentencing range based on certain offender and offense characteristics. The judge might choose a penalty within that Guidelines range, or the judge may “depart” or “vary” from the Guidelines and select a sentence outside the range. See United States v. Booker, 543 U. S. 220, 258–265. Either way, the judge must take into account certain statutory sentencing factors, see 18 U. S. C. §3553(a), and must “state in open court the reasons for [imposing] the particular sentence,” §3553(c). But when it comes to how detailed that statement of reasons must be, “[t]he law leaves much . . . to the judge’s own professional judgment.” Rita v. United States, 551 U. S. 338, 356. The explanation need not be lengthy, especially where “a matter is . . . conceptually simple . . . and the record makes clear that the sentencing judge considered the evidence and arguments.” Id., at 359. Here, petitioner pleaded guilty to possessing methamphetamine with intent to distribute. The judge reviewed the Guidelines, determined the range to be 135 to 168 months, and imposed a sentence at the bottom of the range. The Sentencing Commission later lowered the relevant range to 108 to 135 months, and petitioner sought a sentence reduction under §3582(c)(2). Petitioner asked the judge to reduce his sentence to the bottom of the new range, but the judge reduced petitioner’s sentence to 114 months instead. The order was entered on a form certifying that the judge had “considered” petitioner’s “motion” and had “tak[en] into account” the §3553(a) factors and the relevant Guidelines policy statement. On appeal, petitioner argued the sentencing judge did not adequately explain why he rejected petitioner’s request for a 108-month sentence. The Court of Appeals affirmed. Held: Because the record as a whole demonstrates the judge had a reasoned basis for his decision, the judge’s explanation for petitioner’s sentence reduction was adequate. . (a) The Government argues petitioner was not entitled to an explanation at all because the statute governing sentence-modification motions does not expressly require a sentencing judge to state his reasons for imposing a particular sentence. See §3582(c)(2). It is unnecessary to go as far as the Government urges, however, because, even assuming the District Court had a duty to explain its reasons when modifying petitioner’s sentence, what the court did here was sufficient. . (b) Petitioner contends that a district court must explain its reasoning in greater detail when the court imposes a “disproportionate” sentence reduction—that is, when the court reduces the prisoner’s sentence to a different point in the amended Guidelines range than the court previously selected in the original Guidelines range. That argument is unconvincing. As a technical matter, determining “proportionality” may prove difficult when the sentence is somewhere in the middle of the range. More importantly, the choice among points on the Guidelines range often reflects the belief that the chosen sentence is the “right” sentence based on various factors, including those found in §3553(a). If the applicable Guidelines range is later reduced, it is unsurprising that the sentencing judge may choose a non-proportional point in the new range. . (c) Even assuming that a judge reducing a prisoner’s sentence must satisfy the same explanation requirement that applies at an original sentencing, the District Court’s explanation was adequate. At the original sentencing, petitioner asked for a downward variance from the Guidelines range, which the judge denied. The judge observed that petitioner’s sentence was high because of the destructiveness of methamphetamine and the quantity involved. The record from the original sentencing was before the judge—the same judge who imposed the original sentence—when he considered petitioner’s sentence-modification motion. By entering the form order, the judge certified that he had “considered” petitioner’s “motion” and had “tak[en] into account” the §3553(a) factors and the relevant Guidelines policy statement. Because the record as a whole suggests the judge originally believed that 135 months was an appropriately high sentence in light of petitioner’s offense conduct, it is unsurprising that he considered a sentence somewhat higher than the bottom of the reduced range to be appropriate as well. That is not to say that a disproportionate sentence reduction never may require a more detailed explanation. But given the simplicity of this case, the judge’s awareness of the arguments, his consideration of the relevant sentencing factors, and the intuitive reason why he picked a sentence above the very bottom of the new range, his explanation fell within the scope of lawful professional judgment that the law confers upon the sentencing judge. . 854 F. 3d 655, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined. Gorsuch, J., took no part in the consideration or decision of the case.

Pursuant to its statutory authority, the Sentencing Commission lowered the applicable Guidelines sentencing range from 135 to 168 months' imprisonment to 108 to 135 months. Petitioner, who had pleaded guilty to possessing methamphetamine with the intent to distribute it, sought a sentence modification under 18 U.S. C. §3553(c), which requires the judge to consider certain listed characteristics of the offender and the offense for which he was convicted. The judge, however, must always take account of certain statutory factors, and must state in open court the reasons for imposition of the particular sentence. If the sentence is outside the Guidelines range (whether because of a "departure" or a "variance"), the judge must state the specific reason for the imposition of a different sentence. The order was entered on a form certified by the Administrative Office of the United States Courts certified that the judge had considered petitioner's motion and had taken account of the relevant statutory factors. The Court of Appeals rejected petitioner's argument that the court did not adequately explain why he rejected his 108-month request. Held: The District Court properly explained the sentence modification to petitioner.. (a) The statute governing sentence-modification motions does not insist that the sentencing judge provide a reason for imposing a sentence at a particular point within the range, and does not require that the offender be present in court at the time the reduced sentence is imposed. Rita v. United States, 551 U. S. 338 (citing Fed. Rule Crim. Proc. 43(b)(4)). P.. (b) The record satisfies the standard used in Rita and Gall, assuming it applies to sentence modifications. Here, the judge need not provide a lengthy explanation if the context and the record make clear that he had a reasoned basis for reducing the defendant to a sentence of 114 months rather than 114 months. Pp. 356. (c) The fact that the District Court provided an on-the-record explanation of its reasons does not alone secure it a virtually automatic victory. That is because, unlike an ordinary Guidelines sentencing case, the statute governing sentence modification motions, unlike §3582(c)(1) -- which requires a sentencing judge to provide a reason for imposing a sentence within a particular range and also requires that the appellate court review the legal arguments raised at sentencing and allow the judge sufficient authority to satisfy his own legal authority for exercising that authority. In some cases, more explanation may be necessary, but in other cases more explanation is necessary. . 854 F. 3d 655 (CA10 2017), affirmed. JUSTICE GINSBURGER, C.J., took no part in the consideration or decision of this case.

2017_17-432

https://www.oyez.org/cases/2017/17-432

. This case concerns the tolling rule first stated in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). The Court held in American Pipe that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where class-action status has been denied, the Court further ruled, members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. See id., at 544, 552–553. Later, in Crown, Cork & Seal Co. v. Parker, 462 U. S. 345 (1983), the Court clarified American Pipe’s tolling rule: The rule is not dependent on intervening in or joining an existing suit; it applies as well to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene . . . once the economies of a class action [are] no longer available.” 462 U. S., at 350, 353–354; see California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___ (2017) (slip op., at 13) (American Pipe “permitt[ed] a class action to splinter into individual suits”); Smith v. Bayer Corp., 564 U. S. 299, 313–314, n. 10 (2011) (under American Pipe tolling rule, “a putative member of an uncertified class may wait until after the court rules on the certification motion to file an individual claim or move to intervene in the [existing] suit”). The question presented in the case now before us: Upon denial of class certification, may a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations? Our answer is no. American Pipe tolls the statute of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims if the class fails. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations. I The instant suit is the third class action brought on behalf of purchasers of petitioner China Agritech’s common stock, alleging violations of the Securities Exchange Act of 1934, 48Stat. 881, as amended, 15 U. S. C. §78a et seq. In short, the successive complaints each make materially identical allegations that China Agritech engaged in fraud and misleading business practices, causing the company’s stock price to plummet when several reports brought the misconduct to light. See App. 60–100 (Resh complaint), 205–235 (Smyth complaint), 133–156 (Dean complaint). The Exchange Act has a two-year statute of limitations that begins to run upon discovery of the facts constituting the violation. 28 U. S. C. §1658(b). The Act also has a five-year statute of repose. Ibid.[1] The parties agree that the accrual date for purposes of the two-year limitation period is February 3, 2011, and for the five-year repose period, November 12, 2009. Brief for Respondents 8, n. 3. Theodore Dean, a China Agritech shareholder, filed the first class-action complaint on February 11, 2011, at the start of the two-year limitation period. As required by the Private Securities Litigation Reform Act of 1995 (PSLRA), 109Stat. 737, Dean’s counsel posted notice of the action in two “widely circulated national business-oriented publication[s],” 15 U. S. C. §78u–4(a)(3)(A)(i), and invited any member of the purported class to move to serve as lead plaintiff. App. 274–280. Six shareholders responded to the notice, seeking to be named lead plaintiffs; other shareholders who had filed their own class complaints dismissed them in view of the Dean action. On May 3, 2012, after several months of discovery and deferral of a lead-plaintiff ruling, the District Court denied class certification. The plaintiffs, the District Court determined, had failed to establish that China Agritech stock traded on an efficient market—a necessity for proving reliance on a classwide basis. App. 192. Dean’s counsel then published a notice informing shareholders of the certification denial and advising: “You must act yourself to protect your rights. You may protect your rights by joining in the current Action as a plaintiff or by filing your own action against China Agritech.” Id., at 281–282. The Dean action settled in September 2012, occasioning dismissal of the suit. See 857 F. 3d 994, 998 (CA9 2017). On October 4, 2012—within the two-year statute of limitations—Dean’s counsel filed a new complaint (Smyth) with a new set of plaintiffs and new efficient-market evidence. Eight shareholders responded to the PSLRA notice, seeking lead-plaintiff appointment. The District Court again denied class certification, this time on typicality and adequacy grounds. See App. 254. Thereafter, the Smyth plaintiffs settled their individual claims with the defendants and voluntarily dismissed their suit. Because the Smyth litigation was timely commenced, putative class members who promptly initiated individual suits in the wake of the class-action denial would have encountered no statute of limitations bar. Respondent Michael Resh, who had not sought lead-plaintiff status in either the Dean or Smyth proceedings and was represented by counsel who had not appeared in the earlier actions, filed the present suit on June 30, 2014, styling it a class action—a year and a half after the statute of limitations expired. The other respondents moved to intervene, seeking designation as lead plaintiffs; together with Resh, they filed an amended complaint. The District Court dismissed the class complaint as untimely, holding that the Dean and Smyth actions did not toll the time to initiate class claims. App. to Pet. for Cert. 36a. The Court of Appeals for the Ninth Circuit reversed: “[P]ermitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling,” the court reasoned, “would advance the policy objectives that led the Supreme Court to permit tolling in the first place.” 857 F. 3d, at 1004. Applying American Pipe tolling to successive class actions, the Ninth Circuit added, would cause no unfair surprise to defendants and would promote economy of litigation by reducing incentives for filing protective class suits during the pendency of an initial certification motion. 857 F. 3d, at 1004. We granted certiorari, 583 U. S. ___ (2017), in view of a division of authority among the Courts of Appeals over whether otherwise-untimely successive class claims may be salvaged by American Pipe tolling. Compare the instant case and Phipps v. Wal-Mart Stores, Inc., 792 F. 3d 637, 652–653 (CA6 2015) (applying American Pipe tolling to successive class action), with, e.g., Basch v. Ground Round, Inc., 139 F. 3d 6, 11 (CA1 1998) (“Plaintiffs may not stack one class action on top of another and continue to toll the statute of limitations indefinitely.”); Griffin v. Singletary, 17 F. 3d 356, 359 (CA11 1994) (similar); Korwek v. Hunt, 827 F. 2d 874, 879 (CA2 1987) (American Pipe does not apply to successive class suits); Salazar-Calderon v. Presidio Valley Farmers Assn., 765 F. 2d 1334, 1351 (CA5 1985) (“Plaintiffs have no authority for their contention that putative class members may piggyback one class action onto another and thus toll the statute of limitations indefinitely, nor have we found any.”). See also Yang v. Odom, 392 F. 3d 97, 112 (CA3 2004) (American Pipe tolling does not apply to successive class actions where certification was previously denied due to a class defect, but does apply when certification was denied based on the putative representative’s deficiencies). II A American Pipe established that “the commencement of the original class suit tolls the running of the statute [of limitations] for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” 414 U. S., at 553. “A contrary rule,” the Court reasoned in American Pipe, “would deprive [Federal Rule of Civil Procedure] 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure.” Ibid. This is so, the Court explained, because without tolling, “[p]otential class members would be induced to file protective motions to intervene or to join in the event that a class was later found unsuitable.” Ibid. In Crown, Cork, the Court further elaborated: Failure to extend the American Pipe rule “to class members filing separate actions,” in addition to those who move to intervene, would result in “a needless multiplicity of actions” filed by class members preserving their individual claims—“precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.” 462 U. S., at 351. American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial. See, e.g., American Pipe, 414 U. S., at 552 (addressing “privilege of intervening in an individual suit”); Crown, Cork, 462 U. S., at 349 (applying American Pipe to those who “file individual actions”); 462 U. S., at 352 (tolling benefits “class members who choose to file separate suits”). What about a putative class representative, like Resh, who brings his claims as a new class action after the statute of limitations has expired? Neither decision so much as hints that tolling extends to otherwise time-barred class claims. We hold that American Pipe does not permit a plaintiff who waits out the statute of limitations to piggyback on an earlier, timely filed class action. The “efficiency and economy of litigation” that support tolling of individual claims, American Pipe, 414 U. S., at 553, do not support maintenance of untimely successive class actions; any additional class filings should be made early on, soon after the commencement of the first action seeking class certification. American Pipe tolls the limitation period for individual claims because economy of litigation favors delaying those claims until after a class-certification denial. If certification is granted, the claims will proceed as a class and there would be no need for the assertion of any claim individually. If certification is denied, only then would it be necessary to pursue claims individually. With class claims, on the other hand, efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best plaintiff with knowledge of the full array of po- tential class representatives and class counsel. And if the class mechanism is not a viable option for the claims, the decision denying certification will be made at the outset of the case, litigated once for all would-be class representatives.[2] Rule 23 evinces a preference for preclusion of untimely successive class actions by instructing that class certification should be resolved early on. See Fed. Rule Civ. Proc. 23(c)(1)(A). Indeed, Rule 23(c) was amended in 2003 to permit district courts to take account of multiple class-representative filings. Before the amendment, Rule 23(c) encouraged district courts to issue certification rulings “as soon as practicable.” The amendment changed the recommended timing target to “an early practicable time.” The alteration was made to allow greater leeway, more time for class discovery, and additional time to “explore designation of class counsel” and consider “additional [class counsel] applications rather than deny class certification,” thus “afford[ing] the best possible representation for the class.” Advisory Committee’s 2003 Note on subds. (c)(1)(A) and (g)(2)(A) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., pp. 815, 818; see Willging & Lee, From Class Actions to Multidistrict Consolidations: Aggregate Mass-Tort Litigation after Ortiz, 58 U. Kan. L. Rev. 775, 785 (2010) (2003 amendments “raised the standard for certifying a class from an early, conditional ruling to a later, relatively final decision” and “expand[ed] the opportunity for parties to engage in discovery prior to moving for class certification”). The PSLRA, which governs this litigation, evinces a similar preference, this time embodied in legislation, for grouping class-representative filings at the outset of litigation. See supra, at 3. When the Dean and Smyth timely commenced actions were first filed, counsel put any shareholder who might wish to serve as lead plaintiff on notice of the action. Several heeded the call—six in Dean and eight in Smyth. See 857 F. 3d, at 997–998. The PSLRA, by requiring notice of the commencement of a class action, aims to draw all potential lead plaintiffs into the suit so that the district court will have the full roster of contenders before deciding which contender to appoint.[3] See Brief for Securities Industry and Financial Markets Association as Amicus Curiae 12–13 (PSLRA “seeks to achieve Congress[’] goal of curbing duplicative . . . litigation by encouraging all interested parties to apply to serve as lead plaintiff at the early stages of the case [and] providing for the consolidation of similar class actions”). With notice and the opportunity to participate in the first (and second) round of class litigation, there is little reason to allow plaintiffs who passed up those opportunities to enter the fray several years after class proceedings first commenced. Ordinarily, to benefit from equitable tolling, plaintiffs must demonstrate that they have been diligent in pursuit of their claims. See, e.g., McQuiggin v. Perkins, 569 U. S. 383, 391 (2013); Menominee Tribe of Wis. v. United States, 577 U. S. ___, ___ (2016) (slip op., at 5). Even American Pipe, which did not analyze “criteria of the formal doctrine of equitable tolling in any direct manner,” ANZ, 582 U. S., at ___–___ (slip op., at 10–11), observed that tolling was permissible in the circumstances because plaintiffs who later intervened to pursue individual claims had not slept on their rights, American Pipe, 414 U. S., at 554–555. Those plaintiffs reasonably relied on the class representative, who sued timely, to protect their interests in their individual claims. See Crown, Cork, 462 U. S., at 350. A would-be class representative who commences suit after expiration of the limitation period, however, can hardly qualify as diligent in asserting claims and pursuing relief. Her interest in representing the class as lead plaintiff, therefore, would not be preserved by the prior plaintiff’s timely filed class suit. Respondents’ proposed reading would allow the statute of limitations to be extended time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation. See Yang, 392 F. 3d, at 113 (Alito, J., concurring in part and dissenting in part) (tolling for successive class actions could allow “lawyers seeking to represent a plaintiff class [to] extend the statute of limitations almost indefinitely until they find a district court judge who is willing to certify the class”); Ewing Industries Corp. v. Bob Wines Nursery, Inc., 795 F. 3d 1324, 1326 (CA11 2015) (tolling for successive class actions allows plaintiffs “limitless bites at the apple”).[4] This prospect points up a further distinction between the individual-claim tolling established by American Pipe and tolling for successive class actions. The time to file individual actions once a class action ends is finite, extended only by the time the class suit was pending; the time for filing successive class suits, if tolling were allowed, could be limitless. Respondents’ claims happen to be governed by 28 U. S. C. §1658(b)(2)’s five-year statute of repose, so the time to file complaints has a finite end. Statutes of repose, however, are not ubiquitous. See Dekalb County Pension Fund v. Transocean Ltd., 817 F. 3d 393, 397 (CA2 2016). Most statutory schemes provide for a single limitation period without any outer limit to safeguard against serial relitigation. Endless tolling of a statute of limitations is not a result envisioned by American Pipe.[5] B Respondents emphasize that in Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393 (2010), we said that “a class action may be maintained,” id., at 398 (internal quotation marks omitted), if the requirements of Rule 23(a) and (b) are satisfied, and “Rule 23 automatically applies in all civil actions and proceedings in the United States district courts,” id., at 400 (internal quotation marks omitted). See Brief for Respondents 21–23. If Resh’s suit meets the requirements of Rule 23(a) and (b), respondents assert, there is no reason why Resh’s suit cannot proceed as a class action. Shady Grove does not call for that outcome. In Shady Grove, the Court held that a federal diversity action could proceed under Rule 23 despite a state law prohibiting class treatment of suits seeking damages of the kind asserted in the Shady Grove complaint. 559 U. S., at 396, 416. Our opinion in Shady Grove addressed a case in which a Rule 23 class action could have been maintained absent a contrary state-law command. Id., at 396. Resh’s case presents the reverse situation: The class action would be untimely unless saved by American Pipe’s equitable-tolling exception to statutes of limitations. Rule 23 itself does not address timeliness of claims or tolling and nothing in the Rule calls for the revival of class claims if individual claims are tolled. In fact, as already explained, Rule 23 prescribes the opposite result. See supra, at 6–8. Today’s clarification of American Pipe’s reach does not run afoul of the Rules Enabling Act by causing a plaintiff’s attempted recourse to Rule 23 to abridge or modify a substantive right. See Brief for Respondents 23–26 (citing Tyson Foods, Inc. v. Bouaphakeo, 577 U. S. ___ (2016)). Plaintiffs have no substantive right to bring their claims outside the statute of limitations. That they may do so, in limited circumstances, is due to a judicially crafted tolling rule that itself does not abridge, enlarge, or modify any substantive right. American Pipe, 414 U. S., at 558. Without American Pipe, respondents would have no peg to seek tolling here; as we have explained, however, American Pipe does not provide for the extension of the statute of limitations sought by Resh for institution of an untimely third class suit. Respondents urge that American Pipe’s logic in fact supports their position because declining to toll the limitation period for successive class suits will lead to a “needless multiplicity” of protective class-action filings. Brief for Respondents 32–34. See also post, at 6–7 (expressing concern about duplicative and dueling class actions). But there is little reason to think that protective class filings will substantially increase. Several Courts of Appeals have already declined to read American Pipe to permit a successive class action filed outside the limitation period. See supra, at 5; 3 W. Rubenstein, Newberg on Class Actions §9:64, n. 5 (5th ed. 2012). These courts include the Second and Fifth Circuits (no strangers to class-action practice); both courts declined to entertain out-of-time class actions in the 1980’s. See Korwek, 827 F. 2d 874 (CA2 1987); Salazar-Calderon, 765 F. 2d 1334 (CA5 1985). Respondents and their amici make no showing that these Circuits have experienced a disproportionate number of duplicative, protective class-action filings. Amicus National Conference on Public Employee Retirement Systems cites examples of protective filings responding to courts’ disallowance of American Pipe tolling for statutes of repose, but those examples in fact suggest that protective class filings are uncommon. See Brief of the National Conference on Public Employee Retirement Systems as Amicus Curiae 7–8. Between dozens and hundreds of class plaintiffs filed protective individual claims while class-certification motions were pending in securities cases and the statute of repose was about to run out, placing a permanent bar against their claims. Ibid. But none of the plaintiffs appears to have filed a protective class action—even though, if the statute of repose expired and the pending class-certification motions were denied, there would be no further opportunity to assert class claims.[6] Nor do the incentives of class-action practice suggest that many more plaintiffs will file protective class claims as a result of our holding. Any plaintiff whose individual claim is worth litigating on its own rests secure in the knowledge that she can avail herself of American Pipe tolling if certification is denied to a first putative class. The plaintiff who seeks to preserve the ability to lead the class—whether because her claim is too small to make an individual suit worthwhile or because of an attendant financial benefit[7]—has every reason to file a class action early, and little reason to wait in the wings, giving another plaintiff first shot at representation. In any event, as previously explained, see supra, at 6–8, a multiplicity of class-action filings is not necessarily “needless.” Indeed, multiple filings may aid a district court in determining, early on, whether class treatment is warranted, and if so, which of the contenders would be the best representative. And sooner rather than later filings are just what Rule 23 encourages. See ibid. Multiple timely filings might not line up neatly; they could be filed in different districts, at different times—perhaps when briefing on class certification has already begun—or on behalf of only partially overlapping classes. See Wasserman, Dueling Class Actions, 80 B. U. L. Rev. 461, 464–465 (2000) (describing variety of “dueling” class filings). But district courts have ample tools at their disposal to manage the suits, including the ability to stay, consolidate, or transfer proceedings. District courts are increasingly familiar with overseeing such complex cases, given the surge in multidistrict litigation. See Cabraser & Issacharoff, The Participatory Class Action, 92 N. Y. U. L. Rev. 846, 850–851 (2017) (multidistrict litigation frequently combines individual suits and multiple putative class actions). The Federal Rules provide a range of mechanisms to aid courts in this endeavor. What the Rules do not offer is a reason to permit plaintiffs to exhume failed class actions by filing new, untimely class claims. * * * The watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. For all the above-stated reasons, it is the rule we adopt today: Time to file a class action falls outside the bounds of American Pipe. Accordingly, 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 A statute of limitations “begin[s] to run when the cause of action accrues—that is, when the plaintiff can file suit and obtain relief.” California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___ (2017) (slip op., at 5) (internal quotation marks omitted). A statute of repose, by contrast, “begin[s] to run on the date of the last culpable act or omission of the defendant.” Ibid. (internal quotation marks omitted). 2 Encouraging early class filings will help ensure sufficient time remains under the statute of limitations, in the event that certification is denied for one of the actions or a portion of the class. Subclasses might be pleaded in one or more complaints and taken up if necessary; as class discovery proceeds and weaknesses in the class theory or adequacy of representation come to light, the lead complaint might be amended or a new plaintiff might intervene. See Brief of Plaintiffs in Post-Dukes Successor Class Actions as Amici Curiae 8–10 (describing regional subclasses asserted in the Dukes v. Wal-Mart litigation following this Court’s decision decertifying the nationwide class, Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011)); Pierce, Improving Predictability and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339, 349 (2016) (some Dukes plaintiffs moved to amend the original complaint to replead subclasses). 3 Although the Private Securities Litigation Reform Act of 1995 (PSLRA), 109Stat. 737, includes a presumption that the most adequate plaintiff is the one who moves first and has the largest financial interest in the case, see 15 U. S. C. §78u–4(a)(3)(B)(iii)(I), multiple potential lead plaintiffs have reason to apply for the role because there may not be an obvious candidate. Which plaintiff has the largest financial interest may not be immediately apparent; the statute does not define the term, and the size of a shareholder’s financial interest can depend on how many shares were purchased and sold, when, and at what price, as well as the order in which the losses are tallied. See, e.g., Cortina v. Anavex Life Sciences Corp., 2016 WL 1337305 (SDNY, Apr. 5, 2016). District courts often permit aggregation of plaintiffs into plaintiff groups, so even a small shareholder could apply for lead-plaintiff status, hoping to join with other shareholders to create a unit with the largest financial interest. See Choi & Thompson, Securities Litigation and Its Lawyers: Changes During the First Decade After the PSLRA, 106 Colum. L. Rev. 1489, 1507, 1521, 1530 (2006) (80% of securities class actions in post-PSLRA data sample had two or more co-lead counsel firms). Thus, it is a reasonable expectation that, in litigation governed by the PSLRA, a district court will have several competing candidates for lead plaintiff to choose among. 4 Respondents observe that in Smith v. Bayer Corp., 564 U. S. 299 (2011), we held that federal class-certification denials do not have preclusive effect in subsequent state-court suits, despite concerns about successive class actions. See Brief for Respondents 40–41. But in Smith, we were guided by “the fundamental nature of the general rule that only parties can be bound by prior judgments.” 564 U. S., at 313 (internal quotation marks omitted). The state-court plaintiffs were not parties to the federal-court litigation, hence they could not be bound by its holding—despite a “stron[g] argument” about the inefficiencies of serial class relitigation supporting the contrary position. Id., at 316. No such countervailing presumption favors Resh’s untimely third federal class suit. 5 Justice Sotomayor suggests that the Court might adopt a rule under which tolling “becomes unavailable for future class claims where class certification is denied for a reason that bears on the suitability of the claims for class treatment,” but not where “class certification is denied because of the deficiencies of the lead plaintiff as class representative.” Post, at 5; see Yang v. Odom, 392 F. 3d 97, 112 (CA3 2004) (embracing similar rule). But Rule 23 contains no instruction to give denials of class certification different effect based on the reason for the denial. And as the Advisory Committee Notes explain, affording district courts time to consider competing claims for class representation will advance the likelihood that lead plaintiff or class counsel deficiencies will be discovered and acted upon early in the litigation. See supra, at 7–8. Rule 23 and putative class members’ own interests in adequate representation, and the efficient adjudication thereof, weigh heavily against tolling for successive class actions. There is nothing inequitable in following these guides. See post, at 5, n. 2. 6 The Second Circuit Petrobras litigation, referenced in amicus’ brief, illustrates that multiple timely class filings do not sow unmanageable chaos. Five class actions were filed there and consolidated, along with individual claims, for pretrial purposes, including class-certification determination. See In re Petrobras Securities, 862 F. 3d 250, 258 (CA2 2017). 7 The class representative might receive a share of class recovery above and beyond her individual claim. See, e.g., Cook v. Niedert, 142 F. 3d 1004, 1016 (CA7 1998) (affirming class representative’s $25,000 incentive award).

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 China Agritech, Inc. v. Resh et al. certiorari to the united states court of appeals for the ninth circuit No. 17–432. Argued March 26, 2018—Decided June 11, 2018 American Pipe & Constr. Co. v. Utah, 414 U. S. 538, established that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint and that members of a class that fails to gain certification can timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. American Pipe’s tolling rule also applies to putative class members who, after denial of class certification, “prefer to bring an individual suit rather than intervene.” Crown, Cork & Seal Co. v. Parker, 462 U. S. 345, 350. The question presented in this case is whether American Pipe tolling applies not only to individual claims, but to successive class actions as well. This suit is the third class action brought on behalf of purchasers of petitioner China Agritech’s common stock, alleging materially identical violations of the Securities Exchange Act of 1934. The Act has both a two-year statute of limitations and a five-year statute of repose, 28 U. S. C. §1658(b). Here, the accrual date for purposes of the Act’s limitation period is February 3, 2011, and for the repose period, November 12, 2009. Theodore Dean, a China Agritech shareholder, filed the first class-action complaint on February 11, 2011. As required by the Private Securities Litigation Reform Act of 1995 (PSLRA), his counsel posted notice of the action and invited any member of the purported class to move to serve as lead plaintiff. Six shareholders sought lead-plaintiff status. On May 3, 2012, the District Court denied class certification; the action settled in September 2012, and the suit was dismissed. On October 4, Dean’s counsel filed a new complaint (Smyth), still timely, with a new set of plaintiffs. Eight shareholders sought lead-plaintiff appointment in response to the PSLRA notice, but the District Court again denied class certification. Thereafter, the Smyth plaintiffs settled their individual claims and dismissed their suit. Respondent Michael Resh, who did not seek lead-plaintiff status in the earlier actions, filed the present class action in 2014, a year and a half after the statute of limitations expired. The other respondents moved to intervene in the suit commenced by Resh, seeking lead-plaintiff status. The District Court dismissed the class complaint as untimely, holding that the Dean and Smyth actions did not toll the time to initiate class claims. The Ninth Circuit reversed, holding that the reasoning of American Pipe extends to successive class claims. Held: Upon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing an individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations. . (a) American Pipe and Crown, Cork addressed only putative class members who wish to sue individually after a class-certification denial. The “efficiency and economy of litigation” that support tolling of individual claims, American Pipe, 414 U. S., at 553, do not support maintenance of untimely successive class actions such as the one brought by Resh. Economy of litigation favors delaying individual claims until after a class-certification denial. With class claims, on the other hand, efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best plaintiff with knowledge of the full array of potential class representatives and class counsel. And if the class mechanism is not a viable option, the decision denying certification will be made at the outset of the case, litigated once for all would-be class representatives. Federal Rule of Procedure 23 evinces a preference for preclusion of untimely successive class actions by instructing that class certification should be resolved early on. The PSLRA, which governs this litigation, evinces a similar preference, this time embodied in legislation providing for early notice and lead-plaintiff procedures. There is little reason to allow plaintiffs who passed up opportunities to participate in the first (and second) round of class litigation to enter the fray several years after class proceedings first commenced. Class representatives who commence suit after expiration of the limitation period are unlikely to qualify as diligent in asserting claims and pursuing relief. See, e.g., McQuiggin v. Perkins, 569 U. S. 383, 391. And respondents’ proposed reading would allow extension of the statute of limitations time and again; as each class is denied certification, a new named plaintiff could file a class complaint that resuscitates the litigation. Endless tolling of a statute of limitations is not a result envisioned by American Pipe. . (b) If Resh’s suit meets the requirements of Rule 23(a) and (b), respondents assert, the suit should be permitted to proceed as a class action in keeping with Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393. Shady Grove, however, addressed a case in which a Rule 23 class action could have been maintained absent a state law proscribing class actions, while Resh’s class action would be untimely unless saved by American Pipe’s tolling exception. Rule 23 itself does not address timeliness of claims or tolling and nothing in the Rule calls for the revival of class claims if individual claims are tolled. The clarification of American Pipe’s reach does not run afoul of the Rules Enabling Act by abridging or modifying a substantive right. Plaintiffs have no substantive right to bring claims outside the statute of limitations. Nor is the clarification likely to cause a substantial increase in the number of protective class-action filings. Several Courts of Appeals have already declined to read American Pipe to permit a successive class action filed outside the limitations period, and there is no showing that these Circuits have experienced a disproportionate number of duplicative, protective class-action filings. Multiple filings, moreover, could aid a district court in determining, early on, whether class treatment is warranted, and if so, who would be the best representative. The Federal Rules provide a range of mechanisms to aid district courts in overseeing complex litigation, but they offer no reason to permit plaintiffs to exhume failed class actions by filing new, untimely class claims. . 857 F. 3d 994, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed an opinion concurring in the judgment.

Upon denial of class certification, a putative class member, in lieu of promptly joining an existing suit or promptly filing an individual action, may commence a class action anew beyond the time allowed by the applicable statute of limitations. American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974), which held that the timely filing of an original class action tolls the applicable statutory limitations for all persons encompassed by the class complaint, does not permit unnamed class members to join the action individually or file individual claims if the class fails, but permits the maintenance of a follow-on class action past expiration of the limitations period. . (a) American Pipe establishes that commencement of the original class suit tolls §78u-4(a)(3)(A)(i) of the Securities Exchange Act of 1934 (Act), and invites any member of the purported class to move to serve as lead plaintiff. As required by the Private Securities Litigation Reform Act of 1995 (PSLRA), Dean, a China Agritech shareholder, posted notice of the action in two widely circulated national business-oriented publication[s], and invited any member to move. The District Court denied class certification on typicality and adequacy grounds, and the Smyth plaintiffs settled their individual claims with the defendants and voluntarily dismissed their suit. Respondents Resh and Resh, who had not sought lead-plaintiff status in either the Dean or Smyth proceedings, filed a new complaint (Smyth) with a new set of plaintiffs and new efficient-market evidence, and were represented by counsel who did not appear in the earlier actions, styling the present suit (a year and a half after the statute of limitations expired). Respondent Resh filed an amended complaint, which the District Court dismissed as untimely, holding that the Dean and Smyth actions did not toll the time to initiate class claims, and that, under the American Pipe tolling rule, the putative member of an uncertified class may wait until after the court rules on the certification motion to file an individual claim or move to intervene in the [existing] suit). The Court of Appeals reversed. Held: An otherwise-untimely successive class claim may not be salvaged by American Pipe. Although Rule 23 of the Act includes a presumption that the most adequate plaintiff is the one who moves first and has the largest financial interest in the case, it is a reasonable expectation that, in litigation governed by the Act, a district court will have several competing candidates for lead plaintiff to choose among. Shady Grove Orthopedic Associates, P. A. 559 U.S. 393 (CA5), distinguished. United States Rule Civ. Proc. 23(c)(1)(A) and Rule 23 automatically apply in all civil actions and proceedings in the United States district courts. A multiplicity of class-action filings is not necessarily needed, and sooner rather than later filings are just what Rule 23 encourages. Pp. 462 U. s. ___. (b) The contrary rule, allowing no tolling for out-of-time class actions, will propel putatively class representatives to file suit well within the limitation period and seek certification promptly. Time to file a class falls outside the bounds of American Pipe, and, contrary to Rule 23, will not serve that purpose. There is little reason to think that protective class filings will substantially increase. Several Courts of Appeals have declined to permit a successive class action. See, e.g., Amicus Curiae 827 F. 3d 1004, n. 5.. 857 F.3d, 1004 (CA9), reversed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, at 5. MARSHALL, J., took no part in the consideration or decision of the case.

2017_16-424

https://www.oyez.org/cases/2017/16-424

. Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal. I In September 2013, a federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked in a lot on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. §5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Soon thereafter, Class, appearing pro se, asked the Federal District Court for the District of Columbia to dismiss the indictment. As relevant here, Class alleged that the statute, §5104(e), violates the Second Amendment. App. in No. 15–3015 (CADC), pp. 32–33. He also raised a due process claim, arguing that he was denied fair notice that weapons were banned in the parking lot. Id., at 39. Following a hearing, the District Court denied both claims. App. to Pet. for Cert. 9a. Several months later, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. §5104(e).” App. 30. The Government agreed to drop related charges. Id., at 31. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he expressly agreed to waive. Those express waivers included: (1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investigation and prosecution of his criminal case. Id., at 38–42. At the same time, the plea agreement expressly enumerated categories of claims that Class could raise on appeal, including claims based upon (1) newly discovered evidence; (2) ineffective assistance of counsel; and (3) certain statutes providing for sentence reductions. Id., at 41. Finally, the plea agreement stated under the heading “Complete Agreement”: “No agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements . . . be made unless committed to writing and signed . . . .” Id., at 45. The agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional. The District Court held a plea hearing during which it reviewed the terms of the plea agreement (with Class present and under oath) to ensure the validity of the plea. See Fed. Rule Crim. Proc. 11(b); United States v. Ruiz, 536 U. S. 622, 629 (2002) (defendant’s guilty plea must be “ ‘voluntary’ ” and “related waivers” must be made “ ‘knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences’ ”). After providing Class with the required information and warnings, the District Court accepted his guilty plea. Class was sentenced to 24 days imprisonment followed by 12 months of supervised release. Several days later, Class appealed his conviction to the Court of Appeals for the District of Columbia Circuit. Class was appointed an amicus to aid him in presenting his arguments. He repeated his constitutional claims, namely, that the statute violates the Second Amendment and the Due Process Clause because it fails to give fair notice of which areas fall within the Capitol Grounds where firearms are banned. The Court of Appeals held that Class could not raise his constitutional claims because, by pleading guilty, he had waived them. App. to Pet. for Cert. 1a–5a. Class filed a petition for certiorari in this Court asking us to decide whether in pleading guilty a criminal defendant inherently waives the right to challenge the constitutionality of his statute of conviction. We agreed to do so. II The question is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty. As we shall explain, this holding flows directly from this Court’s prior decisions. Fifty years ago this Court directly addressed a similar claim (a claim that the statute of conviction was unconstitutional). And the Court stated that a defendant’s “plea of guilty did not . . . waive his previous [constitutional] claim.” Haynes v. United States, 390 U. S. 85 , n. 2 (1968). Though Justice Harlan’s opinion for the Court in Haynes offered little explanation for this statement, subsequent decisions offered a rationale that applies here. In Blackledge v. Perry, 417 U. S. 21 (1974) , North Carolina indicted and convicted Jimmy Seth Perry on a misdemeanor assault charge. When Perry exercised his right under a North Carolina statute to a de novo trial in a higher court, the State reindicted him, but this time the State charged a felony, which carried a heavier penalty, for the same conduct. Perry pleaded guilty. He then sought habeas relief on the grounds that the reindictment amounted to an unconstitutional vindictive prosecution. The State argued that Perry’s guilty plea barred him from raising his constitutional challenge. But this Court held that it did not. The Court noted that a guilty plea bars appeal of many claims, including some “ ‘antecedent constitutional violations’ ” related to events (say, grand jury proceedings) that had “ ‘occurred prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U. S. 258 –267 (1973)). While Tollett claims were “of constitutional dimension,” the Court explained that “the nature of the underlying constitutional infirmity is markedly different” from a claim of vindictive prosecution, which implicates “the very power of the State” to prosecute the defendant. Blackledge, 417 U. S., at 30. Accordingly, the Court wrote that “the right” Perry “asserts and that we today accept is the right not to be haled into court at all upon the felony charge” since “[t]he very initiation of the proceedings” against Perry “operated to deprive him due process of law.” Id., at 30–31. A year and a half later, in Menna v. New York, 423 U. S. 61 (1975) (per curiam), this Court repeated what it had said and held in Blackledge. After Menna served a 30-day jail term for refusing to testify before the grand jury on November 7, 1968, the State of New York charged him once again for (what Menna argued was) the same crime. Menna pleaded guilty, but subsequently appealed arguing that the new charge violated the Double Jeopardy Clause. U. S. Const., Amdt. 5. The lower courts held that Menna’s constitutional claim had been “waived” by his guilty plea. This Court reversed. Citing Blackledge, supra, at 30, the Court held that “a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.” Menna, 423 U. S., at 63, and n. 2. Menna’s claim amounted to a claim that “the State may not convict” him “no matter how validly his factual guilt is established.” Ibid. Menna’s “guilty plea, therefore, [did] not bar the claim.” Ibid. These holdings reflect an understanding of the nature of guilty pleas which, in broad outline, stretches back nearly 150 years. In 1869 Justice Ames wrote for the Supreme Judicial Court of Massachusetts: “The plea of guilty is, of course, a confession of all the facts charged in the indictment, and also of the evil intent imputed to the defendant. It is a waiver also of all merely technical and formal objections of which the defendant could have availed himself by any other plea or motion. But if the facts alleged and admitted do not constitute a crime against the laws of the Commonwealth, the defendant is entitled to be discharged.” Commonwealth v. Hinds, 101 Mass. 209, 210. Decisions of federal and state courts throughout the 19th and 20th centuries reflect a similar view of the nature of a guilty plea. See United States v. Ury, 106 F. 2d 28 (CA2 1939) (holding the “plea of guilty did not foreclose the appellant,” who argued that a statute was unconstitutional, “from the review he now seeks” (citing earlier cases)); Hocking Valley R. Co. v. United States, 210 F. 735 (CA6 1914) (holding that a defendant may raise the claim that, because the indictment did not charge an offense no crime has been committed, for it is “the settled rule that,” despite a guilty plea, a defendant “may urge” such a contention “in the reviewing court”); Carper v. State, 27 Ohio St. 572, 575 (1875) (same). We refer to these cases because it was against this background that Justice Harlan in his opinion for the Court made the statement to which we originally referred, namely, that a defendant’s “plea of guilty did not, of course, waive his previous [constitutional] claim.” Haynes, 390 U. S., at 87, n. 2 (citing Ury, supra, at 28). In more recent years, we have reaffirmed the Menna- Blackledge doctrine and refined its scope. In United States v. Broce, 488 U. S. 563 (1989) , the defendants pleaded guilty to two separate indictments in a single proceeding which “on their face” described two separate bid-rigging conspiracies. Id., at 576. They later sought to challenge their convictions on double jeopardy grounds, arguing that they had only admitted to one conspiracy. Citing Blackledge and Menna, this Court repeated that a guilty plea does not bar a claim on appeal “where on the face of the record the court had no power to enter the conviction or impose the sentence.” 488 U. S., at 569. However, because the defendants could not “prove their claim by relying on those indictments and the existing record” and “without contradicting those indictments,” this Court held that their claims were “foreclosed by the admissions inherent in their guilty pleas.” Id., at 576. Unlike the claims in Broce, Class’ constitutional claims here, as we understand them, do not contradict the terms of the indictment or the written plea agreement. They are consistent with Class’ knowing, voluntary, and intelligent admission that he did what the indictment alleged. Those claims can be “resolved without any need to venture beyond that record.” Id., at 575. Nor do Class’ claims focus upon case-related constitutional defects that “ ‘occurred prior to the entry of the guilty plea.’ ” Blackledge, 417 U. S., at 30. They could not, for example, “have been ‘cured’ through a new indictment by a properly selected grand jury.” Ibid. (citing Tollett, 411 U. S., at 267). Because the defendant has admitted the charges against him, a guilty plea makes the latter kind of constitutional claim “irrelevant to the constitutional validity of the conviction.” Haring v. Prosise, 462 U. S. 306, 321 (1983) . But the cases to which we have referred make clear that a defendant’s guilty plea does not make irrelevant the kind of constitutional claim Class seeks to make. In sum, the claims at issue here do not fall within any of the categories of claims that Class’ plea agreement forbids him to raise on direct appeal. They challenge the Government’s power to criminalize Class’ (admitted) conduct. They thereby call into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Broce, supra, at 575 (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. III We are not convinced by the three basic arguments that the Government and the dissent make in reply. First, the Government contends that by entering a guilty plea, Class inherently relinquished his constitutional claims. The Government is correct that a guilty plea does implicitly waive some claims, including some constitutional claims. However, as we explained in Part II, supra, Class’ valid guilty plea does not, by itself, bar direct appeal of his constitutional claims in these circumstances. As an initial matter, a valid guilty plea “forgoes not only a fair trial, but also other accompanying constitutional guarantees.” Ruiz, 536 U. S., at 628–629. While those “simultaneously” relinquished rights include the privilege against compulsory self-incrimination, the jury trial right, and the right to confront accusers, McCarthy v. United States, 394 U. S. 459, 466 (1969) , they do not include “a waiver of the privileges which exist beyond the confines of the trial.” Mitchell v. United States, 526 U. S. 314, 324 (1999) . Here, Class’ statutory right directly to appeal his conviction “cannot in any way be characterized as part of the trial.” Lafler v. Cooper, 566 U. S. 156, 165 (2012) . A valid guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the constitutionality of case-related government conduct that takes place before the plea is entered. See, e.g., Haring, supra, at 320 (holding a valid guilty plea “results in the defendant’s loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment”). Neither can the defendant later complain that the indicting grand jury was unconstitutionally selected. Tollett, supra, at 266. But, as we have said, those kinds of claims are not at issue here. Finally, a valid guilty plea relinquishes any claim that would contradict the “admissions necessarily made upon entry of a voluntary plea of guilty.” Broce, supra, at 573–574. But the constitutional claim at issue here is consistent with Class’ admission that he engaged in the conduct alleged in the indictment. Unlike the defendants in Broce, Class’ challenge does not in any way deny that he engaged in the conduct to which he admitted. Instead, like the defendants in Blackledge and Menna, he seeks to raise a claim which, “ ‘judged on its face’ ” based upon the existing record, would extinguish the government’s power to “ ‘constitutionally prosecute’ ” the defendant if the claim were successful. Broce, supra, at 575 (quoting Menna, 423 U. S., at 62–63, and n. 2). Second, the Government and the dissent point to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, which governs “conditional” guilty pleas. The Rule states: “Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.” The Government and the dissent argue that Rule 11(a)(2) means that “a defendant who pleads guilty cannot challenge his conviction on appeal on a forfeitable or waivable ground that he either failed to present to the district court or failed to reserve in writing.” Brief for United States 23; see also post, at 3–4, 17–18 (opinion of Alito, J.). They support this argument by pointing to the notes of the Advisory Committee that drafted the text of Rule 11(a)(2). See Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 911 (hereinafter Advisory Committee’s Notes). In particular, the dissent points to the suggestion that an unconditional guilty plea constitutes a waiver of “nonjurisdictional defects,” while the Government points to the drafters’ statement that they intended the Rule’s “conditional plea procedure . . . to conserve prosecutorial and judicial resources and advance speedy trial objectives,” while ensuring “much needed uniformity in the federal system on this matter.” Ibid.; see United States v. Vonn, 535 U. S. 55 , n. 6 (2002) (approving of Advisory Committee’s Notes as relevant evidence of the drafters’ intent). The Government adds that its interpretation of the Rule furthers these basic purposes. And, the argument goes, just as defendants must use Rule 11(a)(2)’s procedures to preserve, for instance, Fourth Amendment unlawful search-and-seizure claims, so must they use it to preserve the constitutional claims at issue here. The problem with this argument is that, by its own terms, the Rule itself does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. At the same time, the drafters’ notes acknowledge that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty.” Advisory Committee’s Notes, at 912. The notes then specifically refer to the “Menna-Blackledge doctrine.” Ibid. They add that the Rule “should not be interpreted as either broadening or narrowing [that] doctrine or as establishing procedures for its application.” Ibid. And the notes state that Rule 11(a)(2) “has no application” to the “kinds of constitutional objections” that may be raised under that doctrine. Ibid. The applicability of the Menna-Blackledge doctrine is at issue in this case. Cf. Broce, 488 U. S., at 569 (acknowledging Menna and Blackledge as covering claims “where on the face of the record the court had no power to enter the conviction or impose the sentence”). We therefore hold that Rule 11(a)(2) cannot resolve this case. Third, the Government argues that Class “expressly waived” his right to appeal his constitutional claim. Brief for United States 15. The Government concedes that the written plea agreement, which sets forth the “Complete Agreement” between Class and the Government, see App. 45–46, does not contain this waiver. Id., at 48–49. Rather, the Government relies on the fact that during the Rule 11 plea colloquy, the District Court Judge stated that, under the written plea agreement, Class was “giving up [his] right to appeal [his] conviction.” Id., at 76. And Class agreed. We do not see why the District Court Judge’s statement should bar Class’ constitutional claims. It was made to ensure Class understood “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. Rule Crim. Proc. 11(b)(1)(N). It does not expressly refer to a waiver of the appeal right here at issue. And if it is interpreted as expressly including that appeal right, it was wrong, as the Government acknowledged at oral argument. See Tr. of Oral Arg. 35–36. Under these circumstances, Class’ acquiescence neither expressly nor implicitly waived his right to appeal his constitutional claims. * * * For these reasons, we hold that Rodney Class may pursue his constitutional claims on direct appeal. The contrary judgment of the Court of Appeals for the District of Columbia 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 CLASS v. UNITED STATES certiorari to the united states court of appeals for the district of columbia circuit No. 16–424. Argued October 4, 2017—Decided February 21, 2018 A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. §5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, §5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. §5104(e).” App. 30. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he agreed to waive. The agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After conducting a hearing pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the District Court accepted Class’ guilty plea and sentenced him. Soon thereafter, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims. Held: A guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. . (a) This holding flows directly from this Court’s prior decisions. Fifty years ago, in Haynes v. United States, the Court addressed a similar claim challenging the constitutionality of a criminal statute. Justice Harlan’s opinion for the Court stated that the defendant’s “plea of guilty did not, of course, waive his previous [constitutional] claim.” 390 U. S. 85 , n. 2. That clear statement reflects an understanding of the nature of guilty pleas that stretches, in broad outline, nearly 150 years. Subsequent decisions have elaborated upon it. In Blackledge v. Perry, 417 U. S. 21 , the Court recognized that a guilty plea bars some “ ‘antecedent constitutional violations,’ ” related to events (such as grand jury proceedings) that “ ‘occu[r] prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U. S. 258 –267). However, where the claim implicates “the very power of the State” to prosecute the defendant, a guilty plea cannot by itself bar it. 417 U. S., at 30. Likewise, in Menna v. New York, 423 U. S. 61 , the Court held that because the defendant’s claim was that “the State may not convict [him] no matter how validly his factual guilt is established,” his “guilty plea, therefore, [did] not bar the claim.” Id., at 63, n. 2. In more recent years, the Court has reaffirmed the Menna-Blackledge doctrine’s basic teaching that “ ‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’ ” United States v. Broce, 488 U. S. 563 (quoting Menna, supra, at 63, n. 2). . (b) In this case, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. As this Court understands them, the claims at issue here do not contradict the terms of the indictment or the written plea agreement and they can be resolved “on the basis of the existing record.” Broce, supra, at 575. Class challenges the Government’s power to criminalize his (admitted) conduct and thereby calls into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Ibid. (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. . (c) Federal Rule of Criminal Procedure 11(a)(2), which governs “conditional” guilty pleas, cannot resolve this case. By its own terms, the Rule does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. And the Rule’s drafters acknowledged that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty” and specifically stated that Rule 11(a)(2) “has no application” to the “kinds of constitutional objections” that may be raised under the “Menna-Blackledge doctrine.” Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 912. Because the applicability of the Menna-Blackledge doctrine is at issue here, Rule 11(a)(2) cannot resolve this case. . Reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined.

Petitioner, appearing pro se, was indicted and convicted under 40 U.S. C. §5104(e)(1) for possessing firearms in his locked jeep, which was parked in a lot on the grounds of the United States Capitol. He also raised a due process claim, arguing that he was denied fair notice that weapons were banned in the parking lot. A written plea agreement set forth the terms of the plea, including several categories of rights that he expressly agreed to waive, including (1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investigation and prosecution of his criminal case. After a hearing, the District Court accepted the guilty plea, and petitioner was sentenced to 24 days imprisonment followed by 12 months of supervised release. Several days later, he appealed his conviction to the Court of Appeals, which held that he could not raise his constitutional claims because, by pleading guilty, he had waived them. The court also held that his guilty plea did not bar his direct appeal. Held: 1. A defendant waives his constitutional claim directly from a conviction on direct appeal, and thus cannot challenge the constitutionality of the conviction directly. Cf. United States v. Broce, 488 U. S. 563. . (a) The claims at issue here do not fall within any of the categories of claims that the plea agreement forbids him to raise on direct appeal. They challenge the Government, its power to criminalize petitioner, and thereby call into question the Government's power to prosecute him. See, e.g., Menna v. New York,. Menna, supra, at 63, and n. 2. P.. (b) Nor does the fact that, during the Rule 11 plea colloquy between petitioner and the Government that he waived any claim that would contradict the Admissions necessarily made upon entry of a voluntary guilty plea make the latter kind of constitutional claim irrelevant to the kind of claim petitioner seeks to make. As an initial matter, a valid guilty plea forgoes not only a fair trial, but also other accompanying constitutional guarantees. While those whoultaneously relinquished rights include the privilege against compulsory self-incrimination, the jury trial right, and accusers, the Menna-Blackledge doctrine confines those rights beyond the statutory waiver limits. Here, the constitutional claim at issue is consistent with petitioner's admission that he engaged in the conduct alleged in the indictment. Nor can the defendant later complain that the indicting grand jury was unconstitutionally selected, since those kinds of claims are not at issue. Moreover, petitioner sought to raise a claim which,judged on its face, would extinguish the government's power under the Constitution to prosecute the defendant if the claim were successful. Under these circumstances, his acquiescence neither expressly nor implicitly waived his right to appeal the constitutional claims. Accordingly, he may pursue his constitutional claims on direct review. (c) Under the circumstances of this case, the acquiescence of petitioner neither expressly or implicitly waived such right. Although petitioner concedes that the written agreement does not contain a waiver of the appeal right here at issue, it was wrong, as the Government acknowledged at oral argument, to interpret that right as expressly including that appeal right, since it was made to ensure petitioner understood that the agreement did not expressly refer to a waiver waiver of that right. And if it is interpreted to expressly including such right, it erred in wrong. Thus, Under These circumstances, petitioner did neither expressly nor implicitly waive his right of appeal.. 2. Menna and Menna may pursue their constitutional claims for direct appeal on the basis of their contentions that the Government has no power to impose the applicability of Rule 11(a)(2) of the Constitution on their face or to impose a sentence covering their case-related constitutional claims, and that therefore the Government cannot impose that right on the Government. However, the Government and the dissent argue in reply that by entering a guilty plea -- which implicitly waive some claims, including some constitutional claims -- Class inherently relinquished his rights. This Court explains in Part II, supra that, by its own terms, the Rule itself does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following guilty plea. At the same time, the drafters of the Rule acknowledge that the Supremacy Court has held that certain kinds of constitutional objections may be raised after a plea of guilty. And the notes specifically refer to the doctrine that the doctrine may be interpreted as establishing its application for application of the doctrine of Menna. Blackledge v. Perry,. The District Court Judge concedes that a written

2017_16-1027

https://www.oyez.org/cases/2017/16-1027

.This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.IOfficer Matthew McCall of the Albemarle County Police Department in Virginia saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded Officer McCall’s attempt to stop the motorcycle. A few weeks later, Officer David Rhodes of the same department saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes and concluded that the two incidents involved the same motorcyclist.Upon further investigation, the officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street. It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.[1]From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph. Officer Rhodes, who did not have a warrant, exited his car and walked toward the house. He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. In order “to investigate further,” App. 80, Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.Shortly thereafter, Collins returned home. Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title. Officer Rhodes then arrested Collins.Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle. Collins argued that Officer Rhodes had trespassed on the curtilage of the house to conduct an investigation in violation of the Fourth Amendment. The trial court denied the motion and Collins was convicted.The Court of Appeals of Virginia affirmed. It assumed that the motorcycle was parked in the curtilage of the home and held that Officer Rhodes had probable cause to believe that the motorcycle under the tarp was the same motorcycle that had evaded him in the past. It further concluded that Officer Rhodes’ actions were lawful under the Fourth Amendment even absent a warrant because “numerous exigencies justified both his entry onto the property and his moving the tarp to view the motorcycle and record its identification number.” 65 Va. App. 37, 46, 773 S. E. 2d 618, 623 (2015).The Supreme Court of Virginia affirmed on different reasoning. It explained that the case was most properly resolved with reference to the Fourth Amendment’s automobile exception. 292 Va. 486, 496–501, 790 S. E. 2d 611, 616–618 (2016). Under that framework, it held that Officer Rhodes had probable cause to believe that the motorcycle was contraband, and that the warrantless search therefore was justified. Id., at 498–499, 790 S. E. 2d, at 617.We granted certiorari, 582 U. S. ___ (2017), and now reverse.IIThe Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.A1The Court has held that the search of an automobile can be reasonable without a warrant. The Court first articulated the so-called automobile exception in Carroll v. United States,267 U. S. 132 (1925). In that case, law enforcement officers had probable cause to believe that a car they observed traveling on the road contained illegal liquor. They stopped and searched the car, discovered and seized the illegal liquor, and arrested the occupants. Id., at 134–136. The Court upheld the warrantless search and seizure, explaining that a “necessary difference” exists between searching “a store, dwelling house or other structure” and searching “a ship, motor boat, wagon or automobile” because a “vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Id., at 153.The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney,471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California,386 U. S. 58, 59 (1967); Chambers v. Maroney,399 U. S. 42, 51–52 (1970)). Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman,428 U. S. 364 (1976):“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.” Id., at 368.In announcing each of these two justifications, the Court took care to emphasize that the rationales applied only to automobiles and not to houses, and therefore supported “treating automobiles differently from houses” as a constitutional matter. Cady v. Dombrowski,413 U. S. 433, 441 (1973).When these justifications for the automobile exception “come into play,” officers may search an automobile without having obtained a warrant so long as they have probable cause to do so. Carney, 471 U. S., at 392–393.2Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines,569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ibid. (quoting Silverman v. United States,365 U. S. 505, 511 (1961)). To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’ ”—to be “ ‘part of the home itself for Fourth Amendment purposes.’ ” Jardines, 569 U. S., at 6 (quoting Oliver v. United States,466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo,476 U. S. 207, 212–213 (1986).When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines, 569 U. S., at 11. Such conduct thus is presumptively unreasonable absent a warrant.B1With this background in mind, we turn to the application of these doctrines in the instant case. As an initial matter, we decide whether the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage.According to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door of the house would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.The “ ‘conception defining the curtilage’ is . . . familiar enough that it is ‘easily understood from our daily experience.’ ” Jardines, 569 U. S., at 7 (quoting Oliver, 466 U. S., at 182, n. 12). Just like the front porch, side garden, or area “outside the front window,” Jardines, 569 U. S., at 6, the driveway enclosure where Officer Rhodes searched the motorcycle constitutes “an area adjacent to the home and ‘to which the activity of home life extends,’ ” and so is properly considered curtilage, id., at 7 (quoting Oliver, 466 U. S., at 182, n. 12).2In physically intruding on the curtilage of Collins’ home to search the motorcycle, Officer Rhodes not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of his home. The question before the Court is whether the automobile exception justifies the invasion of the curtilage.[2] The answer is no.Applying the relevant legal principles to a slightly different factual scenario confirms that this is an easy case. Imagine a motorcycle parked inside the living room of a house, visible through a window to a passerby on the street. Imagine further that an officer has probable cause to believe that the motorcycle was involved in a traffic infraction. Can the officer, acting without a warrant, enter the house to search the motorcycle and confirm whether it is the right one? Surely not.The reason is that the scope of the automobile exception extends no further than the automobile itself. See, e.g., Pennsylvania v. Labron,518 U. S. 938, 940 (1996) (per curiam) (explaining that the automobile exception “permits police to search the vehicle”); Wyoming v. Houghton,526 U. S. 295, 300 (1999) (“[T]he Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile”). Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the automobile exception “ ‘from the justifications underlying’ ” it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant,556 U. S. 332, 343 (2009)).The Court already has declined to expand the scope of other exceptions to the warrant requirement to permit warrantless entry into the home. The reasoning behind those decisions applies equally well in this context. For instance, under the plain-view doctrine, “any valid warrantless seizure of incriminating evidence” requires that the officer “have a lawful right of access to the object itself.” Horton v. California,496 U. S. 128, 136–137 (1990); see also id., at 137, n. 7 (“ ‘[E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure’ ”); G. M. Leasing Corp. v. United States,429 U. S. 338, 354 (1977) (“It is one thing to seize without a warrant property resting in an open area . . . , and it is quite another thing to effect a warrantless seizure of property . . . situated on private premises to which access is not otherwise available for the seizing officer”). A plain-view seizure thus cannot be justified if it is effectuated “by unlawful trespass.” Soldal v. Cook County,506 U. S. 56, 66 (1992). Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant.Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York,445 U. S. 573, 587–590 (1980). That is because being “ ‘arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.’ ” Id., at 588–589 (quoting United States v. Reed, 572 F. 2d 412, 423 (CA2 1978)). Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.As noted, the rationales underlying the automobile exception are specific to the nature of a vehicle and the ways in which it is distinct from a house. See Part II–A–1, supra. The rationales thus take account only of the balance between the intrusion on an individual’s Fourth Amendment interest in his vehicle and the governmental interests in an expedient search of that vehicle; they do not account for the distinct privacy interest in one’s home or curtilage. To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application. Indeed, its name alone should make all this clear enough: It is, after all, an exception for automobiles.[3]Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.IIIAVirginia argues that this Court’s precedent indicates that the automobile exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage. Specifically, Virginia points to two decisions that it contends resolve this case in its favor. Neither is dispositive or persuasive.First, Virginia invokes Scher v. United States,305 U. S. 251 (1938). In that case, federal officers received a confidential tip that a particular car would be transporting bootleg liquor at a specified time and place. The officers identified and followed the car until the driver “turned into a garage a few feet back of his residence and within the curtilage.” Id., at 253. As the driver exited his car, an officer approached and stated that he had been informed that the car was carrying contraband. The driver acknowledged that there was liquor in the trunk, and the officer proceeded to open the trunk, find the liquor, arrest the driver, and seize both the car and the liquor. Id., at 253–254. Although the officer did not have a search warrant, the Court upheld the officer’s actions as reasonable. Id., at 255.Scher is inapposite. Whereas Collins’ motorcycle was parked and unattended when Officer Rhodes intruded on the curtilage to search it, the officers in Scher first encountered the vehicle when it was being driven on public streets, approached the curtilage of the home only when the driver turned into the garage, and searched the vehicle only after the driver admitted that it contained contraband. Scher by no means established a general rule that the automobile exception permits officers to enter a home or its curtilage absent a warrant. The Court’s brief analysis referenced Carroll, but only in the context of observing that, consistent with that case, the “officers properly could have stopped” and searched the car “just before [petitioner] entered the garage,” a proposition the petitioner did “not seriously controvert.” Scher, 305 U. S., at 254–255. The Court then explained that the officers did not lose their ability to stop and search the car when it entered “the open garage closely followed by the observing officer” because “[n]o search was made of the garage.” Id., at 255. It emphasized that “[e]xamination of the automobile accompanied an arrest, without objection and upon admission of probable guilt,” and cited two search-incident-to-arrest cases. Ibid. (citing Agnello v. United States,269 U. S. 20, 30 (1925); Wisniewski v. United States, 47 F. 2d 825, 826 (CA6 1931)). Scher’s reasoning thus was both case specific and imprecise, sounding in multiple doctrines, particularly, and perhaps most appropriately, hot pursuit. The decision is best regarded as a factbound one, and it certainly does not control this case.Second, Virginia points to Labron,518 U. S. 938, where the Court upheld under the automobile exception the warrantless search of an individual’s pickup truck that was parked in the driveway of his father-in-law’s farmhouse. Id., at 939–940; Commonwealth v. Kilgore, 544 Pa. 439, 444, 677 A.2d 311, 313 (1995). But Labron provides scant support for Virginia’s position. Unlike in this case, there was no indication that the individual who owned the truck in Labron had any Fourth Amendment interest in the farmhouse or its driveway, nor was there a determination that the driveway was curtilage.BAlternatively, Virginia urges the Court to adopt a more limited rule regarding the intersection of the automobile exception and the protection afforded to curtilage. Virginia would prefer that the Court draw a bright line and hold that the automobile exception does not permit warrantless entry into “the physical threshold of a house or a similar fixed, enclosed structure inside the curtilage like a garage.” Brief for Respondent 46. Requiring officers to make “case-by-case curtilage determinations,” Virginia reasons, unnecessarily complicates matters and “raises the potential for confusion and . . . error.” Id., at 46–47 (internal quotation marks omitted).The Court, though, has long been clear that curtilage is afforded constitutional protection. See Oliver, 466 U. S., at 180. As a result, officers regularly assess whether an area is curtilage before executing a search. Virginia provides no reason to conclude that this practice has proved to be unadministrable, either generally or in this context. Moreover, creating a carveout to the general rule that curtilage receives Fourth Amendment protection, such that certain types of curtilage would receive Fourth Amendment protection only for some purposes but not for others, seems far more likely to create confusion than does uniform application of the Court’s doctrine.In addition, Virginia’s proposed rule rests on a mistaken premise about the constitutional significance of visibility. The ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant for the purpose of conducting a search to obtain information not otherwise accessible. Cf. Cir- aolo, 476 U. S., at 213–214 (holding that “physically non- intrusive” warrantless aerial observation of the curtilage of a home did not violate the Fourth Amendment, and could form the basis for probable cause to support a warrant to search the curtilage). So long as it is curtilage, a parking patio or carport into which an officer can see from the street is no less entitled to protection from trespass and a warrantless search than a fully enclosed garage.Finally, Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross,456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).IVFor the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein. We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage of Collins’ house may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement. The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.Notes 1 Virginia does not dispute that Collins has Fourth Amendment standing. See Minnesota v. Olson,495 U. S. 91, 96–100 (1990). 2 Helpfully, the parties have simplified matters somewhat by each making a concession. Petitioner concedes “for purposes of this appeal” that Officer Rhodes had probable cause to believe that the motorcycle was the one that had eluded him, Brief for Petitioner 5, n. 3, and Virginia concedes that “Officer Rhodes searched the motorcycle,” Brief for Respondent 12. 3 The dissent concedes that “the degree of the intrusion on privacy” is relevant in determining whether a warrant is required to search a motor vehicle “located on private property.” Post, at 5–6 (opinion of Alito, J.). Yet it puzzlingly asserts that the “privacy interests at stake” here are no greater than when a motor vehicle is searched “on public streets.” Post, at 3–4. “An ordinary person of common sense,” post,at 2, however, clearly would understand that the privacy interests atstake in one’s private residential property are far greater than on a public street. Contrary to the dissent’s suggestion, it is of no significance that the motorcycle was parked just a “short walk up the driveway.” Ibid. The driveway was private, not public, property, and the motorcycle was parked in the portion of the driveway beyond where a neighbor would venture, in an area “intimately linked to the home, . . . where privacy expectations are most heightened.” California v. Ciraolo,476 U. S. 207, 213 (1986). Nor does it matter that Officer Rhodes“did not damage any property,” post, at 2, for an officer’s care in conducting a search does not change the character of the place being searched. And, as we explain, see infra, at 13–14, it is not dispositive that Officer Rhodes did not “observe anything along the way” to the motorcycle “that he could not have seen from the street,” post, at 2. Law enforcement officers need not “shield their eyes when passing by a home on public thoroughfares,” Ciraolo, 476 U. S., at 213, but the ability visually to observe an area protected by the Fourth Amendment does not give officers the green light physically to intrude on it. See Florida v. Jardines,569 U. S. 1, 7–8 (2013). It certainly does not permit an officer physically to intrude on curtilage, remove a tarp to reveal license plate and vehicle identification numbers, and use those numbers to confirm that the defendant committed a crime. The dissent also mistakenly relies on a law enacted by the First Congress and mentioned in Carroll v. United States,267 U. S. 132, 150–151 (1925), that authorized the warrantless search of vessels. Post, at 4–5, n. 3. The dissent thinks it implicit in that statute that “officers could cross private property such as wharves in order to reach and board those vessels.” Ibid. Even if it were so that a police officer could have entered a private wharf to search a vessel, that would not prove he could enter the curtilage of a home to do so. To the contrary, whereas the statute relied upon in Carroll authorized warrantless searches of vessels, it expressly required warrants to search houses. See 267 U. S., at 150–157; Act of July 31, 1789, §24,1Stat.43. Here, Officer Rhodes did not invade a private wharf to undertake a search; he invaded the curtilage of a home.

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 Collins v. Virginia certiorari to the supreme court of virginia No. 16–1027. Argued January 9, 2018—Decided May 29, 2018 During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him. The trial court denied Collins’ motion to suppress the evidence on the ground that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search, and Collins was convicted of receiving stolen property. The Virginia Court of Appeals affirmed. The State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception. Held: The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. . (a) This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home. In announcing each of the automobile exception’s justifications—i.e., the “ready mobility of the automobile” and “the pervasive regulation of vehicles capable of traveling on the public highways,” California v. Carney, 471 U. S. 386, 390, 392—the Court emphasized that the rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause. Curtilage—“the area ‘immediately surrounding and associated with the home’ ”—is considered “ ‘part of the home itself for Fourth Amendment purposes.’ ” Florida v. Jardines, 569 U. S. 1, 6. Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant. . (b) As an initial matter, the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends.’ ” Jardines, 569 U. S., at 6, 7. Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the exception “ ‘from the justifications underlying’ ” it. Riley v. California, 573 U. S. ___, ___. This Court has similarly declined to expand the scope of other exceptions to the warrant requirement. Thus, just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant—see Horton v. California, 496 U. S. 128, 136–137—and just as an officer must have a lawful right of access in order to arrest a person in his home—see Payton v. New York, 445 U. S. 573, 587–590—so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application. . (c) Contrary to Virginia’s claim, the automobile exception is not a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage. Scher v. United States, 305 U. S. 251; Pennsylvania v. Labron, 518 U. S. 938, distinguished. Also unpersuasive is Virginia’s proposed bright line rule for an automobile exception that would not permit warrantless entry only of the house itself or another fixed structure, e.g., a garage, inside the curtilage. This Court has long been clear that curtilage is afforded constitutional protection, and creating a carveout for certain types of curtilage seems more likely to create confusion than does uniform application of the Court’s doctrine. Virginia’s rule also rests on a mistaken premise, for the ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant to search for information not otherwise accessible. Finally, Virginia’s rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. . 292 Va. 486, 790 S. E. 2d 611, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a dissenting opinion.

A Virginia police officer, uninvited and without a warrant, entered the curtilage of a home in order to search a vehicle parked therein. The driveway, which runs alongside the front lawn and up a few yards past the front perimeter of the house, is enclosed on two sides by a brick wall. A third wall provides access to the house by way of a doorway. A few weeks later, another officer saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes and concluded that the two incidents involved the same motorcyclist. Upon further investigation, the officers learned that the motorcycle likely was stolen and in the possession of petitioner Collins. After discovering photographs on Collins' profile that featured the motorcycle parked at the top of the driveway of a house, the officer stopped to take a photograph of the covered motorcycle from the sidewalk, then walked onto the residential property and up to the driveway to where the motorcycle was parked. In order to investigate further, he pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident, and ran a search of the license plate and vehicle identification numbers. After gathering this information, he returned to his car to wait for Collins.Shortly thereafter, Collins answered the door, agreed to speak with the officer, and admitted that he owned the motorcycle and that he had bought it without title. The officer then arrested Collins. The Virginia trial court denied Collins' pretrial motion to suppress the evidence that the officer had obtained as a result of the warrantless search, and he was convicted.The Virginia Court of Appeals affirmed, holding that, under the Fourth Amendment, the automobile exception does not permit an officer, without a search warrant, to enter a home or its driveway without first obtaining a warrant. Held: 1. The automobile exception is not a categorical one permitting a police officer without a warrant to enter and search a home.. (a) The rationales underlying that exception take account only of the balance between the intrusion on an individual's Fourth Amendment interest in his vehicle and the governmental interests in an expedient search of that vehicle; they do not account for the distinct privacy interest in one’s home or curtilime. Cf. Scher v. United States,305 U. S. 1, 6. To allow an officer to rely on that exception for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilail, and transform what was meant to be an exception into a tool with far broader application. Virginia argues that this Court's precedent does not indicate that the automobile exception is such an exception. Rather, it appears that it was enacted by the First Congress and mentioned in Carroll v. U.S. 132, 150-151 (1925), that authorized the search of vessels. The reasoning behind those decisions applies equally well in this context. Scher by no means established a general rule that an automobile exception permits officers to enter homes or their curtilages absent a warrant; it is also inapposite, since Scher first encountered the vehicle when it was being driven on public streets, approached the curbtilage of the home only when the driver turned into the garage, and searched the vehicle only after the driver admitted that it contained contraband. Nor does it matter that an ordinary person of common sense would understand that the privacy interests atstake in one's private residential property are far greater than on a public street. Moreover, creating a carveout to the general rule in that exception would automatically grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles, but would deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their cars qualify as curtilaged. . 2. Nor is there merit to Virginia's argument that, since there was no indication that the individual who owned the truck in Labron, supra, had any Fourth Amendment or other interest in the farmhouse or driveway, or that the driveway enclosure where the officer searched the motorcycle constituted an area adjacent to the home and to which the activity of home life extends, so that it is properly considered to be the driveway, such as the exigent circumstances exception to the warrant requirement. Labron provides scant support for Virginia, since it is of no significance that the truck was parked just a short walk up the driveway for an officer's care in conducting a search does not change the character of the place being searched, nor is it dispositive that Officer Rhodes did notobserve anything along the way to the motorcycle that he could not have seen from the street. Nor does the fact that an officer need notshield his eyes when passing by a home on public thoroughfares give officers the green light physically to intrude on it, since the ability to observe an area protected by

2017_16-1348

https://www.oyez.org/cases/2017/16-1348

with respect to Parts I and II, and an opinion with respect to Part III, in which The Chief Justice, Justice Thomas, and Justice Alito join. About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one. But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy. All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause? I This case began when police dredged up a safe full of guns from a Virginia river. Paul Garrison, the safe’s owner, had reported it stolen from his home. Before the theft, Mr. Garrison said, it contained not just the guns but also $71,000 in cash. Now, most of the money was missing. As the investigation unfolded, the police eventually found their way to Mr. Garrison’s nephew. Once confronted, the nephew quickly confessed. Along the way, he pointed to Michael Currier as his accomplice. A neighbor also reported that she saw Mr. Currier leave the Garrison home around the time of the crime. On the strength of this evidence, a grand jury indicted Mr. Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. The last charge followed in light of Mr. Currier’s previous convictions for (as it happens) burglary and larceny. Because the prosecution could introduce evidence of his prior convictions to prove the felon-in-possession charge, and worried that the evidence might prejudice the jury’s consideration of the other charges, Mr. Currier and the government agreed to a severance. They asked the court to try the burglary and larceny charges first. Then, they said, the felon-in-possession charge could follow in a second trial. Some jurisdictions routinely refuse requests like this. Instead, they seek to address the risk of prejudice with an instruction directing the jury to consider the defendant’s prior convictions only when assessing the felon-in-possession charge. See Brief for Indiana et al. as Amici Curiae 10. Other jurisdictions allow parties to stipulate to the defendant’s past convictions so the particulars of those crimes don’t reach the jury’s ears. Ibid. Others take a more protective approach yet and view severance requests with favor. Id., at 11–12; see, e.g., Hackney v. Commonwealth, 28 Va. App. 288, 294–296, 504 S.E.2d 385, 389 (1998) (en banc). Because Virginia falls into this last group, the trial court granted the parties’ joint request in this case. The promised two trials followed. At the first, the prosecution produced the nephew and the neighbor who testified to Mr. Currier’s involvement in the burglary and larceny. But Mr. Currier argued that the nephew lied and the neighbor was unreliable and, in the end, the jury acquitted. Then, before the second trial on the firearm charge could follow, Mr. Currier sought to stop it. Now, he argued, holding a second trial would amount to double jeopardy. Alternatively and at the least, he asked the court to forbid the government from relitigating in the second trial any issue resolved in his favor at the first. So, for example, he said the court should exclude from the new proceeding any evidence about the burglary and larceny. The court replied that it could find nothing in the Double Jeopardy Clause requiring either result so it allowed the second trial to proceed unfettered. In the end, the jury convicted Mr. Currier on the felon-in-possession charge. Before the Virginia Court of Appeals, Mr. Currier repeated his double jeopardy arguments without success. The court held that the “concern that lies at the core” of the Double Jeopardy Clause—namely, “the avoidance of prosecutorial oppression and overreaching through successive trials”—had no application here because the charges were severed for Mr. Currier’s benefit and at his behest. Currier v. Commonwealth, 65 Va. App. 605, 609–613, 779 S.E.2d 834, 836–837 (2015). The Virginia Supreme Court summarily affirmed. Because courts have reached conflicting results on the double jeopardy arguments Mr. Currier pressed in this case, we granted certiorari to resolve them. 583 U. S. ___ (2017). II The Double Jeopardy Clause, applied to the States through the Fourteenth Amendment, provides that no person may be tried more than once “for the same offence.” This guarantee recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure the convictions they seek. See Green v. United States, 355 U. S. 187, 188 (1957). At the same time, this Court has said, the Clause was not written or originally understood to pose “an insuperable obstacle to the administration of justice” in cases where “there is no semblance of [these] type[s] of oppressive practices.” Wade v. Hunter, 336 U. S. 684, 688–689 (1949). On which side of the line does our case fall? Mr. Currier suggests this Court’s decision in Ashe v. Swenson, 397 U. S. 436 (1970), requires a ruling for him. There, the government accused a defendant of robbing six poker players in a game at a private home. At the first trial, the jury acquitted the defendant of robbing one victim. Then the State sought to try the defendant for robbing a second victim. This Court held the second prosecution violated the Double Jeopardy Clause. Id., at 446. To be sure, the Clause speaks of barring successive trials for the same offense. And, to be sure, the State sought to try the defendant for a different robbery. But, the Court reasoned, because the first jury necessarily found that the defendant “was not one of the robbers,” a second jury could not “rationally” convict the defendant of robbing the second victim without calling into question the earlier acquittal. Id., at 445–446. In these circumstances, the Court indicated, any relitigation of the issue whether the defendant parti- cipated as “one of the robbers” would be tantamount to the forbidden relitigation of the same offense resolved at the first trial. Id., at 445; see Yeager v. United States, 557 U. S. 110, 119–120 (2009). Ashe’s suggestion that the relitigation of an issue can sometimes amount to the impermissible relitigation of an offense represented a significant innovation in our jurisprudence. Some have argued that it sits uneasily with this Court’s double jeopardy precedent and the Constitution’s original meaning. See, e.g., Ashe, supra, at 460–461 (Burger, C. J., dissenting); Yeager, supra, at 127–128 (Scalia, J., dissenting). But whatever else may be said about Ashe, we have emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. See Yeager, supra, at 119–120; id., at 127 (Kennedy, J., concurring in part and concurring in judgment); id., at 133–134 (Alito, J., dissenting). A second trial “is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question.” Ibid. To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that “it would have been irrational for the jury” in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second. Id., at 127 (opinion of Kennedy, J.) (internal quotation marks omitted). Bearing all that in mind, a critical difference immediately emerges between our case and Ashe. Even assuming without deciding that Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe, he consented to it. Nor does anyone doubt that trying all three charges in one trial would have prevented any possible Ashe complaint Mr. Currier might have had. How do these features affect the double jeopardy calculus? A precedent points the way. In Jeffers v. United States, 432 U. S. 137 (1977), the defendant sought separate trials on each of the counts against him to reduce the possibility of prejudice. The court granted his request. After the jury convicted the defendant in the first trial of a lesser-included offense, he argued that the prosecution could not later try him for a greater offense. In any other circumstance the defendant likely would have had a good argument. Historically, courts have treated greater and lesser-included offenses as the same offense for double jeopardy purposes, so a conviction on one normally precludes a later trial on the other. Id., at 150–151 (plurality opinion); Brown v. Ohio, 432 U. S. 161, 168–169 (1977) (collecting authorities). But, Jeffers concluded, it’s different when the defendant consents to two trials where one could have done. If a single trial on multiple charges would suffice to avoid a double jeopardy complaint, “there is no violation of the Double Jeopardy Clause when [the defendant] elects to have the . . . offenses tried separately and persuades the trial court to honor his election.” 432 U. S., at 152. What was true in Jeffers, we hold, can be no less true here. If a defendant’s consent to two trials can overcome concerns lying at the historic core of the Double Jeopardy Clause, so too we think it must overcome a double jeopardy complaint under Ashe. Nor does anything in Jeffers suggest that the outcome should be different if the first trial yielded an acquittal rather than a conviction when a defendant consents to severance. While we acknowledge that Ashe’s protections apply only to trials following acquittals, as a general rule, the Double Jeopardy Clause “ ‘protects against a second prosecution for the same offense after conviction’ ” as well as “ ‘against a second prosecution for the same offense after acquittal.’ ” Brown, supra, at 165. Because the Clause applies equally in both situations, consent to a second trial should in general have equal effect in both situations. Holding otherwise would introduce an unwarranted inconsistency not just with Jeffers but with other precedents too. In United States v. Dinitz, 424 U. S. 600 (1976), for example, this Court held that a defendant’s mistrial motion implicitly invited a second trial and was enough to foreclose any double jeopardy complaint about it. In reaching this holding, the Court expressly rejected “the contention that the permissibility of a retrial depends on a knowing, voluntary, and intelligent waiver” from the defendant. Id., at 609 n. 11. Instead, it explained, none of the “prosecutorial or judicial overreaching” forbidden by the Constitution can be found when a second trial follows thanks to the defendant’s motion. Id. at 607. In United States v. Scott, 437 U. S. 82 (1978), this Court likewise held that a defendant’s motion effectively invited a retrial of the same offense, and “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of [a] voluntary choice” like that. Id., at 96, 99; see also Evans v. Michigan, 568 U. S. 313, 326 (2013) (“[R]etrial is generally allowed [when] the defendant consents to a disposition that contemplates reprosecution”). While relinquishing objections sometimes turns on state or federal procedural rules, these precedents teach that consenting to two trials when one would have avoided a double jeopardy problem precludes any constitutional violation associated with holding a second trial. In these circumstances, our cases hold, the defendant wins a potential benefit and experiences none of the prosecutorial “oppression” the Double Jeopardy Clause exists to prevent. Nor, again, can we discern a good reason to treat Ashe double jeopardy complaints more favorably than traditional ones when a defendant consents to severance. Against these precedents, Mr. Currier asks us to consider others, especially Harris v. Washington, 404 U. S. 55 (1971) (per curiam) and Turner v. Arkansas, 407 U. S. 366 (1972) (per curiam). But these cases merely applied Ashe’s test and concluded that a second trial was impermissible. They did not address the question whether double jeopardy protections apply if the defendant consents to a second trial. Meanwhile, as we’ve seen, Jeffers, Dinitz, and Scott focus on that question directly and make clear that a defendant’s consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present. This Court’s teachings are consistent and plain: the “Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.” Scott, supra, at 99. Mr. Currier replies that he had no real choice but to seek two trials. Without a second trial, he says, evidence of his prior convictions would have tainted the jury’s consideration of the burglary and larceny charges. And, he notes, Virginia law guarantees a severance in cases like his unless the defendant and prosecution agree to a single trial. But no one disputes that the Constitution permitted Virginia to try all three charges at once with appropriate cautionary instructions. So this simply isn’t a case where the defendant had to give up one constitutional right to secure another. Instead, Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. It might have been a hard choice. But litigants every day face difficult decisions. Whether it’s the defendant who finds himself in the shoes of Jeffers, Dinitz, and Scott and forced to choose between allowing an imperfect trial to proceed or seeking a second that promises its own risks. Or whether it’s the defendant who must decide between exercising his right to testify in his own defense or keeping impeachment evidence of past bad acts from the jury. See, e.g., Brown v. United States, 356 U. S. 148, 154–157 (1958). This Court has held repeatedly that difficult strategic choices like these are “not the same as no choice,” United States v. Martinez-Salazar, 528 U. S. 304, 315 (2000), and the Constitution “does not . . . forbid requiring” a litigant to make them, McGautha v. California, 402 U. S. 183, 213 (1971). III Even if he voluntarily consented to holding the second trial, Mr. Currier argues, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. So, Mr. Currier says, the court should have excluded evidence suggesting he possessed the guns in Mr. Gar- rison’s home, leaving the prosecution to prove that he possessed them only later, maybe down by the river. To support this argument, Mr. Currier points to issue preclusion principles in civil cases and invites us to import them for the first time into the criminal law through the Double Jeopardy Clause. In his view, the Clause should do much more than bar the retrial of the same offense (or crimes tantamount to the same offense under Ashe); it should be read now to prevent the parties from retrying any issue or introducing any evidence about a previously tried issue. While the dissent today agrees with us that the trial court committed no double jeopardy violation in holding the second trial, on this alternative argument it sides with Mr. Currier. See post, at 11, 12, 14–15. We cannot. Even assuming for argument’s sake that Mr. Currier’s consent to holding a second trial didn’t more broadly imply consent to the manner it was conducted, we must reject his argument on a narrower ground. Just last Term this Court warned that issue preclusion principles should have only “guarded application . . . in criminal cases.” Bravo-Fernandez v. United States, 580 U. S. ___, ___ (2016) (slip op. at 4). We think that caution remains sound. Mr. Currier’s problems begin with the text of the Double Jeopardy Clause. As we’ve seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the Seventh Amendment says that “[i]n Suits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (Emphasis added.) Words in one provision are, of course, often understood “by comparing them with other words and sentences in the same instrument.” 1 J. Story, Commentaries on the Constitution of the United States §400, p. 384 (1833). So it’s difficult to ignore that only in the Seventh Amendment—and only for civil suits—can we find anything resembling contemporary issue preclusion doctrine. What problems the text suggests, the original public understanding of the Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329–330 (1769). But those pleas barred only repeated “prosecution for the same identical act and crime,” not the retrial of particular issues or evidence. Id., at 330 (emphasis added). As Sir Matthew Hale explained: “If A. commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And è converso, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time.” 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245–246 (1736 ed.). Both English and early American cases illustrate the point. In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money “stolen at the same time” from the owner’s servant. Ibid. In Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that “[i]n considering the identity of the of- fence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact.” Id., at 509. The court explained that a second prosecution isn’t precluded “if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.” Ibid. (emphasis added). Another court even ruled “that a man acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time.” 2 Hale, supra, at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady v. Corbin, 495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post, at 4–5 (Ginsburg, J., dissenting). This Court’s contemporary double jeopardy cases confirm what the text and history suggest. Under Blockburger v. United States, 284 U. S. 299 (1932), the courts apply today much the same double jeopardy test they did at the founding. Id., at 304. To prevent a second trial on a new charge, the defendant must show an identity of statutory elements between the two charges against him; it’s not enough that “a substantial overlap [exists] in the proof offered to establish the crimes.” Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975) (emphasis added). Of course, Ashe later pressed Blockburger’s boundaries by suggesting that, in narrow circumstances, the retrial of an issue can be considered tantamount to the retrial of an offense. See Yeager, 557 U. S., at 119. But, as we’ve seen, even there a court’s ultimate focus remains on the practi- cal identity of offenses, and the only available remedy is the traditional double jeopardy bar against the retrial of the same offense—not a bar against the relitigation of issues or evidence. See id., at 119–120. Even at the outer reaches of our double jeopardy jurisprudence, then, this Court has never sought to regulate the retrial of issues or evidence in the name of the Double Jeopardy Clause. Nor in acknowledging this do we plow any new ground. In Dowling v. United States, 493 U. S. 342 (1990), the defendant faced charges of bank robbery. At trial, the prosecution introduced evidence of the defendant’s involvement in an earlier crime, even though the jury in that case had acquitted. Like Mr. Currier, the defendant in Dowling argued that the trial court should have barred relitigation of an issue resolved in his favor in an earlier case and therefore excluded evidence of the acquitted offense. But the Court refused the request and in doing so expressly “decline[d] to extend Ashe . . . to exclude in all circumstances, as [the defendant] would have it, relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” Id., at 348. If a second trial is permissible, the admission of evidence at that trial is governed by normal evidentiary rules—not by the terms of the Double Jeopardy Clause. “So far as merely evidentiary . . . facts are concerned,” the Double Jeopardy Clause “is inoperative.” Yates v. United States, 354 U. S. 298, 338 (1957). On its own terms, too, any effort to transplant civil preclusion principles into the Double Jeopardy Clause would quickly meet trouble. While the Clause embodies a kind of “claim preclusion” rule, even this rule bears little in common with its civil counterpart. In civil cases, a claim generally may not be tried if it arises out of the same transaction or common nucleus of operative facts as another already tried. Restatement (Second) of Judg- ments §19 (1982); Moschzisker, Res Judicata, 38 Yale L. J. 299, 325 (1929). But in a criminal case, Blockburger precludes a trial on an offense only if a court has previously heard the same offense as measured by its statutory elements. 284 U. S., at 304. And this Court has emphatic- ally refused to import into criminal double jeopardy law the civil law’s more generous “same transaction” or same criminal “episode” test. See Garrett v. United States, 471 U.S. 773, 790 (1985); see also Ashe, 397 U. S., at 448 (Harlan, J., concurring). It isn’t even clear that civil preclusion principles would help defendants like Mr. Currier. Issue preclusion addresses the effect in a current case of a prior adjudication in another case. So it doesn’t often have much to say about the preclusive effects of rulings “within the framework of a continuing action.” 18A C. Wright & A. Miller, Federal Practice and Procedure §4434 (2d ed. 2002); see also id., §4478. Usually, only the more flexible law of the case doctrine governs the preclusive effect of an earlier decision “within a single action.” Ibid. And that doctrine might counsel against affording conclusive effect to a prior jury verdict on a particular issue when the parties agreed to hold a second trial covering much the same terrain at a later stage of the proceedings. Besides, even if issue preclusion is the right doctrine for cases like ours, its application usually depends “on ‘an underlying confidence that the result achieved in the initial litigation was substantially correct.’ ” Bravo-Fernandez, 580 U. S., at ___ (slip op., at 4) (quoting Standefer v. United States, 447 U. S. 10, 23, n. 18 (1980)). As a result, the doctrine does not often bar the relitigation of issues when “[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action.” Restatement (Second) of Judgments §28. In criminal cases, of course, the government cannot obtain appellate review of acquittals. So a faithful application of civil preclusion principles in our case and others like it might actually militate against finding preclusion. See Bravo-Fernandez, supra, at ___ (slip op., at 4); Standefer, supra, at 22–23, and n. 18. Neither Mr. Currier nor the dissent offers a persuasive reply to these points. They cannot dispute that the text of the Double Jeopardy Clause, which bars a prosecution for the same offense, is inconsistent with an issue preclusion rule that purports to bar a “second prosecution involv[ing] . . . a different ‘offense.’ ” Post, at 4. They decline to “engage” with the Clause’s history, though the dissent appears to agree that the Clause was not originally understood to include an issue preclusion rule. See post, at 3–4, 13. Neither Mr. Currier nor the dissent seeks to show that, even taken on their own terms, civil issue preclusion principles would apply to cases like this one. Without text, history, or logic to stand on, the dissent leans heavily on a comparison to Dowling. In Dowling, the dissent emphasizes, the two trials involved different criminal episodes while the two trials here addressed the same set of facts. But Dowling did not rest its holding on this feature and the dissent does not explain its relevance. If issue preclusion really did exist in criminal law, why wouldn’t it preclude the retrial of any previously tried issue, regardless whether that issue stems from the same or a different “criminal episode”? In the end, Mr. Currier and the dissent must emphasize various policy reasons for adopting a new rule of issue preclusion into the criminal law. See post, at 4–5, 8–9. They contend that issue preclusion is “needed” to combat the “prosecutorial excesses” that could result from the proliferation of criminal offenses, post, at 4–5, though we aren’t sure what to make of this given the dissent’s later claim that “issue preclusion requires no showing of prosecutorial overreaching,” post, at 8. In any event, there are risks with the approach Mr. Currier and the dissent pro- pose. Consider, for example, the ironies that grafting civil preclusion principles onto the criminal law could invite. Issue preclusion is sometimes applied offensively against civil defendants who lost on an issue in an earlier case. Parklane Hosiery Co. v. Shore, 439 U. S. 322, 331–332 (1979). By parallel logic, could we expect the government to invoke the doctrine to bar criminal defendants from relitigating issues decided against them in a prior trial? It’s an outcome few defendants would welcome but one some have already promoted. See, e.g., Kennelly, Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1380–1381, 1416, 1426–1427 (1994); Vestal, Issue Preclusion and Criminal Prosecutions, 65 Iowa L. Rev. 281, 297, 320–321 (1980). Maybe worse yet, consider the possible effect on severances. Today, some state courts grant severance motions liberally to benefit defendants. But what would happen if this Court unilaterally increased the costs associated with severance in the form of allowing issue preclusion for defendants only? Granting a severance is no small thing. It means a court must expend resources for two trials where the Constitution would have permitted one. Witnesses and victims must endure a more protracted ordeal. States sometimes accept these costs to protect a defendant from potential prejudice. But 20 States appearing before us have warned that some jurisdictions might respond to any decision increasing the costs of severed trials by making them less freely available. See Brief for Indiana et al. as Amici Curiae 4, 16–20. Of course, that’s only a prediction. But it’s a hard if unwanted fact that “[t]oday’s elaborate body of procedural rules” can contribute to making “trials expensive [and] rare.” W. Stuntz, The Collapse of American Criminal Justice 39 (2011). And it would be a mistake to ignore the possibility that by making severances more costly we might wind up making them rarer too. The fact is, civil preclusion principles and double jeop- ardy are different doctrines, with different histories, serving different purposes. Historically, both claim and issue preclusion have sought to “promot[e] judicial economy by preventing needless litigation.” Parklane Hosiery, supra, at 326. That interest may make special sense in civil cases where often only money is at stake. But the Double Jeopardy Clause and the common law principles it built upon govern criminal cases and concern more than efficiency. They aim instead, as we’ve seen, to balance vital interests against abusive prosecutorial practices with consideration to the public’s safety. The Clause’s terms and history simply do not contain the rights Mr. Currier seeks. Nor are we at liberty to rewrite those terms or that history. While the growing number of criminal offenses in our statute books may be cause for concern, see post, at 4–5 (Ginsburg, J., dissenting), no one should expect (or want) judges to revise the Constitution to address every social problem they happen to perceive. The proper authorities, the States and Congress, are empowered to adopt new laws or rules experimenting with issue or claim preclusion in criminal cases if they wish. In fact, some States have already done so. On these matters, the Constitution dictates no answers but entrusts them to a self-governing people to resolve. * The judgment of the Virginia Supreme Court 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, 337. SUPREME COURT OF THE UNITED STATES Syllabus Currier v. Virginia certiorari to the supreme court of virginia No. 16–1348. Argued February 20, 2018—Decided June 22, 2018 Petitioner Michael Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon. Because the prosecution could introduce evidence of Mr. Currier’s prior burglary and larceny convictions to prove the felon-in-possession charge, and worried that evidence might prejudice the jury’s consideration of the other charges, Mr. Currier and the government agreed to a severance and asked the court to try the burglary and larceny charges first, followed by a second trial on the felon-in-possession charge. At the first trial, Mr. Currier was acquitted. He then sought to stop the second trial, arguing that it would amount to double jeopardy. Alternatively, he asked the court to prohibit the state from relitigating at the second trial any issue resolved in his favor at the first. The trial court denied his requests and allowed the second trial to proceed unfettered. The jury convicted him on the felon-in-possession charge. The Virginia Court of Appeals rejected his double jeopardy arguments, and the Virginia Supreme Court summarily affirmed. Held: The judgment is affirmed. 292 Va. 737, 798 S. E. 2d 164, affirmed. Justice Gorsuch delivered the opinion of the Court with respect to Parts I and II, concluding that, because Mr. Currier consented to a severance, his trial and conviction on the felon-in-possession charge did not violate the Double Jeopardy Clause, which provides that no person may be tried more than once “for the same offence.” Mr. Currier argues that Ashe v. Swenson, 397 U. S. 436, requires a ruling for him. There, the Court held that the Double Jeopardy Clause barred a defendant’s prosecution for robbing a poker player because the defendant’s acquittal in a previous trial for robbing a different poker player from the same game established that the defendant “was not one of the robbers,” id., at 446. Ashe’s suggestion that the relitigation of an issue may amount to the impermissible relitigation of an offense represented a significant innovation in this Court’s jurisprudence. But whatever else may be said about Ashe, the Court has emphasized that its test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial. A second trial is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question. To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, the Court must be able to say that it would have been irrational for the jury in the first trial to acquit without finding in the defendant’s favor on a fact essential to a conviction in the second. Bearing all that in mind, a critical difference emerges between this case and Ashe: Even assuming that Mr. Currier’s second trial qualified as the retrial of the same offense under Ashe, he consented to the second trial. In Jeffers v. United States, 432 U. S. 137, where the issue was a trial on a greater offense after acquittal on a lesser- included offense, the Court held that the Double Jeopardy Clause is not violated when the defendant “elects to have the . . . offenses tried separately and persuades the trial court to honor his election.” Id., at 152. If consent can overcome a traditional double jeopardy complaint about a second trial for a greater offense, it must also suffice to overcome a double jeopardy complaint under Ashe’s more innovative approach. Holding otherwise would be inconsistent not only with Jeffers but with other cases too. See, e.g., United States v. Dinitz, 424 U. S. 600. And cases Mr. Currier cites for support, e.g., Harris v. Washington, 404 U. S. 55, merely applied Ashe’s test and concluded that a second trial was impermissible. They do not address the question whether the Double Jeopardy Clause prevents a second trial when the defendant consents to it. Mr. Currier contends that he had no choice but to seek two trials, because evidence of his prior convictions would have tainted the jury’s consideration of the burglary and larceny charges. This is not a case, however, where the defendant had to give up one constitutional right to secure another. Instead, Mr. Currier faced a lawful choice between two courses of action that each bore potential costs and rationally attractive benefits. Difficult strategic choices are “not the same as no choice,” United States v. Martinez-Salazar, 528 U. S. 304, 315, and the Constitution “does not . . . forbid requiring” a litigant to make them, McGautha v. California, 402 U. S. 183, 213. . Justice Gorsuch, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Part III that civil issue preclusion principles cannot be imported into the criminal law through the Double Jeopardy Clause to prevent parties from retrying any issue or introducing any evidence about a previously tried issue. Mr. Currier argues that, even if he consented to a second trial, that consent did not extend to the relitigation of any issues the first jury resolved in his favor. Even assuming for argument’s sake that Mr. Currier’s consent to holding a second trial didn’t more broadly imply consent to the manner it was conducted, his argument must be rejected on a narrower ground as refuted by the text and history of the Double Jeopardy Clause and by this Court’s contemporary double jeopardy cases, e.g., Blockburger v. United States, 284 U. S. 299; Dowling v. United States, 493 U. S. 342. Nor is it even clear that civil preclusion principles would help defendants like Mr. Currier. See, e.g., Bravo-Fernandez v. United States, 580 U. S. ___, ___. Grafting civil preclusion principles onto the criminal law could also invite ironies—e.g., making severances more costly might make them less freely available. . Justice Kennedy concluded that, because Parts I and II of the Court’s opinion resolve this case in a full and proper way, the extent of the Double Jeopardy Clause protections discussed and defined in Ashe need not be reexamined here. . Gorsuch, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Part III, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Kennedy, J., filed an opinion concurring in part. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

About to face trial in a Virginia state court, petitioner agreed to sever the charges against him on one count that could infect the jury's deliberations on others, and to hold two trials instead of one. But after the first trial finished, petitioner argued that proceeding with the second would violate his right against double jeopardy under the Fourteenth Amendment, which provides that no person may be more than once "for the same offence." The jury convicted petitioner on the felon-in-possession charge. The Virginia Court of Appeals affirmed, rejecting petitioner's argument that double jeopardy lies at the core of his argument that successive trials through the Double Jeopardy Clause, which recognizes the vast power of the sovereign, the ordeal of a criminal trial, and the injustice our criminal justice system would invite if prosecutors could treat trials as dress rehearsals until they secure convictions they seek. Held: The double jeopardy complaint under Ashe v. Swenson, 397 U. S. 436, requires a ruling for petitioner, since the Clause forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the petitioner's favor in his first trial. Even assuming without deciding that petitioner's second trial qualified as the retrial of the same offense under Ashe, petitioner consented to it. . 65 Va. 805, 809 S.E.2d 679, affirmed. JUSTICE SCALIA, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, concluded in Part III that: 1. Petitioner was entitled to severance of the charges in his second trial.. (a) The Clause forbids the relitigation of any issues the first jury resolved in his favor. Here, petitioner wins a potential benefit and experiences none of the prosecutorial "oppression" the Clause exists to prevent. To say that the second trial is tantamount to a trial of the exact same offense as the first is to say that it would have been irrational for the jury to acquit without finding in the defendant's favor on a fact essential to a conviction in the second. See, e.g., Harris v. Washington, 404 U.S. 55; id., at 127. P.. (b) There is no merit to petitioner's contention that consent to two trials should in general have equal effect in both situations. Petitioner wins the potential benefit of a retrial only if the prosecution prevails on the issue resolved in its favor in the first. Such a decision is not precluded simply because it is unlikely, or even very unlikely, that the original jury acquitted without finding the fact in question. Nor can it be discerned a good reason to treat Ashe double jeopardy complaints more favorably than traditional ones when a defendant consents to the severance. Harris, supra, at 127, and similar cases merely applied Ashe's test and concluded that a second trial was impermissible. Meanwhile, Jeffers, Dinitz, and Scott focus on that question directly and make clear that a defendant's consent dispels any specter of double jeopardy abuse that holding two trials might otherwise present. A second trial would have prevented any possible complaint from petitioner. Moreover, if issue preclusion were permissible, it would merely transplant into criminal criminal law the normal probiary rules of civil cases, which are governed merely by the probiary principles that are governed by the Court of Yates v. Yates,. In a criminal case, a claim generally may not be tried if it arises from the same transaction or common nucleus of operative facts as another already tried. Issue preclusion addresses the effect in a current case of a prior adjudication in another case, so it doesn’t often have much to say about the preclusive effects of rulings "within the framework of a continuing action.” United States v. Dinitz,, 424 U. s. 600, p. 371. However, in contemporary double jeopardy cases, the courts apply much the same double jeopardy test they did at the founding. While a faithful application of civil preclusion principles in criminal cases and common law principles in civil cases might actually militate against finding preclusion, they are not at liberty to rewrite those terms or that history. On these matters, the Constitution dictates no answers but entrusts them to a self-governing people to resolve. 2. On the record in this case, petitioner had no double jeopardy violation of his severance agreement. His consent to the trial did not prevent the trial court from excluding evidence suggesting he possessed the guns in Mr. Gar- rison's home, leaving the prosecution to prove that he possessed them only later, maybe down by the river. There is nothing in the record to show that, even taken on their own terms, such principles would apply to cases like this one. It would be a mistake to ignore the possibility that by making severances more costly

2017_15-1439

https://www.oyez.org/cases/2017/15-1439

. This case presents two questions about the Securities Litigation Uniform Standards Act of 1998 (SLUSA), 112Stat. 3227. First, did SLUSA strip state courts of jurisdiction over class actions alleging violations of only the Securities Act of 1933 (1933 Act), 48Stat. 74, as amended, 15 U. S. C. §77a et seq.? And second, even if not, did SLUSA empower defendants to remove such actions from state to federal court? We answer both questions no. I A In the wake of the 1929 stock market crash, Congress enacted two laws, in successive years, to promote honest practices in the securities markets. The 1933 Act required companies offering securities to the public to make “full and fair disclosure” of relevant information. Pinter v. Dahl, 486 U. S. 622, 646 (1988) . And to aid enforcement of those obligations, the statute created private rights of action. Congress authorized both federal and state courts to exercise jurisdiction over those private suits. See §22(a), 48Stat. 86 (“The district courts of the United States . . . shall have jurisdiction[,] concurrent with State and Territorial courts, of all suits in equity and actions at law brought to enforce any liability or duty created by this title”). More unusually, Congress also barred the removal of such actions from state to federal court. Id., at 87 (“No case arising under this title and brought in any State court of competent jurisdiction shall be removed to any court of the United States”). So if a plaintiff chose to bring a 1933 Act suit in state court, the defendant could not change the forum. Congress’s next foray, the Securities Exchange Act of 1934 (1934 Act), operated differently. See 48Stat. 881, as amended, 15 U. S. C. §78a et seq. That statute regulated not the original issuance of securities but instead all their subsequent trading, most commonly on national stock exchanges. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 752 (1975) . The 1934 Act, this Court held, could also be enforced through private rights of action. See id., at 730, and n. 4. But Congress determined that all those suits should fall within the “exclusive jurisdiction” of the federal courts. §27, 48Stat. 902–903. So a plaintiff could never go to state court to litigate a 1934 Act claim. In 1995, the Private Securities Litigation Reform Act (Reform Act), 109Stat. 737, amended both the 1933 and the 1934 statutes in mostly identical ways. Congress passed the Reform Act principally to stem “perceived abuses of the class-action vehicle in litigation involving nationally traded securities.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81 (2006) . Some of the Reform Act’s provisions made substantive changes to the 1933 and 1934 laws, and applied even when a 1933 Act suit was brought in state court. For instance, the statute created a “safe harbor” from federal liability for certain “forward-looking statements” made by company officials. 15 U. S. C. §77z–2 (1933 Act); §78u–5 (1934 Act). Other Reform Act provisions modified the procedures used in litigating securities actions, and applied only when such a suit was brought in federal court. To take one example, the statute required a lead plaintiff in any class action brought under the Federal Rules of Civil Procedure to file a sworn certification stating, among other things, that he had not purchased the relevant security “at the direction of plaintiff’s counsel.” §77z–1(a)(2)(A)(ii) (1933 Act); §78u–4(a)(2)(A)(ii) (1934 Act). But the Reform Act fell prey to the law of “unintended consequence[s].” Dabit, 547 U. S., at 82. As this Court previously described the problem: “Rather than face the obstacles set in their path by the Reform Act, plaintiffs and their representatives began bringing class actions under state law.” Ibid. That “phenomenon was a novel one”—and an unwelcome one as well. Ibid. To prevent plaintiffs from circumventing the Reform Act, Congress again undertook to modify both securities laws. The result was SLUSA, whose amendments to the 1933 Act are at issue in this case. Those amendments include, as relevant here, two operative provisions, two associated definitions, and two “conforming amendments” to the 1933 law’s jurisdictional section. 112Stat. 3230. (SLUSA’s amendments to the 1934 Act include essentially the same operative provisions and definitions. See Dabit, 547 U. S., at 82, n. 6. But Congress decided that the 1934 law’s exclusive jurisdiction provision needed no conforming amendments.) The added material—now found in §§77p and 77v(a) and set out in full in this opinion’s appendix—goes as follows. First, §77p(b) altogether prohibits certain securities class actions based on state law. That provision—which we sometimes (and somewhat prosaically) refer to as the state-law class-action bar—reads: “No covered class action based upon the statutory or common law of any State . . . may be maintained in any State or Federal court by any private party alleging— “(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or “(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security.” According to SLUSA’s definitions, the term “covered class action” means a class action in which “damages are sought on behalf of more than 50 persons.” §77p(f)(2). And the term “covered security” refers to a security listed on a national stock exchange. §77p(f)(3) (cross-referencing §77r(b)). So taken all in all, §77p(b) completely disallows (in both state and federal courts) sizable class actions that are founded on state law and allege dishonest practices respecting a nationally traded security’s purchase or sale. Next, §77p(c) provides for the removal of certain class actions to federal court, as well as for their subsequent disposition: “Any covered class action brought in any State court involving a covered security, as set forth in subsection (b) of this section, shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b) of this section.” The first chunk of that provision identifies the removable cases, partly by way of a cross-reference (“as set forth in subsection (b)”) to the just-described class-action bar. The final clause of the provision (“and shall be subject to subsection (b)”) indicates what should happen to a barred class suit after it has been removed: The “proper course is to dismiss” the action. Kircher v. Putnam Funds Trust, 547 U. S. 633, 644 (2006) . As this Court has explained, §77p(c) “avails a defendant of a federal forum in contemplation not of further litigation over the merits of a claim brought in state court, but of termination of the proceedings altogether.” Id., at 645, n. 12. The point of providing that option, everyone here agrees, was to ensure the dismissal of a prohibited state-law class action even when a state court “would not adequately enforce” §77p(b)’s bar. Brief for United States as Amicus Curiae 3; see Brief for Petitioners 7; Brief for Respondents 20. Finally, the 1933 Act’s jurisdictional provision, codified at §77v(a), now includes two new phrases framed as exemptions—SLUSA’s self-described “conforming amendments.” 112Stat. 3230; see supra, at 3. The less significant of the pair, for our purposes, reflects the allowance for removing certain class actions described above. Against the backdrop of the 1933 Act’s general removal bar, see supra, at 2, that added (italicized) material reads: “Except as provided in section 77p(c) of this title, no case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.” The more important of the conforming amendments in this case expresses a caveat to the general rule, see supra, at 1–2, that state and federal courts have concurrent jurisdiction over all claims to enforce the 1933 Act. As amended (again, with the new material in italics), the relevant sentence now reads: “The district courts of the United States . . . shall have jurisdiction[,] concurrent with State and Territorial courts, except as provided in section 77p of this title with respect to covered class actions, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter.” Throughout this opinion, we refer to the italicized words just above as the “except clause.” Its meaning is at the heart of the parties’ dispute in this Court. B The petitioners in this case are Cyan, a telecommunications company, and its officers and directors (together, Cyan). The respondents are three pension funds and an individual (together, Investors) who purchased shares of Cyan stock in an initial public offering. After the stock declined in value, the Investors brought a damages class action against Cyan in California Superior Court. Their complaint alleges that Cyan’s offering documents contained material misstatements, in violation of the 1933 Act. It does not assert any claims based on state law. Cyan moved to dismiss the Investors’ suit for lack of subject matter jurisdiction. It argued that what we have termed SLUSA’s “except clause”—i.e., the amendment made to §77v(a)’s concurrent-jurisdiction grant—stripped state courts of power to adjudicate 1933 Act claims in “covered class actions.” The Investors did not dispute that their suit qualifies as such an action under SLUSA’s definition, see §77p(f)(2). But they maintained that SLUSA left intact state courts’ jurisdiction over all suits—including “covered class actions”—alleging only 1933 Act claims. The California Superior Court agreed with the Investors and denied Cyan’s motion to dismiss. See App. to Pet. for Cert. 6a. The state appellate courts then denied review of that ruling. See id., at 15a–16a. We granted Cyan’s petition for certiorari, 581 U. S. ___ (2017), to resolve a split among state and federal courts about whether SLUSA deprived state courts of jurisdiction over “covered class actions” asserting only 1933 Act claims.[1] In opposing Cyan’s jurisdictional position here, the Federal Government as amicus curiae raised another question: whether SLUSA enabled defendants to remove 1933 Act class actions from state to federal court for adjudication. See Brief for United States as Amicus Curiae 23–31. That question is not directly presented because Cyan never attempted to remove the Investors’ suit. But the removal issue is related to the parties’ jurisdictional arguments, and both Cyan and the Investors addressed it in briefing and argument. See Brief for Petitioners 39–40; Brief for Respondents 31–35; Tr. of Arg. 31, 53–56, 74–76, 80. Accordingly, we consider as well the scope of §77p(c)’s removal authorization. II By its terms, §77v(a)’s “except clause” does nothing to deprive state courts of their jurisdiction to decide class actions brought under the 1933 Act. And Cyan’s various appeals to SLUSA’s purposes and legislative history fail to overcome the clear statutory language. The statute says what it says—or perhaps better put here, does not say what it does not say. State-court jurisdiction over 1933 Act claims thus continues undisturbed.[2] A SLUSA’s text, read most straightforwardly, leaves in place state courts’ jurisdiction over 1933 Act claims, including when brought in class actions. Recall that the background rule of §77v(a)—in place since the 1933 Act’s passage—gives state courts concurrent jurisdiction over all suits “brought to enforce any liability or duty created by” that statute. See supra, at 1–2. The except clause—once again, “except as provided in section 77p of this title with respect to covered class actions”—is drafted as a limitation on that rule: It ensures that in any case in which §77v(a) and §77p come into conflict, §77p will control. The critical question for this case is therefore whether §77p limits state-court jurisdiction over class actions brought under the 1933 Act. It does not. As earlier described, §77p bars certain securities class actions based on state law. See §77p(b); supra, at 3–4. And as a corollary of that prohibition, it authorizes removal of those suits so that a federal court can dismiss them. See §77p(c); supra, at 4–5. But the section says nothing, and so does nothing, to deprive state courts of jurisdiction over class actions based on federal law. That means the background rule of §77v(a)—under which a state court may hear the Investors’ 1933 Act suit—continues to govern. Cyan offers an alternative reading, in which one of SLUSA’s definitional provisions works to alter state-court jurisdiction. According to Cyan, the except clause’s reference to “covered class actions” points the reader to, and only to, §77p(f)(2)’s definition of that term. See Brief for Petitioners 16. And that definition states that a “covered class action” is a suit seeking damages on behalf of more than 50 persons—without mentioning anything about whether the suit is based on state or federal law. Cyan thus concludes that the except clause exempts all sizable class actions—including the Investors’ suit—from §77v(a)’s conferral of jurisdiction on state courts. But that view cannot be squared with the except clause’s wording for two independent reasons. To start with, the except clause points to “section 77p” as a whole—not to paragraph 77p(f)(2). Cyan wants to cherry pick from the material covered by the statutory cross-reference. But if Congress had intended to refer to the definition in §77p(f)(2) alone, it presumably would have done so—just by adding a letter, a number, and a few parentheticals. As this Court recently explained, “Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 9). And “[w]hen Congress want[s] to refer only to a particular subsection or paragraph, it sa[ys] so.” Ibid. It said no such thing in the except clause. In any event, the definitional paragraph on which Cyan relies cannot be read to “provide[]” an “except[ion]” to the rule of concurrent jurisdiction, in the way SLUSA’s except clause requires. A definition does not provide an exception, but instead gives meaning to a term—and Congress well knows the difference between those two functions. Thousands of statutory provisions use the phrase “except as provided in . . .” followed by a cross-reference in order to indicate that one rule should prevail over another in any circumstance in which the two conflict; we count more than 30 such constructions in the 1933 and 1934 Acts alone.[3] Not one of those 30-plus provisions cross-references a definition; nor has Cyan pointed to a single such example from the whole rest of the U. S. Code. And the Congress enacting SLUSA had no reason to attempt that peculiar maneuver for the first time. If Congress had wanted to deprive state courts of jurisdiction over 1933 Act class actions, it had an easy way to do so: just insert into §77p an exclusive federal jurisdiction provision (like the 1934 Act’s) for such suits. That rule, when combined with the except clause, would have done the trick because it would have “provided” an “except[ion]” to §77v(a)’s grant of concurrent jurisdiction; by contrast, a mere definition of “covered class action” (as a damages suit on behalf of 50-plus people) does not so provide. SLUSA’s other conforming amendment illustrates the two ways in which Cyan’s construction of the except clause departs from its language. Recall that §77v(a) includes a general bar on removal. See supra, at 2. And recall that SLUSA appended to that prohibition the phrase “[e]xcept as provided in section 77p(c)” to reflect the statute’s new permission to remove certain class actions. See supra, at 5. In that “except as provided” phrase—just four sentences down from the except clause central to this case—Congress pinpointed a subsection of §77p, rather than citing the entire section for only one of its parts. Still more, that cross-referenced subsection contains an operative provision that could limit a rule, rather than a mere definition of a statutory term. In short, Congress wrote the removal bar’s except clause in just the way a reader of legislation would expect—and not in the wholly irregular way Cyan proposes for the except clause at issue here. Especially given the two provisions’ “interrelationship and close proximity,” Commissioner v. Lundy, 516 U. S. 235, 250 (1996) , the one conforming amendment highlights how far Cyan seeks to stretch the text of the other. Cyan’s interpretation also fits poorly with the remainder of the statutory scheme. Because Cyan treats the broad definition of “covered class action” as altering §77v(a)’s jurisdictional grant, its construction would prevent state courts from deciding any 1933 Act class suits seeking damages for more than 50 plaintiffs. That would include suits not involving a “covered security”—i.e., a security traded on a national stock exchange. §77p(f)(3); Brief for Petitioners 29 (conceding that point). But this Court has emphasized that SLUSA’s operative provisions (including its state-law class-action bar, see §77p(b)) apply to only “transactions in covered securities”: The statute “ex- presses no concern” with “transactions in uncovered securi- ties”—precisely because they are not traded on national markets. Chadbourne & Parke LLP v. Troice, 571 U. S. 377 , ___ (2014) (slip. op., at 9); see Brief for United States as Amicus Curiae 16–17 (SLUSA does not regard suits involving uncovered securities as “a matter of distinct federal concern”). Those securities, the Court explained, are “primarily of state concern,” and SLUSA “maintains state legal authority” to address them. Chadbourne, 571 U. S., at ___ (slip op., at 13). Except that under Cyan’s view, SLUSA would not. Instead, the law would strip state courts of jurisdiction over suits about securities raising no particular national interest. That result is out of line with SLUSA’s overall scope. And finally, Cyan’s take on the except clause reads too much into a mere “conforming amendment.” 112Stat. 3230. The change Cyan claims that clause made to state-court jurisdiction is the very opposite of a minor tweak. When Congress passed SLUSA, state courts had for 65 years adjudicated all manner of 1933 Act cases, including class actions. Indeed, defendants could not even remove those cases to federal court, as schemes of concurrent jurisdiction almost always allow. See supra, at 2. State courts thus had as much or more power over the 1933 Act’s enforcement as over any federal statute’s. To think Cyan right, we would have to believe that Congress upended that entrenched practice not by any direct means, but instead by way of a conforming amendment to §77v(a) (linked, in its view, with only a definition). But Congress does not make “radical—but entirely implicit—change[s]” through “technical and conforming amendments.” Director of Revenue of Mo. v. CoBank ACB, 531 U. S. 316, 324 (2001) (internal quotation marks omitted). Or to use the more general (and snappier) formulation of that rule, relevant to all “ancillary provisions,” Congress does not “hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) . That is yet one more reason to reject Cyan’s view of SLUSA’s text. B Faced with such recalcitrant statutory language, Cyan stakes much of its case on legislative purpose and history. See Brief for Petitioners 20–33, 36–37; Reply Brief 7–11, 17–21. Its claims come in two forms—one relating to the goals of SLUSA as a whole and the other relating to the aims of the except clause. Even assuming clear text can ever give way to purpose, Cyan would need some monster arguments on this score to create doubts about SLUSA’s meaning. The points Cyan raises come nowhere close to that level. 1 According to Cyan’s broad purposive argument, Congress could not “make good on the promise of the Reform Act”—which was its principal intention in enacting SLUSA—without divesting state courts of jurisdiction over all sizable 1933 Act class actions. Brief for Petitioners 20. Remember that the Reform Act contained a number of procedural measures (for example, a sworn-certification requirement for lead plaintiffs, see §77z–1(a)(2)(A)) that apply only in federal court. See supra, at 2–3. Plaintiffs bringing 1933 Act class actions could avoid those provisions simply by filing in state court; after all, those suits were not even removable by defendants. “So,” Cyan claims, “Congress enacted SLUSA to finish the job”—by shutting down the state forum and shifting all 1933 Act class actions to the federal one. Brief for Petitioners 21. In support of that view, Cyan cites several statements in SLUSA’s legislative reports—in particular, that SLUSA’s purpose was “to prevent plaintiffs from seeking to evade the protections that Federal law provides against abusive litigation by filing suit in State, rather than in Federal, court.” H. R. Conf. Rep. No. 105–803, p. 13 (1998); see H. R. Rep. No. 105–640, pp. 8–9 (1998); S. Rep. No. 105–182, p. 3 (1998). But to begin with, Cyan ignores a different way in which SLUSA “serve[d] the [Reform Act’s] objectives,” Brief for Petitioners 11—which our view of the statute fully effects. Recall that the Reform Act also included substantive sections protecting defendants (like a safe harbor for forward-looking statements) in suits brought under the federal securities laws. See §77z–2; supra, at 2. Plaintiffs could—and did—avoid those provisions by bringing their complaints of securities misconduct under state law instead. See supra, at 3. Hence emerged SLUSA’s bar on state-law class actions (and its removal provision to ensure their dismissal)—which guaranteed that the Reform Act’s heightened substantive standards would govern all future securities class litigation. SLUSA itself highlights that aim: Its preamble states that the statute is designed “to limit the conduct of securities class actions under State law, and for other purposes.” 112Stat. 3227. So too, this Court has underscored, over and over, SLUSA’s “purpose to preclude certain vexing state-law class actions.” Kircher, 547 U. S., at 645, n. 12; see Dabit, 547 U. S., at 82 (SLUSA stopped plaintiffs from “bringing class actions under state law”); Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 568 U. S. 455, 476 (2013) (SLUSA “curtailed plaintiffs’ ability to evade the [Reform Act] by bringing class-action suits under state rather than federal law”). That object—which SLUSA’s text actually reflects—does not depend on stripping state courts of jurisdiction over 1933 Act class suits, as Cyan proposes. For wherever those suits go forward, the Reform Act’s substantive protections necessarily apply. Still more, SLUSA ensured that federal courts would play the principal role in adjudicating securities class actions by means of its revisions to the 1934 Act. As explained earlier, SLUSA amended that statute in the same main way it did the 1933 Act—by adding a state-law class-action bar. See §78bb(f )(1); supra, at 3. But there, the change had a double effect: Because federal courts have exclusive jurisdiction over 1934 Act claims, forcing plaintiffs to bring class actions under the 1934 statute instead of state law also forced them to file in federal court. That meant the bulk of securities class actions would proceed in federal court—because the 1934 Act regulates all trading of securities whereas the 1933 Act addresses only securities offerings. See Blue Chip Stamps, 421 U. S., at 752 (characterizing the 1933 Act as “a far narrower statute”). So even without Cyan’s contrived reading of the except clause, SLUSA largely accomplished the purpose articulated in its Conference Report: moving securities class actions to federal court. To be sure, “largely” does not mean “entirely”—but then again, we do not generally expect statutes to fulfill 100% of all of their goals. See, e.g., Freeman v. Quicken Loans, Inc., 566 U. S. 624, 637 (2012) (“No legislation pursues its purposes at all costs” (internal quotation marks and alterations omitted)). Under our reading of SLUSA, all covered securities class actions must proceed under federal law; most (i.e., those alleging 1934 Act claims) must proceed in federal court; some (i.e., those alleging 1933 Act claims) may proceed in state court. We do not know why Congress declined to require as well that 1933 Act class actions be brought in federal court; perhaps it was because of the long and unusually pronounced tradition of according authority to state courts over 1933 Act litigation. See supra, at 11–12. But in any event, we will not revise that legislative choice, by reading a conforming amendment and a definition in a most improbable way, in an effort to make the world of securities litigation more consistent or pure. This Court has long rejected the notion that “whatever furthers the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam). Even if Congress could or should have done more, still it “wrote the statute it wrote—meaning, a statute going so far and no further.” Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 11) (internal quotation marks omitted). 2 Yet Cyan has a final argument—that the except clause would serve no purpose at all unless it works as Cyan says. See Brief for Petitioners 32–33; Reply Brief 8–11. Here, Cyan relies on an indubitable puzzle. Section 77v(a), as amended by SLUSA, gives state courts jurisdiction over 1933 Act suits “except as provided in §77p.” But §77p provides a bar on only certain state-law suits. So, Cyan contends, unless we take up its invitation to look to §77p(f)(2)’s definition of “covered class action,” the except clause excepts “exactly nothing.” Reply Brief 8. (To use an example of our own, it would be as if a parent told her child “you may have fruit after dinner, except for lollipops.”) What on earth, Cyan asks, would be the point of such a provision? The Investors answer that question with a theory about why Congress enacted the except clause. In their view, the clause was meant to deal with “mixed” securities class actions—containing both claims brought under the 1933 Act and claims arising under state law. See Brief for Respondents 12–13. If not for the except clause, the Investors posit, state courts would have been uncertain about how to handle those suits. Section 77p clearly instructs courts not to adjudicate the state-law claims; but (the Investors continue) §77v(a) gives state courts jurisdiction over entire “actions” brought to enforce the 1933 Act, even if they include additional state-law claims. What, then, to do? According to the Investors, the except clause’s purpose was to resolve that statutory conflict by making clear that §77p trumps §77v(a)—in other words, that a state court may not entertain state-law claims precluded by §77p(b) even when they are conjoined with 1933 Act claims falling within §77v(a)’s grant of jurisdiction. Truth be told, we are not sure whether Congress had that issue in mind. On the one hand (and contrary to what the Investors say), we doubt that the except clause was really necessary to address mixed class actions. Even without that clause, a competent state court faced with such a suit would understand that §77p requires dismissal of the state-law claims—and that §77v(a)’s jurisdictional grant over 1933 Act suits is not to the contrary. But on the other hand (and now supporting the Investors’ principal point), Congress may have thought that class-action lawyers would still try to circumvent SLUSA by tacking a 1933 Act claim onto a forbidden state-law class action, on the off chance of finding an error-prone judge. (After all, the worst that could happen was that the court would throw out the state-law claims, leaving the plaintiff with a permissible 1933 Act suit.) To prevent such gamesmanship—to make clear beyond peradventure that courts could not entertain the state-law half of mixed class actions—Congress might have added the except clause. But even if Congress never specifically considered mixed suits, it could well have added the except clause in a more general excess of caution—to safeguard §77p’s class-action bar come whatever might. This Court has encountered many examples of Congress legislating in that hyper-vigilant way, to “remov[e] any doubt” as to things not particularly doubtful in the first instance. Marx v. General Revenue Corp., 568 U. S. 371 –384 (2013) (citing Ali v. Federal Bureau of Prisons, 552 U. S. 214, 226 (2008) ; Fort Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990) ). (The idea, to return to our prior example, is to make sure that even if the child thinks orange lollipops count as fruit, she will not act on that view.) And if ever Congress had reason to legislate in that fashion, it was in SLUSA—whose very impetus lay in the success of class-action attorneys in “bypass[ing] . . . the Reform Act.” Kircher, 547 U. S., at 636. Heedful of that history of machinations, Congress may have determined to eliminate any risk—even if unlikely or at the time unknown—that a pre-existing grant of power to state courts could be used to obstruct SLUSA’s new limitation on what they could decide. And so (this alternative explanation goes) Congress enacted the except clause—which, in insisting that the limitation prevailed, would function as the ultimate (though with any luck, unneeded) fail-safe device.[4] But the most important response to this purposive argument echoes what we have said before about the weaknesses of Cyan’s own construction of the except clause. In the end, the uncertainty surrounding Congress’s reasons for drafting that clause does not matter. Nor does the possibility that the risk Congress addressed (whether specific or inchoate) did not exist. Because irrespective of those points, we have no sound basis for giving the except clause a broader reading than its language can bear. And that is especially true in light of the dramatic change such an interpretation would work in the 1933 Act’s jurisdictional framework. Whatever questions remain as to the except clause’s precise purpose—and we do not gainsay there are some—they do not give us permission to devise a statute (and at that, a transformative one) of our own. III Our last task is to address the Federal Government’s proposed halfway-house position. The Government rejects Cyan’s view that SLUSA stripped state courts of jurisdiction over 1933 Act class actions, for roughly the same reasons we have given. See Brief for United States as Amicus Curiae 11–23. But like Cyan, the Government believes that “Congress would not have been content to leave” such suits “stuck in state court,” where the Reform Act’s procedural protections do not apply. Id., at 15 (internal quotation marks omitted). So the Government offers a reading of SLUSA—in particular, of §77p(c)—that would allow defendants to remove 1933 Act class actions to federal court, as long as they allege the kinds of misconduct listed in §77p(b) (e.g., false statements or deceptive devices in connection with a covered security’s purchase or sale). See id., at 24–25. But most naturally read, §77p(c)—SLUSA’s exception to the 1933 Act’s general bar on removal—refutes, not supports, the Government’s view. Once again, see supra, at 4, §77p(c) reads as follows: “Any covered class action brought in any State court involving a covered security, as set forth in subsection (b) of this section, shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b) of this section.” In other words, the covered class actions described in §77p(b) can be removed to federal court (and, once there, shall be subject to dismissal because precluded, see supra, at 5). And which are the covered class actions described in §77p(b)? By this point, no one should have to be reminded: They are state-law class actions alleging securities misconduct. See §77p(b) (prohibiting “class action[s] based upon the statutory or common law of any State”). So those state-law suits are removable. But conversely, federal-law suits like this one—alleging only 1933 Act claims—are not “class action[s] . . . as set forth in subsection (b).” So they remain subject to the 1933 Act’s removal ban. In fact, this Court already held as much, by concluding in Kircher that §§77p(b) and 77p(c) apply to the exact same universe of class actions. See 547 U. S., at 643–644. Kircher involved a securities suit that was unaffected by §77p(b)’s class-action bar—there, not because it was based on federal law but because it involved a form of conduct falling outside that subsection. The Court of Appeals decided that the suit could be removed under §77p(c) even though it was not precluded by §77p(b), thinking (as we later put it) that the removal issue and “the preclusion issue [were] distinct.” Id., at 638. We flatly rejected that understanding of the relationship between §77p(b) and §77p(c). The “straightforward reading” of those two provisions, we explained, is that removal is “limited to those [actions] precluded by the terms of subsection (b).” Id., at 643. And if that were not clear enough, we said it again: Removal under §77p(c) is “restricted to precluded actions defined by subsection (b).” Id., at 643–644. And just to pound the point home, we said it yet a third time: “A covered [class] action is removable if it is precluded.” Id., at 646. Kircher thus forecloses the Government’s argument. Section 77p(b) does not preclude federal-law class actions. So under our decision, §77p(c) does not authorize their removal.[5] The Government responds with a novel way of understanding §77p(c), which it thinks would allow us to disregard Kircher when a class action like this one is based on federal law. In the Government’s view, first presented at oral argument, see Tr. of Oral Arg. 32–33, the words “as set forth in subsection (b)” do not modify the entire preceding phrase (basically, any large class action involving a covered security). Instead, the Government claims, those words modify only the shorter phrase “involving a covered security.” To support that view, the Government invokes the “rule of the last antecedent”—under which “the limiting clause is most naturally applied to the thing that comes immediately before it.” Id., at 36. The Government then presents a theory of how subsection (b) “set[s] forth” the “involv[ement]” of a covered security. “[T]o figure out what that means,” the Government contends, “you look at [§77p](b)(1) and (b)(2), which talk about certain types of misconduct”—for example, false statements or deceptive devices in connection with a covered security’s sale. Id., at 33–34. As long as conduct of that kind is implicated in a suit, the Government concludes, it can be removed—even if it is based on federal law and thus does not fall within §77p(b) as a whole. That view is consistent with Kircher’s result because the action there did not involve the conduct described in §§77p(b)(1) and (2). And as to Kircher’s rationale . . . well, we should feel free to ignore it. But even putting aside respect for precedent, that argument is in many ways flawed. To start with, the Government provides no good reason to think that “as set forth in subsection (b)” modifies only the phrase “involving a covered security.” As stated above, the most natural way to view the modifier is as applying to the entire preceding clause—again, “[a]ny covered class action brought in any State court involving a covered security.” See supra, at 19. That is so because that clause hangs together as a unified whole, referring to a single thing (a type of class action). Consider the following, grammatically identical construction: “The woman dressed to the nines carrying an umbrella, as shown in the picture . . .” Would anyone think that “as shown in the picture” referred to anything less than the well-attired and rain-ready woman? No. And so too here, the modifier goes back to the beginning of the preceding clause. The rule of the last antecedent is not to the contrary. We have applied that rule when the alternative reading would “stretch[] the modifier too far” by asking it to qualify a remote or otherwise disconnected phrase. Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 342 (2005) ; Lockhart v. United States, 577 U. S. ___, ___ (2016) (slip op., at 4) (using the rule “where it takes more than a little mental energy to process” a statute’s component parts, “making it a heavy lift to carry the modifier across them all”).[6] By contrast, we have not applied the rule when the modifier directly follows a concise and “integrated” clause. Jama, 543 U. S., at 344, n. 4. As it does here. But let us assume that the rule of the last antecedent governs: The Government then misapplies it by attaching the modifier to something more than the last thing before it. The rule, correctly used, would insist that “as set forth in subsection (b)” modifies only “a covered security”—because that is the closest “noun or noun phrase” that the modifier could reasonably reference. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012) (quoting R. Burchfield, Fowler’s Modern English Usage (3d ed. 1996)). But that standard way of applying the rule would not aid the Government’s construction, so it goes back yet another word: It attaches “as set forth in subsection (b)” to the longer phrase—and a verb phrase at that—“involving a covered security.” Tr. of Oral Arg. 35. That maneuver has no grammatical basis. (It is as if, in the example offered above, someone claimed that “as shown in the picture” modified not the woman, nor even the umbrella, but instead the in-between verb phrase “carrying an umbrella.”) The Government is choosing where to start in the sentence (that is, which words to qualify) based only on what best serves its argument. But let us even assume that “as set forth in subsection (b)” modifies “involving a covered security”: The language would still fail to explain the Government’s position. Remember that the Government reads the resulting phrase (again, “involving a covered security, as set forth in subsection (b)”) to point only to the forms of wrongful conduct listed in §§77p(b)(1) and (2)—for example, false statements or deceptive devices in securities sales. See supra, at 21. The problem is that no one would describe those misdeeds with that phrase. If Congress had meant to refer only to that behavior, rather than to everything in §77p(b), it would have done two things differently. First, Congress would have written “as set forth in paragraphs (b)(1) and (b)(2)” instead of “as set forth in subsection (b)” as a whole. See supra, at 9 (explaining that when Congress wants to refer only to a particular subsection or paragraph, it says so). And second, Congress would have written something like “involving allegations of misconduct,” rather than “involving a covered security”—because the latter phrase does not even passably describe §§77(b)(1) and (2)’s catalog of vices. We will not read “involving a covered security, as set forth in subsection (b)” to mean “involving allegations of misconduct, as set forth in paragraphs (b)(1) and (b)(2)” when Congress did not enact that formulation. See Lozano v. Montoya Alvarez, 572 U. S. 1 , ___ (2014) (slip op., at 14) (“Given that the drafters did not adopt that alternative, the natural implication is that they did not intend” to do so). And (finally, we promise) even if we could put out of mind all these difficulties, the Government’s position runs aground on §77p(c)’s last clause, which states that removed class actions “shall be subject to subsection (b).” That clause, properly understood, points toward dismissal of a removed action. As we earlier explained, and the Government concedes, Congress enacted §77p(c)’s removal provision out of “concern[] that state courts would not adequately enforce” §77p(b)’s state-law class-action prohibition. Brief for United States as Amicus Curiae 3; see supra, at 5. The idea was to allow removal so that a federal court could act as a backstop and order a class action’s dismissal—thereby “subject[ing]” it to §77p(b)’s bar. Kircher specifically said as much: Section 77p(c) “avails a defendant of a federal forum in contemplation not of further litigation over the merits of a claim brought in state court, but of termination of the proceedings altogether.” 547 U. S., at 645, n. 12; see supra, at 5. But of course, the Government contemplates “further litigation”—not “termination”—of a removed 1933 Act class action. See Brief for United States as Amicus Curiae 25. That decoupling of §77p(c)’s linkage between removal and dismissal provides the last reason to reject the Government’s argument. At bottom, the Government makes the same mistake as Cyan: It distorts SLUSA’s text because it thinks Congress simply must have wanted 1933 Act class actions to be litigated in federal court. But this Court has no license to “disregard clear language” based on an in- tuition that “Congress must have intended something broader.” Bay Mills, 572 U. S., at ___ (slip op., at 11) (internal quotation marks omitted). SLUSA did quite a bit to “make good on the promise of the Reform Act” (as Cyan puts it). Brief for Petitioners 20; see supra, at 12–13. If further steps are needed, they are up to Congress. IV SLUSA did nothing to strip state courts of their longstanding jurisdiction to adjudicate class actions alleging only 1933 Act violations. Neither did SLUSA authorize removing such suits from state to federal court. We accordingly affirm the judgment below. It is so ordered. APPENDIX “77p. Additional remedies; limitation on remedies . . . . . “(b) Class action limitations “No covered class action based upon the statutory or common law of any State or subdivision thereof may be maintained in any State or Federal court by any private party alleging— “(1) an untrue statement or omission of a material fact in connection with the purchase or sale of a covered security; or “(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security. “(c) Removal of covered class actions “Any covered class action brought in any State court involving a covered security, as set forth in subsection (b) of this section, shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b) of this section. . . . . . “(f) Definitions “For purposes of this section, the following definitions shall apply: . . . . . “(2) Covered class action “(A) In general “The term “covered class action” means— “(i) any single lawsuit in which— “(I) damages are sought on behalf of more than 50 persons or prospective class members, and questions of law or fact common to those persons or members of the prospective class, without reference to issues of individualized reliance on an alleged misstatement or omission, predominate over any questions affecting only individual persons or members; or “(II) one or more named parties seek to recover damages on a representative basis on behalf of themselves and other unnamed parties similarly situated, and questions of law or fact common to those persons or members of the prospective class predominate over any questions affecting only individual persons or members; or “(ii) any group of lawsuits filed in or pending in the same court and involving common questions of law or fact, in which— “(I) damages are sought on behalf of more than 50 persons; and “(II) the lawsuits are joined, consolidated, or otherwise proceed as a single action for any purpose. . . . . . “(3) Covered security “The term “covered security” means a security that satisfies the standards for a covered security specified in paragraph (1) or (2) of section 77r(b) of this title at the time during which it is alleged that the misrepresentation, omission, or manipulative or deceptive conduct occurred, except that such term shall not include any debt security that is exempt from registration under this subchapter pursuant to rules issued by the Commission under section 77d(2) of this title.” “77v. Jurisdiction of offenses and suits “(a) Federal and State courts; venue; service of process; review; removal; costs “The district courts of the United States and the United States courts of any Territory shall have jurisdiction of offenses and violations under this subchapter and under the rules and regulations promulgated by the Commission in respect thereto, and, concurrent with State and Territorial courts, except as provided in section 77p of this title with respect to covered class actions, of all suits in equity and actions at law brought to enforce any liability or duty created by this subchapter. Any such suit or action may be brought in the district wherein the defendant is found or is an inhabitant or transacts business, or in the district where the offer or sale took place, if the defendant participated therein, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. In any action or proceeding instituted by the Commission under this subchapter in a United States district court for any judicial district, a subpoena issued to compel the attendance of a witness or the production of documents or tangible things (or both) at a hearing or trial may be served at any place within the United States. Rule 45(c)(3)(A)(ii) of the Federal Rules of Civil Procedure shall not apply to a subpoena issued under the preceding sentence. Judgments and decrees so rendered shall be subject to review as provided in sections 1254, 1291, 1292, and 1294 of title 28. Except as provided in section 77p(c) of this title, no case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. No costs shall be assessed for or against the Commission in any proceeding under this subchapter brought by or against it in the Supreme Court or such other courts.” Notes 1 Compare, e.g., Luther v. Countrywide Financial Corp., 195 Cal. App. 4th 789, 797–798, 125 Cal. Rptr. 3d 716, 721 (2011) (holding that state courts have jurisdiction over covered class actions alleging only 1933 Act claims), with, e.g., Knox v. Agria Corp., 613 F. Supp. 2d 419, 425 (SDNY 2009) (holding that state courts lack jurisdiction over such actions). 2 This Court has often applied a “presumption in favor of concurrent state court jurisdiction” when interpreting federal statutes. Mims v. Arrow Financial Services, LLC, 565 U. S. 368, 378 (2012) (quoting Tafflin v. Levitt, 493 U. S. 455 –459 (1990)). Cyan argues that the presumption should not apply here because SLUSA included explicit “language addressing state-court jurisdiction” and “the only question is [its] scope.” Reply Brief 22. We need not address that contention because SLUSA’s text precludes Cyan’s position without aid from any presumption. 3 See, e.g., §77k(f)(1) (announcing a general rule of joint and several liability, “[e]xcept as provided in paragraph (2),” which sets out a different liability rule for outside directors); §77p(a) (announcing a general rule that “the rights and remedies provided” under the statute do not displace others, “[e]xcept as provided in subsection (b),” which restricts the right to bring class actions based on state law); §77z–2(c) (announcing a general safe harbor for certain forward-looking statements, “[e]xcept as provided in subsection (b),” which excludes protection for a subset of them). 4 In line with this precautionary function, the except clause could do some work to protect §77p’s state-law class-action bar in a set of suits beyond mixed cases. As this Court recently noted, some state-law securities claims “rise[] or fall[] on the plaintiff’s ability to prove the violation” of a federal securities statute. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578 U. S. ___, ___ (2016) (slip op., at 7) (addressing the 1934 Act). In such cases, we held, the state-law claims are “brought to enforce” a liability created by the federal statute, and thus fall within that law’s jurisdictional provision. See id., at ___ (slip op., at 8). In the absence of the except clause, then, class-action lawyers might well have argued that such state-law claims could be adjudicated under §77v(a) notwithstanding §77p’s bar. Once again, we think most courts would have rejected that claim and decided that §77p controls—but the except clause eliminates any chance of a contrary holding. 5 In light of SLUSA’s text and Kircher’s holding, it should come as no surprise that all seven Courts of Appeals to have considered the matter have concluded that §77p(c) allows removal of only class actions falling within §77p(b)’s prohibition. See Campbell v. American Int’l Group, Inc., 760 F.3d 62, 64 (CADC 2014); Hidalgo-Velez v. San Juan Asset Management, 758 F.3d 98, 103 (CA1 2014); Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 615–616 (CA7 2012); Madden v. Cowen & Co., 576 F.3d 957, 965 (CA9 2009); Sofonia v. Principal Life Ins. Co., 465 F.3d 873, 876 (CA8 2006); Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25, 33 (CA2 2005), vacated on other grounds, 547 U. S. 71 (2006) ; Behlen v. Merrill Lynch, 311 F.3d 1087, 1092 (CA11 2002). 6 The classic example comes from Barnhart v. Thomas, 540 U. S. 20 (2003) . The statute at issue provided that a person is disabled if his impairment is so severe that “he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id., at 23 (quoting 42 U. S. C. §423(d)(1)(A)) (emphasis altered). Invoking the rule of the last antecedent, we concluded that the italicized phrase “which exists in the national economy” modifies only “substantial gainful work,” and not the more distant “previous work.” See 540 U. S., at 26. Needless to say, that statutory provision is a far cry from the one at issue 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 Cyan, Inc., et al. v. Beaver County Employees Retirement Fund et al. certiorari to the court of appeal of california, first appellate district No. 15–1439. Argued November 28, 2017—Decided March 20, 2018 In the wake of the 1929 stock market crash, Congress enacted two laws, in successive years, to promote honest practices in the securities markets. The Securities Act of 1933 (1933 Act) creates private rights of action to aid the enforcement of obligations pertaining to securities offerings. The Act authorizes both federal and state courts to exercise jurisdiction over those private suits and, more unusually, bars the removal of such suits from state to federal court. The Securities Exchange Act of 1934 (1934 Act), which regulates not the original issuance of securities but all their subsequent trading, is also enforceable through private rights of action. But all suits brought under the 1934 Act fall within the exclusive jurisdiction of the federal courts. In 1995, the Private Securities Litigation Reform Act (Reform Act) amended both Acts, in order to stem perceived abuses of the class-action vehicle in securities litigation. The Reform Act included both substantive reforms, applicable in state and federal court alike, and procedural reforms, applicable only in federal court. Rather than face these new obstacles, plaintiffs began filing securities class actions under state law. To prevent this end run around the Reform Act, Congress passed the Securities Litigation Uniform Standards Act of 1998 (SLUSA), whose amendments to the 1933 Act are at issue in this case. As relevant here, those amendments include two operative provisions, two associated definitions, and two “conforming amendments.” First, 15 U. S. C. §77p(b) completely disallows (in both state and federal courts) “covered class actions” alleging dishonest practices “in connection with the purchase or sale of a covered security.” According to SLUSA’s definitions, the term “covered class action” means a class action in which “damages are sought on behalf of more than 50 persons.” §77p(f)(2). And the term “covered security” refers to a security listed on a national stock exchange. §77p(f)(3). Next, §77p(c) provides for the removal of certain class actions to federal court, where they are subject to dismissal. Finally, SLUSA’s “conforming amendments” add two new phrases to §77v(a), the 1933 Act’s jurisdictional provision. The first creates an exception to §77v(a)’s general removal bar through the language “[e]xcept as provided in section 77p(c).” The other—the key provision in this case—expresses a caveat to the general rule that state and federal courts have concurrent jurisdiction over all claims to enforce the 1933 Act. With this conforming amendment, §77v(a) now provides that state and federal courts shall have concurrent jurisdiction, “except as provided in section 77p . . . with respect to covered class actions.” The Court refers to this provision as the “except clause.” Respondents, three pension funds and an individual (Investors), purchased shares of stock in petitioner Cyan, Inc., in an initial public offering. After the stock declined in value, the Investors brought a damages class action against Cyan in state court, alleging 1933 Act violations. They did not assert any claims based on state law. Cyan moved to dismiss for lack of subject matter jurisdiction, arguing that SLUSA’s “except clause” stripped state courts of power to adjudicate 1933 Act claims in “covered class actions.” The Investors maintained that SLUSA left intact state courts’ jurisdiction over all suits—including “covered class actions”—alleging only 1933 Act claims. The state courts agreed with the Investors and denied Cyan’s motion to dismiss. This Court granted certiorari to decide whether SLUSA deprived state courts of jurisdiction over “covered class actions” asserting only 1933 Act claims. The Court also addresses a related question raised by the federal Government as amicus curiae and addressed by the parties in briefing and argument: whether SLUSA enabled defendants to remove 1933 Act class actions from state to federal court for adjudication. Held: 1. SLUSA did nothing to strip state courts of their longstanding jurisdiction to adjudicate class actions brought under the 1933 Act. . (a) SLUSA’s text, read most straightforwardly, leaves this jurisdiction intact. The background rule of §77v(a)—in place since the 1933 Act’s passage—gives state courts concurrent jurisdiction over all suits “brought to enforce any liability or duty created by” that statute. And the except clause—“except as provided in section 77p of this title with respect to covered class actions”—ensures that in any case in which §77v(a) and §77p conflict, §77p will control. The critical question for this case is therefore whether §77p limits state-court jurisdiction over class actions brought under the 1933 Act. It does not. Section 77p bars certain securities class actions based on state law but it says nothing, and so does nothing, to deprive state courts of jurisdiction over class actions based on federal law. That means §77v(a)’s background rule—under which a state court may hear the Investors’ 1933 Act suit—continues to govern. Cyan argues that the except clause’s reference to “covered class actions” points the reader to §77p(f)(2), which defines that term to mean a suit seeking damages on behalf of more than fifty persons—without mentioning anything about whether the suit is based on state or federal law. But that view cannot be squared with the except clause’s wording for two independent reasons. First, the except clause points to “section 77p” as a whole—not to paragraph 77p(f)(2). Had Congress intended to refer to §77p(f)(2)’s definition alone, it presumably would have done so. See NLRB v. SW General, Inc., 580 U. S. ___, ___. Second, a definition, like §77p(f)(2), does not “provide[]” an “except[ion],” but instead gives meaning to a term—and Congress well knows the difference between those two functions. Not one of the 30-plus provisions in the 1933 and 1934 Acts using the phrase “except as provided in . . .” cross-references a definition. Structure and context also support the Court’s reading of the except clause. Because Cyan treats the broad definition of “covered class action” as altering §77v(a)’s jurisdictional grant, its construction would prevent state courts from deciding any 1933 Act class suits seeking damages for more than fifty plaintiffs, thus stripping state courts of jurisdiction over suits about securities raising no particular national interest. That result is out of line with SLUSA’s overall scope. Moreover, it is highly unlikely that Congress upended the 65-year practice of state courts’ adjudicating all manner of 1933 Act cases (including class actions) by way of a mere conforming amendment. See Director of Revenue of Mo. v. CoBank ACB, 531 U. S. 316 . . (b) Cyan’s reliance on legislative purpose and history is unavailing. . (1) Cyan insists that the only way for SLUSA to serve the Reform Act’s objectives was by divesting state courts of jurisdiction over all sizable 1933 Act class actions. Specifically, it claims that its reading is necessary to prevent plaintiffs from circumventing the Reform Act’s procedural measures, which apply only in federal court, by bringing 1933 Act class actions in state court. But Cyan ignores a different way in which SLUSA served the Reform Act’s objectives—which the Court’s view of the statute fully effects. The Reform Act included substantive sections protecting defendants in suits brought under the federal securities laws. Plaintiffs circumvented those provisions by bringing their complaints of securities misconduct under state law instead. Hence emerged SLUSA’s bar on state-law class actions (and its removal provision to ensure their dismissal)—which guaranteed that the Reform Act’s heightened substantive standards would govern all future securities class litigation. SLUSA’s preamble states that the statute is designed “to limit the conduct of securities class actions under state law, and for other purposes,” 112Stat. 3227, and this Court has underscored, over and over, SLUSA’s “purpose to preclude certain vexing state-law class actions.” Kircher v. Putnam Funds Trust, 547 U. S. 633 . That object—which SLUSA’s text actually reflects—does not depend on stripping state courts of jurisdiction over 1933 Act class suits, as Cyan proposes. For wherever those suits go forward, the Reform Act’s substantive protections necessarily apply. SLUSA also went a good distance toward ensuring that federal courts would play the principal role in adjudicating securities class actions by means of its revisions to the 1934 Act. Because federal courts have exclusive jurisdiction over 1934 Act claims, forcing plaintiffs to bring class actions under the 1934 statute instead of state law also forced them to file in federal court. . (2) Cyan finally argues that the except clause would serve no purpose at all unless it works as Cyan says. But Congress could have envisioned the except clause as the ultimate fail-safe device, designed to safeguard §77p’s class-action bar come whatever might. Congress has been known to legislate in that hyper-vigilant way, to “remov[e] any doubt” as to things not particularly doubtful in the first instance. Marx v. General Revenue Corp., 568 U. S. 371 –384. If ever it had reason to legislate in that fashion, it was in SLUSA—whose very impetus lay in the success of class action attorneys in “bypass[ing] . . . the Reform Act.” Kircher, 547 U. S., at 636. And regardless of any uncertainty surrounding Congress’s reasons for drafting the except clause, there is no sound basis for giving that clause a broader reading than its language can bear, especially in light of the dramatic change such an interpretation would work in the 1933 Act’s jurisdictional framework. . 2. SLUSA does not permit defendants to remove class actions alleging only 1933 Act claims from state to federal court. The Government argues that §77p(c) allows defendants to remove 1933 Act class actions to federal court as long as they allege the kinds of misconduct listed in §77p(b). But most naturally read, §77p(c) refutes, not supports, the Government’s view. Section 77p(c) allows for removal of “[a]ny covered class action brought in any State court involving a covered security, as set forth in subsection (b).” The covered class actions “set forth” in §77p(b) are state-law class actions alleging securities misconduct. Federal-law suits are not “class action[s] . . . as set forth in subsection (b).” Thus, they remain subject to the 1933 Act’s removal ban. This Court has held as much, concluding that §§77p(b) and 77p(c) apply to the exact same universe of class actions. Kircher, 547 U. S., at 643–644. The “straightforward reading” of those two provisions is that removal under §77p(c) is “limited to those [actions] precluded by the terms of subsection (b).” Id., at 643. . Affirmed. Kagan, J., delivered the opinion for a unanimous Court.

Section 77p(c) of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) provides that, except as provided in section 77p of this title, no case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States. Section 77v(a) defines a covered class action as any action arising under, inter alia, the Securities Act of 1933 (1933 Act), and prohibits certain securities class actions based on state law. The section also provides for the removal of certain class actions to federal court, as well as for their disposition: 1. The section does not strip state courts of jurisdiction over class actions alleging violations of only the 1933 Act. . 2. Nor did SLUSA empower defendants to remove such class actions from state to federal courts. By its terms, §77v(c)'s except clause does nothing to deprive state courts of their jurisdiction to decide class actions brought under the 1934 Act, but rather authorizes removal of those suits so that a federal court can dismiss them. Even assuming clear text can ever give way to purpose, Cyan would need some monster arguments on the score to create doubts about the section. P.. 3. Section 77p does not limit state-court jurisdiction over federal class actions. Such a reading of the section is supported by the section itself, which, by its plain language, leaves in place state courts' jurisdiction over 1933 Act claims, including when brought in class actions, and by §77c, which gives state courts concurrent jurisdiction over all suits brought to enforce any liability or duty created by the statute. See, e.g., §77p(b). The except clause is drafted as a limitation on that rule by ensuring that, in any case in which §77b and §77P come into conflict, § 77p will control. Thus, it is not limited to class actions that fall within the prohibition of the except clause. In fact, the section contains an operative provision that could limit a rule, rather than a mere definition of a statutory term. Kircher v. Putnam Funds Trust, 547 U. S. 633, 644. Moreover, since the section provides for removal of state-law class actions if they are found to be based on a state law claim, such removal is authorized. Petitioners, three pension funds and an individual (together, Investors) who purchased shares of Cyan stock in an initial public offering, brought a damages class action against Cyan in California Superior Court, alleging that Cyan's offering documents contained material misstatements. After the stock declined in value, the Investors brought an action in state court against Cyan. They alleged that Cyan had violated the 1933 and 1934 Act by offering documents containing material errors, in violation of the 1933 Act, and that it did not assert any claims based on the state law claims. Cyan moved to dismiss the suit for lack of subject matter jurisdiction, arguing that the SLUSA-except clause (i.e., the amendment made to §77g(f)(2) of SLUSA's concurrent-jurisdiction grant)stripped state courts, and thus empowered defendants, of power to remove 1933 Act class actions in federal court. However, the State Superior Court denied the motion to dismiss, and the state appellate courts denied review of that ruling. Appearing in this Court, the Federal Government as amicus curiae raised another question, which is related to the parties' jurisdictional arguments, and addressed it in briefing and argument. That question was not directly presented because Cyan never attempted to remove the Investors' suit. Rather, both Cyan and the Investors addressed the removal issue in briefing and argument, in which both the Government and the Government pointed to a cross-referenced subsection of §77f(c), which states that removed class actions are subject to subsection (b) of this section, and which, in turn, indicates what should happen to a barred class suit after it has been removed: (1) dismissal of the action, and (2) termination of the proceedings altogether. This Court has long rejected the notion that whatever furthers the statute's primary objective must be the law, and even if Congress could have done more, it should have done so. Here, the Government provides no good reason to think that SLUSA modifies only the phrase "involving a covered security...., since the most natural way to view the clause is as applying to the entire preceding clause, and since Congress knew the difference between those two functions, it could well have added the clause in a more general excess of caution to safeguard the section from its prohibition. Cf. Cyan, supra, at 645, n. 12. Also, the District Court erred in rejecting Cyan, since it erroneously misapplied the section to something more than the last thing before it

2017_17-43

https://www.oyez.org/cases/2017/17-43

. A federal statute allows judges to issue wiretap orders authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. See Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §2510 et seq. The statute requires the judge to find “probable cause” supporting issuance of the order, and it sets forth other detailed requirements governing both the application for a wiretap and the judicial order that authorizes it. See §2518. The statute provides for the suppression of “the contents of any wire or oral communication” that a wiretap “intercept[s]” along with any “evidence derived therefrom” if “(i) the communication was unlawfully intercepted; “(ii) the order of . . . approval under which it was intercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” §2518(10)(a). This litigation concerns the second of these provisions—the provision that governs the “insufficien[cy]” of an order “on its face.” §2518(10)(a)(ii). Los and Roosevelt Dahda—defendants in the trial below and petitioners here—sought to suppress evidence derived from nine wiretap Orders used to obtain evidence of their participation in an unlawful drug distribution conspiracy. They argue that each Order is “insufficient on its face” because each contains a sentence authorizing interception “outside the territorial jurisdiction” of the authorizing judge, App. 97 (emphasis added), even though the statute normally allows a judge to authorize wiretaps only within his or her “territorial jurisdiction,” §2518(3). In deciding whether each Order was “insufficient on its face,” we assume that the Dahdas are right about the “territorial” requirement. That is to say, we assume the relevant sentence exceeded the judge’s statutory author- ity. But none of the communications unlawfully inter- cepted outside the judge’s territorial jurisdiction were intro- duced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas. Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not “insufficient” on their “face.” I A As we just said, the relevant statute permits a judge to issue an order authorizing the Government to intercept wire communications for an initial (but extendable) period of 30 days. §2518(5). To obtain that order, the Government must submit an application that describes the particular offense being investigated as well as the type of communications it seeks to intercept; that sets forth the basis for an appropriate finding of “probable cause”; that explains why other less intrusive methods are inadequate, have failed, or are too dangerous to try; and that meets other requirements, showing, for example, authorization by a specified governmental official. §2518(1). If the judge accepts the application, finds probable cause, and issues an authorizing order, that order must itself contain specified information, including, for example, the identity of the “person” whose “communications are to be intercepted”; the “nature and location of the [relevant] communications facilities”; a “particular description of the type of communication sought to be intercepted”; a statement of the “particular offense” to which the intercept “relates”; the “identity of the agency authorized to intercept”; the iden- tity of the “person authorizing the application”; and “the period of time during which” the “interception is authorized.” §§2518(4)(a)–(e). A judge’s authorizing authority normally extends only within statutorily defined bounds. The statute specifies that an order can permit the interception of communications “within the territorial jurisdiction of the court in which the judge is sitting.” §2518(3). (There is an exception allowing interception beyond the judge’s territorial jurisdiction if the judge authorizes a “mobile interception device,” ibid., but the parties now agree that exception does not apply to these Orders.) The Government here adds (without the Dahdas’ disagreement) that an intercept takes place either where the tapped telephone is located or where the Government’s “listening post” is located. See §2510(4) (defining “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device”); see also Brief for Petitioners 11; Brief for United States 6. As so interpreted, the statute generally requires that one or the other or both of these locations must be found within the authorizing judge’s “territorial jurisdiction.” B In 2011, the Government began investigating a sus- pected drug distribution ring based in Kansas. It submitted an application asking a federal judge for the District of Kansas to issue nine related wiretap Orders, and the judge issued them. For present purposes we assume, see infra, at 10–11, that all nine Orders met all statutory requirements with one exception. Each Order contained a sentence that read as follows: “Pursuant to Title 18, United States Code §2518(3), it is further Ordered that, in the event TARGET TELEPHONE #1, TARGET TELEPHONE #3 and TARGET TELEPHONE #4, are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States.” App. 105 (under seal) (emphasis added); see also id., at 97, 114, 123, 132, 140, 149, 158, 166, 174 (Orders containing identical language but targeting different telephones). Although they disputed it below, the parties now agree that this sentence could not lawfully allow a wiretap of a phone that was located outside Kansas in instances where the Government’s listening post was also located outside of Kansas. Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on mobile phones that were located outside of Kansas. But, in one instance, the Government listened from a listening post outside of Kansas (in Missouri) to conversations on a mobile phone that was also outside of Kansas (in California). That one instance concerned a mobile phone (Target Telephone #7) belonging to Philip Alarcon. In 2012, the Government indicted the Dahdas and several others, charging them with conspiracy to buy illegal drugs in California and sell them in Kansas. Prior to trial, the Dahdas moved to suppress all evidence derived from the wiretaps authorized by the nine Orders on the ground that the District Court could not authorize the interception of calls from the Missouri listening post to and from Alarcon’s mobile phone in California. In its response, the Government said it would not introduce any evidence arising from its Missouri listening post. A Magistrate Judge and subsequently the District Court denied the Dahdas’ suppression motion. App. to Pet. for Cert. 59a–76a. The Dahdas appealed. They argued that, even though the Government did not use any wiretap information from the Missouri listening post, the court should have suppressed all evidence derived from any of the Orders. That, they said, is because each Order was “insufficient on its face” given the extra sentence authorizing interception outside Kansas. Hence the second subparagraph of the statute’s suppression provision required the evidence to be suppressed. §2518(10)(a)(ii). The U. S. Court of Appeals for the Tenth Circuit rejected this argument on the ground that the claimed insuffi- ciency concerned the statute’s territorial requirement. 853 F. 3d 1101, 1114–1116 (2017). That requirement, in its view, did not “ ‘implemen[t]’ ” Congress’ core statutory concerns in enacting the wiretap statute. Id., at 1114 (quoting United States v. Giordano, 416 U. S. 505, 527 (1974)). And for that reason a violation of the territorial requirement did not warrant suppression. See also 852 F. 3d 1282, 1290 (2017). The Dahdas filed a petition for certiorari, seeking review of the Tenth Circuit’s determination. And, in light of different related holdings among the Circuits, we granted that petition. Compare 853 F. 3d, at 1114–1116 (suppression was not required for orders authorizing suppression beyond the District Court’s territorial jurisdiction), and Adams v. Lankford, 788 F. 2d 1493, 1500 (CA11 1986) (same), with United States v. Glover, 736 F.3d 509, 515 (CADC 2013) (suppression required for territorial defect). II A The question before us concerns the interpretation of the suppression provision’s second subparagraph, which requires suppression where a wiretap order is “insufficient on its face.” §2518(10)(a)(ii). The Dahdas ask us to read subparagraph (ii) as applying to any legal defect that appears within the four corners of the order. The Government replies that the Dahdas’ approach would require suppression of evidence of serious criminal behavior due to the most minor of technical failures, including those that have little or no relation to any statutory objective. The Tenth Circuit, agreeing with the Government, held that subparagraph (ii) applies only where the “insuffi- ciency” constitutes an order’s failure to satisfy a “ ‘statutory requiremen[t] that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ” 853 F. 3d, at 1114 (quoting Giordano, supra, at 527; second alteration in original). The court identified two such core concerns—“ ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized’ ”—and concluded that neither applies to the statute’s territorial limitation. 853 F. 3d, at 1114 (quoting S. Rep. No. 90–1097, p. 66 (1986)). Like the Dahdas, we believe that the Tenth Circuit’s interpretation of this provision is too narrow. The Tenth Circuit took the test it applied from this Court’s decision in United States v. Giordano, supra, at 527. But Giordano involved a different provision. Keep in mind that the statute sets forth three grounds for suppression: “(i) the communication was unlawfully intercepted; “(ii) the order of . . . approval under which it was intercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” §2518(10)(a). Giordano focused not, as here, on the second subparagraph but on the first subparagraph, which calls for the suppression of “unlawfully intercepted” communications. In Giordano, a criminal defendant sought suppression of wiretap-gathered information on the ground that the wiretap application was unlawfully authorized. 416 U. S., at 525. A provision of the wiretap statute that has since been amended required an application to be approved by either the Attorney General or a designated Assistant Attorney General. See 18 U. S. C. §2516(1) (1970 ed.). But, in Giordano’s case, an executive assistant to the Assistant Attorney General—not the Assistant Attorney General himself—had approved the application. 416 U. S., at 510. The Government argued that this statutory violation did not violate the first subparagraph, i.e., it did not lead to an “unlawfu[l] intercept[ion],” 18 U. S. C. §2518(10)(a)(i), because that subparagraph covers only violations of the Constitution, not statutes. Giordano, 416 U. S., at 525–526. Otherwise, the Government added, subparagraphs (ii) and (iii)—which clearly cover some statutory violations—would be superfluous. Id., at 526. But this Court held that the first subparagraph did cover certain statu- tory violations, namely, violations of those statutory provisions that “implemented” the wiretap-related congres- sional concerns the Tenth Circuit mentioned in its opinion. Id., at 527. So construed, the suppression provision left room for the second and third subparagraphs to have separate legal force. The Court went on to hold that a violation of the approval-by-the-Attorney-General provision implicated Congress’ core concerns. Subparagraph (i) thus covered that particular statutory provision. And, finding the provision violated, it ordered the wiretap evidence suppressed. Id., at 527–528. Here, by contrast, we focus upon subparagraph (ii), which requires suppression when an order is facially insufficient. And in respect to this subparagraph, we can find no good reason for applying Giordano’s test. The underlying point of Giordano’s limitation was to help give independent meaning to each of §2518(10)(a)’s subparagraphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’—precisely what [this] Court tried to avoid in Giordano.” Glover, 736 F. 3d, at 514. We consequently conclude that subparagraph (ii) does not contain a Giordano-like “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.” §2518(10)(a)(ii). B Although we believe the Tenth Circuit erred in applying Giordano’s core concerns test to subparagraph (ii), we cannot fully endorse the Dahdas’ reading of the statute either. In our view, subparagraph (ii) does not cover each and every error that appears in an otherwise sufficient order. It is clear that subparagraph (ii) covers at least an order’s failure to include information that §2518(4) specifically requires the order to contain. See §§2518(4)(a)–(e) (requiring an order to specify, e.g., the “identity of the person, if known, whose communications are to be intercepted,” “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates”); Brief for United States 17. An order lacking that information would deviate from the uniform authorizing requirements that Congress explicitly set forth, while also falling literally within the phrase “insufficient on its face.” But the Dahdas would have us go further and conclude that any defect that may appear on an order’s face would render it insufficient. The lower courts in various contexts have debated just which kinds of defects subparagraph (ii) covers. See, e.g., United States v. Moore, 41 F. 3d 370, 375–376 (CA8 1994) (order missing judge’s signature); United States v. Joseph, 519 F. 2d 1068, 1070 (CA5 1975) (order identifying the wrong Government official as authorizing the application); United States v. Vigi, 515 F. 2d 290, 293 (CA6 1975) (same). We need not, however, resolve the questions that these many different cases raise. We need only determine whether the defects in the Orders before us render them “insufficient.” We conclude that they do not. We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” Murr v. Wis- consin, 582 U. S. ___, ___ (2017) (slip op., at 19), we see little to be gained by remanding this litigation for further consideration. The argument is simply this: Subparagraph (ii) refers to an order that is “insufficient on its face.” An order is “insufficient” insofar as it is “deficient” or “lacking in what is necessary or requisite.” 5 Oxford English Dictionary 359 (1933); accord, Webster’s New International Dictionary 1288 (2d ed. 1957). And, looking, as the Dahdas urge us to do, at “the four corners of the order itself,” Reply Brief 4, we cannot find any respect in which the Orders are deficient or lacking in anything necessary or requisite. The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas, which we set forth above. See supra, at 4. But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “outside the territorial jurisdiction of the court.” App. 97. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its presence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we discussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. See supra, at 3. Consequently, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute. The Dahdas argue that, without the offending sentence, the Orders are “insufficient” because they then do not specifically list the territorial area where they could lawfully take effect. Reply Brief 6. The Orders, however, clearly set forth the authorizing judge’s territorial jurisdiction: the “District of Kansas.” See App. 100. And the statute itself presumptively limits every Order’s scope to the issuing court’s territorial jurisdiction. See §2518(3). We consequently fail to see how the additional language here at issue could render the Orders facially insufficient. The Dahdas add that interpreting the term “insufficient” as we have just done will produce “bizarre results.” Reply Brief 5. They claim that, under the Government’s logic, an order authorizing interception for 180 days would not be facially insufficient even though the wiretap statute expressly limits the maximum duration of a wiretap order to 30 days. §2518(5). To be sure, a 180-day order may raise problems that the language at issue here does not. On the one hand, it may be argued that such an order would be facially insufficient because without the 180-day provision the order would not contain any time limit at all. See §2518(4)(e). On the other hand, one might argue that such an order merely would be overly broad—not facially insufficient—and that suppression would be warranted only for those communications unlawfully intercepted after 30 days. See §2518(10)(a)(i). Regardless, we need not now address the Dahdas’ 180-day hypothetical. It is enough to say that the problems that may be associated with such an order are not present in this litigation. Here, the Orders would have been sufficient even if they lacked the language authorizing interception outside Kansas. And the Dahdas cannot seek suppression under subparagraph (i) given that the unlawfully intercepted communications from the Missouri listening post were not introduced at trial. Our interpretation of subparagraph (ii) makes sense of the suppression provision as a whole. Where the Government’s use of a wiretap is unconstitutional or violates a statutory provision that reflects Congress’ core concerns, an aggrieved person may suppress improperly acquired evidence under subparagraph (i) (as “unlawfully intercepted,” see Giordano, 416 U. S., at 527). Where an order lacks information that the wiretap statute requires it to include, an aggrieved person may suppress the fruits of the order under subparagraph (ii) (as “insufficient on its face”). And where the Government fails to comply with conditions set forth in the authorizing order, an aggrieved person may suppress its fruits under subparagraph (iii) (as an “interception . . . not made in conformity with the order of authorization or approval”). For these reasons, the judgments of the Court of Appeals are affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of these cases.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Dahda v. United States certiorari to the united states court of appeals for the tenth circuit No. 17–43. Argued February 21, 2018—Decided May 14, 2018[1] Under federal law, a judge normally may issue a wiretap order permitting the interception of communications only “within the territorial jurisdiction of the court in which the judge is sitting.” 18 U. S. C. §2518(3). Here, a judge for the District of Kansas authorized nine wiretap Orders as part of a Government investigation of a suspected drug distribution ring in Kansas. For the most part, the Government intercepted communications from a listening post within Kansas. But each Order also contained a sentence purporting to authorize interception outside of Kansas. Based on that authorization, the Government intercepted additional communications from a listening post in Missouri. Following the investigation, petitioners Los and Roosevelt Dahda were indicted for participating in an illegal drug distribution conspiracy. They moved to suppress the evidence derived from all the wiretaps under subparagraph (ii) of the wiretap statute’s suppression provision because the language authorizing interception beyond the District Court’s territorial jurisdiction rendered each Order “insufficient on its face.” §2518(10)(a)(ii). The Government agreed not to introduce any evidence arising from its Missouri listening post, and the District Court denied the Dahdas’ motion. On appeal, the Tenth Circuit rejected the Dahdas’ facial-insufficiency argument on the ground that the challenged language did not implicate Congress’ core statutory concerns in enacting the wiretap statute. Held: Because the Orders were not lacking any information that the statute required them to include and would have been sufficient absent the challenged language authorizing interception outside the court’s territorial jurisdiction, the Orders were not facially insufficient. . (a) The Tenth Circuit applied the “core concerns” test from United States v. Giordano, 416 U. S. 505, and held that subparagraph (ii) applies only where the insufficiency reflects an order’s failure to satisfy the “statutory requirements that directly and substantially implement the congressional intention to limit the use of” wiretapping, id., at 527. The court identified two such core concerns and concluded that neither applies to the statute’s territorial limitation. But Giordano involved a different suppression provision—subparagraph (i)—which applies only when a “communication was unlawfully intercepted.” §2518(10)(a)(i). The underlying point of Giordano’s limitation was to help distinguish subparagraph (i) of §2518(10)(a) from subparagraphs (ii) and (iii). It makes little sense to extend the “core concerns” test to subparagraph (ii) as well. Subparagraph (ii) therefore does not include a Giordano-like “core concerns” requirement. . (b) That said, this Court also cannot fully endorse the Dahdas’ interpretation of the statute. The Dahdas read subparagraph (ii) as applying to any legal defect that appears within the four corners of an order. Clearly, subparagraph (ii) covers at least an order’s failure to include information required by §§2518(4)(a)–(e). But that does not mean that every defect that may conceivably appear in an order results in an insufficiency. Here, the sentence authorizing interception outside Kansas is surplus. Its presence is not connected to any other relevant part of the Orders. Absent the challenged language, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute. While the Orders do not specifically list the territorial area where they could lawfully take effect, they clearly set forth the authorizing judge’s territorial jurisdiction—the District of Kansas. And the statute itself presumptively limits every Order’s scope to the issuing court’s territorial jurisdiction. This interpretation of the term “insufficient” does not, as the Dahdas contend, produce bizarre results. Rather, it makes sense of the suppression provision as a whole. . 853 F. 3d 1101 (first judgment) and 852 F. 3d 1282 (second judgment), affirmed. Breyer, J., delivered the opinion of the Court, in which all other Members joined, except Gorsuch, J., who took no part in the consideration or decision of the cases. Notes 1 Together with Dahda v. United States (see this Court’s Rule 12.4), also on certiorari to the same court.

The Omnibus Crime Control and Safe Streets Act of 1968 (Act) allows judges to issue wiretap orders authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. The statute requires the judge to find probable cause for issuance of the order and other detailed requirements governing both the application for a wiretap and the judicial order that authorizes it. Section2518(3) provides for the suppression of the contents of any wire or oral communication that the wiretapintercepts, along with any evidence derived therefrom, if (i) the communication was unlawfully intercepted; (ii) the order of... approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order. In order to obtain an order authorizing suppression of wire and oral communication, a judge must submit an application describing the particular offense being investigated as well as the type of communications it seeks to intercept; setting forth the basis for an appropriate finding of probable cause; explaining why other less intrusive methods are inadequate, have failed, or are too dangerous to try; and meeting other requirements, showing authorization by a specified governmental official. If the judge accepts the application, finds probable cause, and issues an authorizing order, that order must itself contain specified information, including the identity of the person whose communications are to be intercepted; the nature and location of the relevant communications facilities; a description of the type and type of communication sought; a statement of the specific offense to which the intercept "relates"; the identification of the agency authorized to intercept the intercept; the iden- tity of the agent authorizing the application; and the period of time during which the interception is authorized. A judge also has the authority to issue an order to permit the interception if the judge sitting in the territorial court is sitting beyond the territorial jurisdiction of the court. Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on a mobile phone that was also located outside of Kansas. Prior to trial, the Dahdas moved to suppress all evidence derived from the wiretaps authorized by the Orders on the ground that the District Court could not authorize interception of calls from the Missouri listening post to and from Alarcon's mobile phone in California, but the court denied their motion. They argued that, even though the Government did not use any wiretap information from that listening post, the court should have suppressed all evidence derived from any of the Orders, because each Order was so insufficient on their face given the extra sentence authorizing interception outside Kansas. Held: The judgments of the Court of Appeals are affirmed. ;. 853 F. 3d 1101, 1114-1116, affirmed. Justice Gorsuch took no part in the consideration or decision of these cases.

2017_16-1276

https://www.oyez.org/cases/2017/16-1276

. Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002, 116Stat. 745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124Stat. 1376 (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Most notably, Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank delineates a more circumscribed class; it defines “whistleblower” to mean a person who provides “information relating to a violation of the securities laws to the Commission.” 15 U. S. C. §78u–6(a)(6). A whistleblower so defined is eligible for an award if original information he or she provides to the SEC leads to a successful enforcement action. §78u–6(b)–(g). And, most relevant here, a whistleblower is protected from retaliation for, inter alia, “making disclosures that are required or protected under” Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation proscription at 18 U. S. C. §1513(e), or any other law subject to the SEC’s jurisdiction. 15 U. S. C. §78u–6(h)(1)(A)(iii). The question presented: Does the anti-retaliation provision of Dodd-Frank extend to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of “whistleblower”? Pet. for Cert. (I). We answer that question “No”: To sue under Dodd-Frank’s anti-retaliation provision, a person must first “provid[e] . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6). I A “To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation,” Congress enacted Sarbanes-Oxley in 2002. Lawson v. FMR LLC, 571 U. S. 429 , ___ (2014) (slip op., at 1). Most pertinent here, Sarbanes-Oxley created new protections for employees at risk of retaliation for reporting corporate misconduct. See 18 U. S. C. §1514A. Section 1514A prohibits certain companies from discharging or otherwise “discriminat[ing] against an employee in the terms and conditions of employment because” the employee “provid[es] information . . . or otherwise assist[s] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation” of certain criminal fraud statutes, any SEC rule or regulation, or “any provision of Federal law relating to fraud against shareholders.” §1514A(a)(1). An employee qualifies for protection when he or she provides information or assistance either to a federal regulatory or law enforcement agency, Congress, or any “person with supervisory authority over the employee.” §1514A(a)(1)(A)–(C).[1] To recover under §1514A, an aggrieved employee must exhaust administrative remedies by “filing a complaint with the Secretary of Labor.” §1514A(b)(1)(A); see Lawson, 571 U. S., at ___–___ (slip op., at 5–6). Congress prescribed a 180-day limitation period for filing such a complaint. §1514A(b)(2)(D). If the agency “does not issue a final decision within 180 days of the filing of [a] complaint, and the [agency’s] delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal district court for de novo review.” Id., at ___ (slip op., at 6) (citing §1514A(b)). An employee who prevails in a proceeding under §1514A is “entitled to all relief necessary to make the employee whole,” including reinstatement, backpay with interest, and any “special damages sustained as a result of the discrimination,” among such damages, litigation costs. §1514A(c). B 1 At issue in this case is the Dodd-Frank anti-retaliation provision enacted in 2010, eight years after the enactment of Sarbanes-Oxley. Passed in the wake of the 2008 financial crisis, Dodd-Frank aimed to “promote the financial stability of the United States by improving accountability and transparency in the financial system.” 124Stat. 1376. Dodd-Frank responded to numerous perceived shortcomings in financial regulation. Among them was the SEC’s need for additional “power, assistance and money at its disposal” to regulate securities markets. S. Rep. No. 111–176, pp. 36, 37 (2010). To assist the Commission “in identifying securities law violations,” the Act established “a new, robust whistleblower program designed to motivate people who know of securities law violations to tell the SEC.” Id., at 38. And recognizing that “whistleblowers often face the difficult choice between telling the truth and . . . committing ‘career suicide,’ ” Congress sought to protect whistleblowers from employment discrimination. Id., at 111, 112. Dodd-Frank implemented these goals by adding a new provision to the Securities Exchange Act of 1934: 15 U. S. C. §78u–6. Section 78u–6 begins by defining a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” §78u–6(a)(6) (emphasis added). That definition, the statute directs, “shall apply” “[i]n this section”—i.e., throughout §78u–6. §78u–6(a). Section 78u–6 affords covered whistleblowers both incentives and protection. First, the section creates an award program for “whistleblowers who voluntarily provid[e] original information to the Commission that le[ads] to the successful enforcement of [a] covered judicial or administrative action.” §78u–6(b)(1). A qualifying whistleblower is entitled to a cash award of 10 to 30 percent of the monetary sanctions collected in the enforcement action. See §78u–6(b)(1)(A)–(B). Second, §78u–6(h) prohibits an employer from discharging, harassing, or otherwise discriminating against a “whistleblower” “because of any lawful act done by the whistleblower” in three situations: first, “in providing information to the Commission in accordance with [§78u–6],” §78u–6(h)(1)(A)(i); second, “in initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information provided to the SEC in accordance with §78u–6, §78u–6(h)(1)(A)(ii); and third, “in making disclosures that are required or protected under” either Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation prohibition at 18 U. S. C. §1513(e),[2] or “any other law, rule, or regulation subject to the jurisdiction of the Commission,” §78u–6(h)(1)(A)(iii). Clause (iii), by cross-referencing Sarbanes-Oxley and other laws, protects disclosures made to a variety of individuals and entities in addition to the SEC. For example, the clause shields an employee’s reports of wrongdoing to an internal supervisor if the reports are independently safeguarded from retaliation under Sarbanes-Oxley. See supra, at 2–3.[3] The recovery procedures under the anti-retaliation provisions of Dodd-Frank and Sarbanes-Oxley differ in critical respects. First, unlike Sarbanes-Oxley, which contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U. S. C. §1514A(b)(1)(A), (2)(D), Dodd-Frank permits a whistleblower to sue a current or former employer directly in federal district court, with a default limitation period of six years, see §78u–6(h)(1)(B)(i), (iii)(I)(aa). Second, Dodd-Frank instructs a court to award to a prevailing plaintiff double backpay with interest, see §78u–6(h)(1)(C)(ii), while Sarbanes-Oxley limits recovery to actual backpay with interest, see 18 U. S. C. §1514A(c)(2)(B). Like Sarbanes-Oxley, however, Dodd-Frank authorizes reinstatement and compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees. Compare §78u–6(h)(1)(C)(i), (iii), with 18 U. S. C. §1514A(c)(2)(A), (C).[4] 2 Congress authorized the SEC “to issue such rules and regulations as may be necessary or appropriate to implement the provisions of [§78u–6] consistent with the purposes of this section.” §78u–6(j). Pursuant to this author- ity, the SEC published a notice of proposed rulemaking to “Implemen[t] the Whistleblower Provisions” of Dodd-Frank. 75 Fed. Reg. 70488 (2010). Proposed Rule 21F–2(a) defined a “whistleblower,” for purposes of both the award and anti-retaliation provisions of §78u–6, as one or more individuals who “provide the Commission with information relating to a potential violation of the securities laws.” Id., at 70519 (proposed 17 CFR §240.21F–2(a)). The proposed rule, the agency noted, “tracks the statutory definition of a ‘whistleblower’ ” by requiring information reporting to the SEC itself. 75 Fed. Reg. 70489. In promulgating the final Rule, however, the agency changed course. Rule 21F–2, in finished form, contains two discrete “whistleblower” definitions. See 17 CFR §240.21F–2(a)–(b) (2017). For purposes of the award program, the Rule states that “[y]ou are a whistleblower if . . . you provide the Commission with information . . . relat[ing] to a possible violation of the Federal securities laws.” §240.21F–2(a)(1) (emphasis added). The information must be provided to the SEC through its website or by mailing or faxing a specified form to the SEC Office of the Whistleblower. See ibid.; §240.21F–9(a)(1)–(2). “For purposes of the anti-retaliation protections,” however, the Rule states that “[y]ou are a whistleblower if . . . [y]ou possess a reasonable belief that the information you are providing relates to a possible securities law violation” and “[y]ou provide that information in a manner described in” clauses (i) through (iii) of §78u–6(h)(1)(A). 17 CFR §240.21F–2(b)(1)(i)–(ii). “The anti-retaliation protections apply,” the Rule emphasizes, “whether or not you satisfy the requirements, procedures and conditions to qualify for an award.” §240.21F–2(b)(1)(iii). An individual may therefore gain anti-retaliation protection as a “whistleblower” under Rule 21F–2 without providing information to the SEC, so long as he or she provides information in a manner shielded by one of the anti-retaliation provision’s three clauses. For example, a report to a company supervisor would qualify if the report garners protection under the Sarbanes-Oxley anti-retaliation provision.[5] C Petitioner Digital Realty Trust, Inc. (Digital Realty) is a real estate investment trust that owns, acquires, and develops data centers. See Brief for Petitioner 3. Digital Realty employed respondent Paul Somers as a Vice President from 2010 to 2014. See 119 F. Supp. 3d 1088, 1092 (ND Cal. 2015). Somers alleges that Digital Realty terminated him shortly after he reported to senior management suspected securities-law violations by the company. See ibid. Although nothing impeded him from alerting the SEC prior to his termination, he did not do so. See Tr. of Oral Arg. 45. Nor did he file an administrative complaint within 180 days of his termination, rendering him ineligible for relief under Sarbanes-Oxley. See ibid.; 18 U. S. C. §1514A(b)(2)(D). Somers brought suit in the United States District Court for the Northern District of California alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim, arguing that “Somers does not qualify as a ‘whistleblower’ under [§78u–6(h)] because he did not report any alleged law violations to the SEC.” 119 F. Supp. 3d, at 1094. The District Court denied the motion. Rule 21F–2, the court observed, does not necessitate recourse to the SEC prior to gaining “whistleblower” status under Dodd-Frank. See id., at 1095–1096. Finding the statutory scheme ambiguous, the court accorded deference to the SEC’s Rule under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . See 119 F. Supp. 3d, at 1096–1106. On interlocutory appeal, a divided panel of the Court of Appeals for the Ninth Circuit affirmed. 850 F. 3d 1045 (2017). The majority acknowledged that Dodd-Frank’s definitional provision describes a “whistleblower” as an individual who provides information to the SEC itself. Id., at 1049. But applying that definition to the anti-retaliation provision, the majority reasoned, would narrow the third clause of §78u–6(h)(1)(A) “to the point of absurd- ity”: The statute would protect employees only if they “reported possible securities violations both internally and to the SEC.” Ibid. Such dual reporting, the majority believed, was unlikely to occur. Ibid. Therefore, the majority concluded, the statute should be read to protect employees who make disclosures privileged by clause (iii) of §78u–6(h)(1)(A), whether or not those employees also provide information to the SEC. Id., at 1050. In any event, the majority held, the SEC’s resolution of any statutory ambiguity warranted deference. Ibid. Judge Owens dissented. In his view, the statutory definition of whistleblower was clear, left no room for interpretation, and plainly governed. Id., at 1051. Two other Courts of Appeals have weighed in on the question before us. The Court of Appeals for the Fifth Circuit has held that employees must provide information to the SEC to avail themselves of Dodd-Frank’s anti-retaliation safeguard. See Asadi v. G. E. Energy (USA), L. L. C., 720 F. 3d 620, 630 (2013). A divided panel of the Court of Appeals for the Second Circuit reached the opposite conclusion, over a dissent by Judge Jacobs. See Berman v. NEO@OGILVY LLC, 801 F. 3d 145, 155 (2013). We granted certiorari to resolve this conflict, 582 U. S. ___ (2017), and now reverse the Ninth Circuit’s judgment. II “When a statute includes an explicit definition, we must follow that definition,” even if it varies from a term’s ordinary meaning. Burgess v. United States, 553 U. S. 124, 130 (2008) (internal quotation marks omitted). This principle resolves the question before us. A Our charge in this review proceeding is to determine the meaning of “whistleblower” in §78u–6(h), Dodd-Frank’s anti-retaliation provision. The definition section of the statute supplies an unequivocal answer: A “whistleblower” is “any individual who provides . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6) (emphasis added). Leaving no doubt as to the definition’s reach, the statute instructs that the “definitio[n] shall apply” “[i]n this section,” that is, throughout §78u–6. §78u–6(a)(6). The whistleblower definition operates in conjunction with the three clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection—namely, a whistleblower who provides pertinent information “to the Commission.” §78u–6(a)(6). The three clauses of §78u–6(h)(1)(A) then describe what conduct, when engaged in by a whistle- blower, is shielded from employment discrimination. See §78u–6(h)(1)(A)(i)–(iii). An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls outside the protected category of “whistleblowers” is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. Reinforcing our reading, another whistleblower-protection provision in Dodd-Frank imposes no requirement that information be conveyed to a government agency. Title 10 of the statute, which created the Consumer Financial Protection Bureau (CFPB), prohibits discrimination against a “covered employee” who, among other things, “provide[s] . . . information to [his or her] employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency relating to” a violation of a law subject to the CFPB’s jurisdiction. 12 U. S. C. §5567(a)(1). To qualify as a “covered employee,” an individual need not provide information to the CFPB, or any other entity. See §5567(b) (“covered employee” means “any individual performing tasks related to the offering or provision of a consumer financial product or service”). “[W]hen Congress includes particular language in one section of a statute but omits it in another[,] . . . this Court presumes that Congress intended a difference in meaning.” Loughrin v. United States, 573 U. S. ___, ___ (2014) (slip op., at 6) (internal quotation marks and alteration omitted). Congress placed a government-reporting requirement in §78u–6(h), but not elsewhere in the same statute. Courts are not at liberty to dispense with the condition—tell the SEC—Congress imposed. B Dodd-Frank’s purpose and design corroborate our comprehension of §78u–6(h)’s reporting requirement. The “core objective” of Dodd-Frank’s robust whistleblower program, as Somers acknowledges, Tr. of Oral Arg. 45, is “to motivate people who know of securities law violations to tell the SEC,” S. Rep. No. 111–176, at 38 (emphasis added). By enlisting whistleblowers to “assist the Government [in] identify[ing] and prosecut[ing] persons who have violated securities laws,” Congress undertook to improve SEC enforcement and facilitate the Commission’s “recover[y] [of] money for victims of financial fraud.” Id., at 110. To that end, §78u–6 provides substantial monetary rewards to whistleblowers who furnish actionable information to the SEC. See §78u–6(b). Financial inducements alone, Congress recognized, may be insufficient to encourage certain employees, fearful of employer retaliation, to come forward with evidence of wrongdoing. Congress therefore complemented the Dodd-Frank monetary incentives for SEC reporting by heightening protection against retaliation. While Sarbanes-Oxley contains an administrative-exhaustion requirement, a 180-day administrative complaint-filing deadline, and a remedial scheme limited to actual damages, Dodd-Frank provides for immediate access to federal court, a generous statute of limitations (at least six years), and the opportunity to recover double backpay. See supra, at 5–6. Dodd-Frank’s award program and anti-retaliation provision thus work synchronously to motivate individuals with knowledge of illegal activity to “tell the SEC.” S. Rep. No. 111–176, at 38. When enacting Sarbanes-Oxley’s whistleblower regime, in comparison, Congress had a more far-reaching objective: It sought to disturb the “corporate code of silence” that “discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” Lawson, 571 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). Accordingly, the Sarbanes-Oxley anti-retaliation provision covers employees who report fraud not only to the SEC, but also to any other federal agency, Congress, or an internal supervisor. See 18 U. S. C. §1514A(a)(1). C In sum, Dodd-Frank’s text and purpose leave no doubt that the term “whistleblower” in §78u–6(h) carries the meaning set forth in the section’s definitional provision. The disposition of this case is therefore evident: Somers did not provide information “to the Commission” before his termination, §78u–6(a)(6), so he did not qualify as a “whistleblower” at the time of the alleged retaliation. He is therefore ineligible to seek relief under §78u–6(h). III Somers and the Solicitor General tender a different view of Dodd-Frank’s compass. The whistleblower definition, as they see it, applies only to the statute’s award program, not to its anti-retaliation provision, and thus not, as the definition plainly states, throughout “this section,” §78u–6(a). See Brief for Respondent 30; Brief for United States as Amicus Curiae 10–11. For purposes of the anti-retaliation provision alone, they urge us to construe the term “whistleblower” in its “ordinary sense,” i.e., without any SEC-reporting requirement. Brief for Respondent 18. Doing so, Somers and the Solicitor General contend, would align with our precedent, specifically Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198 (1949) , and Utility Air Regulatory Group v. EPA, 573 U. S. ___ (2014). In those decisions, we declined to apply a statutory definition that ostensibly governed where doing so would have been “incompatible with . . . Congress’ regulatory scheme,” id., at ___ (slip op., at 18) (internal quotation marks omitted), or would have “destroy[ed] one of the [statute’s] major purposes,” Suwannee Fruit, 336 U. S., at 201. This case is of a piece, Somers and the Solicitor General maintain. Applying the statutory definition here, they variously charge, would “create obvious incongruities,” Brief for United States as Amicus Curiae 19 (internal quotation marks omitted), “produce anomalous results,” id., at 22, “vitiate much of the [statute’s] protection,” id., at 20 (internal quotation marks omitted), and, as the Court of Appeals put it, narrow clause (iii) of §78u–6(h)(1)(A) “to the point of absurdity,” Brief for Respondent 35 (quoting 850 F. 3d, at 1049). We next address these concerns and explain why they do not lead us to depart from the statutory text. A It would gut “much of the protection afforded by” the third clause of §78u–6(h)(1)(a), Somers and the Solicitor General urge most strenuously, to apply the whistleblower definition to the anti-retaliation provision. Brief for United States as Amicus Curiae 20 (internal quotation marks omitted); Brief for Respondent 28–29. As earlier noted, see supra, at 4–5, clause (iii) prohibits retaliation against a “whistleblower” for “making disclosures” to various persons and entities, including but not limited to the SEC, to the extent those disclosures are “required or protected under” various laws other than Dodd-Frank. §78u–6(h)(1)(A)(iii). Applying the statutory definition of whistleblower, however, would limit clause (iii)’s protection to “only those individuals who report to the Commission.” Brief for United States as Amicus Curiae 22. The plain-text reading of the statute undoubtedly shields fewer individuals from retaliation than the alternative proffered by Somers and the Solicitor General. But we do not agree that this consequence “vitiate[s]” clause (iii)’s protection, id., at 20 (internal quotation marks omitted), or ranks as “absur[d],” Brief for Respondent 35 (internal quotation marks omitted).[6] In fact, our reading leaves the third clause with “substantial meaning.” Brief for Petitioner 32. With the statutory definition incorporated, clause (iii) protects a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. That would be so, for example, where the retaliating employer is un- aware that the employee has alerted the SEC. In such a case, without clause (iii), retaliation for internal reporting would not be reached by Dodd-Frank, for clause (i) applies only where the employer retaliates against the employee “because of” the SEC reporting. §78u–6(h)(1)(A). More- over, even where the employer knows of the SEC reporting, the third clause may operate to dispel a proof problem: The employee can recover under the statute without having to demonstrate whether the retaliation was motivated by the internal report (thus yielding protection under clause (iii)) or by the SEC disclosure (thus gaining protection under clause (i)). While the Solicitor General asserts that limiting the protections of clause (iii) to dual reporters would “shrink to insignificance the [clause’s] ban on retaliation,” Brief for United States as Amicus Curiae 22 (internal quotation marks omitted), he offers scant evidence to support that assertion. Tugging in the opposite direction, he reports that approximately 80 percent of the whistleblowers who received awards in 2016 “reported internally before reporting to the Commission.” Id., at 23. And Digital Realty cites real-world examples of dual reporters seeking Dodd-Frank or Sarbanes-Oxley recovery for alleged retaliation. See Brief for Petitioner 33, and n. 4 (collecting cases). Overlooked by Somers and the Solicitor General, in dual-reporting cases, retaliation not prompted by SEC disclosures (and thus unaddressed by clause (i)) is likely commonplace: The SEC is required to protect the identity of whistleblowers, see §78u–6(h)(2)(A), so employers will often be unaware that an employee has reported to the Commission. In any event, even if the number of individuals qualifying for protection under clause (iii) is relatively limited, “[i]t is our function to give the statute the effect its language suggests, however modest that may be.” Morrison v. National Australia Bank Ltd., 561 U. S. 247, 270 (2010) . B Somers and the Solicitor General express concern that our reading would jettison protection for auditors, attorneys, and other employees subject to internal-reporting requirements. See Brief for Respondent 35; Brief for United States as Amicus Curiae 21. Sarbanes-Oxley, for example, requires auditors and attorneys to report certain information within the company before making disclosures externally. See 15 U. S. C. §§78j–1(b), 7245; 17 CFR §205.3. If the whistleblower definition applies, Somers and the Solicitor General fear, these professionals will be “le[ft] . . . vulnerable to discharge or other retaliatory action for complying with” their internal-reporting obligations. Brief for United States as Amicus Curiae 22 (internal quotation marks omitted). Our reading shields employees in these circumstances, however, as soon as they also provide relevant information to the Commission. True, such employees will remain ineligible for Dodd-Frank’s protection until they tell the SEC, but this result is consistent with Congress’ aim to encourage SEC disclosures. See S. Rep. No. 111–176, at 38; supra, at 3–4, 11. Somers worries that lawyers and auditors will face retaliation quickly, before they have a chance to report to the SEC. Brief for Respondent 35–36. But he offers nothing to show that Congress had this concern in mind when it enacted §78u–6(h). Indeed, Congress may well have considered adequate the safeguards already afforded by Sarbanes-Oxley, protections specifi- cally designed to shield lawyers, accountants, and similar professionals. See Lawson, 571 U. S., at ___ (slip op., at 17). C Applying the whistleblower definition as written, Somers and the Solicitor General further protest, will create “an incredibly unusual statutory scheme”: “[I]dentical misconduct”—i.e., retaliating against an employee for internal reporting—will “go punished or not based on the happenstance of a separate report” to the SEC, of which the wrongdoer may “not even be aware.” Brief for Respondent 37–38. See also Brief for United States as Amicus Curiae 24. The upshot, the Solicitor General warns, “would [be] substantially diminish[ed] Dodd-Fran[k] deterrent effect.” Ibid. Overlooked in this protest is Dodd-Frank’s core objective: to prompt reporting to the SEC. Supra, at 3–4, 11. In view of that precise aim, it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve, i.e., they have placed information about unlawful activity before the Commission to aid its enforcement efforts. D Pointing to another purported anomaly attending the reading we adopt today, the Solicitor General observes that neither the whistleblower definition nor §78u–6(h) contains any requirement of a “temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation.” Brief for United States as Amicus Curiae 25. It is therefore possible, the Solicitor General posits, that “an employee who was fired for reporting accounting fraud to his supervisor in 2017 would have a cause of action under [§78u–6(h)] if he had reported an insider-trading violation by his previous employer to the Commission in 2012.” Ibid. For its part, Digital Realty agrees that this scenario could arise, but does not see it as a cause for concern: “Congress,” it states, “could reasonably have made the policy judgment that individuals who report securities-law violations to the SEC should receive broad protection over time against retaliation for a variety of disclosures.” Reply Brief 11. We need not dwell on the situation hypothesized by the Solicitor General, for it veers far from the case before us. We note, however, that the interpretation offered by Somers and the Solicitor General—i.e., ignoring the statutory definition when construing the anti-retaliation provision—raises an even thornier question about the law’s scope. Their view, which would not require an employee to provide information relating to a securities-law violation to the SEC, could afford Dodd-Frank protection to an employee who reports information bearing no relationship whatever to the securities laws. That prospect could be imagined based on the broad array of federal statutes and regulations cross-referenced by clause (iii) of the anti-retaliation provision. E.g., 18 U. S. C. §1513(e) (criminalizing retaliation for “providing to a law enforcement officer any truthful information relating to the commission . . . of any Federal offense” (emphasis added)); see supra, at 5, and n. 2. For example, an employee fired for reporting a coworker’s drug dealing to the Federal Bureau of Investigation might be protected. Brief for Petitioner 38. It would make scant sense, however, to rank an FBI drug-trafficking informant a whistleblower under Dodd-Frank, a law concerned only with encouraging the reporting of “securities law violations.” S. Rep. No. 111–176, at 38 (emphasis added). E Finally, the interpretation we adopt, the Solicitor General adds, would undermine not just clause (iii) of §78u–6(h)(1)(A), but clause (ii) as well. Clause (ii) prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information conveyed to the SEC by a whistleblower in accordance with the statute. §78u–6(h)(1)(A)(ii). If the whistleblower definition is applied to §78u–6(h), the Solicitor General states, “an employer could fire an employee for giving . . . testimony [to the SEC] if the employee had not previously reported to the Commission online or through the specified written form”—i.e., the methods currently prescribed by Rule 21F–9 for a whistleblower to provide information to the Commission. Brief for United States as Amicus Curiae 20–21 (citing 17 CFR §240.21F–9(a)(1)–(2)). But the statute expressly delegates authority to the SEC to establish the “manner” in which information may be provided to the Commission by a whistleblower. See §78u–6(a)(6). Nothing in today’s opinion prevents the agency from enumerating additional means of SEC reporting—including through testimony protected by clause (ii). IV For the foregoing reasons, we find the statute’s definition of “whistleblower” clear and conclusive. Because “Congress has directly spoken to the precise question at issue,” Chevron, 467 U. S., at 842, we do not accord deference to the contrary view advanced by the SEC in Rule 21F–2. See 17 CFR §240.21F–2(b)(1); supra, at 6–7. The statute’s unambiguous whistleblower definition, in short, precludes the Commission from more expansively interpreting that term. See Burgess, 553 U. S., at 130. * * * 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 Sarbanes-Oxley also prohibits retaliation against an “employee” who “file[s], . . . testif[ies], participate[s] in, or otherwise assist[s] in a proceeding filed or about to be filed . . . relating to an alleged violation of” the same provisions of federal law addressed in 18 U. S. C. §1514A(a)(1). See §1514A(a)(2). 2 Section 1513(e) provides: “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.” 3 Section 78u–6(h)(1)(A) reads in full: 4 Unlike Dodd-Frank, Sarbanes-Oxley explicitly entitles a prevailing employee to “all relief necessary to make the employee whole,” including “compensation for any special damages sustained as a result of the discrimination.” 18 U. S. C. §1514A(c)(1), (2)(C). 5 In 2015, the SEC issued an interpretive rule reiterating that anti-retaliation protection is not contingent on a whistleblower’s provision of information to the Commission. See 80 Fed. Reg. 47829 (2015). 6 The Solicitor General, unlike Somers, acknowledges that it would not be absurd to apply the “whistleblower” definition to the anti-retaliation provision. Tr. of Oral Arg. 52.

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 DIGITAL REALTY TRUST, INC. v. SOMERS certiorari to the united states court of appeals for the ninth circuit No. 16–1276. Argued November 28, 2017—Decided February 21, 2018 Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank defines a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” 15 U. S. C. §78u–6(a)(6). A whistleblower so defined is eligible for an award if original information provided to the SEC leads to a successful enforcement action. §78u–6(b)–(g). And he or she is protected from retaliation in three situations, see §78u–6(h)(1)(A)(i)–(iii), including for “making disclosures that are required or protected under” Sarbanes-Oxley or other specified laws, §78u–6(h)(1)(A)(iii). Sarbanes-Oxley’s anti-retaliation provision contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U. S. C. §1514A(b)(1)(A), (2)(D), whereas Dodd-Frank permits a whistleblower to sue an employer directly in federal district court, with a default six-year limitation period, see §78u–6(h)(1)(B)(i), (iii)(I)(aa). The SEC’s regulations implementing the Dodd-Frank provision contain two discrete whistleblower definitions. For purposes of the award program, Rule 21F–2 requires a whistleblower to “provide the Commission with information” relating to possible securities-law violations. 17 CFR §240.21F–2(a)(1). For purposes of the anti-retaliation protections, however, the Rule does not require SEC reporting. See §240.21F–2(b)(1)(i)–(ii). Respondent Paul Somers alleges that petitioner Digital Realty Trust, Inc. (Digital Realty) terminated his employment shortly after he reported to senior management suspected securities-law violations by the company. Somers filed suit, alleging, inter alia, a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim on the ground that Somers was not a whistleblower under §78u–6(h) because he did not alert the SEC prior to his termination. The District Court denied the motion, and the Ninth Circuit affirmed. The Court of Appeals concluded that §78u–6(h) does not necessitate recourse to the SEC prior to gaining “whistleblower” status, and it accorded deference to the SEC’s regulation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . Held: Dodd-Frank’s anti-retaliation provision does not extend to an individual, like Somers, who has not reported a violation of the securities laws to the SEC. . (a) A statute’s explicit definition must be followed, even if it varies from a term’s ordinary meaning. Burgess v. United States, 553 U. S. 124 . Section 78u–6(a) instructs that the statute’s definition of “whistleblower” “shall apply” “[i]n this section,” that is, throughout §78u–6. The Court must therefore interpret the term “whistleblower” in §78u–6(h), the anti-retaliation provision, in accordance with that definition. The whistleblower definition operates in conjunction with the three clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection—namely, a “whistleblower” who provides pertinent information “to the Commission.” §78u–6(a)(6). The three clauses then describe what conduct, when engaged in by a “whistleblower,” is shielded from employment discrimination. An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls outside the protected category of “whistleblowers” is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. This reading is reinforced by another whistleblower-protection provision in Dodd-Frank, see 12 U. S. C. §5567(b), which imposes no requirement that information be conveyed to a government agency. . (b) The Court’s understanding is corroborated by Dodd-Frank’s purpose and design. The core objective of Dodd-Frank’s whistleblower program is to aid the Commission’s enforcement efforts by “motivat[ing] people who know of securities law violations to tell the SEC.” S. Rep. No. 111–176, p. 38 (emphasis added). To that end, Congress provided monetary awards to whistleblowers who furnish actionable information to the Commission. Congress also complemented the financial incentives for SEC reporting by heightening protection against retaliation. . (c) Somers and the Solicitor General contend that Dodd-Frank’s “whistleblower” definition applies only to the statute’s award program and not, as the definition plainly states, to its anti-retaliation provision. Their concerns do not support a departure from the statutory text. . (1) They claim that the Court’s reading would vitiate the protections of clause (iii) for whistleblowers who make disclosures to persons and entities other than the SEC. See §78u–6(h)(1)(A)(iii). But the plain-text reading of the statute leaves the third clause with substantial meaning by protecting a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. . (2) Nor would the Court’s reading jettison protections for auditors, attorneys, and other employees who are required to report information within the company before making external disclosures. Such employees would be shielded as soon as they also provide relevant information to the Commission. And Congress may well have considered adequate the safeguards already afforded to such employees by Sarbanes-Oxley. . (3) Applying the “whistleblower” definition as written, Somers and the Solicitor General further protest, will allow “identical misconduct” to “go punished or not based on the happenstance of a separate report” to the SEC. Brief for Respondent 37–38. But it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve by reporting information about unlawful activity to the SEC. P. 16. (4) The Solicitor General observes that the statute contains no apparent requirement of a “temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation.” Brief for United States as Amicus Curiae 25. The Court need not dwell on related hypotheticals, which veer far from the case at hand. . (5) Finally, the interpretation adopted here would not undermine clause (ii) of §78u–6(h)(1)(A), which prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information conveyed to the SEC by a whistleblower in accordance with the statute. The statute delegates authority to the Commission to establish the “manner” in which a whistleblower may provide information to the SEC. §78u–6(a)(6). Nothing prevents the Commission from enumerating additional means of SEC reporting, including through testimony protected by clause (ii). P. 18. (d) Because “Congress has directly spoken to the precise question at issue,” Chevron, 467 U. S., at 842, deference is not accorded to the contrary view advanced by the SEC in Rule 21F–2. . 850 F. 3d 1045, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a concurring opinion, in which Breyer, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Alito and Gorsuch, JJ., joined.

The Sarbanes-Oxley Act of 2002, 18 U.S. C. §1514A(a)(1), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) define a whistleblower as one or more individuals who provides information relating to a violation of the securities laws to the Securities and Exchange Commission (SEC), any other federal agency, Congress, or an internal supervisor. Section 78u–6(a) (emphasis added) defines a whistleblower to mean a person who provides the SEC with information relating, inter alia, to a potential violation of securities laws, and thus falls outside the Act's definition of the term as a person. To sue under the anti-retaliation provision, a person must first provide information to the SEC, and the whistleblower definition operates in conjunction with the three clauses of §78u-6(h)(1)(A) to spell out the provision's scope. To recover under the provision, an aggrieved employee must exhaust administrative remedies by filing a complaint with the Secretary of Labor (Secretary) and must exhaust a 180-day limitation period for filing such a complaint. If the agency does not issue a final decision within 180 days of the filing of the complaint, the claimant is not due to delay in the federal district court, and may proceed to reinstatement of the employee. An employee who does not qualify under the claim under retaliation under a claim alleging retaliation does not have recourse under the statutory scheme. Petitioner, a real estate investment trust that owns, acquires, and develops data centers, employed respondent Somers as a Vice President from 2010 to 2014. Somers alleges that the company terminated him shortly after he reported to senior management suspected securities-law violations by the company. Although nothing impeded him from alerting the SEC prior to his termination, he did not do so, and did not file an administrative complaint within 180 days of his termination. He then brought suit in Federal District Court, alleging retaliation under the alleged retaliation. The District Court dismissed the claim, but the Court of Appeals affirmed. Held: The statutory definition of a whistleblower does not extend to an individual who has not reported a violation of the SEC and therefore falls outside that definition. Pet. for Cert. (I). Pp. 469 U. S. 686-607. 850 F. 3d 1045, reversed and remanded. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I, II, III, IV, and V, concluding that: 1. The term "whistleblower," as defined in the provision in question, carries the meaning set forth in the section's definitional provision. P.. 2. The whistleblower definition applies only to the statute in question. . 3. The disposition of this case is evident. Somers did not provide information about his alleged retaliation before his termination so as to qualify as a whistleblower at the time of the alleged retaliation. Moreover, his status as an employee does not necessitate any recourse under that provision prior to the court decision in the District Court. Respondent Somers moved to dismiss his retaliation claim because he was not a whistleblower under the Act. Chevron v. Natural Resources Defense Council, Inc., 467 U. 837. See, e.g., Chevron, supra, at 1096, at 1050. And the statutory definition is clear, left no room for interpretation, and plainly governed. Nothing in today's opinion prevents the SEC from enumerating additional means of SEC reporting, including through testimony protected by clause (ii). . (a). The definition of whistleblower is clear and conclusive. Even if it varies from a term's ordinary meaning. Cf. Burgess v. United States, 553 U. G. 124, 130 (2008). The plain-text reading of the statute, which shields fewer individuals from retaliation than the alternative proffered by Somers and the Solicitor General, leaves the third clause with substantial meaning, since it prohibits retaliation against a whistleblower for making disclosures to various persons and entities, including, but not limited to, the SEC to the extent those disclosures are required or protected under various laws, including the Securities Exchange Act of 1934. In view of that precise aim, it is understandable that the statute's retaliation protections, like its financial rewards, would be reserved for employees who have done what the statute seeks to achieve, i.e., they have placed information about unlawful activity before the Commission to aid its enforcement efforts. However, the interpretation adopted by the SEC in Rule 21F–2(b)(1) would undermine not just clause (iii) of the provision but clauses (ii) and (iii).. (b) It would gut much of the protection afforded by the third- clause of the statutory provision, since the statute expressly delegates authority to establish the whistleblower in which information may be provided to

2017_15-1485

https://www.oyez.org/cases/2017/15-1485

. This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, late-night party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds. I Around 1 a.m. on March 16, 2008, the District’s Metropolitan Police Department received a complaint about loud music and illegal activities at a house in Northeast D. C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside. After the officers knocked on the front door, they saw a man look out the window and then run upstairs. One of the partygoers opened the door, and the officers entered. They immediately observed that the inside of the house “ ‘was in disarray’ ” and looked like “ ‘a vacant property.’ ” 841 F. Supp. 2d 20, 31 (DC 2012) (quoting Defs. Exh. A). The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. The only other signs of habitation were blinds on the windows, food in the refrigerator, and toiletries in the bathroom. In the living room, the officers found a makeshift strip club. Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol. After seeing the uniformed officers, many partygoers scattered into other parts of the house. The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out. The officers found a total of 21 people in the house. After interviewing all 21, the officers did not get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no one could identify the bachelor. Each of the partygoers claimed that someone had invited them to the house, but no one could say who. Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and had given them permission to be there. One of the women explained that the previous owner had recently passed away, and Peaches had just started renting the house from the grandson who inherited it. But the house had no boxes or moving supplies. She did not know Peaches’ real name. And Peaches was not there. An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches answered and explained that she had just left the party to go to the store. When the officer asked her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from the owner, who was fixing it up for her. She also said that she had given the attendees permission to have the party. When the sergeant again asked her who had given her permission to use the house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling and insisting that she had permission before hanging up a second time. The officers eventually got Peaches on the phone again, and she admitted that she did not have permission to use the house. The officers then contacted the owner. He told them that he had been trying to negotiate a lease with Peaches, but they had not reached an agreement. He confirmed that he had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor party. At that point, the officers arrested the 21 partygoers for unlawful entry. See D. C. Code §22–3302 (2008). The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct. See §22–1321. The partygoers were released, and the charges were eventually dropped.[1] II Respondents, 16 of the 21 partygoers, sued the District and five of the arresting officers. They sued the officers for false arrest under the Fourth Amendment, Rev. Stat. §1979, 42 U. S. C. §1983, and under District law. They sued the District for false arrest and negligent supervision under District law. The partygoers’ claims were all “predicated upon the allegation that [they] were arrested without probable cause.” 841 F. Supp. 2d, at 32. On cross-motions for summary judgment, the District Court awarded partial summary judgment to the party- goers. Id., at 48–49. It concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry.[2] Id., at 32–33. The officers were told that Peaches had invited the partygoers to the house, the District Court reasoned, and nothing the officers learned in their investigation suggested the partygoers “ ‘knew or should have known that [they were] entering against the [owner’s] will.’ ” Id., at 32. The District Court also concluded that the officers were not entitled to qualified immunity under §1983.[3] It noted that, under District case law, “probable cause to arrest for unlawful entry requires evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.” Id., at 37. And in its view, the officers had no such evidence. Id., at 32–33, 37–38. With liability resolved, the case proceeded to trial on damages. The jury awarded the partygoers a total of $680,000 in compensatory damages. After the District Court awarded attorney’s fees, the total award was nearly $1 million. On appeal, a divided panel of the D. C. Circuit affirmed. On the question of probable cause, the panel majority made Peaches’ invitation “central” to its determination that the officers lacked probable cause to arrest the party- goers for unlawful entry. 765 F. 3d 13, 21 (2014). The panel majority asserted that, “in the absence of any conflicting information, Peaches’ invitation vitiates the necessary element of [the partygoers’] intent to enter against the will of the lawful owner.” Ibid. And the panel major- ity determined that “there is simply no evidence in the record that [the partygoers] had any reason to think the invitation was invalid.” Ibid. On the question of qualified immunity, the panel majority determined that it was “perfectly clear” that a person with “a good purpose and bona fide belief of her right to enter” lacks the necessary intent for unlawful entry. Id., at 27. In other words, the officers needed “some evidence” that the partygoers “knew or should have known they were entering against the will of the lawful owner.” Ibid. And here, the panel majority asserted, the officers must “have known that uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful entry.” Ibid. Judge Brown dissented. She concluded that summary judgment on the false-arrest claims was improper because, under the totality of the circumstances, a reasonable officer “could disbelieve [the partygoers’] claim of innocent entry” and infer that they knew or should have known that they did not have permission to be in the house. Id., at 34. She also disagreed with the denial of qualified immunity, contending that a reasonable officer could have found probable cause to arrest in this “unusual factual scenario, not well represented in the controlling case law.” Id., at 36. The D. C. Circuit denied rehearing en banc over the dissent of four judges. The dissenters focused on qualified immunity, contending that the panel opinion “contravene[d] . . . emphatic Supreme Court directives” that “police officers may not be held liable for damages unless the officers were ‘plainly incompetent’ or ‘knowingly violate[d]’ clearly established law.” 816 F. 3d 96, 102 (2016) (quoting Carroll v. Carman, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 4)). The panel majority— Judges Pillard and Edwards—responded in a joint concurrence. 816 F. 3d, at 96–101. They insisted that the panel opinion did not misapply the law of qualified immunity, and that their disagreement with the dissenters was a mere “case-specific assessment of the circumstantial evidence in the record.” Id., at 100. We granted certiorari to resolve two questions: whether the officers had probable cause to arrest the partygoers, and whether the officers were entitled to qualified immunity. See 580 U. S. ___ (2017). We address each question in turn. III 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.” Because arrests are “seizures” of “persons,” they must be reasonable under the circumstances. See Payton v. New York, 445 U. S. 573, 585 (1980) . A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Atwater v. Lago Vista, 532 U. S. 318, 354 (2001) . To determine whether an officer had probable cause for an arrest, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U. S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U. S. 690, 696 (1996) ). Because probable cause “deals with probabilities and depends on the totality of the circumstances,” 540 U. S., at 371, it is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules,” Illinois v. Gates, 462 U. S. 213, 232 (1983) . It “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id., at 243–244, n. 13 (1983). Probable cause “is not a high bar.” Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 18). A There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to believe that they “knew or should have known” their “entry was unwanted.” Ortberg v. United States, 81 A. 3d 303, 308 (D. C. 2013). We disagree. Considering the totality of the circumstances, the officers made an “entirely reason- able inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party. Pringle, supra, at 372. Consider first the condition of the house. Multiple neighbors, including a former neighborhood official, informed the officers that the house had been vacant for several months.[4] The house had no furniture, except for a few padded metal chairs and a bare mattress. The rest of the house was empty, save for some fixtures and large appliances. The house had a few signs of inhabitance—working electricity and plumbing, blinds on the windows, toiletries in the bathroom, and food in the refrigerator. But those facts are not necessarily inconsistent with the house being unoccupied. The owner could have paid the utilities and kept the blinds while he looked for a new tenant, and the partygoers could have brought the food and toiletries. Although one woman told the officers that Peaches had recently moved in, the officers had reason to doubt that was true. There were no boxes or other moving supplies in the house; nor were there other possessions, such as clothes in the closet, suggesting someone lived there. In addition to the condition of the house, consider the partygoers’ conduct. The party was still going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from outside. Upon entering the house, multiple officers smelled marijuana.[5] The party- goers left beer bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to sit on it. The living room had been converted into a makeshift strip club. Strippers in bras and thongs, with cash stuffed in their garter belts, were giving lap dances. Upstairs, the officers found a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom. Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “ ‘common-sense conclusions about human behavior.’ ” Gates, supra, at 231 (quoting United States v. Cortez, 449 U. S. 411, 418 (1981) ). Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized. The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom. “[U]nprovoked flight upon noticing the police,” we have explained, “is certainly suggestive” of wrongdoing and can be treated as “suspicious behavior” that factors into the totality of the circumstances. Illinois v. Wardlow, 528 U. S. 119 –125 (2000). In fact, “deliberately furtive actions and flight at the approach of . . . law officers are strong indicia of mens rea.” Sibron v. New York, 392 U. S. 40, 66 (1968) (emphasis added). A reasonable officer could infer that the partygoers’ scattering and hiding was an indication that they knew they were not supposed to be there. The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them. Only two people claimed that Peaches had invited them, and they were working the party instead of attending it. If Peaches was the hostess, it was odd that none of the partygoers mentioned her name. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor. Based on the vagueness and implausibility of the partygoers’ stories, the officers could have reasonably inferred that they were lying and that their lies suggested a guilty mind. Cf. Devenpeck v. Alford, 543 U. S. 146 –156 (2004) (noting that the suspect’s “untruthful and evasive” answers to police questioning could support probable cause). The panel majority relied heavily on the fact that Peaches said she had invited the partygoers to the house. But when the officers spoke with Peaches, she was nervous, agitated, and evasive. Cf. Wardlow, supra, at 124 (explaining that the police can take a suspect’s “nervous, evasive behavior” into account). After initially insisting that she had permission to use the house, she ultimately confessed that this was a lie—a fact that the owner confirmed. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she had told them. For example, the officers could have inferred that Peaches lied to them when she said she had invited the others to the house, which was consistent with the fact that hardly anyone at the party knew her name. Or the officers could have inferred that Peaches told the partygoers (like she eventually told the police) that she was not actually renting the house, which was consistent with how the party- goers were treating it. Viewing these circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house. B In concluding otherwise, the panel majority engaged in an “excessively technical dissection” of the factors supporting probable cause. Gates, 462 U. S., at 234. Indeed, the panel majority failed to follow two basic and well-established principles of law. First, the panel majority viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” Pringle, 540 U. S., at 372, n. 2. This was “mistaken in light of our precedents.” Ibid. The “totality of the circumstances” requires courts to consider “the whole picture.” Cortez, supra, at 417. Our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation. See United States v. Arvizu, 534 U. S. 266 –278 (2002). Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers “scattered or hid when the police entered the house” because that fact was “not sufficient standing alone to create probable cause.” 765 F. 3d, at 23 (emphasis added). Similarly, it found “nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome.” Ibid. (emphasis added). The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.” Arvizu, 534 U. S., at 274. Second, the panel majority mistakenly believed that it could dismiss outright any circumstances that were “susceptible of innocent explanation.” Id., at 277. For example, the panel majority brushed aside the drinking and the lap dances as “consistent with” the partygoers’ explanation that they were having a bachelor party. 765 F. 3d, at 23. And it similarly dismissed the condition of the house as “entirely consistent with” Peaches being a “new tenant.” Ibid. But probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts. As we have explained, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Gates, 462 U. S., at 244, n. 13. Thus, the panel majority should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a “substantial chance of criminal activity.” Ibid. The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bachelor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer approach is improper. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. Arvizu, supra, at 274. And here, the totality of the circumstances gave the officers plenty of reasons to doubt the partygoers’ protestations of innocence. For all of these reasons, we reverse the D. C. Circuit’s holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to summary judgment on all of the partygoers’ claims.[6] IV Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, “we have discretion to correct its errors at each step.” Ashcroft v. al-Kidd, 563 U. S. 731, 735 (2011) ; see, e.g., Plumhoff v. Rickard, 572 U. S. ___ (2014). We exercise that discretion here because the D. C. Circuit’s analysis, if followed elsewhere, would “undermine the values qualified immunity seeks to promote.” al-Kidd, supra, at 735.[7] A Under our precedents, officers are entitled to qualified immunity under §1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.” Reichle v. Howards, 566 U. S. 658, 664 (2012) . “Clearly established” means that, at the time of the officer’s conduct, the law was “ ‘sufficiently clear’ that every ‘reason- able official would understand that what he is doing’ ” is unlawful. al-Kidd, supra, at 741 (quoting Anderson v. Creighton, 483 U. S. 635, 640 (1987) ). In other words, existing law must have placed the constitutionality of the officer’s conduct “beyond debate.” al-Kidd, supra, at 741. This demanding standard protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U. S. 335, 341 (1986) . To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U. S. 224, 228 (1991) (per curiam), which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority,’ ” al-Kidd, supra, at 741–742 (quoting Wilson v. Layne, 526 U. S. 603, 617 (1999) ). It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. See Reichle, 566 U. S., at 666. Otherwise, the rule is not one that “every reasonable official” would know. Id., at 664 (internal quotation marks omitted). The “clearly established” standard also requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001) . This requires a high “degree of specificity.” Mullenix v. Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 6). We have repeatedly stressed that courts must not “define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, supra, at ___–___ (slip op., at 12–13) (internal quotation marks and citation omitted). A rule is too general if the unlawfulness of the officer’s conduct “does not follow immediately from the conclusion that [the rule] was firmly established.” Anderson, supra, at 641. In the context of a warrantless arrest, the rule must obviously resolve “whether ‘the circumstances with which [the particular officer] was confronted . . . constitute[d] probable cause.’ ” Mullenix, supra, at ___ (slip op., at 6) (quoting Anderson, supra, at 640–641; some alterations in original). We have stressed that the “specificity” of the rule is “especially important in the Fourth Amendment context.” Mullenix, supra, at ___ (slip op., at 5). Probable cause “turn[s] on the assessment of probabilities in particular factual contexts” and cannot be “reduced to a neat set of legal rules.” Gates, 462 U. S., at 232. It is “incapable of precise definition or quantification into percentages.” Pringle, 540 U. S., at 371. Given its imprecise nature, officers will often find it difficult to know how the general standard of probable cause applies in “the precise situation encountered.” Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 28). Thus, we have stressed the need to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6); e.g., Plumhoff, supra, at ___. While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the particular arrest “beyond debate.” al-Kidd, supra, at 741. Of course, there can be the rare “obvious case,” where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. Brosseau v. Haugen, 543 U. S. 194, 199 (2004) (per curiam). But “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Ibid. Under these principles, we readily conclude that the officers here were entitled to qualified immunity. We start by defining “the circumstances with which [the officers] w[ere] confronted.” Anderson, 483 U. S., at 640. The officers found a group of people in a house that the neighbors had identified as vacant, that appeared to be vacant, and that the partygoers were treating as vacant. The group scattered, and some hid, at the sight of law enforcement. Their explanations for being at the house were full of holes. The source of their claimed invitation admitted that she had no right to be in the house, and the owner confirmed that fact. Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to qualified immunity because they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” Id., at 641. Tellingly, neither the panel majority nor the party- goers have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation “under similar circumstances.” Pauly, supra, at ___ (slip op., at 6). And it should go without saying that this is not an “obvious case” where “a body of relevant case law” is not needed. Brosseau, supra, at 199. The officers were thus entitled to qualified immunity. B The panel majority did not follow this straightforward analysis. It instead reasoned that, under clearly established District law, a suspect’s “good purpose and bona fide belief of her right to enter” vitiates probable cause to arrest her for unlawful entry. 765 F. 3d, at 26–27. The panel majority then concluded—in a two-sentence paragraph without any explanation—that the officers must have known that “uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful entry.” Id., at 27. By treating the invitation as “uncontroverted evidence,” the panel majority assumed that the officers could not infer the partygoers’ intent from other circumstances. And by treating the invitation as if it automatically vitiated probable cause, the panel majority assumed that the officers could not disbelieve the party- goers’ story. The rule applied by the panel majority was not clearly established because it was not “settled law.” Hunter, 502 U. S., at 228. The panel majority relied on a single decision, Smith v. United States, 281 A. 2d 438 (D. C. 1971).[8] The defendant in Smith, who was found trespassing in a locked construction site near midnight, asserted that he was entitled to a jury instruction explaining that a bona fide belief of a right to enter is a complete defense to unlawful entry. Id., at 439–440. The D. C. Court of Appeals affirmed the trial court’s refusal to give the instruction because the defendant had not established a “reasonable basis” for his alleged bona fide belief. Ibid. Smith does not say anything about whether the officers here could infer from all the evidence that the partygoers knew that they were trespassing. Nor would it have been clear to every reasonable officer that, in these circumstances, the partygoers’ bona fide belief that they were invited to the house was “uncontroverted.” The officers knew that the partygoers had entered the home against the will of the owner. And District case law suggested that officers can infer a suspect’s guilty state of mind based solely on his conduct.[9] In Tillman v. Washington Metropolitan Area Transit Authority, 695 A. 2d 94 (D. C. 1997), for example, the D. C. Court of Appeals held that officers had probable cause to believe the plaintiff knowingly entered the paid area of a subway station without paying. Id., at 96. The court rejected the argument that “the officers had no reason to believe that [the suspect] was ‘knowingly’ in the paid area” because the officers “reasonably could have inferred from [the suspect’s] undisputed conduct that he had the intent required.” Ibid. The court emphasized that officers can rely on “the ordinary and reasonable inference that people know what they are doing when they act.” Ibid. The court also noted that “it would be an unusual case where the circumstances, while undoubtedly proving an unlawful act, nonetheless demonstrated so clearly that the suspect lacked the required intent that the police would not even have probable cause for an arrest.” Ibid. And the fact that a case is unusual, we have held, is “an important indication . . . that [the officer’s] conduct did not violate a ‘clearly established’ right.” Pauly, 580 U. S., at ___ (slip op., at 7). Moreover, existing precedent would have given the officers reason to doubt that they had to accept the party- goers’ assertion of a bona fide belief. The D. C. Court of Appeals has held that officers are not required to take a suspect’s innocent explanation at face value. See, e.g., Nichols v. Woodward & Lothrop, Inc., 322 A. 2d 283, 286 (1974) (holding that an officer was not “obliged to believe the explanation of a suspected shoplifter”). Similar precedent exists in the Federal Courts of Appeals, which have recognized that officers are free to disregard either all innocent explanations,[10] or at least innocent explanations that are inherently or circumstantially implausible.[11] These cases suggest that innocent explanations— even uncontradicted ones—do not have any automatic, probable-cause-vitiating effect. For these reasons, a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. Indeed, several precedents suggested the opposite. The officers were thus entitled to summary judgment based on qualified immunity. * * * The judgment of the D. C. Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 In their merits brief, the partygoers attempt to dispute several of these facts. See Brief for Respondents 26–30. But the facts they now contest were presented in the petition for a writ of certiorari, and the partygoers did not contest them in their brief in opposition. Under this Court’s Rule 15.2, the partygoers’ failure to contest these factual assertions at the certiorari stage waived their right to do so at the merits stage. See Carcieri v. Salazar, 555 U. S. 379 –396 (2009). 2 Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. See Devenpeck v. Alford, 543 U. S. 146 –155, and n. 2 (2004). Because unlawful entry is the only offense that the District and its officers discuss in their briefs to this Court, we likewise limit our analysis to that offense. 3 The District Court granted summary judgment against two of the officers, but denied summary judgment against the other three because there were triable issues regarding qualified immunity. See 841 F. Supp. 2d 20, 32–46 (DC 2012). The partygoers voluntarily dismissed their claims against those three officers. See 765 F. 3d 13, 17 (CADC 2014). 4 At oral argument, the partygoers argued that the house was not formally “vacant” under District law. Tr. of Oral Arg. 34. But a reasonable officer could infer that the complaining neighbors used the term “vacant” in the colloquial, not the legal, sense. 5 The panel majority dismissed this fact because the officers “did not see any evidence of drugs” and did “not attempt to justify [the] arrests” based on drug use. 765 F. 3d, at 23, n. 5. But a reasonable officer could infer, based on the smell, that marijuana had been used in the house. See Johnson v. United States, 333 U. S. 10, 13 (1948) (noting that “the odor” of narcotics can “be evidence of the most persuasive character”). And the officers could consider the drug use inside the house as evidence that the partygoers knew their presence was unwelcome. 6 The partygoers do not contest that the presence of probable cause defeats all of their claims. 7 We continue to stress that lower courts “should think hard, and then think hard again,” before addressing both qualified immunity and the merits of an underlying constitutional claim. Camreta v. Greene, 563 U. S. 692, 707 (2011) . We addressed the merits of probable cause here, however, because a decision on qualified immunity alone would not have resolved all of the claims in this case. 8 We have not yet decided what precedents—other than our own—qualify as controlling authority for purposes of qualified immunity. See, e.g., Reichle v. Howards, 566 U. S. 658 –666 (2012) (reserving the question whether court of appeals decisions can be “a dispositive source of clearly established law”). We express no view on that question here. Relatedly, our citation to and discussion of various lower court precedents should not be construed as agreeing or disagreeing with them, or endorsing a particular reading of them. See City and County of San Francisco v. Sheehan, 575 U. S. ___, ___, n. 4 (2015) (slip op., at 14, n. 4). Instead, we address only how a reasonable official “could have interpreted” them. Reichle, supra, at 667. 9 The officers cited many of these authorities in their opening brief to the Court of Appeals. See Brief for Appellants in No. 12–7127 (CADC), pp. 28–29. Yet the panel majority failed to mention any of them in its analysis of qualified immunity. 10 See, e.g., Borgman v. Kedley, 646 F. 3d 518, 524 (CA8 2011) (“[An officer] need not rely on an explanation given by the suspect”); Cox v. Hainey, 391 F.3d 25, 32, n. 2 (CA1 2004) (“A reasonable police officer is not required to credit a suspect’s story”); Marx v. Gumbinner, 905 F. 2d 1503, 1507, n. 6 (CA11 1990) (“[Officers a]re not required to forego arresting [a suspect] based on initially discovered facts showing probable cause simply because [the suspect] offered a different explanation”); Criss v. Kent, 867 F. 2d 259, 263 (CA6 1988) (“A policeman . . . is under no obligation to give any credence to a suspect’s story . . . ”). 11 See e.g., Ramirez v. Buena Park, 560 F. 3d 1012, 1024 (CA9 2009) (holding that “innocent explanations for [a suspect’s] odd behavior cannot eliminate the suspicious facts” and that “law enforcement officers do not have to rule out the possibility of innocent behavior” (internal quotation marks omitted)); United States v. Edwards, 632 F. 3d 633, 640 (CA10 2001) (holding that probable cause existed where the suspect “offered only implausible, inconsistent explanations of how he came into possession of the money”); Bradway v. Gonzales, 26 F.3d 313, 321 (CA2 1994) (holding that “[a] reasonable officer who found the [stolen items], and who heard [the suspect’s] implausible explanation for possessing them, would have believed that probable cause existed”).

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 District of Columbia et al. v. Wesby et al. certiorari to the united states court of appeals for the district of columbia circuit No. 15–1485. Argued October 4, 2017—Decided January 22, 2018 District of Columbia police officers responded to a complaint about loud music and illegal activities in a vacant house. Inside, they found the house nearly barren and in disarray. The officers smelled marijuana and observed beer bottles and cups of liquor on the floor, which was dirty. They found a make-shift strip club in the living room, and a naked woman and several men in an upstairs bedroom. Many party- goers scattered when they saw the uniformed officers, and some hid. The officers questioned everyone and got inconsistent stories. Two women identified “Peaches” as the house’s tenant and said that she had given the partygoers permission to have the party. But Peaches was not there. When the officers spoke by phone to Peaches, she was nervous, agitated, and evasive. At first, she claimed that she was renting the house and had given the partygoers permission to have the party, but she eventually admitted that she did not have permission to use the house. The owner confirmed that he had not given anyone permission to be there. The officers then arrested the partygoers for unlawful entry. Several partygoers sued for false arrest under the Fourth Amendment and District law. The District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that two of the officers, petitioners here, were not entitled to qualified immunity. A divided panel of the D. C. Circuit affirmed. Held: 1. The officers had probable cause to arrest the partygoers. . (a) Considering the “totality of the circumstances,” Maryland v. Pringle, 540 U. S. 366 , the officers made an “entirely reasonable inference” that the partygoers knew they did not have permission to be in the house, id., at 372. Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “ ‘common-sense conclusions about human behavior.’ ” Illinois v. Gates, 462 U. S. 213 . Because most homeowners do not live in such conditions or permit such activities in their homes, the officers could infer that the partygoers knew the party was not authorized. The officers also could infer that the partygoers knew that they were not supposed to be in the house because they scattered and hid when the officers arrived. See Illinois v. Wardlow, 528 U. S. 119 –125. The partygoers’ vague and implausible answers to questioning also gave the officers reason to infer that the partygoers were lying and that their lies suggested a guilty mind. Cf. Devenpeck v. Alford, 543 U. S. 146 –156. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she said. The officers also could have inferred that she lied when she said she had invited the partygoers to the house, or that she told the partygoers that she was not actually renting the house. . (b) The panel majority failed to follow two basic and well-established principles of law. First, it viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” Pringle, supra, at 372, n. 2. Second, it believed that it could dismiss outright any circumstances that were “susceptible of innocent explanation,” United States v. Arvizu, 534 U. S. 266 . Instead, it should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a “substantial chance of criminal activity,” Gates, supra, at 244, n. 13. . 2. The officers are entitled to qualified immunity. . (a) As relevant here, officers are entitled to qualified immunity under 42 U. S. C. §1983 unless the unlawfulness of their conduct was “clearly established at the time,” Reichle v. Howards, 566 U. S. 658 . To be clearly established, a legal principle must be “settled law,” Hunter v. Bryant, 502 U. S. 224 , and it must clearly prohibit the officer’s conduct in the particular circumstances before him, see Saucier v. Katz, 533 U. S. 194 . In the warrantless arrest context, “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Brosseau v. Haugen, 543 U. S. 194 . Even assuming that the officers lacked actual probable cause to arrest the partygoers, they are entitled to qualified immunity because, given “the circumstances with which [they] w[ere] confronted,” they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” Anderson v. Creighton, 483 U. S. 635 . The panel majority and the partygoers have failed to identify a single precedent finding a Fourth Amendment violation “under similar circumstances.” White v. Pauly, 580 U. S. ___, ___. And this is not an “obvious case” where “a body of relevant case law” is unnecessary. Brosseau, supra, at 199. . (b) Instead of following this straightforward analysis, the panel majority reasoned that, under clearly established District law, a suspect’s bona fide belief of a right to enter vitiates probable cause to arrest for unlawful entry. Thus, it concluded that the “uncontroverted evidence” of an invitation in this case meant that the officers could not infer the partygoers’ intent from other circumstances or disbelieve their story. But looking at the entire legal landscape at the time of the arrests, a reasonable officer could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. And several precedents suggested the opposite. . 765 F. 3d 13, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed an opinion concurring in the judgment in part.

Respondents, the District of Columbia and five of its police officers, were arrested for holding a raucous, late-night party in a house they did not have permission to enter. Respondents brought a civil suit against the District and the officers, alleging, inter alia, that the officers lacked probable cause to arrest the partygoers for unlawful entry because, in the absence of any conflicting information, the invitation vitiates the necessary element of the party-goers intent to enter against the will of the lawful owner. The District Court granted partial summary judgment to respondents, and the jury awarded respondents a total of $680,000 in compensatory damages. The Court of Appeals affirmed. Held: 1. Considering the totality of the circumstances, the officers made an intelligently reason- able inference that the parties were knowingly taking advantage of a vacant house as a venue for their late night party, and thus were entitled to qualified immunity under 42 U.S. C. §1983. . (a) Since probable cause is an objective standard in determining whether an officer had probable cause for an arrest, a reasonable officer can infer from all the surrounding circumstances, including the plausibility of the explanation itself, that there was asubstantial chance of criminal activity. Based on the vagueness and implausibility of partygoers' stories, such evidence could reasonably be inferred that they were lying and that their lies suggested a guilty mind. P.. (b) The officers did not err in concluding otherwise. They failed to follow two basic and well-established principles of law: (1) they viewed each fact as an isolation, rather than as a factor in the totality, and (2) they failed to consider the whole picture. The rule requires that existing law be sufficiently clear that every reasonable official would understand that what the officer is doing is unlawful. Thus, the rule is too general if the unlawfulness of the officer's conduct does not follow immediately from the conclusion that the rule was firmly established. See, e.g., White v. Pauly, 580 U. S. ___, ___ (2014) (slip op., at 6). . (c) The rule must also be so well defined that it is clear to the reasonable officer that his conduct was unlawful in the situation he confronted, or that officers must accept a suspect's innocent explanation at face value. Indeed, several precedents suggested the opposite. Here, the panel majority mistakenly believed that it could dismiss outright any circumstances that were not innocent explanations. A reasonable officer could reasonably infer that partygoers knew they were not supposed to be there, and could infer that the complaining neighbors used the term "vacant" in the colloquial, not legal, sense. Moreover, a factor viewed in isolation is often more susceptible to an innocent explanation than one viewed as part of a totality. This Court will exercise its discretion to correct its errors at each step, since the analysis, if followed elsewhere, would undermine the values qualified immunity seeks to promote. 2. Where, as here, the court of appeals erred on both the merits of the constitutional claim and the question of qualified immunity, it is exercise of discretion here to correct the error of the court. Pp. 462 U. s. 658-669. (A) The fact that the evidence presented in the petition for a writ of certiorari showed that, under clearly established District law, a suspect has a good purpose and bona fide belief of his right to enter the house, and that the police officer must have known that such an explanation would vitiate probable cause. Although probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts, the fact that there were triable issues regarding qualified immunity also gave the officers plenty of reasons to doubt the parties' protestations of innocence. Cf. Tillman v. Washington Metropolitan Area Transit Authority, 695 A. 2d 94, and, moreover, existing precedent would have given the officers reason to doubt that they had to accept party- goers' assertion of a bona fide belief. Furthermore, the decision on qualified immunity alone would not have resolved all of the claims in this case. Nor was there any precedent that permits an officer to disregard the entire legal landscape in a case in which a reasonable police officer could have reasonably believed that a probable cause explanation was the only reasonable explanation. Such a rule defeats the general rule that a reasonable law enforcement official would interpret a particular rule the plaintiff seeks to apply, since a high degree of specificity precludes the crucial question whether the officer acted reasonably in the particular circumstances that he or she faced. In addition, this Court has not yet decided what precedents --other than this Court's own --qualify as controlling authority for purposes of the qualified immunity. These precedents should not be construed as agreeing or disagreeing with them, or endorsing a

2017_16-1362

https://www.oyez.org/cases/2017/16-1362

. The Fair Labor Standards Act (FLSA), 52Stat. 1060, as amended, 29 U. S. C. §201 et seq., requires employers to pay overtime compensation to covered employees. The FLSA exempts from the overtime-pay requirement “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership. §213(b)(10)(A). We granted certiorari to decide whether this exemption applies to service advisors—employees at car dealerships who consult with customers about their servicing needs and sell them servicing solutions. We conclude that service advisors are exempt. I A Enacted in 1938, the FLSA requires employers to pay overtime to covered employees who work more than 40 hours in a week. 29 U. S. C. §207(a). But the FLSA exempts many categories of employees from this requirement. See §213. Employees at car dealerships have long been among those exempted. Congress initially exempted all employees at car dealerships from the overtime-pay requirement. See Fair Labor Standards Amendments of 1961, §9, 75Stat. 73. Congress then narrowed that exemption to cover “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft.” Fair Labor Standards Amendments of 1966, §209, 80Stat. 836. In 1974, Congress enacted the version of the exemption at issue here. It provides that the FLSA’s overtime-pay requirement does 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). This language has long been understood to cover service advisors. Although the Department of Labor initially interpreted it to exclude them, 35 Fed. Reg. 5896 (1970) (codified at 29 CFR §779.372(c)(4) (1971)), the federal courts rejected that view, see Brennan v. Deel Motors, Inc., 475 F. 2d 1095 (CA5 1973); 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). After these decisions, the Department issued an opinion letter in 1978, explaining that service advisors are exempt in most cases. See Dept. of Labor, Wage & Hour Div., Opinion Letter No. 1520 (WH–467) (1978), [1978–1981 Transfer Binder] CCH Wages–Hours Administrative Rulings ¶31,207. From 1978 to 2011, Congress made no changes to the exemption, despite amending §213 nearly a dozen times. The Department also continued to acquiesce in the view that service advisors are exempt. See Dept. of Labor, Wage & Hour Div., Field Operations Handbook, Insert No. 1757, 24L04(k) (Oct. 20, 1987), online at https://perma.cc/5GHD-KCJJ (as last visited Mar. 28, 2018). In 2011, however, the Department reversed course. It issued a rule that interpreted “salesman” to exclude service advisors. 76 Fed. Reg. 18832, 18859 (2011) (codified at 29 CFR §779.372(c)). That regulation prompted this litigation. B Petitioner Encino Motorcars, LLC, is a Mercedes-Benz dealership in California. Respondents are current and former service advisors for petitioner. Service advisors “interact with customers and sell them services for their vehicles.” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (Encino I) (slip op., at 2). They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.” Ibid. In 2012, respondents sued petitioner for backpay. Relying on the Department’s 2011 regulation, respondents alleged that petitioner had violated the FLSA by failing to pay them overtime. Petitioner moved to dismiss, arguing that service advisors are exempt under §213(b)(10)(A). The District Court agreed with petitioner and dismissed the complaint, but the Court of Appeals for the Ninth Circuit reversed. Finding the text ambiguous and the legislative history “inconclusive,” the Ninth Circuit deferred to the Department’s 2011 rule under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . Encino, 780 F. 3d 1267, 1275 (2015). We granted certiorari and vacated the Ninth Circuit’s judgment. We explained that courts cannot defer to the 2011 rule because it is procedurally defective. See Encino I, 579 U. S., at ___–___ (slip op., at 8–12). Specifically, the regulation undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation. Id., at ___ (slip op., at 10). But we did not decide whether, without administrative deference, the exemption covers service advisors. Id., at ___ (slip op., at 12). We remanded that issue for the Ninth Circuit to address in the first instance. Ibid. C On remand, the Ninth Circuit again held that the exemption does not include service advisors. The Court of Appeals agreed that a service advisor is a “ ‘salesman’ ” in a “generic sense,” 845 F. 3d 925, 930 (2017), and is “ ‘primarily engaged in . . . servicing automobiles’ ” in a “general sense,” id., at 931. Nonetheless, it concluded that “Congress did not intend to exempt service advisors.” Id., at 929. The Ninth Circuit began by noting that the Department’s 1966–1967 Occupational Outlook Handbook listed 12 job titles in the table of contents that could be found at a car dealership, including “automobile mechanics,” “automobile parts countermen,” “automobile salesmen,” and “automobile service advisors.” Id., at 930. Because the FLSA exemption listed three of these positions, but not service advisors, the Ninth Circuit concluded that service advisors are not exempt. Ibid. The Ninth Circuit also determined that service advisors are not primarily engaged in “servicing” automobiles, which it defined to mean “only those who are actually occupied in the repair and maintenance of cars.” Id., at 931. And the Ninth Circuit further concluded that the exemption does not cover salesmen who are primarily engaged in servicing. Id., at 933. In reaching this conclusion, the Ninth Circuit invoked the distributive canon. See A. Scalia & B. Garner, Reading Law 214 (2012) (“Distributive phrasing applies each expression to its appropriate referent”). It reasoned that “Congress intended the gerunds—selling and servicing—to be distributed to their appropriate subjects—salesman, partsman, and mechanic. A salesman sells; a partsman services; and a mechanic services.” Id., at 934. Finally, the Court of Appeals noted that its interpretation was supported by the principle that exemptions to the FLSA should be construed narrowly, id., at 935, and the lack of any “mention of service advisors” in the legislative history, id., at 939. We granted certiorari, 582 U. S. ___ (2017), and now reverse. II The FLSA exempts from its overtime-pay requirement “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 parties agree that petitioner is a “nonmanufacturing establishment primarily engaged in the business of selling [automobiles] to ultimate purchasers.” The parties also agree that a service advisor is not a “partsman” or “mechanic,” and that a service advisor is not “primarily engaged . . . in selling automobiles.” The question, then, is whether service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” We conclude that they are. Under the best reading of the text, service advisors are “salesm[e]n,” and they are “primarily engaged in . . . servicing automobiles.” The distributive canon, the practice of construing FLSA exemptions narrowly, and the legislative history do not persuade us otherwise. A A service advisor is obviously a “salesman.” The term “salesman” is not defined in the statute, so “we give the term its ordinary meaning.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. 560, 566 (2012) . The ordinary meaning of “salesman” is someone who sells goods or services. See 14 Oxford English Dictionary 391 (2d ed. 1989) (“[a] man whose business it is to sell goods or conduct sales”); Random House Dictionary of the English Language 1262 (1966) (“a man who sells goods, services, etc.”). Service advisors do precisely that. As this Court previously explained, service advisors “sell [customers] services for their vehicles.” Encino I, 579 U. S., at ___ (slip op., at 2). B Service advisors are also “primarily engaged in . . . servicing automobiles.” §213(b)(10)(A). The word “servicing” in this context can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service.” 15 Oxford English Dictionary, at 39; see also Random House Dictionary of the English Language, at 1304 (“to make fit for use; repair; restore to condition for service”). Service advisors satisfy both definitions. Service advisors are integral to the servicing process. They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.” Encino I, supra, at ___ (slip op., at 2). If you ask the average customer who services his car, the primary, and perhaps only, person he is likely to identify is his service advisor. True, service advisors do not spend most of their time physically repairing automobiles. But the statutory language is not so constrained. All agree that partsmen, for example, are “primarily engaged in . . . servicing automobiles.” Brief for Petitioner 40; Brief for Respondents 41–44. But partsmen, like service advisors, do not spend most of their time under the hood. Instead, they “obtain the vehicle parts . . . and provide those parts to the mechanics.” Encino I, supra, at ___ (slip op., at 2); see also 1 Dept. of Labor, Dictionary of Occupational Titles 33 (3d ed. 1965) (defining “partsman” as someone who “[p]urchases, stores, and issues spare parts for automotive and industrial equipment”). In other words, the phrase “primarily engaged in . . . servicing automobiles” must include some individuals who do not physically repair automobiles themselves but who are integrally involved in the servicing process. That description applies to partsmen and service advisors alike. C The Ninth Circuit concluded that service advisors are not covered because the exemption simply does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” The Ninth Circuit invoked the distributive canon to reach this conclusion. Using that canon, it matched “salesman” with “selling” and “partsma[n] [and] mechanic” with “servicing.” We reject this reasoning. The text of the exemption covers “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” §213(b)(10)(A). The exemption uses the word “or” to connect all of its nouns and gerunds, and “or” is “almost always disjunctive.” United States v. Woods, 571 U. S. 31, 45 (2013) . Thus, the use of “or” to join “selling” and “servicing” suggests that the exemption covers a salesman primarily engaged in either activity. Unsurprisingly, statutory context can overcome the ordinary, disjunctive meaning of “or.” The distributive canon, for example, recognizes that sometimes “[w]here a sentence contains several antecedents and several consequents,” courts should “read them distributively and apply the words to the subjects which, by context, they seem most properly to relate.” 2A N. Singer & S. Singer, Sutherland Statutes and Statutory Construction §47:26, p. 448 (rev. 7th ed. 2014). But here, context favors the ordinary disjunctive meaning of “or” for at least three reasons. First, the distributive canon has the most force when the statute allows for one-to-one matching. But here, the distributive canon would mix and match some of three nouns—“salesman, partsman, or mechanic”—with one of two gerunds—“selling or servicing.” §213(b)(10)(A). We doubt that a legislative drafter would leave it to the reader to figure out the precise combinations. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. Cf., e.g., Huidekoper’s Lessee v. Douglass, 3 Cranch 1, 67 (1805) (Marshall, C. J.) (applying the distributive canon when a purely disjunctive reading “would involve a contradiction in terms”). But as explained above, the phrase “salesman . . . primarily engaged in . . . servicing automobiles” not only makes sense; it is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth. It begins with the word “any.” See Ali v. Federal Bureau of Prisons, 552 U. S. 214, 219 (2008) (noting the “expansive meaning” of “any”). And it uses the disjunctive word “or” three times. In fact, all agree that the third list in the exemption—“automobiles, trucks, or farm implements”—modifies every other noun and gerund. But it would be odd to read the exemption as starting with a distributive phrasing and then, halfway through and without warning, switching to a disjunctive phrasing—all the while using the same word (“or”) to signal both meanings. See Brown v. Gardner, 513 U. S. 115, 118 (1994) (noting the “vigorous” presumption that, “when a term is repeated within a given sentence,” it “is used to mean the same thing”). The more natural reading is that the exemption covers any combination of its nouns, gerunds, and objects. D The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. 845 F. 3d, at 935–936. We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.” Scalia, Reading Law, at 363. The narrow-construction principle relies on the flawed premise that the FLSA “ ‘pursues’ ” its remedial purpose “ ‘at all costs.’ ” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522 –526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume . . . that whatever might appear to further the statute’s primary objective must be the law” (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in §213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading. E Finally, the Ninth Circuit relied on two extraneous sources to support its interpretation: the Department’s 1966–1967 Occupational Outlook Handbook and the FLSA’s legislative history. We find neither persuasive. 1 The Ninth Circuit first relied on the Department’s 1966–1967 Occupational Outlook Handbook. It identified 12 jobs from the Handbook’s table of contents that it thought could be found at automobile dealerships. See 845 F. 3d, at 930. The Ninth Circuit then stressed that the exemption aligns with three of those job titles—“[a]utomobile mechanics,” “[a]utomobile parts countermen,” and “[a]utomobile salesmen”—but not “[a]utomobile service advisors.” Ibid. The Ninth Circuit cited nothing, however, suggesting that the exemption was meant to align with the job titles listed in the Handbook. To the contrary, the exemption applies to “any salesman . . . primarily engaged in selling or servicing automobiles.” It is not limited, like the term in the Handbook, to “automobile salesmen.” And the ordinary meaning of “salesman” plainly includes service advisors. 2 The Ninth Circuit also relied on legislative history to support its interpretation. See id., at 936–939. Specifi- cally, it noted that the legislative history discusses “automobile salesmen, partsmen, and mechanics” but never discusses service advisors. Id., at 939. Although the Ninth Circuit had previously found that same legislative history “inconclusive,” Encino, 780 F. 3d, at 1275, on remand it was “firmly persuaded” that the legislative history demonstrated Congress’ desire to exclude service advisors, 845 F. 3d, at 939. The Ninth Circuit was right the first time. As we have explained, the best reading of the statute is that service advisors are exempt. Even for those Members of this Court who consider legislative history, silence in the legislative history, “no matter how ‘clanging,’ ” cannot defeat the better reading of the text and statutory context. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479 , n. 13 (1985). If the text is clear, it needs no repetition in the legislative history; and if the text is ambiguous, silence in the legislative history cannot lend any clarity. See Avco Corp. v. Department of Justice, 884 F. 2d 621, 625 (CADC 1989). Even if Congress did not foresee all of the applications of the statute, that is no reason not to give the statutory text a fair reading. See Union Bank v. Wolas, 502 U. S. 151, 158 (1991) . * * * In sum, we conclude that service advisors are exempt from the overtime-pay requirement of the FLSA because they are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” §213(b)(10)(A). Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

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. 16–1362. Argued January 17, 2018—Decided April 2, 2018 Respondents, current and former service advisors for petitioner Encino Motorcars, LLC, sued petitioner for backpay, alleging that petitioner violated the Fair Labor Standards Act (FLSA) by failing to pay them overtime. Petitioner moved to dismiss, arguing that service advisors are exempt from the FLSA’s overtime-pay requirement under 29 U. S. C. §213(b)(10)(A), which applies to “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.” The District Court agreed and dismissed the suit. The Court of Appeals for the Ninth Circuit reversed. It found the statute ambiguous and the legislative history inconclusive, and it deferred to a 2011 Department of Labor rule that interpreted “salesman” to exclude service advisors. This Court vacated the Ninth Circuit’s judgment, holding that courts could not defer to the procedurally defective 2011 rule, Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___–___ (Encino I), but not deciding whether the exemption covers service advisors, id., at ___. On remand, the Ninth Circuit again held that the exemption does not include service advisors. Held: Because service advisors are “salesm[e]n . . . primarily engaged in . . . servicing automobiles,” they are exempt from the FLSA’s overtime-pay requirement. . (a) A service advisor is obviously a “salesman.” The ordinary meaning of “salesman” is someone who sells goods or services, and service advisors “sell [customers] services for their vehicles,” Encino I, supra, at ___. P. 6. (b) Service advisors are also “primarily engaged in . . . servicing automobiles.” “Servicing” can mean either “the action of maintaining or repairing a motor vehicle” or “[t]he action of providing a service.” 15 Oxford English Dictionary 39. Service advisors satisfy both definitions because they are integral to the servicing process. They “mee[t] customers; liste[n] to their concerns about their cars; sugges[t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles.” Encino I, supra, at ___. While service advisors do not spend most of their time physically repairing automobiles, neither do partsmen, who the parties agree are “primarily engaged in . . . servicing automobiles.” . (c) The Ninth Circuit invoked the distributive canon—matching “salesman” with “selling” and “partsman [and] mechanic” with “[servicing]”—to conclude that the exemption simply does not apply to “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” But the word “or,” which connects all of the exemption’s nouns and gerunds, is “almost always disjunctive.” United States v. Woods, 571 U. S. 31 . Using “or” to join “selling” and “servicing” thus suggests that the exemption covers a salesman primarily engaged in either activity. Statutory context supports this reading. First, the distributive canon has the most force when one-to-one matching is present, but here, the statute would require matching some of three nouns with one of two gerunds. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. But here, “salesman . . . primarily engaged in . . . servicing automobiles” is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth, starting with “any” and using the disjunctive “or” three times. . (d) The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. But the Court rejects this principle as a guide to interpreting the FLSA. Because the FLSA gives no textual indication that its exemptions should be construed narrowly, they should be given a fair reading. P. 9. (e) Finally, the Ninth Circuit’s reliance on two extraneous sources to support its interpretation—the 1966–1967 Occupational Outlook Handbook and the FLSA’s legislative history—is unavailing. . 845 F. 3d 925, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Alito, and Gorsuch, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Section213(b)(10)(A) of the Fair Labor Standards Act (FLSA) exempts from the overtime-pay requirement "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." The FLSA exempted from such overtime pay provisions employees at car dealerships who consult with customers about their servicing needs and sell them servicing solutions. Petitioner dealership in California filed suit in Federal District Court, alleging that a regulation of the Department of Labor (Department) interpreting the word "salesman" to exclude service advisors violated the FLSA. The District Court dismissed the complaint, but the Court of Appeals reversed, holding that the exemption does not include service advisors. Held: Service advisors are exempt from overtime pay requirements because they are: (a) Service advisors satisfy both the ordinary meaning of the ordinary term and the distributive canon of service-malesman and mechanic. Under this reading of the statute, they are engaged in servicing automobiles and are not merely engaged in maintaining or repairing automobiles, but are also engaged in providing a service. . (b) The word service advisor is a generic, generic, and isprimarily engaged in servicing automobiles. While partsmen do not spend most of their time under the hood, they do, in fact, obtain the vehicle parts and provide those parts to the mechanics. In other words, the phrase in the phrase of the exemption must include some individuals who do not physically repair automobiles themselves but who are integrally involved in the servicing process. That description applies to partsmen and service advisors alike. Moreover, the fact that partsmen, like service advisors, are primarily engaged in servicing cars does not mean that service advisors are also. Service advisor is not a partman or mechanic, but is, rather, an integral part of the servicing process, and the word is almost always disjunctive. A narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth. It begins with the word any, and then, halfway through and without warning, switches to a disjunjunctive phrasing, all the while using the same word (or) to signal both meanings. Furthermore, the exemption covers any combination of its nouns, gerunds, and objects. Thus, it cannot be said that the statutory text is ambiguous, and that silence in the legislative history cannot lend any clarity. Finally, the Ninth Circuit relied on extraneous sources to support its interpretation. Both the text and legislative history support its conclusion. Even if Congress did not foresee all of the applications of the Act, that is no reason not to give the statutory statutory text a fair reading. See Union Bank v. Wolas, 502 U. S. 151, 158. 845 F. 3d 925, reversed and remanded. STEWART, J., wrote the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p..

2017_16-285

https://www.oyez.org/cases/2017/16-285

. Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers? As a matter of policy these questions are surely debat- able. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees’ suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. This Court has never read a right to class actions into the NLRA—and for three quarters of a century neither did the National Labor Relations Board. Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties’ agreements unlawful. I The three cases before us differ in detail but not in substance. Take Ernst & Young LLP v. Morris. There Ernst & Young and one of its junior accountants, Stephen Morris, entered into an agreement providing that they would arbitrate any disputes that might arise between them. The agreement stated that the employee could choose the arbitration provider and that the arbitrator could “grant any relief that could be granted by . . . a court” in the relevant jurisdiction. App. in No. 16–300, p. 43. The agreement also specified individualized arbitration, with claims “pertaining to different [e]mployees [to] be heard in separate proceedings.” Id., at 44. After his employment ended, and despite having agreed to arbitrate claims against the firm, Mr. Morris sued Ernst & Young in federal court. He alleged that the firm had misclassified its junior accountants as professional employees and violated the federal Fair Labor Standards Act (FLSA) and California law by paying them salaries without overtime pay. Although the arbitration agreement provided for individualized proceedings, Mr. Morris sought to litigate the federal claim on behalf of a nationwide class under the FLSA’s collective action provision, 29 U. S. C. §216(b). He sought to pursue the state law claim as a class action under Federal Rule of Civil Procedure 23. Ernst & Young replied with a motion to compel arbitration. The district court granted the request, but the Ninth Circuit reversed this judgment. 834 F. 3d 975 (2016). The Ninth Circuit recognized that the Arbitration Act gener- ally requires courts to enforce arbitration agreements as written. But the court reasoned that the statute’s “saving clause,” see 9 U. S. C. §2, removes this obligation if an arbitration agreement violates some other federal law. And the court concluded that an agreement requiring individualized arbitration proceedings violates the NLRA by barring employees from engaging in the “concerted activit[y],” 29 U. S. C. §157, of pursuing claims as a class or collective action. Judge Ikuta dissented. In her view, the Arbitration Act protected the arbitration agreement from judicial interference and nothing in the Act’s saving clause suggested otherwise. Neither, she concluded, did the NLRA demand a different result. Rather, that statute focuses on protecting unionization and collective bargaining in the workplace, not on guaranteeing class or collective action procedures in disputes before judges or arbitrators. Although the Arbitration Act and the NLRA have long coexisted—they date from 1925 and 1935, respectively—the suggestion they might conflict is something quite new. Until a couple of years ago, courts more or less agreed that arbitration agreements like those before us must be enforced according to their terms. See, e.g., Owen v. Bristol Care, Inc., 702 F. 3d 1050 (CA8 2013); Sutherland v. Ernst & Young LLP, 726 F. 3d 290 (CA2 2013); D. R. Horton, Inc. v. NLRB, 737 F. 3d 344 (CA5 2013); Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 327 P. 3d 129 (2014); Tallman v. Eighth Jud. Dist. Court, 131 Nev. 71, 359 P. 3d 113 (2015); 808 F. 3d 1013 (CA5 2015) (case below in No. 16–307). The National Labor Relations Board’s general counsel expressed much the same view in 2010. Remarking that employees and employers “can benefit from the relative simplicity and informality of resolving claims before arbitrators,” the general counsel opined that the validity of such agreements “does not involve consideration of the policies of the National Labor Relations Act.” Memorandum GC 10–06, pp. 2, 5 (June 16, 2010). But recently things have shifted. In 2012, the Board—for the first time in the 77 years since the NLRA’s adoption—asserted that the NLRA effectively nullifies the Arbitration Act in cases like ours. D. R. Horton, Inc., 357 N. L. R. B. 2277. Initially, this agency decision received a cool reception in court. See D. R. Horton, 737 F. 3d, at 355–362. In the last two years, though, some circuits have either agreed with the Board’s conclusion or thought themselves obliged to defer to it under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See 823 F. 3d 1147 (CA7 2016) (case below in No. 16–285); 834 F. 3d 975 (case below in No. 16–300); NLRB v. Alternative Entertainment, Inc., 858 F. 3d 393 (CA6 2017). More recently still, the disagreement has grown as the Executive has disavowed the Board’s (most recent) position, and the Solicitor General and the Board have offered us battling briefs about the law’s meaning. We granted certiorari to clear the confusion. 580 U. S. ___ (2017). II We begin with the Arbitration Act and the question of its saving clause. Congress adopted the Arbitration Act in 1925 in response to a perception that courts were unduly hostile to arbitration. No doubt there was much to that perception. Before 1925, English and American common law courts routinely refused to enforce agreements to arbitrate disputes. Scherk v. Alberto-Culver Co., 417 U. S. 506, 510, n. 4 (1974). But in Congress’s judgment arbitration had more to offer than courts recognized—not least the promise of quicker, more informal, and often cheaper resolutions for everyone involved. Id., at 511. So Congress directed courts to abandon their hostility and instead treat arbitration agreements as “valid, irrevocable, and enforceable.” 9 U. S. C. §2. The Act, this Court has said, establishes “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983) (citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967)); see id., at 404 (discussing “the plain meaning of the statute” and “the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts”). Not only did Congress require courts to respect and enforce agreements to arbitrate; it also specifically directed them to respect and enforce the parties’ chosen arbitration procedures. See §3 (providing for a stay of litigation pending arbitration “in accordance with the terms of the agreement”); §4 (providing for “an order directing that . . . arbitration proceed in the manner provided for in such agreement”). Indeed, we have often observed that the Arbitration Act requires courts “rigorously” to “enforce arbitration agreements according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 233 (2013) (some emphasis added; citations, internal quotation marks, and brackets omitted). On first blush, these emphatic directions would seem to resolve any argument under the Arbitration Act. The parties before us contracted for arbitration. They pro- ceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely. See AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011); Italian Colors, supra; DIRECTV, Inc. v. Imburgia, 577 U. S. ___ (2015). You might wonder if the balance Congress struck in 1925 between arbitration and litigation should be revisited in light of more contemporary developments. You might even ask if the Act was good policy when enacted. But all the same you might find it difficult to see how to avoid the statute’s application. Still, the employees suggest the Arbitration Act’s saving clause creates an exception for cases like theirs. By its terms, the saving clause allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” §2. That provision applies here, the employees tell us, because the NLRA renders their particular class and collective action waivers illegal. In their view, illegality under the NLRA is a “ground” that “exists at law . . . for the revocation” of their arbitration agreements, at least to the extent those agreements prohibit class or collective action proceedings. The problem with this line of argument is fundamental. Put to the side the question whether the saving clause was designed to save not only state law defenses but also defenses allegedly arising from federal statutes. See 834 F. 3d, at 991–992, 997 (Ikuta, J., dissenting). Put to the side the question of what it takes to qualify as a ground for “revocation” of a contract. See Concepcion, supra, at 352–355 (Thomas, J., concurring); post, at 1–2 (Thomas, J., concurring). Put to the side for the moment, too, even the question whether the NLRA actually renders class and collective action waivers illegal. Assuming (but not granting) the employees could satisfactorily answer all those questions, the saving clause still can’t save their cause. It can’t because the saving clause recognizes only defenses that apply to “any” contract. In this way the clause establishes a sort of “equal-treatment” rule for arbitration contracts. Kindred Nursing Centers L. P. v. Clark, 581 U. S. ___, ___ (2017) (slip op., at 4). The clause “permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’ ” Concepcion, 563 U. S., at 339. At the same time, the clause offers no refuge for “defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Ibid. Under our precedent, this means the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by “interfer[ing] with fundamental attributes of arbitration.” Id., at 344; see Kindred Nursing, supra, at ___ (slip op., at 5). This is where the employees’ argument stumbles. They don’t suggest that their arbitration agreements were extracted, say, by an act of fraud or duress or in some other unconscionable way that would render any contract unenforceable. Instead, they object to their agreements precisely because they require individualized arbitration proceedings instead of class or collective ones. And by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration’s fundamental attributes. We know this much because of Concepcion. There this Court faced a state law defense that prohibited as unconscionable class action waivers in consumer contracts. The Court readily acknowledged that the defense formally applied in both the litigation and the arbitration context. 563 U. S., at 338, 341. But, the Court held, the defense failed to qualify for protection under the saving clause because it interfered with a fundamental attribute of arbitration all the same. It did so by effectively permitting any party in arbitration to demand classwide proceedings despite the traditionally individualized and informal nature of arbitration. This “fundamental” change to the traditional arbitration process, the Court said, would “sacrific[e] the principal advantage of arbitration—its informality—and mak[e] the process slower, more costly, and more likely to generate procedural morass than final judgment.” Id., at 347, 348. Not least, Concepcion noted, arbitrators would have to decide whether the named class representatives are sufficiently representative and typical of the class; what kind of notice, opportunity to be heard, and right to opt out absent class members should enjoy; and how discovery should be altered in light of the classwide nature of the proceedings. Ibid. All of which would take much time and effort, and introduce new risks and costs for both sides. Ibid. In the Court’s judgment, the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was meant to displace. Of course, Concepcion has its limits. The Court recognized that parties remain free to alter arbitration procedures to suit their tastes, and in recent years some parties have sometimes chosen to arbitrate on a classwide basis. Id., at 351. But Concepcion’s essential insight remains: courts may not allow a contract defense to reshape traditional individualized arbitration by mandating classwide arbitration procedures without the parties’ consent. Id., at 344–351; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 684–687 (2010). Just as judicial antagonism toward arbitration before the Arbitration Act’s enactment “manifested itself in a great variety of devices and formulas declaring arbitration against public policy,” Concepcion teaches that we must be alert to new devices and formulas that would achieve much the same result today. 563 U. S., at 342 (internal quotation marks omitted). And a rule seeking to declare individualized arbitration proceedings off limits is, the Court held, just such a device. The employees’ efforts to distinguish Concepcion fall short. They note that their putative NLRA defense would render an agreement “illegal” as a matter of federal statutory law rather than “unconscionable” as a matter of state common law. But we don’t see how that distinction makes any difference in light of Concepion’s rationale and rule. Illegality, like unconscionability, may be a traditional, generally applicable contract defense in many cases, including arbitration cases. But an argument that a contract is unenforceable just because it requires bilateral arbitration is a different creature. A defense of that kind, Concepcion tells us, is one that impermissibly disfavors arbitration whether it sounds in illegality or unconscion- ability. The law of precedent teaches that like cases should generally be treated alike, and appropriate respect for that principle means the Arbitration Act’s saving clause can no more save the defense at issue in these cases than it did the defense at issue in Concepcion. At the end of our encounter with the Arbitration Act, then, it appears just as it did at the beginning: a congressional command requiring us to enforce, not override, the terms of the arbitration agreements before us. III But that’s not the end of it. Even if the Arbitration Act normally requires us to enforce arbitration agreements like theirs, the employees reply that the NLRA overrides that guidance in these cases and commands us to hold their agreements unlawful yet. This argument faces a stout uphill climb. When confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at “liberty to pick and choose among congressional enactments” and must instead strive “ ‘to give effect to both.’ ” Morton v. Mancari, 417 U. S. 535, 551 (1974). A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing “ ‘a clearly expressed congressional intention’ ” that such a result should follow. Vimar Seguros y Reaseguros, S. A. v. M/V Sky Reefer, 515 U. S. 528, 533 (1995). The intention must be “ ‘clear and manifest.’ ” Morton, supra, at 551. And in approaching a claimed conflict, we come armed with the “stron[g] presum[ption]” that repeals by implication are “disfavored” and that “Congress will specifically address” preexisting law when it wishes to suspend its normal operations in a later statute. United States v. Fausto, 484 U. S. 439, 452, 453 (1988). These rules exist for good reasons. Respect for Congress as drafter counsels against too easily finding irreconcilable conflicts in its work. More than that, respect for the separation of powers counsels restraint. Allowing judges to pick and choose between statutes risks transforming them from expounders of what the law is into policymakers choosing what the law should be. Our rules aiming for harmony over conflict in statutory interpretation grow from an appreciation that it’s the job of Congress by legislation, not this Court by supposition, both to write the laws and to repeal them. Seeking to demonstrate an irreconcilable statutory conflict even in light of these demanding standards, the employees point to Section 7 of the NLRA. That provision guarantees workers “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. §157. From this language, the employees ask us to infer a clear and manifest congressional command to displace the Arbitration Act and outlaw agreements like theirs. But that much inference is more than this Court may make. Section 7 focuses on the right to organize unions and bargain collectively. It may permit unions to bargain to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 256–260 (2009). But it does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand. Neither should any of this come as a surprise. The notion that Section 7 confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years. See Rule 23–Class Actions, 28 U. S. C. App., p. 1258 (1964 ed., Supp. II); 52Stat. 1069; Concepcion, 563 U. S., at 349; see also Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979) (noting that the “usual rule” then was litigation “conducted by and on behalf of individual named parties only”). And while some forms of group litigation existed even in 1935, see 823 F. 3d, at 1154, Section 7’s failure to mention them only reinforces that the statute doesn’t speak to such procedures. A close look at the employees’ best evidence of a potential conflict turns out to reveal no conflict at all. The employees direct our attention to the term “other con- certed activities for the purpose of . . . other mutual aid or protection.” This catchall term, they say, can be read to include class and collective legal actions. But the term appears at the end of a detailed list of activities speaking of “self-organization,” “form[ing], join[ing], or assist[ing] labor organizations,” and “bargain[ing] collectively.” 29 U. S. C. §157. And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to “ ‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’ ” Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001) (discussing ejusdem generis canon); National Assn. of Mfrs. v. Department of Defense, 583 U. S. ___, ___ (2018) (slip op., at 10). All of which suggests that the term “other concerted activities” should, like the terms that precede it, serve to protect things employees “just do” for themselves in the course of exercising their right to free association in the workplace, rather than “the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.” Alternative Entertainment, 858 F. 3d, at 414–415 (Sutton, J., concurring in part and dissenting in part) (emphasis deleted). None of the preceding and more specific terms speaks to the procedures judges or arbitrators must apply in disputes that leave the workplace and enter the courtroom or arbitral forum, and there is no textually sound reason to suppose the final catchall term should bear such a radically different object than all its predecessors. The NLRA’s broader structure underscores the point. After speaking of various “concerted activities” in Section 7, Congress proceeded to establish a regulatory regime applicable to each of them. The NLRA provides rules for the recognition of exclusive bargaining representatives, 29 U. S. C. §159, explains employees’ and employers’ obligation to bargain collectively, §158(d), and conscribes certain labor organization practices, §§158(a)(3), (b). The NLRA also touches on other concerted activities closely related to organization and collective bargaining, such as picketing, §158(b)(7), and strikes, §163. It even sets rules for adjudicatory proceedings under the NLRA itself. §§160, 161. Many of these provisions were part of the original NLRA in 1935, see 49Stat. 449, while others were added later. But missing entirely from this careful regime is any hint about what rules should govern the adjudication of class or collective actions in court or arbitration. Without some comparably specific guidance, it’s not at all obvious what procedures Section 7 might protect. Would opt-out class action procedures suffice? Or would opt-in procedures be necessary? What notice might be owed to absent class members? What standards would govern class certification? Should the same rules always apply or should they vary based on the nature of the suit? Nothing in the NLRA even whispers to us on any of these essential questions. And it is hard to fathom why Congress would take such care to regulate all the other matters mentioned in Section 7 yet remain mute about this matter alone—unless, of course, Section 7 doesn’t speak to class and collective action procedures in the first place. Telling, too, is the fact that when Congress wants to mandate particular dispute resolution procedures it knows exactly how to do so. Congress has spoken often and clearly to the procedures for resolving “actions,” “claims,” “charges,” and “cases” in statute after statute. E.g., 29 U. S. C. §§216(b), 626; 42 U. S. C. §§2000e–5(b), (f)(3)–(5). Congress has likewise shown that it knows how to override the Arbitration Act when it wishes—by explaining, for example, that, “[n]otwithstanding any other provision of law, . . . arbitration may be used . . . only if” certain conditions are met, 15 U. S. C. §1226(a)(2); or that “[n]o predispute arbitration agreement shall be valid or enforceable” in other circumstances, 7 U. S. C. §26(n)(2); 12 U. S. C. §5567(d)(2); or that requiring a party to arbitrate is “unlawful” in other circumstances yet, 10 U. S. C. §987(e)(3). The fact that we have nothing like that here is further evidence that Section 7 does nothing to address the question of class and collective actions. In response, the employees offer this slight reply. They suggest that the NLRA doesn’t discuss any particular class and collective action procedures because it merely confers a right to use existing procedures provided by statute or rule, “on the same terms as [they are] made available to everyone else.” Brief for Respondent in No. 16–285, p. 53, n. 10. But of course the NLRA doesn’t say even that much. And, besides, if the parties really take existing class and collective action rules as they find them, they surely take them subject to the limitations inherent in those rules—including the principle that parties may (as here) contract to depart from them in favor of individualized arbitration procedures of their own design. Still another contextual clue yields the same message. The employees’ underlying causes of action involve their wages and arise not under the NLRA but under an en- tirely different statute, the Fair Labor Standards Act. The FLSA allows employees to sue on behalf of “themselves and other employees similarly situated,” 29 U. S. C. §216(b), and it’s precisely this sort of collective action the employees before us wish to pursue. Yet they do not offer the seemingly more natural suggestion that the FLSA overcomes the Arbitration Act to permit their class and collective actions. Why not? Presumably because this Court held decades ago that an identical collective action scheme (in fact, one borrowed from the FLSA) does not displace the Arbitration Act or prohibit individualized arbitration proceedings. Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32 (1991) (discussing Age Discrimination in Employment Act). In fact, it turns out that “[e]very circuit to consider the question” has held that the FLSA allows agreements for individualized arbitration. Alternative Entertainment, 858 F. 3d, at 413 (opinion of Sutton, J.) (collecting cases). Faced with that obstacle, the employees are left to cast about elsewhere for help. And so they have cast in this direction, suggesting that one statute (the NLRA) steps in to dictate the procedures for claims under a different statute (the FLSA), and thereby overrides the commands of yet a third statute (the Arbitration Act). It’s a sort of interpretive triple bank shot, and just stating the theory is enough to raise a judicial eyebrow. Perhaps worse still, the employees’ theory runs afoul of the usual rule that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Union organization and collective bargaining in the workplace are the bread and butter of the NLRA, while the particulars of dispute resolution procedures in Article III courts or arbitration proceedings are usually left to other statutes and rules—not least the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. It’s more than a little doubtful that Congress would have tucked into the mousehole of Section 7’s catchall term an elephant that tramples the work done by these other laws; flattens the parties’ contracted-for dispute resolution procedures; and seats the Board as supreme superintendent of claims arising under a statute it doesn’t even administer. Nor does it help to fold yet another statute into the mix. At points, the employees suggest that the Norris-LaGuardia Act, a precursor of the NLRA, also renders their arbitration agreements unenforceable. But the Norris-LaGuardia Act adds nothing here. It declares “[un]enforceable” contracts that conflict with its policy of protecting workers’ “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. §§102, 103. That is the same policy the NLRA advances and, as we’ve seen, it does not conflict with Congress’s statutory directions favoring arbitration. See also Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970) (holding that the Norris-LaGuardia Act’s anti-injunction provisions do not bar enforcement of arbitration agreements). What all these textual and contextual clues indicate, our precedents confirm. In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date (save one temporary exception since overruled), with statutes ranging from the Sherman and Clayton Acts to the Age Discrimination in Employment Act, the Credit Repair Organizations Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act. Italian Colors, 570 U. S. 228; Gilmer, 500 U. S. 20; CompuCredit Corp. v. Greenwood, 565 U. S. 95 (2012); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (over- ruling Wilko v. Swan, 346 U. S. 427 (1953)); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987). Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “ ‘individual attempts at conciliation’ ” through arbitration. Gilmer, supra, at 32. And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act. CompuCredit, supra, at 103–104; McMahon, supra, at 227; Italian Colors, supra, at 234. Given so much precedent pointing so strongly in one direction, we do not see how we might faithfully turn the other way here. Consider a few examples. In Italian Colors, this Court refused to find a conflict between the Arbitration Act and the Sherman Act because the Sherman Act (just like the NLRA) made “no mention of class actions” and was adopted before Rule 23 introduced its exception to the “usual rule” of “individual” dispute resolution. 570 U. S., at 234 (internal quotation marks omitted). In Gilmer, this Court “had no qualms in enforcing a class waiver in an arbitration agreement even though” the Age Discrimination in Employment Act “expressly permitted collective legal actions.” Italian Colors, supra, at 237 (citing Gilmer, supra, at 32). And in CompuCredit, this Court refused to find a conflict even though the Credit Repair Organizations Act expressly provided a “right to sue,” “repeated[ly]” used the words “action ” and “court” and “class action,” and even declared “[a]ny waiver” of the rights it provided to be “void.” 565 U. S., at 99–100 (internal quotation marks omitted). If all the statutes in all those cases did not provide a congressional command sufficient to displace the Arbitration Act, we cannot imagine how we might hold that the NLRA alone and for the first time does so today. The employees rejoin that our precedential story is complicated by some of this Court’s cases interpreting Section 7 itself. But, as it turns out, this Court’s Section 7 cases have usually involved just what you would expect from the statute’s plain language: efforts by employees related to organizing and collective bargaining in the workplace, not the treatment of class or collective actions in court or arbitration proceedings. See, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9 (1962) (walkout to protest workplace conditions); NLRB v. Textile Workers, 409 U. S. 213 (1972) (resignation from union and refusal to strike); NLRB v. J. Weingarten, Inc., 420 U. S. 251 (1975) (request for union representation at disciplinary interview). Neither do the two cases the employees cite prove otherwise. In Eastex, Inc. v. NLRB, 437 U. S. 556, 558 (1978), we simply addressed the question whether a union’s distribution of a newsletter in the workplace qualified as a protected concerted activity. We held it did, noting that it was “undisputed that the union undertook the distribution in order to boost its support and improve its bargaining position in upcoming contract negotiations,” all part of the union’s “ ‘continuing organizational efforts.’ ” Id., at 575, and n. 24. In NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 831–832 (1984), we held only that an employee’s assertion of a right under a collective bargaining agreement was protected, reasoning that the collective bargaining “process—beginning with the organization of the union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement—is a single, collective activ- ity.” Nothing in our cases indicates that the NLRA guarantees class and collective action procedures, let alone for claims arising under different statutes and despite the express (and entirely unmentioned) teachings of the Arbitration Act. That leaves the employees to try to make something of our dicta. The employees point to a line in Eastex observing that “it has been held” by other courts and the Board “that the ‘mutual aid or protection’ clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums.” 437 U. S., at 565–566; see also Brief for National Labor Relations Board in No. 16–307, p. 15 (citing similar Board decisions). But even on its own terms, this dicta about the holdings of other bodies does not purport to discuss what procedures an employee might be entitled to in litigation or arbitration. Instead this passage at most suggests only that “resort to administrative and judicial forums” isn’t “entirely unprotected.” Id., at 566. Indeed, the Court proceeded to explain that it did not intend to “address . . . the question of what may constitute ‘concerted’ activities in this [litigation] context.” Ibid., n. 15. So even the employees’ dicta, when viewed fairly and fully, doesn’t suggest that individualized dispute resolution procedures might be insufficient and collective procedures might be mandatory. Neither should this come as a surprise given that not a single one of the lower court or Board decisions Eastex discussed went so far as to hold that Section 7 guarantees a right to class or collective action procedures. As we’ve seen, the Board did not purport to discover that right until 2012, and no federal appellate court accepted it until 2016. See D. R. Horton, 357 N. L. R. B. 2277; 823 F. 3d 1147 (case below in No. 16–285). With so much against them in the statute and our precedent, the employees end by seeking shelter in Chevron. Even if this Court doesn’t see what they see in Section 7, the employees say we must rule for them anyway because of the deference this Court owes to an administrative agency’s interpretation of the law. To be sure, the employees do not wish us to defer to the general counsel’s judgment in 2010 that the NLRA and the Arbitration Act coexist peaceably; they wish us to defer instead to the Board’s 2012 opinion suggesting the NLRA displaces the Arbitration Act. No party to these cases has asked us to reconsider Chevron deference. Cf. SAS Institute Inc. v. Iancu, ante, at 11. But even under Chevron’s terms, no deference is due. To show why, it suffices to outline just a few of the most obvious reasons. The Chevron Court justified deference on the premise that a statutory ambiguity represents an “implicit” delegation to an agency to interpret a “statute which it administers.” 467 U. S., at 841, 844. Here, though, the Board hasn’t just sought to interpret its statute, the NLRA, in isolation; it has sought to interpret this statute in a way that limits the work of a second statute, the Arbitration Act. And on no account might we agree that Congress implicitly delegated to an agency authority to address the meaning of a second statute it does not administer. One of Chevron’s essential premises is simply missing here. It’s easy, too, to see why the “reconciliation” of distinct statutory regimes “is a matter for the courts,” not agencies. Gordon v. New York Stock Exchange, Inc., 422 U. S. 659, 685–686 (1975). An agency eager to advance its statutory mission, but without any particular interest in or expertise with a second statute, might (as here) seek to diminish the second statute’s scope in favor of a more expansive interpretation of its own—effectively “ ‘bootstrap[ping] itself into an area in which it has no jurisdiction.’ ” Adams Fruit Co. v. Barrett, 494 U. S. 638, 650 (1990). All of which threatens to undo rather than honor legislative intentions. To preserve the balance Congress struck in its statutes, courts must exercise independent interpretive judgment. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 144 (2002) (noting that this Court has “never deferred to the Board’s remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA”). Another justification the Chevron Court offered for deference is that “policy choices” should be left to Executive Branch officials “directly accountable to the people.” 467 U. S., at 865. But here the Executive seems of two minds, for we have received competing briefs from the Board and from the United States (through the Solicitor General) disputing the meaning of the NLRA. And whatever argument might be mustered for deferring to the Executive on grounds of political accountability, surely it becomes a garble when the Executive speaks from both sides of its mouth, articulating no single position on which it might be held accountable. See Hemel & Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757, 808 (2017) (“If the theory undergirding Chevron is that voters should be the judges of the executive branch’s policy choices, then presumably the executive branch should have to take ownership of those policy choices so that voters know whom to blame (and to credit)”). In these circumstances, we will not defer. Finally, the Chevron Court explained that deference is not due unless a “court, employing traditional tools of statutory construction,” is left with an unresolved ambiguity. 467 U. S., at 843, n. 9. And that too is missing: the canon against reading conflicts into statutes is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, is more than up to the job of solving today’s interpretive puzzle. Where, as here, the canons supply an answer, “Chevron leaves the stage.” Alternative Entertainment, 858 F. 3d, at 417 (opinion of Sutton, J.). IV The dissent sees things a little bit differently. In its view, today’s decision ushers us back to the Lochner era when this Court regularly overrode legislative policy judgments. The dissent even suggests we have resur- rected the long-dead “yellow dog” contract. Post, at 3–17, 30 (opinion of Ginsburg, J.). But like most apocalyptic warnings, this one proves a false alarm. Cf. L. Tribe, American Constitutional Law 435 (1978) (“ ‘Lochnerizing’ has become so much an epithet that the very use of the label may obscure attempts at understanding”). Our decision does nothing to override Congress’s policy judgments. As the dissent recognizes, the legislative policy embodied in the NLRA is aimed at “safeguard[ing], first and foremost, workers’ rights to join unions and to engage in collective bargaining.” Post, at 8. Those rights stand every bit as strong today as they did yesterday. And rather than revive “yellow dog” contracts against union organizing that the NLRA outlawed back in 1935, today’s decision merely declines to read into the NLRA a novel right to class action procedures that the Board’s own general counsel disclaimed as recently as 2010. Instead of overriding Congress’s policy judgments, today’s decision seeks to honor them. This much the dissent surely knows. Shortly after invoking the specter of Lochner, it turns around and criticizes the Court for trying too hard to abide the Arbitration Act’s “ ‘liberal federal policy favoring arbitration agreements,’ ” Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83 (2002), saying we “ ‘ski’ ” too far down the “ ‘slippery slope’ ” of this Court’s arbitration precedent, post, at 23. But the dissent’s real complaint lies with the mountain of precedent itself. The dissent spends page after page relitigating our Arbitration Act precedents, rehashing arguments this Court has heard and rejected many times in many cases that no party has asked us to revisit. Compare post, at 18–23, 26 (criticizing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985), Gilmer, 500 U. S. 20, Circuit City, 532 U. S. 105, Concepcion, 563 U. S. 333, Italian Colors, 570 U. S. 228, and CompuCredit, 565 U. S. 95), with Mitsubishi, supra, at 645–650 (Stevens, J., dissenting), Gilmer, supra, at 36, 39–43 (Stevens, J., dissenting), Circuit City, supra, at 124–129 (Stevens, J., dissenting), Concepcion, supra, at 357–367 (Breyer, J., dissenting), Italian Colors, supra, at 240–253 (Kagan, J., dissenting), and CompuCredit, supra, at 116–117 (Ginsburg, J., dissenting). When at last it reaches the question of applying our precedent, the dissent offers little, and understandably so. Our precedent clearly teaches that a contract defense “conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures” is inconsistent with the Arbitration Act and its saving clause. Concepcion, supra, at 336 (opinion of the Court). And that, of course, is exactly what the employees’ proffered defense seeks to do. Nor is the dissent’s reading of the NLRA any more available to us than its reading of the Arbitration Act. The dissent imposes a vast construction on Section 7’s language. Post, at 9. But a statute’s meaning does not always “turn solely” on the broadest imaginable “definitions of its component words.” Yates v. United States, 574 U. S. ___, ___ (2015) (plurality opinion) (slip op., at 7). Linguistic and statutory context also matter. We have offered an extensive explanation why those clues support our reading today. By contrast, the dissent rests its interpretation on legislative history. Post, at 3–5; see also post, at 19–21. But legislative history is not the law. “It is the business of Congress to sum up its own debates in its legislation,” and once it enacts a statute “ ‘[w]e do not inquire what the legislature meant; we ask only what the statute means.’ ” Schwegmann Brothers v. Calvert Distillers Corp., 341 U. S. 384, 396, 397 (1951) (Jackson, J., concurring) (quoting Justice Holmes). Besides, when it comes to the legislative history here, it seems Congress “did not discuss the right to file class or consolidated claims against employers.” D. R. Horton, 737 F. 3d, at 361. So the dissent seeks instead to divine messages from congressional commentary directed to different questions altogether—a project that threatens to “substitute [the Court] for the Congress.” Schwegmann, supra, at 396. Nor do the problems end there. The dissent proceeds to argue that its expansive reading of the NLRA conflicts with and should prevail over the Arbitration Act. The NLRA leaves the Arbitration Act without force, the dissent says, because it provides the more “pinpointed” direction. Post, at 25. Even taken on its own terms, though, this argument quickly faces trouble. The dissent says the NLRA is the more specific provision because it supposedly “speaks directly to group action by employees,” while the Arbitration Act doesn’t speak to such actions. Ibid. But the question before us is whether courts must enforce particular arbitration agreements according to their terms. And it’s the Arbitration Act that speaks directly to the enforceability of arbitration agreements, while the NLRA doesn’t mention arbitration at all. So if forced to choose between the two, we might well say the Arbitration Act offers the more on-point instruction. Of course, there is no need to make that call because, as our precedents demand, we have sought and found a persuasive interpretation that gives effect to all of Congress’s work, not just the parts we might prefer. Ultimately, the dissent retreats to policy arguments. It argues that we should read a class and collective action right into the NLRA to promote the enforcement of wage and hour laws. Post, at 26–30. But it’s altogether unclear why the dissent expects to find such a right in the NLRA rather than in statutes like the FLSA that actually regulate wages and hours. Or why we should read the NLRA as mandating the availability of class or collective actions when the FLSA expressly authorizes them yet allows parties to contract for bilateral arbitration instead. 29 U. S. C. §216(b); Gilmer, supra, at 32. While the dissent is no doubt right that class actions can enhance enforcement by “spread[ing] the costs of litigation,” post, at 9, it’s also well known that they can unfairly “plac[e] pressure on the defendant to settle even unmeritorious claims,” Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 445, n. 3 (2010) (Ginsburg, J., dissenting). The respective merits of class actions and private arbitration as means of enforcing the law are questions constitution- ally entrusted not to the courts to decide but to the policy- makers in the political branches where those questions remain hotly contested. Just recently, for example, one federal agency banned individualized arbitration agreements it blamed for underenforcement of certain laws, only to see Congress respond by immediately repealing that rule. See 82 Fed. Reg. 33210 (2017) (cited post, at 28, n. 15); Pub. L. 115–74, 131Stat. 1243. This Court is not free to substitute its preferred economic policies for those chosen by the people’s representatives. That, we had always understood, was Lochner’s sin. * The policy may be debatable but the law is clear: Congress has instructed that arbitration agreements like those before us must be enforced as written. While Congress is of course always free to amend this judgment, we see nothing suggesting it did so in the NLRA—much less that it manifested a clear intention to displace the Arbitration Act. Because we can easily read Congress’s statutes to work in harmony, that is where our duty lies. The judgments in Epic, No. 16–285, and Ernst & Young, No. 16–300, are reversed, and the cases are remanded for further proceedings consistent with this opinion. The judgment in Murphy Oil, No. 16–307, is affirmed. 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 Epic Systems Corp. v. Lewis certiorari to the united states court of appeals for the seventh circuit No. 16–285. Argued October 2, 2017—Decided May 21, 2018[1] In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties. Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its “saving clause” removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements here violated the National Labor Relations Act. The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion. Until recently, courts as well as the National Labor Relations Board’s general counsel agreed that such arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board’s position. Held: Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise. . (a) The Arbitration Act requires courts to enforce agreements to arbitrate, including the terms of arbitration the parties select. See 9 U. S. C. §§2, 3, 4. These emphatic directions would seem to resolve any argument here. The Act’s saving clause—which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” §2—recognizes only “ ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ ” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339, not defenses targeting arbitration either by name or by more subtle methods, such as by “interfer[ing] with fundamental attributes of arbitration,” id., at 344. By challenging the agreements precisely because they require individualized arbitration instead of class or collective proceedings, the employees seek to interfere with one of these fundamental attributes. . (b) The employees also mistakenly claim that, even if the Arbitration Act normally requires enforcement of arbitration agreements like theirs, the NLRA overrides that guidance and renders their agreements unlawful yet. When confronted with two Acts allegedly touching on the same topic, this Court must strive “to give effect to both.” Morton v. Mancari, 417 U. S. 535, 551. To prevail, the employees must show a “ ‘clear and manifest’ ” congressional intention to displace one Act with another. Ibid. There is a “stron[g] presum[ption]” that disfavors repeals by implication and that “Congress will specifically address” preexisting law before suspending the law’s normal operations in a later statute. United States v. Fausto, 484 U. S. 439, 452, 453. The employees ask the Court to infer that class and collective actions are “concerted activities” protected by §7 of the NLRA, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §157. But §7 focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Because the catchall term “other concerted activities for the purpose of . . . other mutual aid or protection” appears at the end of a detailed list of activities, it should be understood to protect the same kind of things, i.e., things employees do for themselves in the course of exercising their right to free association in the workplace. The NLRA’s structure points to the same conclusion. After speaking of various “concerted activities” in §7, the statute establishes a detailed regulatory regime applicable to each item on the list, but gives no hint about what rules should govern the adjudication of class or collective actions in court or arbitration. Nor is it at all obvious what rules should govern on such essential issues as opt-out and opt-in procedures, notice to class members, and class certification standards. Telling too is the fact that Congress has shown that it knows exactly how to specify certain dispute resolution procedures, cf., e.g., 29 U. S. C. §§216(b), 626, or to override the Arbitration Act, see, e.g., 15 U. S. C. §1226(a)(2), but Congress has done nothing like that in the NLRA. The employees suggest that the NLRA does not discuss class and collective action procedures because it means to confer a right to use existing procedures provided by statute or rule, but the NLRA does not say even that much. And if employees do take existing rules as they find them, they must take them subject to those rules’ inherent limitations, including the principle that parties may depart from them in favor of individualized arbitration. In another contextual clue, the employees’ underlying causes of action arise not under the NLRA but under the Fair Labor Standards Act, which permits the sort of collective action the employees wish to pursue here. Yet they do not suggest that the FLSA displaces the Arbitration Act, presumably because the Court has held that an identical collective action scheme does not prohibit individualized arbitration proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32. The employees’ theory also runs afoul of the rule 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, as it would allow a catchall term in the NLRA to dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings—matters that are usually left to, e.g., the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. Nor does the employees’ invocation of the Norris-LaGuardia Act, a predecessor of the NLRA, help their argument. That statute declares unenforceable contracts in conflict with its policy of protecting workers’ “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §102, and just as under the NLRA, that policy does not conflict with Congress’s directions favoring arbitration. Precedent confirms the Court’s reading. The Court has rejected many efforts to manufacture conflicts between the Arbitration Act and other federal statutes, see, e.g. American Express Co. v. Italian Colors Restaurant, 570 U. S. 228; and its §7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9. Finally, the employees cannot expect deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, because Chevron’s essential premises are missing. The Board sought not to interpret just the NLRA, “which it administers,” id., at 842, but to interpret that statute in a way that limits the work of the Arbitration Act, which the agency does not administer. The Board and the Solicitor General also dispute the NLRA’s meaning, articulating no single position on which the Executive Branch might be held “accountable to the people.” Id., at 865. And after “employing traditional tools of statutory construction,” id., at 843, n. 9, including the canon against reading conflicts into statutes, there is no unresolved ambiguity for the Board to address. . No. 16–285, 823 F. 3d 1147, and No. 16–300, 834 F. 3d 975, reversed and remanded; No. 16–307, 808 F. 3d 1013, affirmed. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined. Notes 1 Together with No. 16–300, Ernst & Young LLP et al. v. Morris et al., on certiorari to the United States Court of Appeals for the Ninth Circuit, and No. 16–307, National Labor Relations Board v. Murphy Oil USA, Inc., et al., on certiorari to the United States Court of Appeals for the Fifth Circuit.

The Federal Arbitration Act (Act) and the National Labor Relations Board (NLRA) have long enjoyed separate spheres of influence, and neither permits this Court to declare the parties' arbitration agreements unlawful. Ernst & Young v. Morris,; NLRB v. Alternative Entertainment, Inc., 858 F. 3d 393 (CA6 2017); American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 233. . 834 F.3d 975, reversed and remanded. PER CURIAM. The judgment in each case is affirmed. THE CHIEF JUSTICE, in an opinion joined by the Solicitor General and the Board, concurred in the judgment in both cases. MR. JUSTICE DOUGLAS, concurring in the result, concluded that the NLRA effectively nullifies the Act in cases like ours. Pp. 403 U.S. 166-165. (a) The Arbitration and NLRA are not at war with one another, but, as a matter of law, they have had separate spheres. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum. This Court has never read a right to class actions into the Act, and for three quarters of a century neither the Arbitration nor the NLRB has acted as a harmonious whole. Nor is there any merit to the employees' suggestion that the Act offers a conflicting command that employees should always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers. Nothing in the Act or its saving clause indicates that it guarantees class and collective action procedures, let alone for claims arising under different statutes and despite the express (and entirely unmentioned) teachings of the Act. And by attacking (only) the individualized nature of the arbitration proceedings, the employees seek to interfere with one of arbitration's fundamental attributes, namely, that arbitration should be enforced as written. See, e.g., id., at 404. Here, the arbitration agreement in question does not support this argument, since the Act requires courts to enforce arbitration agreements according to their terms, including terms providing for individualized arbitration proceedings. Moreover, there is no textually sound reason to suppose that the final catchall term should bear such a radically different object than all its predecessors. In any event, this Court is not free to substitute its preferred economic policies for those chosen by the people's representatives. Given so much precedent pointing so strongly in one direction, it is impossible to faithfully turn the other way here. Although Congress is always free to amend this Court's judgment, it does not appear that it did so here, much less that it manifested a clear intention to displace the Act as the arbitration Act does. Because this Court can easily read Congress' statutes to work in harmony, that is where this Court lies. It is not at liberty to pick and choose among congressional enactments and must instead strive to avoid irreconcilable conflicts in its work. More than that, respect for the separation of powers counsels restraint. Allowing judges to choose between statutes risks transforming them from expounders of what the law is into what it should be. Chevron v. NLRB, 865 F.2d 763 (CA5 2017), Ibid., at 765. A party seeking to suggest that two statutes cannot be harmonized, and that one displaces the other, bears the heavy burden of showing a clearly expressed congressional intention. Cf. NLRA v. Lochnerizing, supra, at 843, at 467 U. s. 565.. (b) The employees do not object to their arbitration agreements, since they require individualized, rather than class, proceedings, and because they have an underlying cause of action involving their wages and arise not under the National Human Relations Act, but under an en- tirely different statute, the Fair Labor Standards Act (FLSA). Nor do they offer the seemingly more natural suggestion that the FLSA overcomes the Act to permit their class and collective actions. They simply suggest that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute, and they say that this Court must rule for them anyway because of the deference this Court owes to an administrative agency's interpretation of the law. Even if this Court does not see what they see in Section 7, this decision does nothing to override Congress' policy judgments, and it is not the first time this Court has looked back to the Lochner era when this Court regularly overrode legislative policy judgments. On the other hand, the precedents indicate that Congress has not implicitly delegated to an agency authority to address the meaning of a second statute it

2017_16-1161

https://www.oyez.org/cases/2017/16-1161

. The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the boundaries of the State’s legislative districts. A group of Wisconsin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments. But a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has “a personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), distinct from a “generally available grievance about government,” Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam). That threshold requirement “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 570 U. S. 693, 700 (2013). Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. I Wisconsin’s Legislature consists of a State Assembly and a State Senate. Wis. Const., Art. IV, §1. The 99 members of the Assembly are chosen from single districts that must “consist of contiguous territory and be in as compact form as practicable.” §4. State senators are likewise chosen from single-member districts, which are laid on top of the State Assembly districts so that three Assembly districts form one Senate district. See §5; Wis. Stat. §4.001 (2011). The Wisconsin Constitution gives the legislature the responsibility to “apportion and district anew the members of the senate and assembly” at the first session following each census. Art. IV, §3. In recent decades, however, that responsibility has just as often been taken up by federal courts. Following the census in 1980, 1990, and 2000, federal courts drew the State’s legislative districts when the Legislature and the Governor—split on party lines—were unable to agree on new districting plans. The Legislature has broken the logjam just twice in the last 40 years. In 1983, a Democratic Legislature passed, and a Democratic Governor signed, a new districting plan that remained in effect until the 1990 census. See 1983 Wis. Laws ch. 4. In 2011, a Republican Legislature passed, and a Republican Governor signed, the districting plan at issue here, known as Act 43. See Wis. Stat. §§ 4.009, 4.01–4.99; 2011 Wis. Laws ch. 4. Following the passage of Act 43, Republicans won majorities in the State Assembly in the 2012 and 2014 elections. In 2012, Republicans won 60 Assembly seats with 48.6% of the two-party statewide vote for Assembly candidates. In 2014, Republicans won 63 Assembly seats with 52% of the statewide vote. 218 F. Supp. 3d 837, 853 (WD Wis. 2016). In July 2015, twelve Wisconsin voters filed a complaint in the Western District of Wisconsin challenging Act 43. The plaintiffs identified themselves as “supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates.” 1 App. 32, Complaint ¶15. They alleged that Act 43 is a partisan gerrymander that “unfairly favor[s] Republican voters and candidates,” and that it does so by “cracking” and “packing” Democratic voters around Wisconsin. Id., at 28–30, ¶¶5–7. As they explained: “Cracking means dividing a party’s supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party’s backers in a few districts that they win by overwhelming margins.” Id., at 29, ¶5. Four of the plaintiffs—Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace—alleged that they lived in State Assembly districts where Democrats have been cracked or packed. Id., at 34–36, ¶¶20, 23, 24, 26; see id., at 50–53, ¶¶60–70 (describing packing and cracking in Assembly Districts 22, 26, 66, and 91). All of the plaintiffs also alleged that, regardless of “whether they themselves reside in a district that has been packed or cracked,” they have been “harmed by the manipulation of district boundaries” because Democrats statewide “do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly.” Id., at 33, ¶16. The plaintiffs argued that, on a statewide level, the degree to which packing and cracking has favored one party over another can be measured by a single calculation: an “efficiency gap” that compares each party’s respective “wasted” votes across all legislative districts. “Wasted” votes are those cast for a losing candidate or for a win- ning candidate in excess of what that candidate needs to win. Id., at 28–29, ¶5. The plaintiffs alleged that Act 43 resulted in an unusually large efficiency gap that favored Republicans. Id., at 30, ¶7. They also submitted a “Demonstration Plan” that, they asserted, met all of the legal criteria for apportionment, but was at the same time “almost perfectly balanced in its partisan consequences.” Id., at 31, ¶10. They argued that because Act 43 gener- ated a large and unnecessary efficiency gap in favor of Re- publicans, it violated the First Amendment right of association of Wisconsin Democratic voters and their Fourteenth Amendment right to equal protection. The plaintiffs named several members of the state election commission as defendants in the action. Id., at 36, ¶¶28–30. The election officials moved to dismiss the complaint. They argued, among other things, that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative districts in which they vote. A three-judge panel of the District Court, see 28 U. S. C. §2284(a), denied the defendants’ motion. In the District Court’s view, the plaintiffs “identif[ied] their injury as not simply their inability to elect a representative in their own districts, but also their reduced opportunity to be represented by Democratic legislators across the state.” Whitford v. Nichol, 151 F. Supp. 3d 918, 924 (WD Wis. 2015). It therefore followed, in the District Court’s opinion, that “[b]ecause plaintiffs’ alleged injury in this case relates to their statewide representation, . . . they should be permitted to bring a statewide claim.” Id., at 926. The case proceeded to trial, where the plaintiffs presented testimony from four fact witnesses. The first was lead plaintiff William Whitford, a retired law professor at the University of Wisconsin in Madison. Whitford testified that he lives in Madison in the 76th Assembly District, and acknowledged on cross-examination that this is, under any plausible circumstances, a heavily Democratic district. Under Act 43, the Democratic share of the Assembly vote in Whitford’s district is 81.9%; under the plaintiffs’ ideal map—their Demonstration Plan—the projected Democratic share of the Assembly vote in Whitford’s district would be 82%. 147 Record 35–36. Whitford therefore conceded that Act 43 had not “affected [his] ability to vote for and elect a Democrat in [his] district.” Id., at 37. Whitford testified that he had nevertheless suffered a harm “relate[d] to [his] ability to engage in campaign activity to achieve a majority in the Assembly and the Senate.” Ibid. As he explained, “[t]he only practical way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate ideally in order to get the legislative product I prefer.” Id., at 33. The plaintiffs also presented the testimony of legislative aides Adam Foltz and Tad Ottman, as well as that of Professor Ronald Gaddie, a political scientist who helped design the Act 43 districting map, regarding how that map was designed and adopted. In particular, Professor Gaddie testified about his creation of what he and the District Court called “S curves”: color-coded tables of the estimated partisan skew of different draft redistricting maps. See 218 F. Supp. 3d, at 850, 858. The colors corresponded with assessments regarding whether different districts tilted Republican or Democratic under various statewide political scenarios. The S curve for the map that was eventually adopted projected that “Republicans would maintain a majority under any likely voting scenario,” with Democrats needing 54% of the statewide vote to secure a majority in the legislature. Id., at 852. Finally, the parties presented testimony from four expert witnesses. The plaintiffs’ experts, Professor Kenneth Mayer and Professor Simon Jackman, opined that—according to their efficiency-gap analyses—the Act 43 map would systematically favor Republicans for the duration of the decade. See id., at 859–861. The defendants’ experts, Professor Nicholas Goedert and Sean Trende, opined that efficiency gaps alone are unreliable measures of durable partisan advantage, and that the political geography of Wisconsin currently favors Republicans because Democrats—who tend to be clustered in large cities—are inefficiently distributed in many parts of Wisconsin for purposes of winning elections. See id., at 861–862. At the close of evidence, the District Court concluded—over the dissent of Judge Griesbach—that the plaintiffs had proved a violation of the First and Fourteenth Amendments. The court set out a three-part test for identifying unconstitutional gerrymanders: A redistricting map violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment if it “(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Id., at 884. The court went on to find, based on evidence concerning the manner in which Act 43 had been adopted, that “one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade.” Id., at 896. It also found that the “more efficient distribution of Republican voters has allowed the Republican Party to translate its votes into seats with significantly greater ease and to achieve—and preserve—control of the Wisconsin legislature.” Id., at 905. As to the third prong of its test, the District Court concluded that the burdens the Act 43 map imposed on Democrats could not be explained by “legitimate state prerogatives [or] neutral factors.” Id., at 911. The court recognized that “Wisconsin’s political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process,” but found that this inherent geographic disparity did not account for the magnitude of the Republican advantage. Id., at 921, 924. Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against state-imposed barriers on [their] ability to vote effectively for the party of [their] choice.” Id., at 928. It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” Ibid. The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” Id., at 930. Judge Griesbach dissented. He wrote that, under this Court’s existing precedents, “partisan intent” to benefit one party rather than the other in districting “is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches.” Id., at 939. He observed that the plaintiffs had not attempted to prove that “specific districts . . . had been gerrymandered,” but rather had “relied on statewide data and calculations.” Ibid. And he argued that the plaintiffs’ proof, resting as it did on statewide data, had “no relevance to any gerrymandering injury alleged by a voter in a single district.” Id., at 952. On that basis, Judge Griesbach would have entered judgment for the defendants. The District Court enjoined the defendants from using the Act 43 map in future elections and ordered them to have a remedial districting plan in place no later than November 1, 2017. The defendants appealed directly to this Court, as provided under 28 U. S. C. §1253. We stayed the District Court’s judgment and postponed consideration of our jurisdiction. 582 U. S. ___ (2017). II A Over the past five decades this Court has been repeat- edly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question. What our precedents have to say on the topic is, however, instructive as to the myriad competing considerations that partisan gerrymandering claims involve. Our efforts to sort through those considerations have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. Our first consideration of a partisan gerrymandering claim came in Gaffney v. Cummings, 412 U. S. 735 (1973). There a group of plaintiffs challenged the constitutionality of a Connecticut redistricting plan that “consciously and overtly adopted and followed a policy of ‘political fairness,’ which aimed at a rough scheme of proportional representation of the two major political parties.” Id., at 738. To that end, the redistricting plan broke up numerous towns, “wiggl[ing] and joggl[ing]” district boundary lines in order to “ferret out pockets of each party’s strength.” Id., at 738, and n. 3, 752, n. 18. The plaintiffs argued that, notwithstanding the rough population equality of the districts, the plan was unconstitutional because its consciously political design was “nothing less than a gigantic political gerrymander.” Id., at 752. This Court rejected that claim. We reasoned that it would be “idle” to hold that “any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it,” because districting “inevitably has and is intended to have substantial political consequences.” Id., at 752–753. Thirteen years later came Davis v. Bandemer, 478 U. S. 109 (1986). Unlike the bipartisan gerrymander at issue in Gaffney, the allegation in Bandemer was that Indiana Republicans had gerrymandered Indiana’s legislative districts “to favor Republican incumbents and candidates and to disadvantage Democratic voters” through what the plaintiffs called the “stacking” (packing) and “splitting” (cracking) of Democrats. 478 U. S., at 116–117 (plurality opinion). A majority of the Court agreed that the case before it was justiciable. Id., at 125, 127. The Court could not, however, settle on a standard for what constitutes an unconstitutional partisan gerrymander. Four Justices would have required the Bandemer plaintiffs to “prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id., at 127. In that plurality’s view, the plaintiffs had failed to make a sufficient showing on the latter point because their evidence of unfavorable election results for Democrats was limited to a single election cycle. See id., at 135. Three Justices, concurring in the judgment, would have held that the “Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims.” Id., at 147 (opinion of O’Connor, J.). Justice O’Connor took issue, in particular, with the plurality’s focus on factual questions concerning “statewide electoral success.” Id., at 158. She warned that allowing district courts to “strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” Id., at 160. Justice Powell, joined by Justice Stevens, concurred in part and dissented in part. In his view, the plaintiffs’ claim was not simply that their “voting strength was diluted statewide,” but rather that “certain key districts were grotesquely gerrymandered to enhance the election prospects of Republican candidates.” Id., at 162, 169. Thus, he would have focused on the question “whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.” Id., at 165. Eighteen years later, we revisited the issue in Vieth v. Jubelirer, 541 U. S. 267 (2004). In that case the plaintiffs argued that Pennsylvania’s Legislature had created “meandering and irregular” congressional districts that “ignored all traditional redistricting criteria, including the preservation of local government boundaries,” in order to provide an advantage to Republican candidates for Congress. Id., at 272–273 (plurality opinion) (brackets omitted). The Vieth Court broke down on numerous lines. Writing for a four-Justice plurality, Justice Scalia would have held that the plaintiffs’ claims were nonjusticiable because there was no “judicially discernible and manageable standard” by which to decide them. Id., at 306. On those grounds, the plurality affirmed the dismissal of the claims. Ibid. Justice Kennedy concurred in the judgment. He noted that “there are yet no agreed upon substantive principles of fairness in districting,” and that, consequently, “we have no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden” on constitutional rights. Id., at 307–308. He rejected the principle advanced by the plaintiffs—that “a majority of voters in [Pennsylvania] should be able to elect a majority of [Pennsylvania’s] congressional delegation”—as a “precept” for which there is “no authority.” Id., at 308. Yet Justice Kennedy recognized the possibility that “in another case a standard might emerge that suit- ably demonstrates how an apportionment’s de facto incorporation of partisan classifications burdens” representational rights. Id., at 312. Four Justices dissented in three different opinions. Justice Stevens would have permitted the plaintiffs’ claims to proceed on a district-by-district basis, using a legal standard similar to the standard for racial gerrymandering set forth in Shaw v. Hunt, 517 U. S. 899 (1996). See 541 U. S., at 335–336, 339. Under this standard, any district with a “bizarre shape” for which the only possible explanation was “a naked desire to increase partisan strength” would be found unconstitutional under the Equal Protection Clause. Id., at 339. Justice Souter, joined by Justice Ginsburg, agreed that a plaintiff alleging unconstitutional partisan gerrymandering should proceed on a district-by-district basis, as “we would be able to call more readily on some existing law when we defined what is suspect at the district level.” See id., at 346–347. Justice Breyer dissented on still other grounds. In his view, the drawing of single-member legislative districts—even according to traditional criteria—is “rarely . . . politically neutral.” Id., at 359. He therefore would have distinguished between gerrymandering for passing political advantage and gerrymandering leading to the “unjustified entrenchment” of a political party. Id., at 360–361. The Court last took up this question in League of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (LULAC). The plaintiffs there challenged a mid-decade redistricting map passed by the Texas Legislature. As in Vieth, a majority of the Court could find no justiciable standard by which to resolve the plaintiffs’ partisan gerrymandering claims. Relevant to this case, an amicus brief in support of the LULAC plaintiffs proposed a “symmetry standard” to “measure partisan bias” by comparing how the two major political parties “would fare hypothetically if they each . . . received a given percentage of the vote.” 548 U. S., at 419 (opinion of Kennedy, J.). Justice Kennedy noted some wariness at the prospect of “adopting a constitutional standard that invalidates a map based on unfair results that would occur in a hypothetical state of affairs.” Id., at 420. Aside from that problem, he wrote, the partisan bias standard shed no light on “how much partisan dominance is too much.” Ibid. Justice Kennedy therefore concluded that “asymmetry alone is not a reliable measure of unconstitutional partisanship.” Ibid. Justice Stevens would have found that the Texas map was a partisan gerrymander based in part on the asymmetric advantage it conferred on Republicans in converting votes to seats. Id., at 466–467, 471–473 (opinion concurring in part and dissenting in part). Justice Souter, writing for himself and Justice Ginsburg, noted that he would not “rule out the utility of a criterion of symmetry,” and that “further attention could be devoted to the administrability of such a criterion at all levels of redistricting and its review.” Id., at 483–484 (opinion concurring in part and dissenting in part). B At argument on appeal in this case, counsel for the plaintiffs argued that this Court can address the problem of partisan gerrymandering because it must: The Court should exercise its power here because it is the “only institution in the United States” capable of “solv[ing] this problem.” Tr. of Oral Arg. 62. Such invitations must be answered with care. “Failure of political will does not justify unconstitutional remedies.” Clinton v. City of New York, 524 U. S. 417, 449 (1998) (Kennedy, J., concurring). Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right. Our considerable efforts in Gaffney, Bandemer, Vieth, and LULAC leave unresolved whether such claims may be brought in cases involving allegations of partisan gerrymandering. In particular, two threshold questions remain: what is necessary to show standing in a case of this sort, and whether those claims are justiciable. Here we do not decide the latter question because the plaintiffs in this case have not shown standing under the theory upon which they based their claims for relief. To ensure that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,” Allen v. Wright, 468 U. S. 737, 750 (1984), a plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy.” Baker, 369 U. S., at 204. A federal court is not “a forum for generalized grievances,” and the requirement of such a personal stake “ensures that courts exercise power that is judicial in nature.” Lance, 549 U. S., at 439, 441. We enforce that requirement by insisting that a plaintiff satisfy the familiar three-part test for Article III standing: that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U. S. ___, ___ (2016) (slip op., at 6). Foremost among these requirements is injury in fact—a plaintiff’s pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1 (1992). We have long recognized that a person’s right to vote is “individual and personal in nature.” Reynolds v. Sims, 377 U. S. 533, 561 (1964). Thus, “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage. Baker, 369 U. S., at 206. The plaintiffs in this case alleged that they suffered such injury from partisan gerrymandering, which works through “packing” and “cracking” voters of one party to disadvantage those voters. 1 App. 28–29, 32–33, Complaint ¶¶5, 15. That is, the plaintiffs claim a constitutional right not to be placed in legislative districts deliberately designed to “waste” their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking). Id., at 32–33, ¶15. To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. This “disadvantage to [the voter] as [an] individual[ ],” Baker, 369 U. S., at 206, therefore results from the boundaries of the particular district in which he resides. And a plaintiff’s remedy must be “limited to the inadequacy that produced [his] injury in fact.” Lewis v. Casey, 518 U. S. 343, 357 (1996). In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district. For similar reasons, we have held that a plaintiff who alleges that he is the object of a racial gerrymander—a drawing of district lines on the basis of race—has standing to assert only that his own district has been so gerrymandered. See United States v. Hays, 515 U. S. 737, 744–745 (1995). A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.” Id., at 745. Plaintiffs who complain of racial gerrymandering in their State cannot sue to invalidate the whole State’s legislative districting map; such complaints must proceed “district-by-district.” Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 6). The plaintiffs argue that their claim of statewide injury is analogous to the claims presented in Baker and Reynolds, which they assert were “statewide in nature” because they rested on allegations that “districts throughout a state [had] been malapportioned.” Brief for Appellees 29. But, as we have already noted, the holdings in Baker and Reynolds were expressly premised on the understanding that the injuries giving rise to those claims were “individual and personal in nature,” Reynolds, 377 U. S., at 561, because the claims were brought by voters who alleged “facts showing disadvantage to themselves as individuals,” Baker, 369 U. S., at 206. The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) ( per curiam). Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357. The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam). We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies. Justice Kagan’s concurring opinion endeavors to address “other kinds of constitutional harm,” see post, at 8, perhaps involving different kinds of plaintiffs, see post, at 9, and differently alleged burdens, see ibid. But the opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others. See Public Workers v. Mitchell, 330 U. S. 75, 90 (1947) (noting that courts must “respect the limits of [their] unique authority” and engage in “[j]udicial exposition . . . only when necessary to decide definite issues between litigants”). The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other. And the sum of the standing principles articulated here, as applied to this case, is that the harm asserted by the plaintiffs is best understood as arising from a burden on those plaintiffs’ own votes. In this gerrymandering context that burden arises through a voter’s placement in a “cracked” or “packed” district. C Four of the plaintiffs in this case—Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace—pleaded a particularized burden along such lines. They alleged that Act 43 had “dilut[ed] the influence” of their votes as a result of packing or cracking in their legislative districts. See 1 App. 34–36, Complaint ¶¶20, 23, 24, 26. The facts necessary to establish standing, however, must not only be alleged at the pleading stage, but also proved at trial. See Defenders of Wildlife, 504 U. S., at 561. As the proceedings in the District Court progressed to trial, the plaintiffs failed to meaningfully pursue their allegations of individual harm. The plaintiffs did not seek to show such requisite harm since, on this record, it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district. They instead rested their case at trial—and their arguments before this Court—on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, the plaintiffs presented the testimony of the lead plaintiff, Professor Whitford. But Whitford’s testimony does not support any claim of packing or cracking of himself as a voter. Indeed, Whitford expressly acknowledged that Act 43 did not affect the weight of his vote. 147 Record 37. His testimony points merely to his hope of achieving a Democratic majority in the legislature—what the plaintiffs describe here as their shared interest in the composition of “the legislature as a whole.” Brief for Appellees 32. Under our cases to date, that is a collective political interest, not an individual legal interest, and the Court must be cautious that it does not become “a forum for generalized grievances.” Lance, 549 U. S., at 439, 441. Second, the plaintiffs provided evidence regarding the mapmakers’ deliberations as they drew district lines. As the District Court recounted, the plaintiffs’ evidence showed that the mapmakers “test[ed] the partisan makeup and performance of districts as they might be configured in different ways.” 218 F. Supp. 3d, at 891. Each of the mapmakers’ alternative configurations came with a table that listed the number of “Safe” and “Lean” seats for each party, as well as “Swing” seats. Ibid. The mapmakers also labeled certain districts as ones in which “GOP seats [would be] strengthened a lot,” id., at 893; 2 App. 344, or which would result in “Statistical Pick Ups” for Republicans. 218 F. Supp. 3d, at 893 (alterations omitted). And they identified still other districts in which “GOP seats [would be] strengthened a little,” “weakened a little,” or were “likely lost.” Ibid. The District Court relied upon this evidence in concluding that, “from the outset of the redistricting process, the drafters sought to understand the partisan effect of the maps they were drawing.” Id., at 895. That evidence may well be pertinent with respect to any ultimate determination whether the plaintiffs may prevail in their claims against the defendants, assuming such claims present a justiciable controversy. But the question at this point is whether the plaintiffs have established injury in fact. That turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs offered evidence concerning the impact that Act 43 had in skewing Wisconsin’s statewide political map in favor of Republicans. This evidence, which made up the heart of the plaintiffs’ case, was derived from partisan-asymmetry studies similar to those discussed in LULAC. The plaintiffs contend that these studies measure deviations from “partisan symmetry,” which they describe as the “social scientific tenet that [districting] maps should treat parties symmetrically.” Brief for Appellees 37. In the District Court, the plaintiffs’ case rested largely on a particular measure of partisan asymmetry—the “efficiency gap” of wasted votes. See supra, at 3–4. That measure was first developed in two academic articles published shortly before the initiation of this lawsuit. See Stephanopoulos & McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015); McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Leg. Studies Q. 55 (2014). The plaintiffs asserted in their complaint that the “efficiency gap captures in a single number all of a district plan’s cracking and packing.” 1 App. 28–29, Complaint ¶5 (emphasis deleted). That number is calculated by subtracting the statewide sum of one party’s wasted votes from the statewide sum of the other party’s wasted votes and dividing the result by the statewide sum of all votes cast, where “wasted votes” are defined as all votes cast for a losing candidate and all votes cast for a winning candidate beyond the 50% plus one that ensures victory. See Brief for Eric McGhee as Amicus Curiae 6, and n. 3. The larger the number produced by that calculation, the greater the asymmetry between the parties in their efficiency in converting votes into legislative seats. Though they take no firm position on the matter, the plaintiffs have suggested that an efficiency gap in the range of 7% to 10% should trigger constitutional scrutiny. See Brief for Appellees 52–53, and n. 17. The plaintiffs and their amici curiae promise us that the efficiency gap and similar measures of partisan asymmetry will allow the federal courts—armed with just “a pencil and paper or a hand calculator”—to finally solve the problem of partisan gerrymandering that has confounded the Court for decades. Brief for Heather K. Gerken et al. as Amici Curiae 27 (citing Wang, Let Math Save Our Democracy, N. Y. Times, Dec. 5, 2015). We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens. Partisan-asymmetry metrics such as the efficiency gap measure something else en- tirely: the effect that a gerrymander has on the fortunes of political parties. Consider the situation of Professor Whitford, who lives in District 76, where, defendants contend, Democrats are “naturally” packed due to their geographic concentration, with that of plaintiff Mary Lynne Donohue, who lives in Assembly District 26 in Sheboygan, where Democrats like her have allegedly been deliberately cracked. By all accounts, Act 43 has not affected Whitford’s individual vote for his Assembly representative—even plaintiffs’ own demonstration map resulted in a virtually identical district for him. Donohue, on the other hand, alleges that Act 43 burdened her individual vote. Yet neither the effi- ciency gap nor the other measures of partisan asymmetry offered by the plaintiffs are capable of telling the difference between what Act 43 did to Whitford and what it did to Donohue. The single statewide measure of partisan advantage delivered by the efficiency gap treats Whitford and Donohue as indistinguishable, even though their individual situations are quite different. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it. III In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff’s claims. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354 (2006). This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal. We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 8) (remanding for further consideration of the plaintiffs’ gerrymandering claims on a district-by-district basis). We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury. Cuno, 547 U. S., at 353. The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Gill et al. v. Whitford et al. appeal from the united states district court for the western district of wisconsin No. 16–1161. Argued October 3, 2017—Decided June 18, 2018 Members of the Wisconsin Legislature are elected from single-member legislative districts. Under the Wisconsin Constitution, the legislature must redraw the boundaries of those districts following each census. After the 2010 census, the legislature passed a new districting plan known as Act 43. Twelve Democratic voters, the plaintiffs in this case, alleged that Act 43 harms the Democratic Party’s ability to convert Democratic votes into Democratic seats in the legislature. They asserted that Act 43 does this by “cracking” certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and “packing” other Democratic voters in a few districts in which Democratic candidates win by large margins. The plaintiffs argued that the degree to which packing and cracking has favored one political party over another can be measured by an “efficiency gap” that compares each party’s respective “wasted” votes—i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win—across all legislative districts. The plaintiffs claimed that the statewide enforcement of Act 43 generated an excess of wasted Democratic votes, thereby violating the plaintiffs’ First Amendment right of association and their Fourteenth Amendment right to equal protection. The defendants, several members of the state election commission, moved to dismiss the plaintiffs’ claims. They argued that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative district in which they vote. The three-judge District Court denied the defendants’ motion and, following a trial, concluded that Act 43 was an unconstitutional partisan gerrymander. Regarding standing, the court held that the plaintiffs had suffered a particularized injury to their equal protection rights. Held: The plaintiffs have failed to demonstrate Article III standing. . (a) Over the past five decades this Court has repeatedly been asked to decide what judicially enforceable limits, if any, the Constitution sets on partisan gerrymandering. Previous attempts at an answer have left few clear landmarks for addressing the question and have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. See Gaffney v. Cummings, 412 U. S. 735, Davis v. Bandemer, 478 U. S. 109, Vieth v. Jubelirer, 541 U. S. 267, and League of United Latin American Citizens v. Perry, 548 U. S. 399. . (b) A plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy,” Baker v. Carr, 369 U. S. 186, 204. That requirement ensures that federal courts “exercise power that is judicial in nature,” Lance v. Coffman, 549 U. S. 437, 439, 441. To meet that requirement, a plaintiff must show an injury in fact—his pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1. The right to vote is “individual and personal in nature,” Reynolds v. Sims, 377 U. S. 533, 561, and “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage, Baker, 369 U. S., at 206. The plaintiffs here alleged that they suffered such injury from partisan gerrymandering, which works through the “cracking” and “packing” of voters. To the extent that the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.” United States v. Hays, 515 U. S. 737, 745. The plaintiffs argue that their claim, like the claims presented in Baker and Reynolds, is statewide in nature. But the holdings in those cases were expressly premised on the understanding that the injuries giving rise to those claims were “individual and personal in nature,” Reynolds, 377 U. S., at 561, because the claims were brought by voters who alleged “facts showing disadvantage to themselves as individuals,” Baker, 369 U. S., at 206. The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561. Here, the plaintiffs’ claims turn on allegations that their votes have been diluted. Because that harm arises from the particular composition of the voter’s own district, remedying the harm does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district. This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U. S. 343, 357. The plaintiffs argue that their legal injury also extends to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. To date, however, the Court has not found that this presents an individual and personal injury of the kind required for Article III standing. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes. . (c) Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiff’s hope of achieving a Democratic majority in the legislature. Under the Court’s cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers’ deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs’ establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs presented partisan-asymmetry studies showing that Act 43 had skewed Wisconsin’s statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens. They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. . (d) Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354. Here, however, where the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. . 218 F. Supp. 3d 837, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined, and in which Thomas and Gorsuch, JJ., joined except as to Part III. Kagan, J., filed a concurring opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined.

Wisconsin's Legislature consists of a State Assembly and a State Senate. The 99 members of the Assembly are chosen from single-member districts that must "consist of contiguous territory and be in as compact form as practicable," and are laid on top of the State Assembly districts so that three Assembly districts form one Senate district. In recent decades, however, federal courts have drawn the State's legislative districts when the Legislature and the Governor have split on party lines. In 1983, a Democratic Legislature passed a new districting plan that remained in effect until the 1990 census. In 2011, a Republican Governor signed an Act 43 redistricting plan, known as Act 43. The Act 43 plan was amended in 2012 and 2014 so that, under Act 43, an individual Wisconsin voter is placed in a single district and votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. In 2014, in both elections, Republicans won 60 Assembly seats with 48.6% of the two-party statewide vote for Assembly candidates, and in 2014, with 52% statewide vote. Plaintiffs, who identified themselves as Democratic Party supporters, filed a complaint in the Western District of Wisconsin, alleging that Act 43 was a partisan gerrymander that unfairly favored Republican voters and candidates. The District Court held that the plaintiffs had standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative districts in which they vote. The court denied the defendants' motion to dismiss the complaint on the ground that they lacked standing to do so, since their alleged injury in this case relates to their statewide representation. Held: The judgment is vacated and the case is remanded for further proceedings. ;. (a) The plaintiffs have not shown standing under the theory upon which they based their claims for relief. To establish standing, they must satisfy the familiar three-part test for identifying unconstitutional gerrymanders: (1) suffered an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision. . (b) A person's right to vote is individual and personal in nature. Thus, a person has personal and personal interests in the overall composition of the legislature. And the citizen's abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable general interest common to all members of the public. P.. (c) The Court does not lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354 (2006), concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. See, e.g., Public Workers v. Mitchell, 330 U.S. 75, 90; Vieth v. Jubelirer,, distinguished. Here, the plaintiffs failed to meaningfully pursue their allegations of individual harm. They did not seek to show such requisite harm, since, on this record, it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district. Instead, they rested their case at trial on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence:1. The plaintiffs may not rely on the kind of undifferentiated, generalized grievance about the conduct of government that this Court refused to countenance in the past, since a citizen has standing to assert only that his own district has been so gerryerrymandered. But the question at this point is whether the plaintiffs have established injury, since that turns on effect, not intent, and requires a showing of a burden on the plaintiffs' votes that isactual or imminent, not conjectural, or hypothetical. And a plaintiff's remedy must be limited to the inadequacy that produced the injury. Id., at 926. Moreover, the facts necessary to establish standing must not only be alleged at the pleading stage, but also proved at trial. As the proceedings in the District Court progressed to trial, plaintiffs failed meaningfully to allege individual harm, and did not claim that they had a personal stake in the outcome of the controversy. Rather, they relied on their argument that the injuries giving rise to those claims were statewide in nature, and that the state political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process. That argument rests on a failure to distinguish injury from remedy, and rests on the mistaken insistence that the claims in Baker v. Carr, 369 U. S. 186, 204, and Reynolds v

2017_16-1150

https://www.oyez.org/cases/2017/16-1150

. Three Terms ago, we held that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of whether any of the others remain pending. Gelboim v. Bank of America Corp., 574 U. S. ___ (2015). We left open, however, the question whether the same is true with respect to cases consoli- dated under Rule 42(a) of the Federal Rules of Civil Procedure. Id., at ___, n. 4 (slip op., at 7, n. 4). This case presents that question. I Petitioner Elsa Hall and respondent Samuel Hall are siblings enmeshed in a long-running family feud. Their mother, Ethlyn Hall, lived and owned property in the United States Virgin Islands. Samuel, a lawyer in the Virgin Islands, served as Ethlyn’s caretaker and provided her with legal assistance. But trouble eventually came to paradise, and Samuel and Ethlyn fell out over Samuel’s management of Ethlyn’s real estate holdings. During a visit from Elsa, Ethlyn established an inter vivos trust, transferred all of her property into the trust, and designated Elsa as her successor trustee. Ethlyn then moved to Miami—under circumstances disputed by the parties—to live with her daughter. The family squabble made its way to court in May 2011. Ethlyn, acting in her individual capacity and as trustee of her inter vivos trust, sued Samuel and his law firm in Federal District Court (the “trust case”). Ethlyn’s claims—for breach of fiduciary duty, legal malpractice, conversion, fraud, and unjust enrichment—concerned the handling of her affairs by Samuel and his law firm before she left for Florida. Then Ethlyn died, and Elsa stepped into her shoes as trustee and accordingly as plaintiff in the trust case. Samuel promptly filed counterclaims in that case against Elsa—in both her individual and representative capacities—for intentional infliction of emotional distress, fraud, breach of fiduciary duty, conversion, and tortious inter- ference. Samuel contended that Elsa had turned their mother against him by taking advantage of Ethlyn’s alleged mental frailty. But Samuel ran into an obstacle: Elsa was not a party to the trust case in her individual capacity (only Ethlyn had been). So Samuel filed a new complaint against Elsa in her individual capacity in the same District Court (the “individual case”), raising the same claims that he had asserted as counterclaims in the trust case. The trust and individual cases initially proceeded along separate tracks. Eventually, on Samuel’s motion, the District Court consolidated the cases under Rule 42(a) of the Federal Rules of Civil Procedure, ordering that “[a]ll submissions in the consolidated case shall be filed in” the docket assigned to the trust case. App. to Pet. for Cert. A–15. Just before the trial commenced, the District Court dismissed from the trust case Samuel’s counterclaims against Elsa. Those claims remained in the individual case. The parties then tried the consolidated cases to- gether before a jury. In the individual case, the jury returned a verdict for Samuel on his intentional infliction of emotional distress claim against Elsa, awarding him $500,000 in compensatory damages and $1.5 million in punitive damages. The clerk entered judgment in that case, but the District Court granted Elsa a new trial, which had the effect of reopening the judgment. The individual case remains pending before the District Court. In the trust case, the jury returned a verdict against Elsa, in her representative capacity, on her claims against Samuel and his law firm. The clerk entered judgment in that case directing that Elsa “recover nothing” and that “the action be dismissed on the merits.” Id., at A–12. Elsa filed a notice of appeal from the District Court’s judgment in the trust case. Samuel and his law firm moved to dismiss the appeal on jurisdictional grounds, arguing that the judgment was not final and appealable because his claims against Elsa remained unresolved in the individual case. The Court of Appeals for the Third Circuit agreed. When two cases have been consolidated for all purposes, the court reasoned, a final decision on one set of claims is generally not appealable while the second set remains pending. The court explained that it considers “whether a less-than-complete judgment is appealable” on a “case-by-case basis.” 679 Fed. Appx. 142, 145 (2017). Here, the fact that the claims in the trust and individual cases had been “scheduled together and tried before a single jury” “counsel[ed] in favor of keeping the claims together on appeal.” Ibid. The court dismissed Elsa’s appeal for lack of jurisdiction. We granted certiorari, 582 U. S. ___ (2017), and now reverse. II A Had the District Court never consolidated the trust and individual cases, there would be no question that Elsa could immediately appeal from the judgment in the trust case. Title 28 U. S. C. §1291 vests the courts of appeals with jurisdiction over “appeals from all final decisions of the district courts,” except those directly appealable to this Court. A final decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Ray Haluch Gravel Co. v. Central Pension Fund of Operating Engineers and Participating Employers, 571 U. S. 177, 183 (2014) . The archetypal final decision is “one[ ] that trigger[s] the entry of judgment.” Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 103 (2009) . Appeal from such a final decision is a “matter of right.” Gelboim, 574 U. S., at ___ (slip op., at 1). Under §1291, “any litigant armed with a final judgment from a lower federal court is entitled to take an appeal,” Arizona v. Manypenny, 451 U. S. 232, 244 (1981) , which generally must be filed within 30 days, 28 U. S. C. §2107(a). Here the jury’s verdict against Elsa resolved all of the claims in the trust case, and the clerk accordingly entered judgment in that case providing that “the action be dismissed on the merits.” App. to Pet. for Cert. A–12. With the entry of judgment, the District Court “completed its adjudication of [Elsa’s] complaint and terminated [her] action.” Gelboim, 574 U. S., at ___ (slip op., at 7). An appeal would normally lie from that judgment. But, Samuel contends, there is more to the litigation than the suit Elsa pursued against him in her representative capacity. There is also his suit against her in her individual capacity, which has not yet been decided. Because the District Court consolidated the trust and individual cases under Rule 42(a)(2), he argues, they merged and should be regarded as one case. Viewed that way, the judgment in the trust case was merely interlocutory, and more remains to be done in the individual case before the consolidated cases in the aggregate are finally resolved and subject to appeal. B Rule 42(a)—entitled “[c]onsolidation”—provides that if “actions before the court involve a common question of law or fact, the court may” take one of three measures. First, the court may “join for hearing or trial any or all matters at issue in the actions.” Fed. Rule Civ. Proc. 42(a)(1). Second, the court may “consolidate the actions.” Rule 42(a)(2). Third, the court may “issue any other orders to avoid unnecessary cost or delay.” Rule 42(a)(3). Whether the judgment entered in the trust case is an immediately appealable final decision turns on the effect of consolidation under Rule 42(a). Samuel, looking to dictionary definitions, asserts that the “plain meaning of the phrase ‘consolidate the actions’ is . . . to unite two or more actions into one whole—that is, to join them into a single case.” Brief for Respondents 23 (citing Black’s Law Dictionary (10th ed. 2014); some internal quotation marks and alterations omitted). But the meaning of “consolidate” in the present context is am- biguous. When Rule 42(a) was adopted, the term was generally defined, as it is now, as meaning to “unite, as various particulars, into one mass or body; to bring together in close union; to combine.” Webster’s New International Dictionary 570 (2d ed. 1942). Consolidation can thus sometimes signify the complete merger of discrete units: “The company consolidated two branches.” But the term can also mean joining together discrete units without causing them to lose their independent character. The United States, for example, is composed of States “unite[d], as various particulars, into one mass or body,” “br[ought] together in close union,” or “combine[d].” Yet all agree that entry into our Union “by no means implies the loss of distinct and individual existence . . . by the States.” Texas v. White, 7 Wall. 700, 725 (1869). “She consolidated her books” hardly suggests that the “books” became “book.” The very metaphor Samuel offers—that consolidation “make[s] two one, like marriage”—highlights this point. Tr. of Oral Arg. 56. However dear to each other, spouses would be surprised to hear that their union extends beyond the metaphysical. This is not a plain meaning case. It is instead about a term—consolidate—with a legal lineage stretching back at least to the first federal consolidation statute, enacted by Congress in 1813. Act of July 22, 1813, §3, 3Stat. 21 (later codified as Rev. Stat. §921 and 28 U. S. C. §734 (1934 ed.)). Over 125 years, this Court, along with the courts of appeals and leading treatises, interpreted that term to mean the joining together—but not the complete merger—of constituent cases. Those authorities particularly emphasized that constituent cases remained independent when it came to judgments and appeals. Rule 42(a), promulgated in 1938, was expressly based on the 1813 statute. The history against which Rule 42(a) was adopted resolves any ambiguity regarding the meaning of “consolidate” in subsection (a)(2). It makes clear that one of multiple cases consolidated under the Rule retains its independent character, at least to the extent it is appealable when finally resolved, regardless of any ongoing proceedings in the other cases. C Lord Mansfield pioneered the consolidation of related cases in England, and the practice quickly took root in American courts. See Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 292 (1892) . In 1813, Congress authorized the newly formed federal courts, when confronted with “causes of like nature, or relative to the same question,” to “make such orders and rules concerning proceedings therein as may be conformable to the principles and usages belonging to courts for avoiding unnecessary costs or delay in the administration of justice” and to “consolidate[ ]” the causes when it “shall appear reasonable.” §3, 3Stat. 21. This consolidation statute applied at law, equity, and admi- ralty, see 1 W. Rose, A Code of Federal Procedure §823(a) (1907) (Rose), and remained in force for 125 years, until its replacement by Rule 42(a). From the outset, we understood consolidation not as completely merging the constituent cases into one, but instead as enabling more efficient case management while preserving the distinct identities of the cases and the rights of the separate parties in them. In Rich v. Lambert, 12 How. 347 (1852), for example, we considered an appeal from several consolidated cases in admiralty. The appellees, the owners of cargo damaged during shipment, raised a challenge to our jurisdiction that turned on the nature of the consolidation. At the time, we could exercise appellate jurisdiction only over cases involving at least $2,000 in controversy. The damages awarded to the cargo owners in the consolidated cases surpassed $2,000 in the aggregate, but most of the constituent cases did not individually clear that jurisdictional hurdle. Id., at 352–353. We declined to view the consolidated cases as one for purposes of appeal, concluding that we had jurisdiction only over those constituent cases that individually involved damages exceeding $2,000. Ibid. As we explained, “although [a consolidated] proceeding assumes the form of a joint suit, it is in reality a mere joinder of distinct causes of action by distinct parties, arising out of a common injury, and which are heard and determined, so far as the merits are concerned, the same as in the case of separate libels for each cause of action.” Id., at 353. Consolidation was “allowed by the practice of the court for its convenience, and the saving of time and expense to the parties.” Ibid. The trial court’s decree, we noted, had the effect of individually resolving each constituent case. Ibid. (“The same decree . . . is entered as in the case of separate suits.”); see Black’s Law Dictionary 532 (3d ed. 1933) (“decree” is a “judgment of a court of equity or admiralty, answering for most purposes to the judgment of a court of common law”). Accordingly, we did “not perceive . . . any ground for a distinction as to the right of appeal from a decree as entered in these cases from that which exists where the proceedings have been distinct and separate throughout.” Rich, 12 How., at 353; see Hanover Fire Ins. Co. v. Kinneard, 129 U. S. 176, 177 (1889) (evaluating appellate jurisdiction over a writ of error in one of several consolidated cases without reference to the others). We elaborated on the principles underlying consolidation in Mutual Life Insurance Co. v. Hillmon, 145 U. S. 285 . Hillmon, a staple of law school courses on evidence, involved three separate actions instituted against different life insurance companies by one Sallie Hillmon, the beneficiary on policies purchased by her husband John. Sallie claimed she was entitled to the sizable proceeds of the policies because John had died while journeying through southern Kansas with two companions in search of a site for a cattle ranch. The three companies countered that John was in fact still alive, having conspired with one of the companions to murder the other and pass his corpse off as John’s, all as part of an insurance fraud scheme. The trial court consolidated the cases and tried them together. Id., at 285–287. The court, for purposes of determining the number of peremptory juror challenges to which each defendant was entitled, treated the three cases as though they had merged into one. Ibid. On appeal we disagreed, holding that each defendant should receive the full complement of peremptory challenges. Id., at 293. That was because, “although the defendants might lawfully be compelled, at the discretion of the court, to try the cases together, the causes of action remained distinct, and required separate verdicts and judgments; and no defendant could be deprived, without its consent, of any right material to its defence . . . to which it would have been entitled if the cases had been tried separately.” Ibid. On remand, one case settled, and a consolidated trial of the others “result[ed] in separate judgments” for Sallie. Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U. S. 208, 209 (1903) . In Stone v. United States, 167 U. S. 178, 189 (1897) , we held that a party appealing from the judgment in one of two cases consolidated for trial could not also raise claims with respect to the other case. John Stone was the sole defendant in one case and one of three defendants in the other. Id., at 179–181. After a consolidated trial, the jury returned a verdict in the case against Stone alone; its verdict in the multidefendant case was set aside. Id., at 181. Stone appealed from the judgment in his case, arguing that the failure to grant a peremptory challenge in the multidefendant case affected the jury’s verdict in his. Id., at 189. We rejected that claim, punctiliously respecting the distinction between the constituent cases. There was “no merit in the objection,” we said, because in the case before us Stone had “had the benefit of the three peremptory challenges” to which he was entitled in that case. Ibid.; see Stone v. United States, 64 F. 667, 672 (CA9 1894) (“The two cases, although consolidated, were separate and distinct. Defendant had exercised all the rights and privileges he was entitled to in this case.”). And just five years before Rule 42(a) became law, we reiterated that, under the consolidation statute, consolidation did not result in the merger of constituent cases. Johnson v. Manhattan R. Co., 289 U. S. 479 –497 (1933). A major case of its day, Johnson arose from the “financial embarrassment” during the Great Depression of two companies involved in operating the New York subway system. Johnson v. Manhattan R. Co., 61 F. 2d 934, 936 (CA2 1932). In the resulting litigation, the District Court consolidated two suits, apparently with the intent to “effect an intervention of the parties to the [first suit] in the [second] suit”—in other words, to make the two suits one. Id., at 940. Judge Learned Hand, writing for the Second Circuit on appeal, would have none of it: “consolidation does not merge the suits; it is a mere matter of convenience in administration, to keep them in step. They remain as independent as before.” Ibid. We affirmed, relying on Hillmon and several lower court cases reflecting the same understanding of consolidation. Johnson, 289 U. S., at 497, n. 8. We explained once more that “consolidation is permitted as a matter of convenience and econ- omy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” Id., at 496–497. Decisions by the Courts of Appeals, with isolated departures,[1]* reflected the same understanding in cases involving all manners of consolidation. See, e.g., Baltimore S. S. Co., Inc. v. Koppel Indus. Car & Equip. Co., 299 F. 158, 160 (CA4 1924) (“the consolidation for convenience of trial did not merge the two causes of action” or “deprive either party of any right or relieve it of any burden incident to the libel or cross-libel as a separate proceeding”); Taylor v. Logan Trust Co., 289 F. 51, 53 (CA8 1923) (parties to one constituent case could not appeal orders in the other because “consolidation did not make the parties to one suit parties to the other”; cited in Johnson); Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 95 F. 497, 506 (CA6 1899) (consolidation “operates as a mere carrying on together of two separate suits supposed to involve identical issues” and “does not avoid the necessity of separate decrees in each case”; cited in Johnson). One frequently cited case illustrates the point. In Adler v. Seaman, 266 F. 828, 831 (CA8 1920), the District Court “sought to employ consolidation as a medium of getting the two independent suits united,” but the Court of Appeals made clear that the consolidation statute did not authorize such action. The court explained that constituent cases sometimes “assume certain natural attitudes toward each other, such as ‘in the nature of’ a cross-bill or intervention.” Id., at 838. Be that as it may, the court continued, “this is purely a rule of convenience, and does not result in actually making such parties defendants or interveners in the other suit.” Ibid. The court described “the result of consolidation” as instead “merely to try cases together, necessitating separate verdicts and judgments or separate decrees,” and to “leave” the constituent cases “separate, independent action[s].” Id., at 838, 840. Treatises summarizing federal precedent applying the consolidation statute also concluded that consolidated cases “remain distinct.” 1 Rose §823(c), at 758. They recognized that consolidated cases should “remain separate as to parties, pleadings, and judgment,” W. Simkins, Federal Practice 63 (rev. ed. 1923), and that “[t]here must be separate verdicts, judgments or decrees, even although the consolidating party wished for one verdict,” 1 Rose §823(c), at 758; see also G. Virden, Consolidation Under Rule 42 of the Federal Rules of Civil Procedure, in 141 F. R. D. 169, 173–174 (1992) (Virden) (“as of 1933 and the Johnson case of that year, it was well settled that consolidation in the federal courts did not merge the separate cases into a single action”). Several aspects of this body of law support the inference that, prior to Rule 42(a), a judgment completely resolving one of several consolidated cases was an immediately appealable final decision. We made clear, for example, that each constituent case must be analyzed individually on appeal to ascertain jurisdiction and to decide its disposition—a compartmentalized analysis that would be gratuitous if the cases had merged into a single case subject to a single appeal. We emphasized that constituent cases should end in separate decrees or judgments—the traditional trigger for the right to appeal, for which there would be no need if an appeal could arise only from the resolution of the consolidated cases as a whole. We explained that the parties to one case did not become parties to the other by virtue of consolidation—indicating that the right of each to pursue his individual case on appeal should not be compromised by the litigation conduct of the other. And, finally, we held that consolidation could not prejudice rights to which the parties would have been due had consolidation never occurred. Forcing an aggrieved party to wait for other cases to conclude would substantially impair his ability to appeal from a final decision fully resolving his own case—a “matter of right,” Gelboim, 574 U. S., at ___ (slip op., at 1), to which he was “entitled,” Manypenny, 451 U. S., at 244. D Against this background, two years after Johnson, the Rules Advisory Committee began discussion of what was to become Rule 42(a). The Rule, which became effective in 1938, was expressly modeled on its statutory predecessor, the Act of July 22, 1813. See Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 42(a), 28 U. S. C. App., p. 887. The Rule contained no definition of “consolidate,” so the term presumably carried forward the same meaning we had ascribed to it under the consolidation statute for 125 years, and had just recently reaffirmed in Johnson. See Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947) (“if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it”); cf. Class v. United States, 583 U. S. ___, ___ (2018) (slip op., at 10) (Federal Rule of Criminal Procedure 11(a)(2) did not silently alter existing doctrine established by this Court’s past decisions). Samuel nonetheless asserts that there is a significant distinction between the original consolidation statute and Rule 42(a). The statute authorized district courts to “consolidate” related “causes when it appears reasonable to do so” or to “make such orders and rules . . . as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice.” 28 U. S. C. §734 (1934 ed.). Rule 42(a) permits district courts not only to “consolidate the actions” (subsection (a)(2)) and “issue any other orders to avoid unnecessary cost or delay” (subsection (a)(3)), but also to “join for hearing or trial any or all matters at issue in the actions” (subsection (a)(1)). Whatever “consolidate” meant under the statute, Sam- uel posits, it took on a different meaning under Rule 42(a) with the addition of subsection (a)(1). Samuel describes the Rule as “permit[ting] two forms of consolidation”: consolidation that “extend[s] only to certain proceedings,” such as discovery, and consolidation “for all purposes.” Brief for Respondents 4–5. He locates textual authority for the former in subsection (a)(1), which he says empowers courts to “join[ ] multiple actions for procedural purposes.” Id., at 23. In light of this broad grant of authority, he contends, subsection (a)(2) must provide for something more if it is not to be superfluous. And Samuel sees that something more as the ability to merge cases that have been consolidated for “all purposes” into a single, undifferentiated case—one appealable only when all issues in each formerly distinct case have been decided. See id., at 22–24 (to “consolidate” separate actions is “to join them into a single case” or “meld [them] into a single unit” (alterations omitted)). We disagree. It is only by substantially overreading subsection (a)(1) that Samuel can argue that its addition compels a radical reinterpretation of the familiar term “consolidate” in subsection (a)(2). The text of subsection (a)(1) permits the joining of cases only for “hearing or trial.” That narrow grant of authority cannot fairly be read as the exclusive source of a district court’s power to “join[ ] multiple actions for procedural purposes.” Brief for Respondents 23. There is, after all, much more to litigation than hearings or trials—such as motions practice or discovery. A district court’s undisputed ability to consolidate cases for such limited purposes must therefore stem from subsection (a)(2). That defeats Samuel’s argument that interpreting subsection (a)(2) to adopt the traditional understanding of consolidation would render it “wholly duplicative of [subsection] (a)(1),” and that subsection (a)(2) “therefore must permit courts . . . to ‘consolidate’ the actions themselves into a single unit.” Id., at 23–24. Samuel’s reinterpretation of “consolidate” is, in other words, a solution in search of a problem. We think, moreover, that if Rule 42(a) were meant to transform consolidation into something sharply contrary to what it had been, we would have heard about it. Congress, we have held, “does not alter the fundamental details” of an existing scheme with “vague terms” and “subtle device[s].” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) ; cf. Class, 583 U. S., at ___ (slip op., at 10). That is true in spades when it comes to the work of the Federal Rules Advisory Committees. Their laborious drafting process requires years of effort and many layers of careful review before a proposed Rule is presented to this Court for possible submission to Congress. See Report of Advisory Committee on Rules for Civil Procedure (Apr. 1937) (describing the exhaustive process undertaken to draft the first Federal Rules of Civil Procedure). No sensible draftsman, let alone a Federal Rules Advisory Committee, would take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do. Similarly, nothing in the pertinent proceedings of the Rules Advisory Committee supports the notion that Rule 42(a) was meant to overturn the settled understanding of consolidation. See United States v. Vonn, 535 U. S. 55 , n. 6 (2002) (Advisory Committee Notes are “a reliable source of insight into the meaning of a rule”). In this instance, the Committee simply commented that Rule 42(a) “is based upon” its statutory predecessor, “but insofar as the statute differs from this rule, it is modified.” Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 42(a), 28 U. S. C. App., at 887. The Committee did not identify any specific instance in which Rule 42(a) changed the statute, let alone the dramatic transformation Samuel would have us recognize. See Virden 174–181 (evaluating the history of the development of Rule 42(a) and finding no evidence that the Committee intended a shift in meaning along the lines proposed by Samuel). This is significant because when the Committee intended a new rule to change existing federal practice, it typically explained the departure. See, e.g., Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 4, 28 U. S. C. App., p. 747 (a predecessor statute “is substantially continued insofar as it applies to a summons, but its requirements as to teste of process are superseded”); Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 18, 28 U. S. C. App., p. 802 (“In respect to fraudulent conveyances the rule changes the former rule requiring a prior judgment against the owner . . . to conform to the provisions of the Uniform Fraudulent Conveyance Act, §§ 9 and 10.”). As a leading treatise explained at the time, through consolidation under Rule 42(a) “one or many or all of the phases of the several actions may be merged. But merger is never so complete in consolidation as to deprive any party of any substantial rights which he may have possessed had the actions proceeded separately.” 3 J. Moore & J. Friedman, Moore’s Federal Practice §42.01, pp. 3050–3051 (1938). Thus, “separate verdicts and judgments are normally necessary.” Id., at 3051, n. 12. The limited extent to which this Court has addressed consolidation since adoption of Rule 42(a) confirms the traditional understanding. Just recently in Bank Markazi v. Peterson, 578 U. S. ___, ___–___ (2016) (slip op., at 19–20), for example, the Court determined that cases “consolidated for administrative purposes at the execution stage . . . were not independent of the original actions for damages and each claim retained its separate character.” The Court quoted as authority a treatise explaining that “actions do not lose their separate identity because of consolidation.” Id., at ___ (slip op., at 20) (quoting 9A C. Wright & A. Miller, Federal Practice and Procedure §2382, p. 10 (3d ed. 2008) (Wright & Miller)). In Butler v. Dexter, 425 U. S. 262 –267 (1976) (per curiam), we dismissed an appeal because the constitutional question that supplied our jurisdiction had been raised not in the case before us, but instead only in other cases with which it had been consolidated. We explained that “[e]ach case . . . must be considered separately to determine whether or not this Court has jurisdiction to consider its merits”. Id., at 267, n. 12; see Rich, 12 How., at 352–353. And in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 , and n. 22 (1976) (Marshall, J., dissenting), four dissenting Justices—reaching an issue not addressed by the majority—cited Johnson for the proposition that actions are “not merged” and do “not lose their separate identities because of . . . consolidation” under Rule 42(a). In the face of all the foregoing, we cannot accept Sam- uel’s contention that “consolidate” in Rule 42(a) carried a very different meaning—with very different consequences—than it had in Johnson, just five years before the Rule was adopted. None of this means that district courts may not consolidate cases for “all purposes” in appropriate circumstances. District courts enjoy substantial discretion in deciding whether and to what extent to consolidate cases. See 9A Wright & Miller §2383 (collecting cases). What our decision does mean is that constituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party. That is, after all, the point at which, by definition, a “district court disassociates itself from a case.” Swint v. Chambers County Comm’n, 514 U. S. 35, 42 (1995) . We thus express no view on any issue arising prior to that time. * * * The normal rule is that a “final decision” confers upon the losing party the immediate right to appeal. That rule provides clear guidance to litigants. Creating exceptions to such a critical step in litigation should not be under- taken lightly. Congress has granted us the authority to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under” §1291, 28 U. S. C. §2072(c), and we have explained that changes with respect to the meaning of final decision “are to come from rulemaking, . . . not judicial decisions in particular controversies,” Microsoft Corp. v. Baker, 582 U. S. ___, ___ (2017) (slip op., at 15). If, as Samuel fears, our holding in this case were to give rise to practical problems for district courts and litigants, the appropriate Federal Rules Advisory Committees would certainly remain free to take the matter up and recommend revisions accordingly. Rule 42(a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals. We reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 * See, e.g., Edward P. Allis Co. v. Columbia Mill Co., 65 F. 52, 54 (CA8 1894) (involving two suits “consolidated, and tried as one action,” with the “complaint in the first suit . . . treated as a counterclaim interposed in the second suit”). State practice was varied. Compare, e.g., East Bay Municipal Util. Dist. v. Kieffer, 99 Cal. App. 240, 263 (1929) (denial of rehearing) (“By such consolidation the three proceedings became one proceeding and should have been determined by a single verdict, ‘a single set of findings and a single judgment.’ ”), with Missouri Pac. R. Co. v. Helmert, 196 Ark. 1073, 121 S. W. 2d 103 (1938) (consolidated cases resulted in separate judgments).

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 Hall, as personal representative of the Estate of Hall and as successor trustee of the Ethlyn Louise Hall Family Trust v. Hall et al. certiorari to the united states court of appeals for the third circuit No. 16–1150. Argued January 16, 2018—Decided March 27, 2018 Respondent Samuel Hall served as caretaker and legal advisor to his mother Ethlyn Hall, a property owner in the United States Virgin Islands. After falling out with Samuel, Ethlyn transferred her property into a trust and designated her daughter, petitioner Elsa Hall, as her successor trustee. Ethlyn sued Samuel and his law firm over the handling of her affairs (the “trust case”). When Ethlyn died, Elsa took Ethlyn’s place as trustee and as plaintiff. Samuel later filed a separate complaint against Elsa in her individual capacity (the “individual case”). On Samuel’s motion, the District Court consolidated the trust and individual cases under Federal Rule of Civil Procedure 42(a). The District Court held a single trial of the consolidated cases. In the individual case, the jury returned a verdict for Samuel, but the District Court granted Elsa a new trial. In the trust case, the jury returned a verdict against Elsa, and she filed a notice of appeal from the judgment in that case. Samuel moved to dismiss the appeal on jurisdictional grounds, arguing that the judgment in the trust case was not final and appealable because his claims against Elsa remained unresolved in the individual case. The Court of Appeals for the Third Circuit agreed and dismissed the appeal. Held: When one of several cases consolidated under Rule 42(a) is finally decided, that decision confers upon the losing party the immediate right to appeal, regardless of whether any of the other consolidated cases remain pending. . (a) Title 28 U. S. C. §1291 vests the courts of appeals with jurisdiction over “appeals from all final decisions of the district courts,” except those directly appealable to this Court. Under §1291, “any litigant armed with a final judgment from a lower federal court is entitled to take an appeal.” Arizona v. Manypenny, 451 U. S. 232 . Here an appeal would normally lie from the judgment in the trust case. But Samuel argues that because the trust and individual cases were consolidated under Rule 42(a)(2), they merged and should be regarded as one case, such that the judgment in the trust case was merely interlocutory and not appealable before the consolidated cases in the aggregate are finally resolved. . (b) Rule 42(a)(2) provides that if “actions before the court involve a common question of law or fact, the court may . . . consolidate the actions.” The meaning of the term “consolidate” in this context is ambiguous. But the term has a legal lineage stretching back at least to the first federal consolidation statute, enacted by Congress in 1813. Act of July 22, 1813, §3, 3Stat. 21 (later codified as Rev. Stat. §921 and 28 U. S. C. §734 (1934 ed.)). That history makes clear that one of multiple cases consolidated under the Rule retains its independent character, at least to the extent it is appealable when finally resolved, regardless of any ongoing proceedings in the other cases. . (c) Under the consolidation statute—which was in force for 125 years, until its replacement by Rule 42(a)—consolidation was understood not as completely merging the constituent cases into one, but as enabling more efficient case management while preserving the distinct identities of the cases and rights of the separate parties in them. See, e.g., Rich v. Lambert, 12 How. 347; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 ; Stone v. United States, 167 U. S. 178 . Just five years before Rule 42(a) became law, the Court reiterated that, under the consolidation statute, consolidation did not result in the merger of constituent cases. Johnson v. Manhattan R. Co., 289 U. S. 479 –497. This body of law supports the inference that, prior to Rule 42(a), a judgment completely resolving one of several consolidated cases was an immediately appealable final decision. . (d) Rule 42(a) was expressly modeled on the consolidation statute. Because the Rule contained no definition of “consolidate,” the term presumably carried forward the same meaning ascribed to it under the statute and reaffirmed in Johnson. Samuel nonetheless asserts that “consolidate” took on a different meaning under Rule 42(a). He describes the Rule as permitting two forms of consolidation: consolidation for limited purposes and consolidation for all purposes. He locates textual authority for the former in a new provision, subsection (a)(1), which permits courts to “join for hearing or trial any or all matters at issue in the actions.” And he contends that subsection (a)(2), so as not to be superfluous, must permit the merger of cases that have been consolidated for all purposes into a single, undifferentiated case. But the narrow grant of authority in subsection (a)(1) cannot fairly be read as the exclusive source of a district court’s power to consolidate cases for limited purposes, because there is much more to litigation than hearings or trials. Instead, that undisputed power must stem from subsection (a)(2). That defeats Samuel’s argument that interpreting subsection (a)(2) to adopt the traditional understanding of consolidation would render it duplicative of subsection (a)(1), and that subsection (a)(2) therefore must permit courts to merge the actions into a single unit. Moreover, a Federal Rules Advisory Committee would not take a term that had long meant that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do. Nothing in the pertinent Committee proceedings supports the notion that Rule 42(a) was meant to overturn the settled understanding of consolidation; the Committee simply commented that Rule 42(a) “is based upon” its statutory predecessor, “but insofar as the statute differs from this rule, it is modified.” Advisory Committee’s Notes on 1937 Adoption of Fed. Rule Civ. Proc. 42(a), 28 U. S. C. App., p. 887. The limited extent to which this Court has addressed consolidation since adoption of Rule 42(a) confirms that the traditional understanding remains in place. See, e.g., Bank Markazi v. Peterson, 578 U. S. ___, ___–___; Butler v. Dexter, 425 U. S. 262 –267. This decision does not mean that district courts may not consolidate cases for all purposes in appropriate circumstances. But constituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party. . 679 Fed. Appx. 142, reversed and remanded. Roberts, C. J., delivered the opinion for a unanimous Court.

Petitioner and respondent are siblings enmeshed in a long-running family feud. During a visit from petitioner, petitioner established an inter vivos trust, transferred all of petitioner's property into the trust, designated petitioner as her successor trustee, and then moved to live with her daughter. When petitioner died, petitioner stepped into her shoes as trustee and plaintiff in the trust case, and promptly filed counterclaims in that case against petitioner in her individual capacity. The District Court consolidated the cases under Fed.Rule Civ. Proc. 42(a) of the Federal Rules of Civil Procedure, ordering that submissions in the consolidated cases be filed in the docket assigned to that case. Just before the trial commenced, the District Court dismissed from petitioner and his law firm (in both her individual and representative capacities) the counterclaimed claims against petitioner. The parties then tried to gether before a jury, and the jury returned a verdict for petitioner on his intentional infliction of emotional distress claim against petitioner, awarding him compensatory damages and $1.5 million in punitive damages. The individual case remains pending before the court, and petitioner filed a notice of appeal from the judgment in the trusts case, arguing on jurisdictional grounds that the judgment against petitioner was not final. The Court of Appeals agreed, and dismissed the individual case for lack of jurisdiction. Held: 1. The case is immediately appealable upon an order disposing of that case regardless of whether any of the others remain pending. . 2. Petitioner could immediately appeal from her judgment in her trust case. Title 28 U. S. C. §1291 vests the courts of appeals with jurisdiction over appeals from all final decisions of the district courts, except those directly appealable to this Court. A final decision triggers the entry of judgment, and leaves nothing for the court to do but execute the judgment. See, e.g., Mutual Life Insurance Co. v. Hillmon, 571 U.S. 177, 183; Arizona v. Manypenny,, which generally must be filed within 30 days. In this case, the jury's verdict against petitioner resolved all of the claims in the trust case and the clerk accordingly entered judgment for petitioner, providing that the action be dismissed on the merits. Thereafter, petitioner filed an action against respondent in his individual capacity in the same District Court (the trust case), raising the same claims that he had asserted in his action. Before the trial began, the court dismissed from the trust and individual cases Samuel had counterclaimed against petitioner and petitioner (in her representative capacity), but those claims remained in petitioner. Petitioner then tried consolidated cases to- gether, which resulted in a jury verdict awarding petitioner compensatory and punitive damages, and a judgment for respondent on her claims against the law firm. Ultimately, the case was remanded to the court for consideration of the jurisdictional issues. On appeal, the appellate court dismissed the case in favor of petitioner on the ground that the individual claims remained unresolved, and remanded the case to the jury for a decision on whether petitioner should appeal. Respondent then filed an appeal from that judgment, arguing that, because the individual cases were merged and should be regarded as one case under Rule 42(2), they merged, and that it was interlocutory, and thus subject to appeal. The court then entered judgment in petitioner's individual case, concluding that petitioner had had the benefit of the three peremptory challenges to which she was entitled in her action, and directing that petitioner be dismissed. After the trial was finally decided, the parties tried to go to the trial to jury. Both the jury and the court granted petitioner a new trial, but the judgment was reopening the judgment as to petitioner, which had been entered on the same verdict against respondent. When petitioner filed his appeal, he filed in his representative capacity, on the grounds of jurisdictional appeal, that he was not an appealable final decision. He also appealed from the court's judgment in his case on the basis of his claim against respondent, and his motion to dismiss the case against him on the asserted ground that his jurisdictional jurisdictional ground had been set aside. Rejecting petitioner's contention that the trust cases merged, because they should be considered as separate cases, and not as consolidated, because of the fact that they had been consolidated, petitioner could not appeal from his judgment in each case, since a final decision in one of several consolidated cases is immediately appealingable by the losing party. Pp. 468 U. N.L. ___. 3. A judgment completely resolving one or more consolidated cases was an immediately appealing final decision, and, in the circumstances of these consolidated cases, a disappointed litigant is free to seek review of that decision in the court of appeals. Here, petitioner was the sole defendant in one case and one of three defendants in the other. His suit against respondents in her

2017_16-658

https://www.oyez.org/cases/2017/16-658

. This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment. In Bowles v. Russell, 551 U. S. 205 –213 (2007), this Court clarified that an appeal filing deadline prescribed by statute will be regarded as “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Ibid.; Kontrick v. Ryan, 540 U. S. 443, 456 (2004) . Because the Court of Appeals held jurisdictional a time limit specified in a rule, not in a statute, 835 F. 3d 761, 763 (CA7 2016), we vacate that court’s judgment dismissing the appeal. I A “Only Congress may determine a lower federal court’s subject-matter jurisdiction.” Kontrick, 540 U. S., at 452 (citing U. S. Const., Art. III, §1); Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 370 (1978) (“[I]t is axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.”). Accordingly, a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time. See Bowles, 551 U. S., at 211–212 (noting “the jurisdictional distinction between court-promulgated rules and limits enacted by Congress”); Sibbach v. Wilson & Co., 312 U. S. 1, 10 (1941) (noting “the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute”). A time limit not prescribed by Congress ranks as a mandatory claim-processing rule, serving “to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson v. Shinseki, 562 U. S. 428, 435 (2011) . This Court and other forums have sometimes overlooked this distinction, “mischaracteriz[ing] claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.” Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 161 (2010) . But prevailing precedent makes the distinction critical. Failure to comply with a jurisdictional time prescription, we have maintained, deprives a court of adjudicatory authority over the case, necessitating dismissal—a “drastic” result. Shinseki, 562 U. S., at 435; Bowles, 551 U. S., at 213 (“[W]hen an ‘appeal has not been prosecuted . . . within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.’ ” (quoting United States v. Curry, 6 How. 106, 113 (1848))). The jurisdictional defect is not subject to waiver or forfeiture[1] and may be raised at any time in the court of first instance and on direct appeal. Kontrick, 540 U. S., at 455.[2] In contrast to the ordinary operation of our adversarial system, courts are obliged to notice jurisdictional issues and raise them on their own initiative. Shinseki, 562 U. S., at 434. Mandatory claim-processing rules are less stern. If properly invoked, mandatory claim-processing rules must be enforced, but they may be waived or forfeited. Manrique v. United States, 581 U. S. ___, ___ (2017) (slip op., at 4). “[C]laim-processing rules . . . [ensure] relief to a party properly raising them, but do not compel the same result if the party forfeits them.” Eberhart v. United States, 546 U. S. 12, 19 (2005) (per curiam).[3] B Petitioner Charmaine Hamer filed a complaint against respondents Neighborhood Housing Services of Chicago and Fannie Mae alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq. The District Court granted respondents’ motion for summary judgment on September 10, 2015, and entered final judgment on September 14, 2015. In the absence of a time extension, Hamer’s notice of appeal would have been due by October 14, 2015. Fed. Rule App. Proc. 4(a)(1)(A). On October 8, 2015, before the October 14 deadline for filing Hamer’s notice of appeal, her attorneys made two motions.[4] First, they sought to withdraw as counsel because of their disagreement with Hamer on pursuit of an appeal. Second, they sought a two-month extension of the notice of appeal filing date, so that Hamer would have adequate time to engage new counsel for her appeal. App. to Pet. for Cert. 57–59. The District Court granted both motions on the same day and ordered extension of the deadline for Hamer’s notice of appeal from October 14 to December 14, 2015. Id., at 60. Respondents did not move for reconsideration or otherwise raise any objection to the length of the extension. In the docketing statement respondents filed in the Court of Appeals, they stated: “The United States Court of Appeals for the Seventh Circuit has jurisdiction over this appeal under 28 U. S. C. §1291, in that on December 11, 2015, [Hamer] filed a timely Notice of Appeal from a final judgment of the United States District Court for the Northern District of Illinois that disposed of all of [Hamer’s] claims against [respondents].” Id., at 63. Respondents’ statement later reiterated: “On December 11, 2015, [Hamer] timely filed a Notice of Appeal . . . .” Id., at 64. Nevertheless, the Court of Appeals, on its own ini-tiative, questioned the timeliness of the appeal and instructed respondents to brief the issue. 835 F. 3d, at 762. Respondents did so and, for the first time, asserted that the appeal was untimely, citing the relevant Rule confining extensions to 30 days. Id., at 762–763 (citing Fed. Rule App. Proc. 4(a)(5)(C)). Concluding that it lacked jurisdiction to reach the merits, the Court of Appeals dismissed Hamer’s appeal. 835 F. 3d, at 763.[5] We granted certio-rari. 580 U. S. ___ (2017). II A Section 2107 of Title 28 of the U. S. Code, as enacted in 1948, allowed extensions of the time to file a notice of appeal, not exceeding 30 days, “upon a showing of excus-able neglect based on failure of a party to learn of the entry of the judgment.” Act of June 25, 1948, §2107, 62Stat. 963.[6] Nothing in the statute provided for extension of the time to file a notice of appeal when, as in this case, the judgment loser did receive notice of the entry of judgment. In 1991, Congress broadened the class of persons who could gain extensions to include all prospective appellants who showed “excusable neglect or good cause.” §12, 105Stat. 1627. In addition, Congress retained a time prescription covering appellants who lacked notice of the entry of judgment: “[A] party entitled to notice of the entry of a judgment . . . [who] did not receive such notice from the clerk or any party within 21 days of [the judgment’s] entry” qualifies for a 14-day extension,[7] if “no party would be prejudiced [thereby].” §2107(c). In full, §2107(c) now provides: “(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds— “(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and “(2) that no party would be prejudiced, “the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.” In short, current §2107(c), like the provision as initially enacted, specifies the length of an extension for cases in which the appellant lacked notice of the entry of judgment.[8] For other cases, the statute does not say how long an extension may run. But Federal Rule of Appellate Procedure 4(a)(5)(C) does prescribe a limit: “No extension [of time for filing a notice of appeal] may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date [of] the order granting the [extension] motion . . . , whichever is later.” Unlike §2107(c), we note, Rule 4(a)(5)(C) limits extensions of time to file a notice of appeal in all circumstances, not just in cases in which the prospective appellant lacked notice of the entry of judgment. B Although Rule 4(a)(5)(C)’s limit on extensions of time appears nowhere in the text of §2107(c), respondents now contend that Rule 4(a)(5)(C) has a “statutory basis” because §2107(c) once limited extensions (to the extent it did authorize them) to 30 days. Brief for Respondents 17. No matter, respondents submit, that Congress struck the 30-day limit in 1991 and replaced it with a 14-day limit governing, as the 30-day limit did, only lack-of-notice cases; deleting the 30-day prescription, respondents conjecture, was “probably inadverten[t].” Id., at 1. In support of their argument that Congress accidentally failed to impose an all-purpose limit on extensions, respondents observe that the 1991 statute identifies Congress’ aim as the enactment of “certain technical corrections in . . . provisions of law relating to the courts.” 105Stat. 1623. They also note the caption of the relevant section of the amending statute: “Conformity with Rules of Appellate Procedure.” Id., at 1627. Because striking the 30-day limit from §2107 made the statute less like Rule 4(a)(5)(C), respondents reason, Congress likely erased the relevant paragraph absentmindedly. Hence, respondents conclude, “there is no reason to interpret the 1991 amendment as stripping Rule 4(a)(5)(C) of its jurisdictional significance.” Brief for Respondents 2. Overlooked by respondents, pre-1991 §2107 never spoke to extensions for reasons other than lack of notice. In any event, we resist speculating whether Congress acted inadvertently. See Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 9–10) (“[W]e will not presume with [respondents] that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead ‘that [the] legislature says . . . what it means and means . . . what it says.’ ” (quoting Dodd v. United States, 545 U. S. 353, 357 (2005) )); Magwood v. Patterson, 561 U. S. 320 , 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent.”). The rule of decision our precedent shapes is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional, supra, at 2; otherwise, the time specification fits within the claim-processing category, ibid.[9] In dismissing Hamer’s appeal for want of jurisdiction, the Court of Appeals relied heavily on our decision in Bowles. We therefore reiterate what that precedent conveys. There, petitioner Keith Bowles did not receive timely notice of the entry of a postjudgment order and consequently failed to file a timely notice of appeal. Bowles v. Russell, 432 F. 3d 668, 670 (CA6 2005). When Bowles learned of the postjudgment order, he moved for an extension under Federal Rule of Appellate Procedure 4(a)(6), which implements §2107(c)’s authorization of extensions in lack-of-notice cases. Ibid. The District Court granted Bowles’s motion, but inexplicably provided a 17-day extension, rather than the 14-day extension authorized by §2107(c). Bowles, 551 U. S., at 207. Bowles filed his notice of appeal within the 17 days allowed by the District Court but outside the 14 days allowed by §2107(c). Ibid. “Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in §2107(c),” we explained, the Court of Appeals lacked jurisdiction over Bowles’s tardy appeal. Id., at 213. Quoting Bowles at length, the Court of Appeals in this case reasoned that “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which §2107(c) is employed and it limits a district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” 835 F. 3d, at 763. In conflating Rule 4(a)(5)(C) with §2107(c), the Court of Appeals failed to grasp the distinction our decisions delineate between jurisdictional appeal filing deadlines and mandatory claim-processing rules, and therefore misapplied Bowles. Several Courts of Appeals,[10] including the Court of Appeals in Hamer’s case, have tripped over our statement in Bowles that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’ ” 551 U. S., at 209 (quoting Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61 (1982) (per curiam)). The “mandatory and jurisdictional” formulation is a characterization left over from days when we were “less than meticulous” in our use of the term “jurisdictional.” Kontrick, 540 U. S., at 454.[11] The statement was correct as applied in Bowles because, as the Court there explained, the time prescription at issue in Bowles was imposed by Congress. 551 U. S., at 209–213. But “mandatory and jurisdictional” is erroneous and confounding terminology where, as here, the relevant time prescription is absent from the U. S. Code. Because Rule 4(a)(5)(C), not §2107, limits the length of the extension granted here, the time prescription is not jurisdictional. See Youkelsone v. FDIC, 660 F. 3d 473, 475 (CADC 2011) (“Rule 4(a)(5)(C)’s thirty-day limit on the length of any extension ultimately granted appears nowhere in the U. S. Code.”). * * * For the reasons stated, the Court of Appeals erroneously treated as jurisdictional Rule 4(a)(5)(C)’s 30-day limitation on extensions of time to file a notice of appeal. We therefore vacate that court’s judgment and remand the case for further proceedings consistent with this opinion. We note, in this regard, that our decision does not reach issues raised by Hamer, but left unaddressed by the Court of Appeals, including: (1) whether respondents’ failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether respondents could gain review of the District Court’s time extension only by filing their own appeal notice, see id., at 23–27; and (3) whether equitable considerations may occasion an exception to Rule 4(a)(5)(C)’s time constraint, see id., at 29–43. It is so ordered.Notes 1 The terms waiver and forfeiture—though often used interchange-ably by jurists and litigants—are not synonymous. “[F]orfeiture is the failure to make the timely assertion of a right[;] waiver is the ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938) ). 2 Subject-matter jurisdiction cannot be attacked collaterally, however. Kontrick v. Ryan, 540 U. S. 443, 455, n. 9 (2004) (citing Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552 –559 (1887)). 3 We have reserved whether mandatory claim-processing rules may be subject to equitable exceptions. See Kontrick, 540 U. S., at 457. 4 Movants were the attorney appointed by the court to represent Hamer and two other attorneys who entered appearances as co-counsel. App. to Pet. for Cert. 57–59. 5 The Court of Appeals incorrectly stated that respondents, answering the Seventh Circuit’s inquiry, asserted that the appeals court “lack[ed] jurisdiction over [Hamer’s] appeal.” 835 F. 3d, at 763. In fact, respondents maintained that “the timeliness of Hamer’s appeal d[id] not appear to be jurisdictional according to [Circuit] law.” App. to Pet. for Cert. 71 (capitalization and footnote omitted). That was so, respondents explained, because “the time limits found [in] Fed. R[ule] App. P[roc.] 4(a)(5)(C) . . . lack a statutory basis.” Id., at 77. Even if not jurisdictional, respondents continued, the Rule is mandatory and must be observed unless forfeited or waived. Ibid. 6 As enacted, the pertinent paragraph of §2107 provided in full: “The district court, in any such action, suit or proceeding, may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree.” Act of June 25, 1948, §2107, 62Stat. 963. 7 The 14-day prescription cuts back the original limit of 30 days. 8 The statute describes the 14-day extension permitted in lack-of-notice cases as a “reopening [of] the time for appeal.” §2107(c). The “reopening” period is the functional equivalent of an extension. See Brief for American Academy of Appellate Lawyers as Amicus Curiae5–6. 9 In cases not involving the timebound transfer of adjudicatoryauthority from one Article III court to another, we have additionally applied a clear-statement rule: “A rule is jurisdictional ‘[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.’ ” Gonzalez v. Thaler, 565 U. S. 134, 141 (2012) (quoting Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006) ). See also, e.g., Henderson v. Shinseki, 562 U. S. 428, 431 (2011) (statutory deadline for filing notice of appeal with Article I tribunal held not jurisdictional). “This is not to say that Congress must incant magic words in order to speak clearly,” however. Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013) . In determining whether Congress intended a particular provision to be jurisdictional, “[w]e consider ‘context, including this Court’s interpretations of similar provisions in many years past,’ as probative of [Congress’ intent].” Id., at 153–154 (quoting Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 168 (2010) ). Even so, “in applying th[e] clear statement rule, we have made plain that most [statutory] time bars are nonjurisdictional.” United States v. Kwai Fun Wong, 575 U. S. ___, ___ (2015) (slip op., at 6). 10 See Freidzon v. OAO LUKOIL, 644 Fed. Appx. 52, 53 (CA2 2016); Peters v. Williams, 353 Fed. Appx. 136, 137 (CA10 2009); United States v. Hawkins, 298 Fed. Appx. 275 (CA4 2008). 11 Indeed, the formulation took flight from a case in which we mistakenly suggested that a claim-processing rule was “mandatory and jurisdictional.” See United States v. Robinson, 361 U. S. 220, 224 (1960) . We have since clarified that “Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked.” Eberhart v. United States, 546 U. S. 12, 17 (2005) (per curiam).

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 HAMER v. NEIGHBORHOOD HOUSING SERVICES OF CHICAGO et al. certiorari to the united states court of appeals for the seventh circuit No. 16–658. Argued October 10, 2017—Decided November 8, 2017 An appeal filing deadline prescribed by statute is considered “jurisdictional,” meaning that late filing of the appeal notice necessitates dismissal of the appeal. See Bowles v. Russell, 551 U. S. 205 –213. In contrast, a time limit prescribed only in a court-made rule is not jurisdictional. It is a mandatory claim-processing rule that may be waived or forfeited. Ibid. This Court and other forums have sometimes overlooked this critical distinction. See Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154 . Petitioner Charmaine Hamer filed an employment discrimination suit against respondents. The District Court granted respondents’ motion for summary judgment, entering final judgment on September 14, 2015. Before October 14, the date Hamer’s notice of appeal was due, her attorneys filed a motion to withdraw as counsel and a motion for an extension of the appeal filing deadline to give Hamer time to secure new counsel. The District Court granted both motions, extending the deadline to December 14, a two-month extension, even though the governing Federal Rule of Appellate Procedure, Rule 4(a)(5)(C), confines such extensions to 30 days. Concluding that Rule 4(a)(5)(C)’s time prescription is jurisdictional, the Court of Appeals dismissed Hamer’s appeal. Held: The Court of Appeals erred in treating as jurisdictional Rule 4(a)(5)(C)’s limitation on extensions of time to file a notice of appeal. . (a) The 1948 version of 28 U. S. C. §2107 allowed extensions of time to file a notice of appeal, not exceeding 30 days, “upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment,” but the statute said nothing about extensions when the judgment loser did receive notice of the entry of judgment. In 1991, the statute was amended, broadening the class of prospective appellants who could gain extensions to include all who showed “excusable neglect or good cause” and reducing the time prescription for appellants who lacked notice of the entry of judgment from 30 to 14 days. §2107(c). For other cases, the statute does not say how long an extension may run. Rule 4(a)(5)(C), however, does prescribe a limit: “No extension [of time for filing a notice of appeal] may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date [of] the order granting the [extension] motion . . . , whichever is later.” . (b) This Court’s precedent shapes a rule of decision that is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category. In concluding otherwise, the Court of Appeals relied on Bowles. There, Bowles filed a notice of appeal outside a limitation set by Congress in §2107(c). This Court held that, as a result, the Court of Appeals lacked jurisdiction over his tardy appeal. 551 U. S., at 213. In conflating Rule 4(a)(5)(C) with §2107(c) here, the Seventh Circuit failed to grasp the distinction between jurisdictional appeal filing deadlines and deadlines stated only in mandatory claim-processing rules. It therefore misapplied Bowles. Bowles’s statement that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,’ ” id., at 209, is a characterization left over from days when the Court was “less than meticulous” in using the term “jurisdictional,” Kontrick v. Ryan, 540 U. S. 443 . The statement was correct in Bowles, where the time prescription was imposed by Congress, but it would be incorrect here, where only Rule 4(a)(5)(C) limits the length of the extension. . 835 F. 3d 761, vacated and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.

Bowles v. Russell, 551 U. S. 205-213 (CA7), clarified that an appeal filing deadline prescribed by statute will be regarded as "jurisdictional," meaning that late filing of the appeal notice necessitates dismissal of an appeal. But a time limit prescribed only in a court-made rule, Bowles acknowledged, is not jurisdictional; it is, instead, a mandatory claim-processing rule subject to forfeiture if not properly raised by the appellee. Accordingly, a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time. See Bowles, supra, at 211... (a) The rule of decision in this case is both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional, and otherwise the time specification fits within the claim processing category, ibid. Cf. Henson v. Santander Consumer USA Inc.,; Henderson v. Shinseki, 562 U.S. 428, 435. The jurisdictional defect is not subject to waiver or forfeiture, and may be raised at any time in the court of first instance and on direct appeal. In contrast to the ordinary operation of the adversarial system, courts are obliged to notice jurisdictional issues and raise them on their own initiative. However, once Rule 4(a)(5)(C) limits extensions of time to 30 days, the Court of Appeals misapplied Bowles. See, e.g., Kontrick v. Ryan,, at 452. Although, prior to 1991, §2107(c) allowed extensions of the time in lack-of-notice cases, the statute did not provide for extension of that time to file a notice of appeal when, as here, the judgment loser did receive notice of the entry of the judgment. In addition, §12, 105Stat. 1627, expanded the class of persons who could gain extensions to include all prospective appellants who showed "excusable neglect or good cause," and retained a time-preservation time prescription covering appellants such as petitioner, who did not receive such notice from the clerk or any party within 21 days of entry. When petitioner learned of the postjudgment order, he moved for an extension under Fed. Rule of Appellate Procedure 4 (a)(6), which implements §2103(c)'s authorization of such extensions. The District Court granted the motion, but inexplicably provided a 17-day extension, rather than the 14-day extensions authorized by Bowles(c). The court dismissed the appeal for want of jurisdiction, relying heavily on the decision in Bowles in the first instance, which held that a jurisdictional time prescription qualifies as a mandatory appeal filing rule if it is not raised by a party. Held: 1. This case presents a question of time, specifically, in a case of appeal from a district court's judgment. Bowles does not clarify the distinction between jurisdictional appeal filing deadlines and mandatory claims-processing rules. See, for the reasons stated above, the relevant time prescription is absent from the Federal Rules of Civil Procedure. P.. 2. Nor does the Rule have a "statutory basis" under Bowles because it once limited extensions (to the extent it did authorize them) from 30 days to 30. See Youkelsone v. FDIC, 660 F. 3d 473, 475 (CADC 2011). See id., at 762. . 3. In applying the clear-statement rule, most time bars in this Court, including those of Subject-matter jurisdiction, are nonjursisdictional. See also: (1) whether respondents' failure to raise any objection in the District Court to the overlong time extension, by itself, effected a forfeiture, see Brief for Petitioner 21–22; (2) whether they could gain review of the extension only by filing their own appeal notice, see id., 2943; and (3) whether equitable considerations may occasion an exception to the Rule. That rule may be subject to equitable exceptions to the rule of Bowles if mandatory claim processing rules are subject to such exceptions. See Pp. 4. 835 F.3d 761, vacated and remanded. MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE MARSHALL, JJ., joined, concluded that: (1) Petitioner Keith Bowles did not have timely notice of entry of a judgment and consequently failed to file an appeal, and thus he could not file a timely notice. This Court, in applying th[e] clear statement rule, has made plain that most statutory] time bars are notjursictional. Cf. eberhart v. United States, 540 U.

2017_17-155

https://www.oyez.org/cases/2017/17-155

. The proper construction of federal sentencing statutes and the Federal Rules of Criminal Procedure can present close questions of statutory and textual interpretation when implementing the Federal Sentencing Guidelines. Seven Terms ago the Court considered one of these issues in a case involving a prisoner’s motion to reduce his sentence, where the prisoner had been sentenced under a plea agreement authorized by a specific Rule of criminal procedure. Freeman v. United States, 564 U. S. 522 (2011). The prisoner maintained that his sentence should be reduced under 18 U. S. C. §3582(c)(2) when his Guidelines sentencing range was lowered retroactively. 564 U. S., at 527–528 (plurality opinion). No single interpretation or rationale in Freeman commanded a majority of the Court. The courts of appeals then confronted the question of what principle or principles considered in Freeman controlled when an opinion by four Justices and a concurring opinion by a single Justice had allowed a majority of this Court to agree on the judgment in Freeman but not on one interpretation or rule that courts could follow in later cases when similar questions arose under the same statute and Rule. For guidance courts turned to this Court’s opinion in Marks v. United States, 430 U. S. 188 (1977). Some courts interpreted Marks as directing them to follow the “narrowest” opinion in Freeman that was necessary for the judgment in that case; and, accordingly, they adopted the reasoning of the opinion concurring in the judgment by Justice Sotomayor. See United States v. Rivera-Martinez, 665 F. 3d 344, 348 (CA1 2011); United States v. Thompson, 682 F. 3d 285, 290 (CA3 2012); United States v. Brown, 653 F. 3d 337, 340, n. 1 (CA4 2011); United States v. Benitez, 822 F. 3d 807, 811 (CA5 2016); United States v. Smith, 658 F. 3d 608, 611 (CA6 2011); United States v. Dixon, 687 F. 3d 356, 359 (CA7 2012); United States v. Browne, 698 F. 3d 1042, 1045 (CA8 2012); United States v. Graham, 704 F. 3d 1275, 1277–1278 (CA10 2013). In contrast, the Courts of Appeals for the District of Columbia and Ninth Circuits held that no opinion in Freeman provided a controlling rule because the reasoning in the concurrence was not a “logical subset” of the reasoning in the plurality. United States v. Davis, 825 F. 3d 1014, 1021–1022 (CA9 2016) (en banc); United States v. Epps, 707 F. 3d 337, 350 (CADC 2013). Those courts have adopted the plurality’s opinion as the most persuasive interpretation of §3582(c)(2). Davis, supra, at 1026; Epps, supra, at 351. To resolve these differences over the proper application of Marks and the proper interpretation of §3582(c)(2), the Court granted certiorari in the present case. 583 U. S. ___ (2017). The first two questions, relating to Marks, are as follows: (1) “Whether this Court’s decision in Marks means that the concurring opinion in a 4–1–4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other”; and (2) “Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman, or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.” Pet. for Cert. i. The third question is directed to the underlying statu- tory issue in this case, the substantive, sentencing issue the Court discussed in the three opinions issued in Freeman. That question is: “Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.” Pet. for Cert. ii. Taking instruction from the cases decided in the wake of Freeman and the systemic concerns that have arisen in some Circuits, and considering as well the arguments of the parties as to question three, a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman. With that explanation, the Court now turns to the circumstances of this case and the sentencing issue it presents. I A Under the Sentencing Reform Act of 1984, the United States Sentencing Commission establishes Sentencing Guidelines based on the seriousness of a defendant’s offense and his criminal history. Dillon v. United States, 560 U. S. 817, 820 (2010). In combination, these two factors yield a range of potential sentences for a district court to choose from in sentencing a particular defendant. “The Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year.” Molina-Martinez v. United States, 578 U. S. ___, ___ (2016) (slip op., at 2). After this Court’s decision in United States v. Booker, 543 U. S. 220 (2005), the Guidelines are advisory only. But a district court still “must consult those Guidelines and take them into account when sentencing.” Id., at 264; see also 18 U. S. C. §3553(a)(4). Courts must also consider various other sentencing factors listed in §3553(a), including “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” §3553(a)(6). The Act requires the Commission to review and revise the Guidelines from time to time. 28 U. S. C. §994(o). When the Commission amends the Guidelines in a way that reduces the Guidelines range for “a particular offense or category of offenses,” the Commission must “specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” §994(u). In this way the Act requires the Commission to decide whether amendments to the Guidelines should have retroactive effect. If an amendment applies retroactively, the Act authorizes district courts to reduce the sentences of prisoners who were sentenced based on a Guidelines range that would have been lower had the amendment been in place when they were sentenced. 18 U. S. C. §3582(c)(2). Specifically, §3582(c)(2) provides: “[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. S. C. §994(o), . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” B The controlling issue here is whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11(c)(1)(C). This kind of plea agreement is sometimes referred to as a “Type-C agreement.” In a Type-C agreement the Government and a defendant “agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply,” and “such a recommendation or request binds the court once the court accepts the plea agreement.” Rule 11(c)(1)(C). When the Government and a defendant enter a Type-C agreement, the district court has three choices: It “may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Rule 11(c)(3)(A). If the court rejects the agreement, the defendant may withdraw his guilty plea. Rule 11(c)(5)(B). In deciding whether to accept an agreement that includes a specific sentence, the district court must consider the Sentencing Guidelines. The court may not accept the agreement unless the court is satisfied that “(1) the agreed sentence is within the applicable guideline range; or (2)(A) the agreed sentence is outside the applicable guideline range for justifiable reasons; and (B) those reasons are set forth with specificity.” United States Sentencing Commission, Guidelines Manual §6B1.2(c) (Nov. 2016) (USSG). “[T]he decision whether to accept the agreement will often be deferred until the sentencing hearing,” which means that “the decision whether to accept the plea agreement will often be made at the same time that the defendant is sentenced.” United States v. Hyde, 520 U. S. 670, 678 (1997). C 1 In 2013 petitioner Erik Hughes was indicted on drug and gun charges for his participation in a conspiracy to distribute methamphetamine. About four months later, the Government and Hughes negotiated a Type-C plea agreement. Hughes agreed to plead guilty to two of the four charges (conspiracy to distribute methamphetamine and being a felon in possession of a gun); and in exchange the Government agreed to dismiss the other two charges and to refrain from filing an information giving formal notification to the District Court of his prior drug felonies. If the Government had filed the information, Hughes would have been subject to a mandatory sentence of life in prison. See 21 U. S. C. §§841(b)(1)(A), 851(a). The agreement stipulated that Hughes would receive a sentence of 180 months, but it did not refer to any particular Guidelines range. Hughes entered his guilty plea in December 2013. The District Court accepted the plea at that time, but it deferred consideration of the plea agreement (and hence the stipulated 180-month sentence) until sentencing. Three months later, at the sentencing hearing, the District Court accepted the agreement and sentenced Hughes to 180 months in prison. The court stated that it had “considered the plea agreement [and] the sentencing guidelines, particularly the provisions of [§3553(a)],” and that it would “accept and approve the binding plea agreement.” App. to Pet. for Cert. 32a–33a. The court calcu- lated Hughes’ Guidelines range as 188 to 235 months in prison and heard statements from Hughes’ daughter, mother, and Hughes himself. Id., at 37a–43a. When it imposed the agreed 180-month sentence the court reiterated that it was “a reasonable sentence in this case compatible with the advisory United States Sentencing Guidelines but in accordance with the mandatory matters the Court is required to consider in ultimately determining a sentence.” Id., at 44a, 47a. 2 Less than two months after the District Court sentenced Hughes, the Sentencing Commission adopted amendment 782 to the Guidelines. USSG App. C, Amdt. 782 (Supp. Nov. 2012–Nov. 2016). The amendment reduced the base offense level by two levels for most drug offenses. The Commission later made amendment 782 retroactive for defendants who, like Hughes, already had been sentenced under the higher offense levels. Amdt. 788. Under the revised Guidelines, Hughes’ sentencing range is 151 to 188 months—about three to four years lower than the range in effect when he was sentenced. Hughes filed a motion for a reduced sentence under §3582(c)(2). The District Court denied the motion, concluding that Hughes is ineligible for relief; and the Court of Appeals for the Eleventh Circuit affirmed. 849 F. 3d 1008, 1016 (2017); App. to Pet. for Cert. 28a. Both courts concluded that the Freeman concurrence stated the holding of this Court under Marks, and that under the concurrence’s interpretation Hughes was ineligible for a reduced sentence because his plea agreement did not expressly rely on a Guidelines range. 849 F. 3d, at 1015; App. to Pet. for Cert. 25a. This Court granted certiorari. 583 U. S. ___. II A principal purpose of the Sentencing Guidelines is to promote “uniformity in sentencing imposed by different federal courts for similar criminal conduct.” Molina-Martinez, 578 U. S., at ___ (slip op., at 2) (internal quotation marks and alteration omitted; emphasis deleted). Yet in the aftermath of Freeman, a defendant’s eligibility for a reduced sentence under §3582(c)(2) turns on the Circuit in which the case arises. Further, even within Circuits that follow the Freeman concurrence, unwarranted disparities have resulted depending on the fortuity of whether a defendant’s Type-C agreement includes a specific-enough reference to a Guidelines range. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 13–20. In some cases defendants have been held ineligible for relief even where the sentencing hearing makes it crystal clear that the Government and the defendant agreed to a Guidelines sentence and the district court imposed one. See, e.g., United States v. McNeese, 819 F. 3d 922, 929 (CA6 2016). In addition this Court’s precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U. S. 530 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant’s sentencing range. Id., at 544. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U. S., at 544. And in Molina-Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U. S., at ___ (slip op., at 10). “The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored by the Guidelines.” Peugh, supra, at 541. In this context clarity and consistency are essential. To resolve the uncertainty that resulted from this Court’s divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement. A As already mentioned, §3582(c)(2) authorizes a district court to reduce a defendant’s sentence if the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” A district court imposes a sentence that is “based on” a Guidelines range if the range was a basis for the court’s exercise of discretion in imposing a sentence. To “base” means “[t]o make, form, or serve as a foundation for,” or “[t]o use (something) as the thing from which something else is developed.” Black’s Law Dictionary 180 (10th ed. 2014). Likewise, a “base” is “[t]he starting point or foundational part of something,” or “[a] point, part, line, or quantity from which a reckoning or conclusion proceeds.” Ibid.; see also ibid. (similarly defining “basis”). In the typical sentencing case there will be no question that the defendant’s Guidelines range was a basis for his sentence. The Sentencing Reform Act requires a district court to calculate and consider a defendant’s Guidelines range in every case. 18 U. S. C. §3553(a). Indeed, the Guidelines are “the starting point for every sentencing calculation in the federal system.” Peugh, supra, at 542; see also Molina-Martinez, 578 U. S., at ___ (slip op., at 9) (“The Court has made clear that the Guidelines are to be the sentencing court’s starting point and initial benchmark” (internal quotation marks and alteration omitted)). “Even if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Ibid. (internal quotation marks omitted; emphasis deleted). In general, §3582(c)(2) allows district courts to reconsider a prisoner’s sentence based on a new starting point—that is, a lower Guidelines range—and determine whether a reduction in the prisoner’s sentence is appropriate. A sentence imposed pursuant to a Type-C agreement is no exception to the general rule that a defendant’s Guidelines range is both the starting point and a basis for his ultimate sentence. Although in a Type-C agreement the Government and the defendant may agree to a specific sentence, that bargain is contingent on the district court accepting the agreement and its stipulated sentence. Freeman, 564 U. S., at 529–530. The Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range. USSG §6B1.2(c). So in the usual case the court’s acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are “based on” the defendant’s Guidelines range. To be sure, the Guidelines are advisory only, and so not every sentence will be consistent with the relevant Guidelines range. See Koons v. United States, post, at 5 (defendants’ Guidelines ranges “clearly did not” form a basis of the ultimate sentences). For example, in Koons the Court today holds that five defendants’ sentences were not “based on” subsequently lowered Guidelines ranges because in that case the Guidelines and the record make clear that the sentencing judge “discarded” their sen- tencing ranges “in favor of mandatory minimums and substantial-assistance factors.” Post, at 5–6; see also Molina-Martinez, supra, at ___ (slip op., at 11) (“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”). If the Guidelines range was not “a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement,” Freeman, supra, at 530, then the defendant’s sentence was not based on that sentencing range, and relief under §3582(c)(2) is unavail- able. And that is so regardless of whether a defendant pleaded guilty pursuant to a Type-C agreement or whether the agreement itself referred to a Guidelines range. The statutory language points to the reasons for the sentence that the district court imposed, not the reasons for the parties’ plea agreement. Still, cases like Koons are a narrow exception to the general rule that, in most cases, a defendant’s sentence will be “based on” his Guidelines range. In federal sentencing the Guidelines are a district court’s starting point, so when the Commission lowers a defendant’s Guidelines range the defendant will be eligible for relief under §3582(c)(2) absent clear demonstration, based on the record as a whole, that the court would have imposed the same sentence regardless of the Guidelines. See Koons, post, at 4–6. This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act. “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U. S., at 533. “Section 3582(c)(2) contri- butes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid. And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement. Two cases decided after Freeman now reinforce this proposition. See Molina-Martinez, 578 U. S., at ___–___ (slip op., at 9–11); Peugh, 569 U. S., at 541–544. These cases confirm that the Guidelines remain a basis for almost all federal sentences. In Peugh, the Court recognized that “[e]ven after Booker rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government’s motion.” Id., at 543. And in Molina-Martinez, the Court explained that “[t]he Commission’s statistics demonstrate the real and pervasive effect the Guidelines have on sentencing.” 578 U. S., at ___ (slip op., at 10). In short, experience has shown that, although the interpretation proffered by Justice Sotomayor’s concurring opinion in Freeman could be one permissible reading of §3582(c)(2), the system Congress put in place is best implemented, as a systemic, structural matter, by the interpretation confirmed in the instant case. B In response, the Government largely recycles arguments that a majority of this Court rejected in Freeman. For example, the Government contends that allowing defendants who enter Type-C agreements to seek reduced sentences under §3582(c)(2) would deprive the Government of one of the benefits of its bargain—namely, the defendant’s agreement to a particular sentence. But that has nothing to do with whether a defendant’s sentence was based on the Sentencing Guidelines under §3582(c)(2). Freeman, 564 U. S., at 531; see also id., at 540 (opinion of Sotomayor, J.). And in any event, “[w]hat is at stake in this case is a defendant’s eligibility for relief, not the extent of that relief.” Id., at 532 (plurality opinion). Even if a defendant is eligible for relief, before a district court grants a reduction it must consider “the factors set forth in section 3553(a) to the extent that they are applicable” and the Commission’s “applicable policy statements.” §3582(c)(2). The district court can consider the benefits the defendant gained by entering a Type-C agreement when it decides whether a reduction is appropriate (or when it determines the extent of any reduction), “for the statute permits but does not require the court to reduce a sentence.” Freeman, supra, at 532. The Government also contends that allowing courts to reduce the sentences of defendants like Hughes would be inconsistent with the Commission’s policy statement in USSG §1B1.10, which provides that when a district court modifies a sentence under §3582(c)(2) it “shall substitute only the [retroactive] amendments listed in subsection (d) for the corresponding guidelines provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” USSG §1B1.10(b)(1). According to the Government, no “guidelines provisions” are “applied” when a defendant enters a Type-C agreement because at the moment of sentencing—that is, after the court has already accepted the agreement—Rule 11 prohibits the court from imposing any sentence other than the one the parties bargained for. This argument fails for at least two reasons. First, the Government’s interpretation of §1B1.10 depends on an artificial distinction between a court’s decision to accept a Type-C agreement and its decision to impose the agreed-upon sentence. As explained above, a district court must consider the defendant’s “applicable Guidelines range” when it decides whether to accept or reject the agreement, USSG §6B1.2(c)—often, as here, at the sentencing hearing, after the court has reviewed the presentence report. And as the Government itself points out, once the district court accepts the agreement, the agreed-upon sentence is the only sentence the court may impose. Thus, there is no meaningful difference between a court’s decision to accept a Type-C agreement that includes a particular sentence and the court’s decision (sometimes, as here, just minutes later) to impose that sentence. Second, the Commission’s policy statement “seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence.” Freeman, 564 U. S., at 530. Accordingly, relief under §3582(c)(2) should be available to permit the district court to reconsider a prior sentence to the extent the prisoner’s Guidelines range was a relevant part of the framework the judge used to accept the agreement or determine the sentence. Ibid. If the district court concludes that it would have imposed the same sentence even if the defendant had been subject to the lower range, then the court retains discretion to deny relief. C In this case the District Court accepted Hughes’ Type-C agreement after concluding that a 180-month sentence was consistent with the Sentencing Guidelines. App. to Pet. for Cert. 33a. The court then calculated Hughes’ sentencing range and imposed a sentence that the court deemed “compatible” with the Guidelines. Id., at 36a, 47a. Thus, the sentencing range was a basis for the sentence that the District Court imposed. That range has “subsequently been lowered by the Sentencing Commission,” so Hughes is eligible for relief under §3582(c)(2). The Court expresses no view as to whether the District Court should exercise its discretion to reduce Hughes’ sentence after considering the §3553(a) factors and the Commission’s relevant policy statements. See 18 U. S. C. §3582(c)(2). * * * For these reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus Hughes v. United States certiorari to the united states court of appeals for the eleventh circuit No. 17–155. Argued March 27, 2018—Decided June 4, 2018 In Freeman v. United States, 564 U. S. 522, this Court considered whether a prisoner who had been sentenced under a plea agreement authorized by the Federal Rules of Criminal Procedure could have his sentence reduced under 18 U. S. C. §3582(c)(2) when his Federal Guidelines sentencing range was lowered retroactively. No single interpretation or rationale commanded a majority, however. Some Courts of Appeals, turning to Marks v. United States, 430 U. S. 188, for guidance, adopted the reasoning of Justice Sotomayor’s opinion concurring in the judgment. Others interpreted Marks differently and adopted the plurality’s reasoning. Because this Court can now resolve the substantive, sentencing issue discussed in Freeman, it is unnecessary to reach questions regarding the proper application of Marks. The Sentencing Reform Act of 1984 authorizes the United States Sentencing Commission to establish, and retroactively amend, Sentencing Guidelines. Though the Guidelines are only advisory, see United States v. Booker, 543 U. S. 220, a district court must consult them during sentencing, id., at 264, along with other factors specified in 18 U. S. C. §3553(a), including “the need to avoid unwarranted sentence disparities,” §3553(a)(6). When an amendment applies retroactively, district courts may reduce the sentences of prisoners whose sentences were “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” §3582(c)(2). This case concerns the issue whether a defendant may seek relief under §3582(c)(2) if he entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) (Type-C agreement), which permits the defendant and the Government to “agree that a specific sentence or sentencing range is the appropriate disposition of the case,” and “binds the court [to the agreed-upon sentence] once [it] accepts the plea agreement.” In making its decision, the district court must consider the Sentencing Guidelines. And it may not accept the agreement unless the sentence is within the applicable Guidelines range, or it is outside that range for justifiable reasons specifically set out. After petitioner Erik Hughes was indicted on drug and gun charges, he and the Government negotiated a Type-C plea agreement, which stipulated that Hughes would receive a sentence of 180 months but did not refer to a particular Guidelines range. Hughes pleaded guilty. At his sentencing hearing, the District Court accepted the agreement and sentenced him to 180 months. In so doing, it calculated Hughes’ Guidelines range as 188 to 235 months and determined that the sentence was in accordance with the Guidelines and other factors the court was required to consider. Less than two months later, the Sentencing Commission adopted, and made retroactive, an amendment that had the effect of reducing Hughes’ sentencing range to 151 to 188 months. The District Court denied Hughes’ motion for a reduced sentence under §3582(c)(2), and the Eleventh Circuit affirmed. Both courts concluded that, under the Freeman concurrence, Hughes was ineligible for a reduced sentence because his plea agreement did not expressly rely on a Guidelines range. Held: 1. A sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement. . (a) A principal purpose of the Sentencing Guidelines is to promote sentencing uniformity. But in the aftermath of Freeman, a defendant’s eligibility for a reduced sentence under §3582(c)(2) turns on the Circuit in which the case arises. Even within Circuits that follow the Freeman concurrence, unwarranted disparities have resulted depending on whether a defendant’s Type-C agreement has a specific-enough reference to a Guidelines range. This Court’s precedents since Freeman have confirmed that the Guidelines remain the foundation of federal sentencing decisions. See, e.g., Peugh v. United States, 569 U. S. 530; Molina-Martinez v. United States, 578 U. S. ___. . (b) A district court imposes a sentence that is “based on” a Guidelines range for purposes of §3582(c)(2) if the range was a basis for the court’s exercise of discretion in imposing a sentence. Given the standard legal definition of “base,” there will be no question in the typical case that the defendant’s Guidelines range was a basis for his sentence. A district court is required to calculate and consider a defendant’s Guidelines range in every case. §3553(a). Indeed, the Guidelines are “the starting point for every sentencing calculation in the federal system.” Peugh, supra, at 542. Thus, in general, §3582(c)(2) allows district courts to reconsider a prisoner’s sentence based on a new starting point—that is, a lower Guidelines range—and determine whether a reduction is appropriate. A sentence imposed pursuant to a Type-C agreement is no exception to the general rule that a defendant’s Guidelines range is the starting point and a basis for his ultimate sentence. The Government and the defendant may agree to a specific sentence, but the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range. So in the usual case the court’s acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are “based on” the defendant’s Guidelines range. Since the Guidelines are a district court’s starting point, when the Commission lowers the range, the defendant will be eligible for relief under §3582(c)(2) absent clear demonstration, based on the record as a whole, that the court would have imposed the same sentence regardless of the Guidelines. This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act. It is also reinforced by Molina-Martinez and Peugh, which both confirm that the Guidelines remain a basis for almost all federal sentences. Experience has shown that, although the interpretation proffered by Justice Sotomayor’s concurring opinion in Freeman could be one permissible reading of §3582(c)(2), as a systemic, structural matter the system Congress put in place is best implemented by the interpretation confirmed in this case. . (c) The Government’s counterarguments—that allowing defendants with Type-C agreements to seek reduced sentences under §3582(c)(2) would deprive the Government of a benefit of its bargain, namely, the defendant’s agreement to a particular sentence; and that allowing courts to reduce the sentences of defendants like Hughes would be inconsistent with one of the Commission’s policy statements—are unpersuasive. . 2. Hughes is eligible for relief under §3582(c)(2). The District Court accepted his Type-C agreement after concluding that a 180-month sentence was consistent with the Guidelines, and then calculated Hughes’ sentencing range and imposed a sentence it deemed “compatible” with the Guidelines. The sentencing range was thus a basis for the sentence imposed. And that range has since been lowered by the Commission. The District Court has discretion to decide whether to reduce Hughes’ sentence after considering the §3553(a) factors and the Commission’s relevant policy statements. P. 14. 849 F. 3d 1008, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, JJ., joined. Sotomayor, J., filed a concurring opinion. Roberts, C. J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

The Sentencing Reform Act of 1984 (Act) establishes Sentencing Guidelines based on the seriousness of a defendant's offense and his criminal history. The Act requires the Commission to review and revise the Guidelines from time to time. When the Commission amends the Guidelines in a way that reduces the range for a particular offense or category of offenses, the Commission mustspecify in what circumstances and by what amount the sentences may be reduced. 18 U.S. C. §3582(c)(2). The Act authorizes district courts to reduce the sentences of prisoners who were sentenced based on a Guidelines range that would have been lower had the amendment been in place when the amendment was in place. The Act also provides that a district court may reduce the term of imprisonment, after considering the factors set forth in §3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. In June, the District Court accepted a plea agreement between petitioner Hughes and the Government in which he agreed to plead guilty to certain drug charges and agreed to defer consideration of the plea agreement (and hence the stipulated 180-month sentence) until sentencing. Three months later, at the sentencing hearing, the court accepted the agreement and sentenced Hughes to 180 months in prison. The court stated that it had considered the plea and sentencing guidelines, particularly the sentencing factors listed in §3553(a), and that it would accept and approve the binding plea agreement. When it imposed the agreed sentence, the Court of Appeals for the District of Columbia and Ninth Circuits affirmed, holding that no opinion in Freeman provided a controlling rule because the reasoning in the concurrence was not a "logical subset of the reasoning" in the plurality. Held: 1. A sentence imposed pursuant to a Type-C agreement is not barred by Freeman v. United States, 564 U. S. 522 (plurality opinion). The controlling issue here is whether a defendant may seek relief if he entered a plea agreement specifying a particular sentence under Federal Rule of Criminal Procedure 11 (c)(1)(C). This kind of plea agreement is sometimes referred to as a Type-C plea agreement, under which the Government and the defendant agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Guidelines, or policy statement, or sentencing factor does or does not apply, and binds the court once the court accepts the agreement. See, e.g., United States v. Davis, 825 F. 3d 1014, 1021-1022. . 2. The sentencing range in this case is a basis for the sentence that the court imposed. Thus, the sentencing range has since been lowered by the Commission, and thus Hughes is eligible for relief. This Court expresses no view as to whether the court should exercise its discretion to reduce his sentence after considering both the Commission's and its relevant policy statements. Pp. 468 U. s. 578. 849 F.3d 1008, reversed and remanded. JUSTICE O'CONNOR, joined by JUSTICE KENNEDY, JUSTICE SCALIA, and JUSTICE REHNQUIST, concluded in a dissenting opinion that Freeman was the most persuasive interpretation of the Act, and that, under Marks, the lower courts are bound by the four-Justice plurality opinion. See Marks, supra, at 351. However, in the absence of a Freeman concurring opinion, this Court has adopted the plurality opinion as the most convincing interpretation. Freeman is best implemented, as a systemic, structural matter, by the interpretation confirmed in the instant case. Cf. Molina-Martinez v. Peugh, 569. ___ (slip op., at 542). See, for example, id., at 468. Although the Government contends that allowing a defendant who enters a type-C agreements to seek reduced sentences under §3583(c) would deprive the Government of one of the benefits of its bargain, that has nothing to do with whether the defendant's sentence was based on the Sentenced Guidelines under that range. Nor is there any merit to the Government's argument that allowing defendants who enter such agreements would deprive Congress of one benefit of the bargain because at the moment of sentencing, that is, after the court has already accepted the Agreement, Rule 11 prohibits the court from imposing any sentence other than the one the parties bargained for. Moreover, cases like Koons are a narrow exception to the general rule that, in most cases, a defendant a sentence will be based on, and are a part of, the framework the district court relied on in imposing the sentence or accepting the agreement, and there is no reason a defendant should turn on the form of the Agreement. Accordingly, relief is available to permit the court to reconsider a prior sentence to extent the prisoner's Guidelines range

2017_16-980

https://www.oyez.org/cases/2017/16-980

. It has been estimated that 24 million voter registrations in the United States—about one in eight—are either invalid or significantly inaccurate. Pew Center on the States, Election Initiatives Issue Brief (Feb. 2012). And about 2.75 million people are said to be registered to vote in more than one State. Ibid. At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law. I A Like other States, Ohio requires voters to reside in the district in which they vote. Ohio Rev. Code Ann. §3503.01(A) (West Supp. 2017); see National Conference of State Legislatures, Voting by Nonresidents and Non- citizens (Feb. 27, 2015). When voters move out of that district, they become ineligible to vote there. See §3503.01(A). And since more than 10% of Americans move every year,[1] deleting the names of those who have moved away is no small undertaking. For many years, Congress left it up to the States to maintain accurate lists of those eligible to vote in federal elections, but in 1993, with the enactment of the National Voter Registration Act (NVRA), Congress intervened. The NVRA “erect[s] a complex superstructure of federal regulation atop state voter-registration systems.” Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1, 5 (2013). The Act has two main objectives: increasing voter registration and removing ineligible persons from the States’ voter registration rolls. See §2, 107Stat. 77, 52 U. S. C. §20501(b). To achieve the latter goal, the NVRA requires States to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change in residence. §20507(a)(4). The Act also prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds. §§20507(b), (c), (d). The most important of these requirements is a prior notice obligation. Before the NVRA, some States removed registrants without giving any notice. See J. Harris, Nat. Munic. League, Model Voter Registration System 45 (rev. 4th ed. 1957). The NVRA changed that by providing in §20507(d)(1) that a State may not remove a registrant’s name on change-of-residence grounds unless either (A) the registrant confirms in writing that he or she has moved or (B) the registrant fails to return a preaddressed, postage prepaid “return card” containing statutorily prescribed content. This card must explain what a registrant who has not moved needs to do in order to stay on the rolls, i.e., either return the card or vote during the period covering the next two general federal elections. §20507(d)(2)(A). And for the benefit of those who have moved, the card must contain “information concerning how the registrant can continue to be eligible to vote.” §20507(d)(2)(B). If the State does not send such a card or otherwise get written notice that the person has moved, it may not remove the registrant on change-of-residence grounds. See §20507(d)(1).[2] While the NVRA is clear about the need to send a “return card” (or obtain written confirmation of a move) before pruning a registrant’s name, no provision of federal law specifies the circumstances under which a return card may be sent. Accordingly, States take a variety of approaches. See Nat. Assn. of Secretaries of State (NASS) Report: Maintenance of State Voter Registration Lists 5–6 (Dec. 2017). The NVRA itself sets out one option. A State may send these cards to those who have submitted “change-of-address information” to the United States Postal Service. §20507(c)(1). Thirty-six States do at least that. See NASS Report, supra, at 5, and n. v (listing States). Other States send notices to every registered voter at specified intervals (say, once a year). See, e.g., Iowa Code §48 A. 28.3 (2012); S. C. Code Ann. §§7–5–330(F), 7–5–340(2)–(3) (2017 Cum. Supp.); see also S. Rep. No. 103–6, p. 46 (1993). Still other States, including Ohio, take an intermediate approach, see NASS Report, supra, at 5–6, such as sending notices to those who have turned in their driver’s licenses, e.g., Ind. Code §§3–7–38.2–2(b)(2), (c)(4) (2004), or sending notices to those who have not voted for some period of time, see, e.g., Ga. Code Ann. §21–2–234 (Supp. 2017); Ohio Rev. Code Ann. §3503.21(B)(2); Okla. Admin. Code §230:15–11–19(a)(3) (2016); Pa. Stat. Ann., Tit. 25, §1901(b)(3) (Purdon 2007); Wis. Stat. Ann. §6.50(1) (2017 West Cum. Supp.). When a State receives a return card confirming that a registrant has left the district, the State must remove the voter’s name from the rolls. §§20507(d)(1)(A), (3). And if the State receives a card stating that the registrant has not moved, the registrant’s name must be kept on the list. See §20507(d)(2)(A). What if no return card is mailed back? Congress obviously anticipated that some voters who received cards would fail to return them for any number of reasons, and it addressed this contingency in §20507(d), which, for convenience, we will simply call “subsection (d).” Subsection (d) treats the failure to return a card as some evidence—but by no means conclusive proof—that the voter has moved. Instead, the voter’s name is kept on the list for a period covering two general elections for federal office (usually about four years). Only if the registrant fails to vote during that period and does not otherwise confirm that he or she still lives in the district (e.g., by updating address information online) may the registrant’s name be removed. §20507(d)(2)(A); see §§20507(d)(1)(B), (3). In addition to these specific change-of-residence requirements, the NVRA also imposes two general limitations that are applicable to state removal programs. First, all such programs must be “uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.” §20507(b)(1). Second, the NVRA contains what we will call the “Failure-to-Vote Clause.” See §20507(b)(2). At present, this clause contains two parts. The first is a prohibition that was included in the NVRA when it was originally enacted in 1993. It provides that a state program “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Ibid. The second part, added by the Help America Vote Act of 2002 (HAVA), 116Stat. 1666, explains the meaning of that prohibition. This explanation says that “nothing in [the prohibition] may be construed to prohibit a State from using the procedures described in [§§20507](c) and (d) to remove an individual from the official list of eligible voters.” §20507(b)(2). These referenced subsections, §§20507(c) and (d), are the provisions allowing the removal of registrants who either submitted change-of-address information to the Postal Service (subsection (c)) or did not mail back a return card and did not vote during a period covering two general federal elections (subsection (d)). And since one of the requirements for removal under subsection (d) is the failure to vote during this period, the explanation added by HAVA in 2002 makes it clear that the statutory phrase “by reason of the person’s failure to vote” in the Failure-to-Vote Clause does not categorically preclude the use of nonvoting as part of a test for removal. Another provision of HAVA makes this point more directly. After directing that “registrants who have not responded to a notice and . . . have not voted in 2 consecutive general elections for Federal office shall be removed,” it adds that “no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). B Since 1994, Ohio has used two procedures to identify and remove voters who have lost their residency qualification. First, the State utilizes the Postal Service option set out in the NVRA. The State sends notices to registrants whom the Postal Service’s “national change of address service” identifies as having moved. Ohio Rev. Code Ann. §3503.21(B)(1). This procedure is undisputedly lawful. See 52 U. S. C. §20507(c)(1). But because according to the Postal Service “[a]s many as 40 percent of people who move do not inform the Postal Service,”[3] Ohio does not rely on this information alone. In its so-called Supplemental Process, Ohio “identif[ies] electors whose lack of voter activity indicates they may have moved.” Record 401 (emphasis deleted). Under this process, Ohio sends notices to registrants who have “not engage[d] in any voter activity for a period of two consecutive years.” Id., at 1509. “Voter activity” includes “casting a ballot” in any election—whether general, primary, or special and whether federal, state, or local. See id., at 1507. (And Ohio regularly holds elections on both even and odd years.) Moreover, the term “voter activity” is broader than simply voting. It also includes such things as “sign[ing] a petition,” “filing a voter registration form, and updating a voting address with a variety of [state] entities.” Id., at 295, 357. After sending these notices, Ohio removes registrants from the rolls only if they “fai[l] to respond” and “continu[e] to be inactive for an additional period of four consecutive years, including two federal general elections.” Id., at 1509; see Ohio Rev. Code Ann. §3503.21(B)(2). Federal law specifies that a registration may be canceled if the registrant does not vote “in an election during the period” covering two general federal elections after notice, §20507(d)(1)(B)(ii), but Ohio rounds up to “four consecutive years” of nonvoting after notice, Record 1509. Thus, a person remains on the rolls if he or she votes in any election during that period—which in Ohio typically means voting in any of the at least four elections after notice. Combined with the two years of nonvoting before notice is sent, that makes a total of six years of nonvoting before removal. Ibid. C A pair of advocacy groups and an Ohio resident (respondents here) think that Ohio’s Supplemental Process violates the NVRA and HAVA. They sued petitioner, Ohio’s Secretary of State, seeking to enjoin this process. Respondents alleged, first, that Ohio removes voters who have not actually moved, thus purging the rolls of eligible voters. They also contended that Ohio violates the NVRA’s Failure-to-Vote Clause because the failure to vote plays a prominent part in the Ohio removal scheme: Failure to vote for two years triggers the sending of a return card, and if the card is not returned, failure to vote for four more years results in removal. The District Court rejected both of these arguments and entered judgment for the Secretary. It held that Ohio’s Supplemental Process “mirror[s] the procedures established by the NVRA” for removing people on change-of-residence grounds and does not violate the Failure-to-Vote Clause because it does not remove anyone “solely for [their] failure to vote.” App. to Pet. for Cert. 43a, 57a, 69a–70a. A divided panel of the Court of Appeals for the Sixth Circuit reversed. 838 F. 3d 699 (2016). It focused on respondents’ second argument, holding that Ohio violates the Failure-to-Vote Clause because it sends change-of-residence notices “based ‘solely’ on a person’s failure to vote.” Id., at 711. In dissent, Judge Siler explained why he saw the case as a simple one: “The State cannot remove the registrant’s name from the rolls for a failure to vote only, and Ohio does not do [that].” Id., at 716. We granted certiorari, 581 U. S. ___ (2017), and now reverse. II A As noted, subsection (d), the provision of the NVRA that directly addresses the procedures that a State must follow before removing a registrant from the rolls on change-of-residence grounds, provides that a State may remove a registrant who “(i) has failed to respond to a notice” and “(ii) has not voted or appeared to vote . . . during the pe- riod beginning on the date of the notice and ending on the day after the date of the second general election for Fed- eral office that occurs after the date of the notice” (about four years). 52 U. S. C. §20507(d)(1)(B). Not only are States allowed to remove registrants who satisfy these requirements, but federal law makes this removal mandatory. §20507(d)(3); see also §21083(a)(4)(A). Ohio’s Supplemental Process follows subsection (d) to the letter. It is undisputed that Ohio does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. B Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” §20507(b)(2); see also §21083(a)(4)(A). Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal. We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice. When Congress clarified the meaning of the NVRA’s Failure-to-Vote Clause in HAVA, here is what it said: “[C]onsistent with the [NVRA], . . . no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). The meaning of these words is straightforward. “Solely” means “alone.” Webster’s Third New International Dictionary 2168 (2002); American Heritage Dictionary 1654 (4th ed. 2000). And “by reason of” is a “quite formal” way of saying “[b]ecause of.” C. Ammer, American Heritage Dictionary of Idioms 67 (2d ed. 2013). Thus, a State violates the Failure-to-Vote Clause only if it removes registrants for no reason other than their failure to vote. This explanation of the meaning of the Failure-to-Vote Clause merely makes explicit what was implicit in the clause as originally enacted. At that time, the clause simply said that a state program “shall not result in the removal of the name of any person from the [rolls for federal elections] by reason of the person’s failure to vote.” 107Stat. 83. But that prohibition had to be read together with subsection (d), which authorized removal if a registrant did not send back a return card and also failed to vote during a period covering two successive general elections for federal office. If possible, “[w]e must interpret the statute to give effect to both provisions,” Ricci v. DeStefano, 557 U. S. 557, 580 (2009), and here, that is quite easy. The phrase “by reason of” denotes some form of causation. See Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009). Thus, the Failure-to-Vote Clause applies when nonvoting, in some sense, causes a registrant’s name to be removed, but the law recognizes several types of causation. When a statutory provision includes an undefined causation requirement, we look to context to decide whether the statute demands only but-for cause as opposed to proximate cause or sole cause. See Holmes v. Securities Investor Protection Corporation, 503 U. S. 258, 265–268 (1992). Cf. CSX Transp., Inc. v. McBride, 564 U. S. 685, 692–693 (2011). Which form of causation is required by the Failure-to-Vote Clause? We can readily rule out but-for causation. If “by reason of” in the Failure-to-Vote Clause meant but-for causation, a State would violate the clause if the failure to vote played a necessary part in the removal of a name from the list. Burrage v. United States, 571 U. S. 204, 211 (2014). But the removal process expressly authorized by subsection (d) allows a State to remove a registrant if the registrant, in addition to failing to send back a return card, fails to vote during a period covering two general federal elections. So if the Failure-to-Vote Clause were read in this way, it would cannibalize subsection (d). Interpreting the Failure-to-Vote Clause as incorporating a proximate cause requirement would lead to a similar problem. Proximate cause is an elusive concept, see McBride, supra, at 692–693, but no matter how the term is understood, it is hard to escape the conclusion that the failure to vote is a proximate cause of removal under subsection (d). If a registrant, having failed to send back a return card, also fails to vote during the period covering the next two general federal elections, removal is the direct, foreseeable, and closely connected consequence. See Paroline v. United States, 572 U. S. 434, 444–445 (2014); Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 654 (2008). By process of elimination, we are left with sole causation. This reading harmonizes the Failure-to-Vote Clause and subsection (d) because the latter provision does not authorize removal solely by reason of a person’s failure to vote. Instead, subsection (d) authorizes removal only if a registrant also fails to mail back a return card. For these reasons, we conclude that the Failure-to-Vote Clause, as originally enacted, referred to sole causation. And when Congress enacted HAVA, it made this point explicit. It added to the Failure-to-Vote Clause itself an explanation of how it is to be read, i.e., in a way that does not contradict subsection (d). And in language that cannot be misunderstood, it reiterated what the clause means: “[R]egistrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). In this way, HAVA dispelled any doubt that a state removal program may use the failure to vote as a factor (but not the sole factor) in removing names from the list of registered voters. That is exactly what Ohio’s Supplemental Process does. It does not strike any registrant solely by reason of the failure to vote. Instead, as expressly permitted by federal law, it removes registrants only when they have failed to vote and have failed to respond to a change-of-residence notice. C Respondents and the dissent advance an alternative interpretation of the Failure-to-Vote Clause, but that reading is inconsistent with both the text of the clause and the clarification of its meaning in §21083(a)(4)(A). Respondents argue that the clause allows States to consider nonvoting only to the extent that subsection (d) requires—that is, only after a registrant has failed to mail back a notice. Any other use of the failure to vote, including as the trigger for mailing a notice, they claim, is proscribed. In essence, respondents read the language added to the clause by HAVA—“except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d)”—as an exception to the general rule forbidding the use of nonvoting. See Brief for Respondents 37. And the Sixth Circuit seemed to find this point dispositive, reasoning that “ ‘exceptions in statutes must be strictly construed.’ ” 838 F. 3d, at 708 (quoting Detroit Edison Co. v. SEC, 119 F. 2d 730, 739 (CA6 1941)). We reject this argument for three reasons. First, it distorts what the new language added by HAVA actually says. The new language does not create an exception to a general rule against the use of nonvoting. It does not say that the failure to vote may not be used “except that this paragraph does not prohibit a State from using the procedures described in subsections (c) and (d).” Instead, it says that “nothing in this paragraph may be construed” to have that effect. §20507(b)(2) (emphasis added). Thus, it sets out not an exception, but a rule of interpretation. It does not narrow the language that precedes it; it clarifies what that language means. That is precisely what Congress said when it enacted HAVA: It added the “may not be construed” provision to “[c]larif[y],” not to alter, the prohibition’s scope. §903, 116Stat. 1728. Second, under respondents’ reading, HAVA’s new language is worse than superfluous. Even without the added language, no sensible person would read the Failure-to-Vote Clause as prohibiting what subsections (c) and (d) expressly allow. Yet according to respondents, that is all that the new language accomplishes. So at a minimum, it would be redundant. But the implications of this reading are actually worse than that. There is no reason to create an exception to a prohibition unless the prohibition would otherwise forbid what the exception allows. So if the new language were an exception, it would seem to follow that prior to HAVA, the Failure-to-Vote Clause did outlaw what subsections (c) and (d) specifically authorize. And that, of course, would be nonsensical. Third, respondents’ reading of the language that HAVA added to the Failure-to-Vote Clause makes it hard to understand why Congress prescribed in another section of the same Act, i.e., §21083(a)(4)(A), that “no registrant may be removed solely by reason of a failure to vote.” As interpreted by respondents, the amended Failure-to-Vote Clause prohibits any use of nonvoting with just two narrow exceptions—the uses allowed by subsections (c) and (d). So, according to respondents, the amended Failure-to-Vote Clause prohibits much more than §21083(a)(4)(A). That provision, in addition to allowing the use of nonvoting in accordance with subsections (c) and (d), also permits the use of nonvoting in any other way that does not treat nonvoting as the sole basis for removal. There is no plausible reason why Congress would enact the provision that respondents envision. As interpreted by respondents, HAVA would be like a law that contains one provision making it illegal to drive with a blood alcohol level of 0.08 or higher and another provision making it illegal to drive with a blood alcohol level of 0.10 or higher. The second provision would not only be redundant; it would be confusing and downright silly. Our reading, on the other hand, gives the new language added to the Failure-to-Vote Clause “real and substantial effect.” Husky Int’l Electronics, Inc. v. Ritz, 578 U. S. ___, ___ (2016) (slip op., at 4) (internal quotation marks omitted). It clarifies the meaning of the prohibition against removal by reason of nonvoting, a matter that troubled some States prior to HAVA’s enactment. See, e.g., FEC Report on the NVRA to the 106th Congress 19 (1999). Respondents and the dissent separately claim that the Failure-to-Vote Clause must be read to bar the use of nonvoting as a trigger for sending return cards because otherwise it would be “superfluous.” Post, at 17 (opinion of Breyer, J.); see Brief for Respondents 29. After all, subsection (d) already prohibits States from removing registrants because of a failure to vote alone. See §20507(d)(1). To have meaning independent of subsection (d), respondents reason, the Failure-to-Vote Clause must prohibit other uses of the failure to vote, including its use as a trigger for sending out notices. This argument is flawed because the Failure-to-Vote Clause has plenty of work to do under our reading. Most important, it prohibits the once-common state practice of removing registered voters simply because they failed to vote for some period of time. Not too long ago, “[c]ancellation for failure to vote [was] the principal means used . . . to purge the [voter] lists.” Harris, Model Voter Registration System, at 44. States did not use a person’s failure to vote as evidence that the person had died or moved but as an independent ground for removal. See ibid.[4] Ohio was one such State. Its Constitution provided that “[a]ny elector who fails to vote in at least one election during any period of four consecutive years shall cease to be an elector unless he again registers to vote.” Art. V, §1 (1977). In addition, our reading prohibits States from using the failure to vote as the sole cause for removal on any ground, not just because of a change of residence. Recall that subsection (d)’s removal process applies only to change-of-residence removals but that the Failure-to-Vote Clause applies to all removals. Without the Failure-to-Vote Clause, therefore, States could use the failure to vote as conclusive evidence of ineligibility for some reason other than change of residence, such as death, mental incapac- ity, or a criminal conviction resulting in prolonged imprisonment. D Respondents put forth one additional argument regarding the Failure-to-Vote Clause. In essence, it boils down to this. So many properly registered voters simply discard return cards upon receipt that the failure to send them back is worthless as evidence that the addressee has moved. As respondents’ counsel put it at argument, “a notice that doesn’t get returned” tells the State “absolutely nothing about whether the person has moved.” Tr. of Oral Arg. 41, 58. According to respondents, when Ohio removes registrants for failing to respond to a notice and failing to vote, it functionally “removes people solely for non-voting” unless the State has additional “reliable evidence” that a registrant has moved. Id., at 49, 71. This argument is based on a dubious empirical conclusion that the NVRA and HAVA do not allow us to indulge. Congress clearly did not think that the failure to send back a return card was of no evidentiary value because Congress made that conduct one of the two requirements for removal under subsection (d). Requiring additional evidence not only second-guesses the congressional judgment embodied in subsection (d)’s removal process, but it also second-guesses the judgment of the Ohio Legislature as expressed in the State’s Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections, Art. I, §2, cl. 1; Amdt. 17, as well as the authority to set the “Times, Places and Manner” to conduct such elections in the absence of contrary congressional direction, Art. I, §4, cl. 1. We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card. See Inter Tribal, 570 U. S., at 16–19; see also id., at 36–37 (Thomas, J., dissenting); id., at 42–43, 46 (Alito, J., dissenting). For all these reasons, we hold that Ohio law does not violate the Failure-to-Vote Clause. III We similarly reject respondents’ argument that Ohio violates other provisions of the NVRA and HAVA. A Respondents contend that Ohio removes registered voters on a ground not permitted by the NVRA. They claim that the NVRA permits the removal of a name for only a few specified reasons—a person’s request, criminal conviction, mental incapacity, death, change of residence, and initial ineligibility. Brief for Respondents 25–26; see 52 U. S. C. §§20507(a)(3), (4).[5] And they argue that Ohio removes registrants for other reasons, namely, for failing to respond to a notice and failing to vote. This argument plainly fails. Ohio simply treats the failure to return a notice and the failure to vote as evidence that a registrant has moved, not as a ground for removal. And in doing this, Ohio simply follows federal law. Subsection (d), which governs removals “on the ground that the registrant has changed residence,” treats the failure to return a notice and the failure to vote as evidence that this ground is satisfied. §20507(d)(1). If respondents’ argument were correct, then it would also be illegal to remove a name under §20507(c) because that would constitute removal for submitting change-of-address information to the Postal Service. Likewise, if a State removed a name after receiving a death certificate or a judgment of criminal conviction, that would be illegal because receipt of such documents is not listed as a permitted ground for removal under §20507(a)(3) or §20507(a)(4). About this argument no more need be said. B Respondents maintain, finally, that Ohio’s procedure is illegal because the State sends out notices without having any “reliable indicator” that the addressee has moved. Brief for Respondents 31. The “[f]ailure to vote for a mere two-year period,” they argue, does not reliably “indicate that a registrant has moved out of the jurisdiction.” Id., at 30; see also, e.g., Brief for State of New York et al. as Amici Curiae 13–28. This argument also fails. The degree of correlation between the failure to vote for two years and a change of residence is debatable, but we know from subsection (d) that Congress thought that the failure to vote for a period of two consecutive general elections was a good indicator of change of residence, since it made nonvoting for that period an element of subsection (d)’s requirements for removal. In a similar vein, the Ohio Legislature appar- ently thought that nonvoting for two years was sufficiently correlated with a change of residence to justify sending a return card. What matters for present purposes is not whether the Ohio Legislature overestimated the correlation between nonvoting and moving or whether it reached a wise policy judgment about when return cards should be sent. For us, all that matters is that no provision of the NVRA prohibits the legislature from implementing that judgment. Neither subsection (d) nor any other provision of the NVRA demands that a State have some particular quantum of evidence of a change of residence before sending a registrant a return card. So long as the trigger for sending such notices is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” §20507(b)(1), States can use whatever plan they think best. That may be why not even the Sixth Circuit relied on this rationale. Respondents attempt to find support for their argument in subsection (c), which allows States to send notices based on Postal Service change-of-address information. This provision, they argue, implicitly sets a minimum reliability requirement. Thus, they claim, a State may not send out a return card unless its evidence of change of residence is at least as probative as the information obtained from the Postal Service. See Tr. of Oral Arg. 56. Nothing in subsection (c) suggests that it is designed to play this role. Subsection (c) says that “[a] State may meet” its obligation “to remove the names” of ineligible voters on change-of-residence grounds by sending notices to voters who are shown by the Postal Service information to have moved, but subsection (c) does not even hint that it imposes any sort of minimum reliability requirement for sending such notices. §§20507(a)(4), (c). By its terms, subsection (c) simply provides one way—the minimal way—in which a State “may meet the [NVRA’s] requirement[s]” for change-of-residence removals. §20507(c) (emphasis added). As respondents agreed at argument, it is not the only way. Tr. of Oral Arg. 53. C Nothing in the two dissents changes our analysis of the statutory language. 1 Despite its length and complexity, the principal dissent sets out only two arguments. See post, at 7–8 (opinion of Breyer, J.). The first is one that we have already discussed at length, namely, that the Failure-to-Vote Clause prohibits any use of the failure to vote except as permitted by subsections (c) and (d). We have explained why this argument is insupportable, supra, at 12–16, and the dissent has no answer to any of the problems we identify. The dissent’s only other argument is that Ohio’s process violates §20507(a)(4), which requires States to make a “reasonable effort” to remove the names of ineligible voters from the rolls. The dissent thinks that this provision authorizes the federal courts to go beyond the restrictions set out in subsections (b), (c), and (d) and to strike down any state law that does not meet their own standard of “reasonableness.” But see Brief for United States as Amicus Curiae 28–29. The dissent contends that Ohio’s system violates this supposed “reasonableness” requirement primarily because it relies on the failure to mail back the postcard sent to those who have not engaged in voter activity for two years. Based on its own cobbled-together statistics, post, at 12–13, and a feature of human nature of which the dissent has apparently taken judicial notice (i.e., “the human tendency not to send back cards received in the mail,” post, at 13), the dissent argues that the failure to send back the card in question “has no tendency to reveal accurately whether the registered voter has changed residences”; it is an “irrelevant factor” that “shows nothing at all that is statutorily significant.” Post, at 13–14, 17. Whatever the meaning of §20507(a)(4)’s reference to reasonableness, the principal dissent’s argument fails since it is the federal NVRA, not Ohio law, that attaches importance to the failure to send back the card. See §§20507(d)(1)(B)(i), (d)(2)(A). The dissenters may not think that the failure to send back the card means anything, but that was not Congress’s view. The NVRA plainly reflects Congress’s judgment that the failure to send back the card, coupled with the failure to vote during the period covering the next two general federal elections, is significant evidence that the addressee has moved. It is not our prerogative to judge the reasonableness of that congressional judgment, but we note that, whatever the general “human tendency” may be with respect to mailing back cards received in the mail, the notice sent under subsection (d) is nothing like the solicitations for commercial products or contributions that recipients may routinely discard. The notice in question here warns recipients that unless they take the simple and easy step of mailing back the preaddressed, postage prepaid card—or take the equally easy step of updating their information online—their names may be removed from the voting rolls if they do not vote during the next four years. See Record 295–296, 357. It was Congress’s judgment that a reasonable person with an interest in voting is not likely to ignore notice of this sort. 2 Justice Sotomayor’s dissent says nothing about what is relevant in this case—namely, the language of the NVRA—but instead accuses us of “ignor[ing] the history of voter suppression” in this country and of “uphold[ing] a program that appears to further the . . . disenfranchisement of minority and low-income voters.” Post, at 5. Those charges are misconceived. The NVRA prohibits state programs that are discriminatory, see §20507(b)(1), but respondents did not assert a claim under that provision. And Justice Sotomayor has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent. * * * The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not. The judgment of the Sixth Circuit is reversed. It is so ordered. Notes 1 United States Census Bureau, CB16–189, Americans Moving at Historically Low Rates (Nov. 16, 2016), available at https://www.census.gov/newsroom/press-releases/2016/cb16-189.html (all Internet materials as last visited June 8, 2018). States must update the addresses of even those voters who move within their county of residence, for (among other reasons) counties may contain multiple voting districts. Cf. post, at 12 (Breyer, J., dissenting). For example, Cuyahoga County contains 11 State House districts. See House District Map, Ohio House Districts 2012–2022, online at http://www.ohiohouse.gov/members/district-map. 2 The principal dissent attaches a misleading label to this return card, calling it a “ ‘last chance’ notice.” Post, at 6–7, 9–12 (opinion of Breyer, J.). It is actually no such thing. Sending back the notice does not represent a voter’s “last chance” to avoid having his or her name stricken from the rolls. Instead, such a voter has many more chances over a period of four years to avoid that result. All that the voter must do is vote in any election during that time. See 52 U. S. C. §20507(d)(1)(B). 3 U. S. Postal Service, Office of Inspector Gen., MS–MA–15–006, Strategies for Reducing Undeliverable as Addressed Mail 15 (2015); see also Brief for Buckeye Institute as Amicus Curiae 10. Respondents and one of their amici dispute this statistic. See Tr. of Oral Arg. 46; Brief for Asian Americans Advancing Justice et al. as Amici Curiae 27–28. 4 See, e.g., Haw. Rev. Stat. §11–17(a) (1993); Idaho Code Ann. §34–435 (1981); Minn. Stat. §201.171 (1992); Mont. Code Ann. §13–2–401(1) (1993); N. J. Stat. Ann. §19:31–5 (West Supp. 1989); Okla. Stat., Tit. 26, §4–120.2 (1991); Utah Code §20–2–24(1)(b) (1991). 5 We assume for the sake of argument that Congress has the constitutional authority to limit voting eligibility requirements in the way respondents suggest.

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 Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al. certiorari to the united states court of appeals for the sixth circuit No. 16–980. Argued January 10, 2018—Decided June 11, 2018 The National Voter Registration Act (NVRA) addresses the removal of ineligible voters from state voting rolls, 52 U. S. C. §20501(b), including those who are ineligible “by reason of” a change in residence, §20507(a)(4). The Act prescribes requirements that a State must meet in order to remove a name on change-of-residence grounds, §§20507(b), (c), (d). The most relevant of these are found in subsection (d), which provides that a State may not remove a name on change-of-residence grounds unless the registrant either (A) confirms in writing that he or she has moved or (B) fails to return a preaddressed, postage prepaid “return card” containing statutorily prescribed content and then fails to vote in any election during the period covering the next two general federal elections. In addition to these specific change-of-residence requirements, the NVRA also contains a general “Failure-to-Vote Clause,” §20507(b)(2), consisting of two parts. It first provides that a state removal program “shall not result in the removal of the name of any person . . . by reason of the person’s failure to vote.” Second, as added by the Help America Vote Act of 2002 (HAVA), it specifies that “nothing in [this prohibition] may be construed to prohibit a State from using the procedures” described above—sending a return card and removing registrants who fail to return the card and fail to vote for the requisite time. Since one of the requirements for removal under subsection (d) is the failure to vote, the explanation added by HAVA makes clear that the Failure-to-Vote Clause’s prohibition on removal “by reason of the person’s failure to vote” does not categorically preclude using nonvoting as part of a test for removal. Another provision makes this point even more clearly by providing that “no registrant may be removed solely by reason of a failure to vote.” §21083(a)(4)(A) (emphasis added). Respondents contend that Ohio’s process for removing voters on change-of-residence grounds violates this federal law. The Ohio process at issue relies on the failure to vote for two years as a rough way of identifying voters who may have moved. It sends these nonvoters a preaddressed, postage prepaid return card, asking them to verify that they still reside at the same address. Voters who do not return the card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. Held:The process that Ohio uses to remove voters on change-of-residence grounds does not violate the Failure-to-Vote Clause or any other part of the NVRA. . (a) Ohio’s law does not violate the Failure-to-Vote Clause. . (1) Ohio’s removal process follows subsection (d) to the letter: It does not remove a registrant on change-of-residence grounds unless the registrant is sent and fails to mail back a return card and then fails to vote for an additional four years. See §20507(d)(1)(B). . (2) Nonetheless, respondents argue that Ohio’s process violates subsection (b)’s Failure-to-Vote Clause by using a person’s failure to vote twice over: once as the trigger for sending return cards and again as one of the two requirements for removal. But Congress could not have meant for the Failure-to-Vote Clause to cannibalize subsection (d) in that way. Instead, the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. The phrase “by reason of” in the Failure-to-Vote Clause denotes some form of causation, see Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176, and in context sole causation is the only type of causation that harmonizes the Failure-to-Vote Clause and subsection (d). Any other reading would mean that a State that follows subsection (d) nevertheless can violate the Failure-to-Vote Clause. When Congress enacted HAVA, it made this point explicit by adding to the Failure-to-Vote Clause an explanation of how the clause is to be read, i.e., in a way that does not contradict subsection (d). . (3) Respondents’ and the dissent’s alternative reading is inconsistent with both the text of the Failure-to-Vote Clause and the clarification of its meaning in §21083(a)(4). Among other things, their reading would make HAVA’s new language worse than redundant, since no sensible person would read the Failure-to-Vote Clause as prohibiting what subsections (c) and (d) expressly allow. Nor does the Court’s interpretation render the Failure-to-Vote Clause superfluous; the clause retains meaning because it prohibits States from using nonvoting both as the ground for removal and as the sole evidence for another ground for removal (e.g., as the sole evidence that someone has died). . (4) Respondents’ additional argument—that so many registered voters discard return cards upon receipt that the failure to send cards back is worthless as evidence that an addressee has moved—is based on a dubious empirical conclusion that conflicts with the congressional judgment found in subsection (d). Congress clearly did not think that the failure to send back a return card was of no evidentiary value, having made that conduct one of the two requirements for removal under subsection (d). . (b) Nor has Ohio violated other NVRA provisions. . (1) Ohio removes the registrants at issue on a permissible ground: change of residence. The failure to return a notice and the failure to vote simply serve as evidence that a registrant has moved, not as the ground itself for removal. . (2) The NVRA contains no “reliable indicator” prerequisite to sending notices, requiring States to have good information that someone has moved before sending them a return card. So long as the trigger for sending such notices is “uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” §20507(b)(1), States may use whatever trigger they think best, including the failure to vote. . (3) Ohio has not violated the NVRA’s “reasonable effort” provision, §20507(a)(4). Even assuming that this provision authorizes federal courts to go beyond the restrictions set out in subsections (b), (c), and (d) and strike down a state law that does not meet some standard of “reasonableness,” Ohio’s process cannot be unreasonable because it uses the change-of-residence evidence that Congress said it could: the failure to send back a notice coupled with the failure to vote for the requisite period. Ohio’s process is accordingly lawful. . 838 F. 3d 699, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion.

Ohio law aims to keep the State's voting lists up to date by removing the names of those who have moved out of the district where they are registered. Under this procedure, a State sends a preaddressed, postage prepaid card to registrants who either submitted change-of-address information to the Postal Service (subsection (c)) or did not mail back a return card and did not vote during a period covering two general federal elections. The card must explain what a registrant who has not moved needs to do in order to stay on the rolls, i.e., either return the card or vote during the period covering the next two general elections. And if the State does not send such a card or otherwise get written notice that the person has moved, it may not remove the registrant on change of-residence grounds. Respondents, an advocacy group and an Ohio resident, filed suit in Federal District Court to enjoin this process. They claimed that Ohio's Supplemental Process violates the National Voter Registration Act (NVRA), which provides that a state program "shall not result in the removal of the name of any person... by reason of the person's failure to vote." Held: Ohio law does not violate the Failure-to-Vote Clause of the NVRA or the Help America Vote Act of 2002. . (a) Section 20507(d)(1) of the Interstate Commerce Act makes it clear that a State need not send a person to a federal district for a period of two consecutive general elections for federal office unless he or she has failed to vote during that period and has not responded to a notice or otherwise responded. This provision applies to removals of a person who has moved or fails to return a postcard and fails to vote in a general federal election. Under this provision, the State must remove the person from the rolls only if he (1) confirms in writing that he has moved and (2) fails to respond. The failure to return card must be returned or, if the card is not returned, to be removed for four years. Moreover, §20507(c)(4)(A) provides that, for the benefit of persons who have not moved, the card must contain information concerning how the person can continue to be eligible to vote. When Ohio removes registrants for no reason other than their failure to vote, the failure to send it back is worthless as evidence that the addressee has moved. In addition, the Secretary of State has used two procedures to identify voters who have lost their residency qualifications. First, Ohio uses the Postal Service option set out in the Nevada Rev. Code Ann. §3503.01(A) (West Supp. 2017), which allows the State to remove registrants whose lack of voter activity indicates they may have moved. Second, the Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Thus, Ohio removes the registrants only if they have failed to return the return card. Combined with the two years of nonvoting before notice is sent, that makes a total of six years of nondiscriminatory, and initial ineligibility. App. to Pet. for Cert. 43a, 69a-70a. (b) Nor does Ohio violate other provisions of the HAVA. Section21083(a)(4) (emphasis added) -- which prohibits States from removing registrants solely by reason of a persons' failure vote alone, and which, as expressly permitted by federal law, requires States to make areasonable effort to remove the names of ineligible voters, not as a ground for removal -- read as an exception to the general rule forbidding the use of voting.. 838 F. 3d 699, reversed. Reported below: (c) (opinion of Breyer, J., dissenting). (d) This case presents a question of statutory interpretation, not of policy. No authority is given to second-guess Congress or to decide whether Ohio is the ideal method for keeping its voting rolls up. Here, Ohio simply treats the failure of a voter to respond to a form of notice and to vote as evidence of a failure that is a significant reason for removal, and in doing this, it simply follows federal law. To have meaning independent of subsection (d), respondents reason, the Failure to vote Clause must prohibit other uses of the failure vote, including its use as a trigger for mailing notices. P.. (e) This Court has no authority to determine whether Ohio removes registered voters for other reasons, namely, for failing to respond, and failing to vote; whether Ohio sends out notices without having any meaningful evidence that a person had died or moved, or whether it sends the notice as an independent evidence that he moved during one or more than

2017_16-1466

https://www.oyez.org/cases/2017/16-1466

. Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. We upheld a similar law in Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled. I A Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, §315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§315/6(a), (c). Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to “pay, wages, hours[,] and other conditions of employment.” §315/6(c). And this authority extends to the negotiation of what the IPLRA calls “policy matters,” such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies. §315/4; see §315/6(c); see gener- ally, e.g., Illinois Dept. of Central Management Servs. v. AFSCME, Council 31, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board Decision). Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer. §§315/6(c)–(d), 315/10(a)(4); see Matthews v. Chicago Transit Authority, 2016 IL 117638, 51 N. E. 3d 753, 782; accord, Medo Photo Supply Corp. v. NLRB, 321 U. S. 678, 683–684 (1944). Protection of the employees’ interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike. §315/6(d). Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an “agency fee,” which amounts to a percentage of the union dues. Under Abood, nonmembers may be charged for the portion of union dues attributable to activities that are “germane to [the union’s] duties as collective-bargaining representative,” but nonmembers may not be required to fund the union’s political and ideological projects. 431 U. S., at 235; see id., at 235–236. In labor-law parlance, the outlays in the first category are known as “chargeable” expenditures, while those in the latter are labeled “nonchargeable.” Illinois law does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in “the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.” §315/6(e); see also §315/3(g). Excluded from the agency-fee calculation are union expenditures “related to the election or support of any candidate for political office.” §315/3(g); see §315/6(e). Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus determines a nonmember’s “proportionate share,” §315/6(e); this determination is then audited; the amount of the “proportionate share” is certified to the employer; and the employer automatically deducts that amount from the nonmembers’ wages. See ibid.; App. to Pet. for Cert. 37a; see also Harris v. Quinn, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20) (describing this process). Nonmembers need not be asked, and they are not required to consent before the fees are deducted. After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson, 475 U. S. 292 (1986). This notice is supposed to provide nonmembers with “an adequate explanation of the basis for the [agency] fee.” Id., at 310. If nonmembers “suspect that a union has improperly put certain expenses in the [chargeable] category,” they may challenge that determination. Harris, supra, at ___ (slip op., at 19). As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se, but also for many other supposedly connected activities. See App. to Pet. for Cert. 28a–39a. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” Id., at 28a–32a. The total chargeable amount for nonmembers was 78.06% of full union dues. Id., at 34a. B Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. Id., at 10a. The employees in his unit are among the 35,000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Ibid. Janus refused to join the Union because he opposes “many of the public policy positions that [it] advocates,” including the positions it takes in collective bargaining. Id., at 10a, 18a. Janus believes that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” Id., at 18a. Therefore, if he had the choice, he “would not pay any fees or otherwise subsidize [the Union].” Ibid. Under his unit’s collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, id., at 14a—which would amount to about $535 per year. Janus’s concern about Illinois’ current financial situation is shared by the Governor of the State, and it was the Governor who initially challenged the statute authorizing the imposition of agency fees. The Governor commenced an action in federal court, asking that the law be declared unconstitutional, and the Illinois attorney general (a respondent here) intervened to defend the law. App. 41. Janus and two other state employees also moved to intervene—but on the Governor’s side. Id., at 60. Respondents moved to dismiss the Governor’s challenge for lack of standing, contending that the agency fees did not cause him any personal injury. E.g., id., at 48–49. The District Court agreed that the Governor could not maintain the lawsuit, but it held that petitioner and the other individuals who had moved to intervene had standing because the agency fees unquestionably injured them. Accordingly, “in the interest of judicial economy,” the court dismissed the Governor as a plaintiff, while simultane- ously allowing petitioner and the other employees to file their own complaint. Id., at 112. They did so, and the case proceeded on the basis of this new complaint. The amended complaint claims that all “nonmember fee deductions are coerced political speech” and that “the First Amendment forbids coercing any money from the nonmembers.” App. to Pet. for Cert. 23a. Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it asserted was foreclosed by Abood. The District Court granted the motion, id., at 7a, and the Court of Appeals for the Seventh Circuit affirmed, 851 F. 3d 746 (2017). Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question. 582 U. S. ___ (2017). II Before reaching this question, however, we must con- sider a threshold issue. Respondents contend that the Dis- trict Court lacked jurisdiction under Article III of the Constitution because petitioner “moved to intervene in [the Governor’s] jurisdictionally defective lawsuit.” Union Brief in Opposition 11; see also id., at 13–17; State Brief in Opposition 6; Brief for Union Respondent i, 16–17; Brief for State Respondents 14, n. 1. This argument is clearly wrong. It rests on the faulty premise that petitioner intervened in the action brought by the Governor, but that is not what happened. The District Court did not grant petitioner’s motion to intervene in that lawsuit. Instead, the court essentially treated petitioner’s amended complaint as the operative complaint in a new lawsuit. App. 110–112. And when the case is viewed in that way, any Article III issue vanishes. As the District Court recognized—and as respondents concede—petitioner was injured in fact by Illinois’ agency-fee scheme, and his injuries can be redressed by a favorable court decision. Ibid.; see Record 2312–2313, 2322–2323. Therefore, he clearly has Article III standing. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). It is true that the District Court docketed petitioner’s complaint under the number originally assigned to the Governor’s complaint, instead of giving it a new number of its own. But Article III jurisdiction does not turn on such trivialities. The sole decision on which respondents rely, United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157 (1914), actually works against them. That case concerned a statute permitting creditors of a government contractor to bring suit on a bond between 6 and 12 months after the completion of the work. Id., at 162. One creditor filed suit before the 6-month starting date, but another intervened within the 6-to-12-month window. The Court held that the “[t]he intervention [did] not cure th[e] vice in the original [prematurely filed] suit,” but the Court also contemplated treating “intervention . . . as an original suit” in a case in which the intervenor met the requirements that a plaintiff must satisfy—e.g., filing a separate complaint and properly serving the defendants. Id., at 163–164. Because that is what petitioner did here, we may reach the merits of the question presented. III In Abood, the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, 431 U. S., at 232, but in more recent cases we have recognized that this holding is “something of an anomaly,” Knox v. Service Employees, 567 U. S. 298, 311 (2012), and that Abood’s “analysis is questionable on several grounds,” Harris, 573 U. S., at ___ (slip op., at 17); see id., at ___–___ (slip op., at 17–20) (discussing flaws in Abood’s reasoning). We have therefore refused to extend Abood to situations where it does not squarely control, see Harris, supra, at ___–___ (slip op., at 27–29), while leaving for another day the question whether Abood should be overruled, Harris, supra, at ___, n. 19 (slip op., at 27, n. 19); see Knox, supra, at 310–311. We now address that question. We first consider whether Abood’s holding is consistent with standard First Amendment principles. A The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U. S. 705, 714 (1977); see Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 796–797 (1988); Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256–257 (1974); accord, Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 9 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate”); see Pacific Gas & Elec., supra, at 12 (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (emphasis added). Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening. Free speech serves many ends. It is essential to our democratic form of government, see, e.g., Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964), and it furthers the search for truth, see, e.g., Thornhill v. Alabama, 310 U. S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633; see also Riley, supra, at 796–797 (rejecting “deferential test” for compelled speech claims). Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox, supra, at 309; United States v. United Foods, Inc., 533 U. S. 405, 410 (2001); Abood, supra, at 222, 234–235. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson, 475 U. S., at 305, n. 15. We have therefore recognized that a “ ‘significant impingement on First Amendment rights’ ” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” Knox, supra, at 310–311 (quoting Ellis v. Railway Clerks, 466 U. S. 435, 455 (1984)). Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified “levels of scrutiny” to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox, supra; Harris, supra; Friedrichs v. California Teachers Assn., 578 U. S. ___ (2016) (per cu- riam) (affirming decision below by equally divided Court). In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U. S., at 309–310, 321–322. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 562–563 (1980), prior precedent in that area, specifically United Foods, supra, had applied what we characterized as “exacting” scrutiny, Knox, 567 U. S., at 310, a less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associa- tional freedoms.” Ibid. (internal quotation marks and altera- tions omitted). In Harris, the second of these cases, we again found that an agency-fee requirement failed “exacting scrutiny.” 573 U. S., at ___ (slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.” Id., at ___ (slip op., at 30). Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to “strict scrutiny.” Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post, at 4 (Kagan, J., dissenting) (“A government entity could reasonably conclude that such a clause was needed”). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris. In the remainder of this part of our opinion (Parts III–B and III–C), we will apply this standard to the justifications for agency fees adopted by the Court in Abood. Then, in Parts IV and V, we will turn to alternative rationales proffered by respondents and their amici. B In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in “labor peace,” 431 U. S., at 224. By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work force,” and the employer could face “conflicting demands from different unions.” Id., at 220–221. Confusion would ensue if the employer entered into and attempted to “enforce two or more agreements specifying different terms and conditions of employment.” Id., at 220. And a settlement with one union would be “subject to attack from [a] rival labor organizatio[n].” Id., at 221. We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true. Harris, supra, at ___ (slip op., at 31). The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal work force—are union members.[1] The situation in the Postal Service is similar. Although permitted to choose an exclusive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members.[2] Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.[3] Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that “labor peace” can readily be achieved “through means significantly less restrictive of associational freedoms” than the assessment of agency fees. Harris, supra, at ___ (slip op., at 30) (internal quotation marks omitted). C In addition to the promotion of “labor peace,” Abood cited “the risk of ‘free riders’ ” as justification for agency fees, 431 U. S., at 224. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Brief for Union Respondent 34–36; Brief for State Respondents 41–45; see, e.g., Brief for International Brotherhood of Teamsters as Amicus Curiae 3–5. Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage. Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Knox, 567 U. S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. “[P]rivate speech often furthers the interests of nonspeakers,” but “that does not alone empower the state to compel the speech to be paid for.” Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 556 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.[4] Those supporting agency fees contend that the situation here is different because unions are statutorily required to “represen[t] the interests of all public employees in the unit,” whether or not they are union members. §315/6(d); see, e.g., Brief for State Respondents 40–41, 45; post, at 7 (Kagan, J., dissenting). Why might this matter? We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound. First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought.[5] Why is this so? Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus “results in a tremendous increase in the power” of the union. American Communications Assn. v. Douds, 339 U. S. 382, 401 (1950). In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, see §315/6(c), and having dues and fees deducted directly from employee wages, §§315/6(e)–(f ). The collective-bargaining agreement in this case guarantees a long list of additional privileges. See App. 138–143. These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to “act solely in the interests of [the union’s] own members.” Brief for State Respondents 41; see Cintron v. AFSCME, Council 31, No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not intentionally direct “animosity” toward nonmembers based on their “dissident union practices”); accord, 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 271 (2009); Vaca v. Sipes, 386 U. S. 171, 177 (1967). What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective-bargaining agreement that discriminates against nonmembers, see Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 202–203 (1944), but the union’s bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id., at 198–199, 202 (analogizing a private-sector union’s fair-representation duty to the duty “the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates”); cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 69 (2006) (recognizing that government may not “impose penalties or withhold benefits based on membership in a disfavored group” where doing so “ma[kes] group membership less attractive”). To the extent that an employer would be barred from acceding to a discriminatory agreement anyway, the union’s duty not to ask for one is superfluous. It is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them—nor the dissent—has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements. What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate “the interests of [an] individual em- ployee . . . to the collective interests of all employees in the bargaining unit.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 58, n. 19 (1974); see Stahulak v. Chicago, 184 Ill. 2d 176, 180–181, 703 N. E. 2d 44, 46–47 (1998); Mahoney v. Chicago, 293 Ill. App. 3d 69, 73–74, 687 N.E.2d 132, 135–137 (1997) (union has “ ‘discretion to refuse to process’ ” a grievance, provided it does not act “arbitrar[ily]” or “in bad faith” (emphasis deleted)). In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedoms” than the imposition of agency fees. Harris, 573 U. S., at ___ (slip op., at 30) (internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.[6] Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers. Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Supra, at 2–3. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious “constitutional questions [would] arise” if the union were not subject to the duty to represent all employees fairly. Steele, supra, at 198. In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. See Knox, 567 U. S., at 311, 321. We therefore hold that agency fees cannot be upheld on free-rider grounds. IV Implicitly acknowledging the weakness of Abood’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments. A The most surprising of these new arguments is the Union respondent’s originalist defense of Abood. According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20. As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “no [free speech] rights.” Id., at 1. Cf., e.g., Brief for National Treasury Employees Union as Amicus Curiae in Garcetti v. Ceballos, O. T. 2005, No. 04–473, p. 7 (arguing for “broa[d]” public-employee First Amendment rights); Brief for AFL–CIO as Amicus Curiae in No. 04–473 (similar). It is particularly discordant to find this argument in a brief that trumpets the importance of stare decisis. See Brief for Union Respondent 47–57. Taking away free speech protection for public employees would mean overturning decades of landmark precedent. Under the Union’s theory, Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and its progeny would fall. Yet Pickering, as we will discuss, is now the foundation for respondents’ chief defense of Abood. And indeed, Abood itself would have to go if public employees have no free speech rights, since Abood holds that the First Amendment prohibits the exaction of agency fees for political or ideological purposes. 431 U. S., at 234–235 (finding it “clear” that “a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment”). Our political patronage cases would be doomed. See, e.g., Rutan v. Republican Party of Ill., 497 U. S. 62 (1990); Branti v. Finkel, 445 U. S. 507 (1980); Elrod v. Burns, 427 U. S. 347 (1976). Also imperiled would be older precedents like Wieman v. Updegraff, 344 U. S. 183 (1952) (loyalty oaths), Shelton v. Tucker, 364 U. S. 479 (1960) (disclosure of memberships and contributions), and Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967) (subversive speech). Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood that they like. See Tr. of Oral Arg. 56–57. We will not engage in this halfway originalism. Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis, 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “ ‘contemptuous or disrespectful words against the President’ ” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. See, e.g., Brown v. Glines, 444 U. S. 348, 353 (1980) (upholding military restriction on speech that threatened troop readiness); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 556–557 (1973) (upholding limits on public employees’ political activities). Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, “[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick v. Myers, 461 U. S. 138, 143; see Brief for Union Respondent 2, 17. Even on its own terms, this dictum about 20th-century views does not purport to describe how the First Amendment was understood in 1791. And a careful examination of the decisions by this Court that Connick cited to support its dictum, see 461 U. S., at 144, reveals that none of them rested on the facile premise that public employees are unprotected by the First Amendment. Instead, they considered (much as we do today) whether particular speech restrictions were “necessary to protect” fundamental government interests. Curtis, supra, at 374. The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.[7] Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “ ‘sinful and tyrannical,’ ” supra, at 9, and others expressed similar views.[8] In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment. B The principal defense of Abood advanced by respondents and the dissent is based on our decision in Pickering, 391 U. S. 563, which held that a school district violated the First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering and later cases in the same line, employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti v. Ceballos, 547 U. S. 410, 421–422 (2006), or if it involved a matter of only private concern, see Connick, supra, at 146–149. On the other hand, when a public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected unless “ ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’ ” Harris, 573 U. S., at ___ (slip op., at 35) (quoting Pickering, supra, at 568). Pickering was the centerpiece of the defense of Abood in Harris, see 573 U. S., at ___–___ (slip op., at 17–21) (Kagan, J., dissenting), and we found the argument unpersuasive, see id., at ___–___ (slip op., at 34–37). The intervening years have not improved its appeal. 1 As we pointed out in Harris, Abood was not based on Pickering. 573 U. S., at ___, and n. 26 (slip op., at 34, and n. 26). The Abood majority cited the case exactly once—in a footnote—and then merely to acknowledge that “there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.” 431 U. S., at 230, n. 27. That aside has no bearing on the agency-fee issue here.[9] Respondents’ reliance on Pickering is thus “an effort to find a new justification for the decision in Abood.” Harris, supra, at ___ (slip op., at 34). And we have previously taken a dim view of similar attempts to recast problematic First Amendment decisions. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 348–349, 363 (2010) (rejecting efforts to recast Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990)); see also Citizens United, supra, at 382–385 (Roberts, C. J., concurring). We see no good reason, at this late date, to try to shoehorn Abood into the Pickering framework. 2 Even if that were attempted, the shoe would be a painful fit for at least three reasons. First, the Pickering framework was developed for use in a very different context—in cases that involve “one employee’s speech and its impact on that employee’s public responsibilities.” United States v. Treasury Employees, 513 U. S. 454, 467 (1995). This case, by contrast, involves a blanket requirement that all employees subsidize speech with which they may not agree. While we have sometimes looked to Pickering in considering general rules that affect broad categories of employees, we have acknowledged that the standard Pickering analysis requires modification in that situation. See 513 U. S., at 466–468, and n. 11. A speech-restrictive law with “widespread impact,” we have said, “gives rise to far more serious concerns than could any single supervisory decision.” Id., at 468. Therefore, when such a law is at issue, the government must shoulder a correspondingly “heav[ier]” burden, id., at 466, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights, see id., at 475–476, n. 21; accord, id., at 482–483 (O’Connor, J., concurring in judgment in part and dissenting in part). The end product of those adjustments is a test that more closely resembles exacting scrutiny than the traditional Pickering analysis. The core collective-bargaining issue of wages and benefits illustrates this point. Suppose that a single employee complains that he or she should have received a 5% raise. This individual complaint would likely constitute a matter of only private concern and would therefore be unprotected under Pickering. But a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Granting such a raise could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services. When a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. By disputing this, post, at 13–14, the dissent denies the obvious. Second, the Pickering framework fits much less well where the government compels speech or speech subsidies in support of third parties. Pickering is based on the insight that the speech of a public-sector employee may interfere with the effective operation of a government office. When a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message. See Garcetti, 547 U. S., at 421–422, 425–426. Otherwise, however, it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words with which they disagree. And we have never applied Pickering in such a case. Consider our decision in Connick. In that case, we held that an assistant district attorney’s complaints about the supervisors in her office were, for the most part, matters of only private concern. 461 U. S., at 148. As a result, we held, the district attorney could fire her for making those comments. Id., at 154. Now, suppose that the assistant had not made any critical comments about the supervisors but that the district attorney, out of the blue, demanded that she circulate a memo praising the supervisors. Would her refusal to go along still be a matter of purely private concern? And if not, would the order be justified on the ground that the effective operation of the office demanded that the assistant voice complimentary sentiments with which she disagreed? If Pickering applies at all to compelled speech—a question that we do not decide—it would certainly require adjustment in that context. Third, although both Pickering and Abood divided speech into two categories, the cases’ categorization schemes do not line up. Superimposing the Pickering scheme on Abood would significantly change the Abood regime. Let us first look at speech that is not germane to collective bargaining but instead concerns political or ideological issues. Under Abood, a public employer is flatly prohibited from permitting nonmembers to be charged for this speech, but under Pickering, the employees’ free speech interests could be overcome if a court found that the employer’s interests outweighed the employees’. A similar problem arises with respect to speech that is germane to collective bargaining. The parties dispute how much of this speech is of public concern, but respondents concede that much of it falls squarely into that category. See Tr. of Oral Arg. 47, 65. Under Abood, nonmembers may be required to pay for all this speech, but Pickering would permit that practice only if the employer’s interests outweighed those of the employees. Thus, recasting Abood as an application of Pickering would substantially alter the Abood scheme. For all these reasons, Pickering is a poor fit indeed. V Even if we were to apply some form of Pickering, Illinois’ agency-fee arrangement would not survive. A Respondents begin by suggesting that union speech in collective-bargaining and grievance proceedings should be treated like the employee speech in Garcetti, i.e., as speech “pursuant to [an employee’s] official duties,” 547 U. S., at 421. Many employees, in both the public and private sectors, are paid to write or speak for the purpose of furthering the interests of their employers. There are laws that protect public employees from being compelled to say things that they reasonably believe to be untrue or improper, see id., at 425–426, but in general when public employees are performing their job duties, their speech may be controlled by their employer. Trying to fit union speech into this framework, respondents now suggest that the union speech funded by agency fees forms part of the official duties of the union officers who engage in the speech. Brief for Union Respondent 22–23; see Brief for State Respondents 23–24. This argument distorts collective bargaining and grievance adjustment beyond recognition. When an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson. But when a union negotiates with the employer or represents employees in disciplinary proceedings, the union speaks for the employees, not the employer. Otherwise, the employer would be negotiating with itself and disputing its own actions. That is not what anybody understands to be happening. What is more, if the union’s speech is really the employer’s speech, then the employer could dictate what the union says. Unions, we trust, would be appalled by such a suggestion. For these reasons, Garcetti is totally inapposite here. B Since the union speech paid for by agency fees is not controlled by Garcetti, we move on to the next step of the Pickering framework and ask whether the speech is on a matter of public or only private concern. In Harris, the dissent’s central argument in defense of Abood was that union speech in collective bargaining, including speech about wages and benefits, is basically a matter of only private interest. See 573 U. S., at ___–___ (slip op., at 19–20) (Kagan, J., dissenting). We squarely rejected that argument, see id., at ___–___ (slip op., at 35–36), and the facts of the present case substantiate what we said at that time: “[I]t is impossible to argue that the level of . . . state spending for employee benefits . . . is not a matter of great public concern,” id., at ___ (slip op., at 36). Illinois, like some other States and a number of counties and cities around the country, suffers from severe budget problems.[10] As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities.[11] By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills.[12] We are told that a “quarter of the budget is now devoted to paying down” those liabilities.[13] These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.”[14] The Governor, on one side, and public-sector unions, on the other, disagree sharply about what to do about these problems. The State claims that its employment-related debt is “ ‘squeezing core programs in education, public safety, and human services, in addition to limiting [the State’s] ability to pay [its] bills.’ ” Securities Act of 1933 Release No. 9389, 105 S. E. C. Docket 3381 (2013). It therefore “told the Union that it would attempt to address th[e financial] crisis, at least in part, through collective bargaining.” Board Decision 12–13. And “the State’s desire for savings” in fact “dr[o]ve [its] bargaining” positions on matters such as health-insurance benefits and holiday, overtime, and promotion policies. Id., at 13; Illinois Dept. of Central Management Servs. v. AFSCME, Council 31, No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (ALJ Decision), pp. 26–28, 63–66, 224. But when the State offered cost-saving proposals on these issues, the Union countered with very different suggestions. Among other things, it advocated wage and tax increases, cutting spending “to Wall Street financial institutions,” and reforms to Illinois’ pension and tax systems (such as closing “corporate tax loopholes,” “[e]xpanding the base of the state sales tax,” and “allowing an income tax that is adjusted in accordance with ability to pay”). Id., at 27–28. To suggest that speech on such matters is not of great public concern—or that it is not directed at the “public square,” post, at 16 (Kagan, J., dissenting)—is to deny reality. In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters. As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g., Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Campaign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30. What unions have to say on these matters in the context of collective bargaining is of great public importance. Take the example of education, which was the focus of briefing and argument in Friedrichs. The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.[15] Speech in this area also touches on fundamental questions of education policy. Should teacher pay be based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?[16] Should districts transfer more experienced teachers to the lower performing schools that may have the greatest need for their skills, or should those teachers be allowed to stay where they have put down roots?[17] Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured—by standardized tests or other means? Unions can also speak out in collective bargaining on controversial subjects such as climate change,[18] the Confederacy,[19] sexual orientation and gender identity,[20] evolution,[21] and minority religions.[22] These are sensitive political topics, and they are undoubtedly matters of profound “ ‘value and concern to the public.’ ” Snyder v. Phelps, 562 U. S. 443, 453 (2011). We have often recognized that such speech “ ‘occupies the highest rung of the hierarchy of First Amendment values’ ” and merits “ ‘special protection.’ ” Id., at 452. What does the dissent say about the prevalence of such issues? The most that it is willing to admit is that “some” issues that arise in collective bargaining “raise important non-budgetary disputes.” Post, at 17. Here again, the dissent refuses to recognize what actually occurs in public-sector collective bargaining. Even union speech in the handling of grievances may be of substantial public importance and may be directed at the “public square.” Post, at 16. For instance, the Union respondent in this case recently filed a grievance seeking to compel Illinois to appropriate $75 million to fund a 2% wage increase. State v. AFSCME Council 31, 2016 IL 118422, 51 N. E. 3d 738, 740–742, and n. 4. In short, the union speech at issue in this case is overwhelmingly of substantial public concern. C The only remaining question under Pickering is whether the State’s proffered interests justify the heavy burden that agency fees inflict on nonmembers’ First Amendment interests. We have already addressed the state interests asserted in Abood—promoting “labor peace” and avoiding free riders, see supra, at 11–18—and we will not repeat that analysis. In Harris and this case, defenders of Abood have as- serted a different state interest—in the words of the Harris dissent, the State’s “interest in bargaining with an adequately funded exclusive bargaining agent.” 573 U. S., at ___ (Kagan, J., dissenting) (slip op., at 7); see also post, at 6–7 (Kagan, J., dissenting). This was not “the interest Abood recognized and protected,” Harris, supra, at ___ (slip op., at 7) (Kagan, J., dissenting), and, in any event, it is insufficient. Although the dissent would accept without any serious independent evaluation the State’s assertion that the absence of agency fees would cripple public-sector unions and thus impair the efficiency of government operations, see post, at 8–9, 11, ample experience, as we have noted, supra, at 12, shows that this is questionable. Especially in light of the more rigorous form of Pickering analysis that would apply in this context, see supra, at 23–25, the balance tips decisively in favor of the employees’ free speech rights.[23] We readily acknowledge, as Pickering did, that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” 391 U. S., at 568. Our analysis is consistent with that principle. The exacting scrutiny standard we apply in this case was developed in the context of commercial speech, another area where the government has traditionally enjoyed greater-than-usual power to regulate speech. See supra, at 10. It is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views. Nothing in the Pickering line of cases requires us to uphold every speech restriction the government imposes as an employer. See Pickering, supra, at 564–566 (holding teacher’s dismissal for criticizing school board unconstitutional); Rankin v. McPherson, 483 U. S. 378, 392 (1987) (holding clerical employ- ee’s dismissal for supporting assassination attempt on President unconstitutional); Treasury Employees, 513 U. S., at 477 (holding federal-employee honoraria ban unconstitutional). VI For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood. It does not. “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States v. International Business Machines Corp., 517 U. S. 843, 855–856 (1996); Citizens United, 558 U. S., at 377 (Roberts, C. J., concurring). But as we have often recognized, stare decisis is “ ‘not an inexorable command.’ ” Pearson v. Callahan, 555 U. S. 223, 233 (2009); see also Lawrence v. Texas, 539 U. S. 558, 577 (2003); State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); Agostini v. Felton, 521 U. S. 203, 235 (1997); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996); Payne, supra, at 828. The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini, supra, at 235. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: “This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United, supra, at 362–365 (overruling Austin, 494 U. S. 652); Barnette, 319 U. S., at 642 (overruling Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940)). Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood. A An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United, 558 U. S., at 363–364; id., at 382–385 (Roberts, C. J., concurring); Lawrence, 539 U. S., at 577–578, and as we explained in Harris, Abood was poorly reasoned, see 573 U. S., at ___–___ (slip op., at 17–20). We will summarize, but not repeat, Harris’s lengthy discussion of the issue. Abood went wrong at the start when it concluded that two prior decisions, Railway Employes v. Hanson, 351 U. S. 225 (1956), and Machinists v. Street, 367 U. S. 740 (1961), “appear[ed] to require validation of the agency-shop agreement before [the Court].” 431 U. S., at 226. Properly understood, those decisions did no such thing. Both cases involved Congress’s “bare authorization” of private-sector union shops under the Railway Labor Act. Street, supra, at 749 (emphasis added).[24] Abood failed to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees. See Harris, supra, at ___ (slip op., at 17). Moreover, neither Hanson nor Street gave careful consideration to the First Amendment. In Hanson, the primary questions were whether Congress exceeded its power under the Commerce Clause or violated substantive due process by authorizing private union-shop arrangements under the Commerce and Due Process Clauses. 351 U. S., at 233–235. After deciding those questions, the Court summarily dismissed what was essentially a facial First Amendment challenge, noting that the record did not substantiate the challengers’ claim. Id., at 238; see Harris, supra, at ___ (slip op., at 17). For its part, Street was decided as a matter of statutory construction, and so did not reach any constitutional issue. 367 U. S., at 749–750, 768–769. Abood nevertheless took the view that Hanson and Street “all but decided” the important free speech issue that was before the Court. Harris, 573 U. S., at ___ (slip op., at 17). As we said in Harris, “[s]urely a First Amendment issue of this importance deserved better treatment.” Ibid. Abood’s unwarranted reliance on Hanson and Street appears to have contributed to another mistake: Abood judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases. (As noted, supra, at 10–11, today’s dissent makes the same fundamental mistake.) Abood did not independently evaluate the strength of the government interests that were said to support the challenged agency-fee provision; nor did it ask how well that provision actually promoted those interests or whether they could have been adequately served without impinging so heavily on the free speech rights of nonmembers. Rather, Abood followed Hanson and Street, which it interpreted as having deferred to “the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” 431 U. S., at 222 (emphasis added). But Hanson deferred to that judgment in deciding the Commerce Clause and substantive due process questions that were the focus of the case. Such deference to legislative judgments is inappropriate in deciding free speech issues. If Abood had considered whether agency fees were actually needed to serve the asserted state interests, it might not have made the serious mistake of assuming that one of those interests—“labor peace”—demanded, not only that a single union be designated as the exclusive representative of all the employees in the relevant unit, but also that nonmembers be required to pay agency fees. Deferring to a perceived legislative judgment, Abood failed to see that the designation of a union as exclusive representative and the imposition of agency fees are not inextricably linked. See supra, at 11–12; Harris, supra, at ___ (slip op., at 31). Abood also did not sufficiently take into account the difference between the effects of agency fees in public- and private-sector collective bargaining. The challengers in Abood argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves “inherently ‘political’ ” speech. 431 U. S., at 226. The Court did not dispute that characterization, and in fact conceded that “decisionmaking by a public employer is above all a political process” driven more by policy concerns than economic ones. Id., at 228; see id., at 228–231. But (again invoking Hanson), the Abood Court asserted that public employees do not have “weightier First Amendment interest[s]” against compelled speech than do private employees. Id., at 229. That missed the point. Assuming for the sake of argument that the First Amendment applies at all to private-sector agency-shop arrangements, the individual interests at stake still differ. “In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.” Harris, 573 U. S., at ___ (slip op., at 17). Overlooking the importance of this distinction, “Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.” Id., at ___ (slip op., at 18). Likewise, “Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either ‘chargeable’ . . . or nonchargeable.” Ibid. Nor did Abood “foresee the practical problems that would face objecting nonmembers.” Id., at ___ (slip op., at 19). In sum, as detailed in Harris, Abood was not well reasoned.[25] B Another relevant consideration in the stare decisis calculus is the workability of the precedent in question, Montejo v. Louisiana, 556 U. S. 778, 792 (2009), and that factor also weighs against Abood. 1 Abood’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision. We tried to give the line some definition in Lehnert. There, a majority of the Court adopted a three-part test requiring that chargeable expenses (1) be “ ‘germane’ ” to collective bargaining, (2) be “justified” by the government’s labor-peace and free-rider interests, and (3) not add “significantly” to the burden on free speech, 500 U. S., at 519, but the Court splintered over the application of this test, see id., at 519–522 (plurality opinion); id., at 533–534 (Marshall, J., concurring in part and dissenting in part). That division was not surprising. As the Lehnert dissenters aptly observed, each part of the majority’s test “involves a substantial judgment call,” id., at 551 (opinion of Scalia, J.), rendering the test “altogether malleable” and “no[t] principled,” id., at 563 (Kennedy, J., concurring in judgment in part and dissenting in part). Justice Scalia presciently warned that Lehnert’s amorphous standard would invite “perpetua[l] give-it-a-try litigation,” id., at 551, and the Court’s experience with union lobbying expenses illustrates the point. The Lehnert plurality held that money spent on lobbying for increased education funding was not chargeable. Id., at 519–522. But Justice Marshall—applying the same three-prong test—reached precisely the opposite conclusion. Id., at 533–542. And Lehnert failed to settle the matter; States and unions have continued to “give it a try” ever since. In Knox, for example, we confronted a union’s claim that the costs of lobbying the legislature and the electorate about a ballot measure were chargeable expenses under Lehnert. See Brief for Respondent in Knox v. Service Employees, O. T. 2011, No. 10–1121, pp. 48–53. The Court rejected this claim out of hand, 567 U. S., at 320–321, but the dissent refused to do so, id., at 336 (opinion of Breyer, J.). And in the present case, nonmembers are required to pay for unspecified “[l]obbying” expenses and for “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” App. to Pet. for Cert. 31a–32a. That formulation is broad enough to encompass just about anything that the union might choose to do. Respondents agree that Abood’s chargeable-nonchargeable line suffers from “a vagueness problem,” that it sometimes “allows what it shouldn’t allow,” and that “a firm[er] line c[ould] be drawn.” Tr. of Oral Arg. 47–48. They therefore argue that we should “consider revisiting” this part of Abood. Tr. of Oral Arg. 66; see Brief for Union Respondent 46–47; Brief for State Respondents 30. This concession only underscores the real- ity that Abood has proved unworkable: Not even the parties defending agency fees support the line that it has taken this Court over 40 years to draw. 2 Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability determinations. While Hudson requires a union to provide nonmembers with “sufficient information to gauge the propriety of the union’s fee,” 475 U. S., at 306, the Hudson notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination. In this case, the notice lists categories of expenses and sets out the amount in each category that is said to be attributable to chargeable and nonchargeable expenses. Here are some examples regarding the Union respondent’s expenditures: See App. to Pet. for Cert. 35a–36a. How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.[26] The Union respondent argues that challenging its chargeability determinations is not burdensome because the Union pays for the costs of arbitration, see Brief for Union Respondent 10–11, but objectors must still pay for the attorneys and experts needed to mount a serious challenge. And the attorney’s fees incurred in such a proceeding can be substantial. See, e.g., Knox v. Chiang, 2013 WL 2434606, *15 (ED Cal., June 5, 2013) (attorney’s fees in Knox exceeded $1 million). The Union respondent’s suggestion that an objector could obtain adequate review without even showing up at an arbitration, see App. to Pet. for Cert. 40a–41a, is therefore farfetched. C Developments since Abood, both factual and legal, have also “eroded” the decision’s “underpinnings” and left it an outlier among our First Amendment cases. United States v. Gaudin, 515 U. S. 506, 521 (1995). 1 Abood pinned its result on the “unsupported empirical assumption” that “the principle of exclusive representation in the public sector is dependent on a union or agency shop.” Harris, 573 U. S., at ___ (slip op., at 20); Abood, 431 U. S., at 220–222. But, as already noted, experience has shown otherwise. See supra, at 11–12. It is also significant that the Court decided Abood against a very different legal and economic backdrop. Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective bargaining by government employees was Wisconsin in 1959, R. Kearney & P. Mareschal, Labor Relations in the Public Sector 64 (5th ed. 2014), and public-sector union membership remained relatively low until a “spurt” in the late 1960’s and early 1970’s, shortly before Abood was decided, Freeman, Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then, public-sector union membership has come to surpass private-sector union membership, even though there are nearly four times as many total private-sector employees as public-sector employees. B. Hirsch & D. Macpherson, Union Membership and Earnings Data Book 9–10, 12, 16 (2013 ed.). This ascendance of public-sector unions has been marked by a parallel increase in public spending. In 1970, total state and local government expenditures amounted to $646 per capita in nominal terms, or about $4,000 per capita in 2014 dollars. See Dept. of Commerce, Statistical Abstract of the United States: 1972, p. 419; CPI Inflation Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that figure had ballooned to approximately $10,238 per capita. ProQuest, Statistical Abstract of the United States: 2018, pp. 17, Table 14, 300, Table 469. Not all that increase can be attributed to public-sector unions, of course, but the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role. We are told, for example, that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages. Brief for Jason R. Barclay et al. as Amici Curiae 9, 14. Unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies. See Brief for State of Michigan et al. as Amici Curiae 10–19. These developments, and the political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate. 2 Abood is also an “anomaly” in our First Amendment jurisprudence, as we recognized in Harris and Knox. Harris, supra, at ___ (slip op., at 8); Knox, 567 U. S., at 311. This is not an altogether new observation. In Abood itself, Justice Powell faulted the Court for failing to perform the “ ‘exacting scrutiny’ ” applied in other cases involving significant impingements on First Amendment rights. 431 U. S., at 259; see id., at 259–260, and n. 14. Our later cases involving compelled speech and association have also employed exacting scrutiny, if not a more demanding standard. See, e.g., Roberts, 468 U. S., at 623; United Foods, 533 U. S., at 414. And we have more recently refused, even in agency-fee cases, to extend Abood beyond circumstances where it directly controls. See Knox, supra, at 314; Harris, supra, at ___–___ (slip op., at 28–29). Abood particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party. See Elrod, 427 U. S. 347; Branti, 445 U. S. 507; Rutan, 497 U. S. 62; O’Hare Truck Service, Inc. v. City of Northlake, 518 U. S. 712 (1996). The Court reached that conclusion despite a “long tradition” of political patronage in government. Rutan, supra, at 95 (Scalia, J., dissenting); see also Elrod, 427 U. S., at 353 (plurality opinion); id., at 377–378 (Powell, J., dissenting). It is an odd feature of our First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted. As Justice Powell observed: “I am at a loss to understand why the State’s decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage.” Abood, supra, at 260, n. 14 (opinion concurring in judgment) (citing Elrod, supra, at 376–380, 382–387 (Powell, J., dissenting); emphasis added). We have no occasion here to reconsider our political patronage decisions, but Justice Powell’s observation is sound as far as it goes. By overruling Abood, we end the oddity of privileging compelled union support over compelled party support and bring a measure of greater coherence to our First Amendment law. D In some cases, reliance provides a strong reason for adhering to established law, see, e.g., Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202–203 (1991), and this is the factor that is stressed most strongly by respondents, their amici, and the dissent. They contend that collective-bargaining agreements now in effect were negotiated with agency fees in mind and that unions may have given up other benefits in exchange for provisions granting them such fees. Tr. of Oral Arg. 67–68; see Brief for State Respondents 54; Brief for Union Respondent 50; post, at 22–26 (Kagan, J., dissenting). In this case, however, reliance does not carry decisive weight. For one thing, it would be unconscionable to permit free speech rights to be abridged in perpetuity in order to preserve contract provisions that will expire on their own in a few years’ time. “The fact that [public-sector unions] may view [agency fees] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that [nonmembers] share in having their constitutional rights fully protected.” Arizona v. Gant, 556 U. S. 332, 349 (2009). For another, Abood does not provide “a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.” South Dakota v. Wayfair, Inc., ante, at 20; see supra, at 38–41. This is especially so because public-sector unions have been on notice for years regarding this Court’s misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment “anomaly.” 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood’s many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood. Friedrichs v. California Teachers Assn., 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain. That is certainly true with respect to the collective-bargaining agreement in the present case. That agreement initially ran from July 1, 2012, until June 30, 2015. App. 331. Since then, the agreement has been extended pursuant to a provision providing for automatic renewal for an additional year unless either party gives timely notice that it desires to amend or terminate the contract. Ibid. Thus, for the past three years, the Union could not have been confident about the continuation of the agency-fee arrangement for more than a year at a time. Because public-sector collective-bargaining agreements are generally of rather short duration, a great many of those now in effect probably began or were renewed since Knox (2012) or Harris (2014). But even if an agreement antedates those decisions, the union was able to protect itself if an agency-fee provision was essential to the overall bargain. A union’s attorneys undoubtedly understand that if one provision of a collective-bargaining agreement is found to be unlawful, the remaining provisions are likely to remain in effect. See NLRB v. Rockaway News Supply Co., 345 U. S. 71, 76–79 (1953); see also 8 R. Lord, Williston on Contracts §19:70 (4th ed. 2010). Any union believing that an agency-fee provision was essential to its bargain could have insisted on a provision giving it greater protection. The agreement in the present case, by contrast, provides expressly that the invalidation of any part of the agreement “shall not invalidate the remaining portions,” which “shall remain in full force and effect.” App. 328. Such severability clauses ensure that “entire contracts” are not “br[ought] down” by today’s ruling. Post, at 23, n. 5 (Kagan, J., dissenting). In short, the uncertain status of Abood, the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.[27] * * * We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely. All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “ ‘special justification[s]’ ” for overruling Abood. Post, at 19 (Kagan, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8)).[28] VII For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met. * * * Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Bureau of Labor Statistics (BLS), Labor Force Statistics From the Current Population Survey (Table 42) (2017), https://www.bls.gov/cps/tables.htm (all Internet materials as visited June 26, 2018). 2 See Union Membership and Coverage Database From the Current Population Survey (Jan. 21, 2018), unionstats.com. 3 See National Conference of State Legislatures, Right-to-Work States (2018), http://www.ncsl.org/research/labor-and-employment/right-to-work-laws-and-bills.aspx#chart; see also, e.g., Brief for Mackinac Center for Public Policy as Amicus Curiae 27–28, 34–36. 4 The collective-action problem cited by the dissent, post, at 6, is not specific to the agency-fee context. And contrary to the dissent’s suggestion, it is often not practical for an entity that lobbies or advocates on behalf of the members of a group to tailor its message so that only its members benefit from its efforts. Consider how effective it would be for a group that advocates on behalf of, say, seniors, to argue that a new measure should apply only to its dues-paying members. 5 In order to obtain that status, a union must petition to be recognized and campaign to win majority approval. Ill. Comp. Stat., ch. 5, §315/9(a) (2016); see, e.g., County of Du Page v. Illinois Labor Relations Bd., 231 Ill. 2d 593, 597–600, 900 N. E. 2d 1095, 1098–1099 (2008). And unions eagerly seek this support. See, e.g., Brief for Employees of the State of Minnesota Court System as Amici Curiae 9–17. 6 There is precedent for such arrangements. Some States have laws providing that, if an employee with a religious objection to paying an agency fee “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” E.g., Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill. Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights. 7 Indeed, under common law, “collective bargaining was unlawful,” Teamsters v. Terry, 494 U. S. 558, 565–566 (1990) (plurality opinion); see N. Citrine, Trade Union Law 4–7, 9–10 (2d ed. 1960); Notes, Legal-ity of Trade Unions at Common Law, 25 Harv. L. Rev. 465, 466 (1912), and into the 20th century, every individual employee had the “liberty of contract” to “sell his labor upon such terms as he deem[ed] proper,” Adair v. United States, 208 U. S. 161, 174–175 (1908); see R. Morris, Government and Labor in Early America 208, 529 (1946). So even the concept of a private third-party entity with the power to bind employees on the terms of their employment likely would have been foreign to the Founders. We note this only to show the problems inherent in the Union respondent’s argument; we are not in any way questioning the foundations of modern labor law. 8 See, e.g., Ellsworth, The Landholder, VII (1787), in Essays on the Constitution of the United States 167–171 (P. Ford ed. 1892); Webster, On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office, in A Collection of Essays and Fugitiv[e] Writings 151–153 (1790). 9 Justice Powell’s separate opinion did invoke Pickering in a relevant sense, but he did so only to acknowledge the State’s relatively greater interest in regulating speech when it acts as employer than when it acts as sovereign. Abood v. Detroit Bd. of Ed., 431 U. S. 209, 259 (1977) (concurring in judgment). In the very next sentence, he explained that “even in public employment, a significant impairment of First Amendment rights must survive exacting scrutiny.” Ibid. (internal quotation marks omitted). That is the test we apply today. 10 See Brief for State of Michigan et al. as Amici Curiae 9–24. Nationwide, the cost of state and local employees’ wages and benefits, for example, is nearly $1.5 trillion—more than half of those jurisdictions’ total expenditures. See Dept. of Commerce, Bureau of Economic Analysis, National Data, GDP & Personal Income, Table 6.2D, line 92 (Aug. 3, 2017), and Table 3.3, line 37 (May 30, 2018), https://www.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&1921=survey. And many States and cities struggle with unfunded pension and retiree healthcare liabilities and other budget issues. 11 PEW Charitable Trusts, Fiscal 50: State Trends and Analysis (updated May 17, 2016), http://www.pewtrusts.org/en/research-and-analysis/data-visualizations/2014/fiscal-50#ind4. 12 See Brief for Jason R. Barclay et al. as Amici Curiae 9; M. Egan, How Illinois Became America’s Most Messed-Up State, CNN Money (July 1, 2017), https://cnnmon.ie/2tp9NX5. 13 Brief for Jason R. Barclay et al. as Amici Curiae 9. 14 E. Campbell, S&P, Moody’s Downgrade Illinois to Near Junk, Lowest Ever for a U. S. State, Bloomberg (June 1, 2017), https://bloom.bg/2roEJUc. 15 See National Association of State Budget Officers, Summary: Spring 2018 Fiscal Survey of States 2 (June 14, 2018), http://www.nasbo.org; ProQuest Statistical Abstract of the United States: 2018, pp. 306, Table 476, 321, Table 489. 16 See Rogers, School Districts ‘Race to the Top’ Despite Teacher Dispute, Marin Independent J., June 19, 2010. 17 See Sawchuk, Transferring Top Teachers Has Benefits: Study Probes Moving Talent to Low-Performing Schools, Education Week, Nov. 13, 2013, pp. 1, 13. 18 See Tucker, Textbooks Equivocate on Global Warming: Stanford Study Finds Portrayal ‘Dishonest,’ San Francisco Chronicle, Nov. 24, 2015, p. C1. 19 See Reagan, Anti-Confederacy Movement Rekindles Texas Textbook Controversy, San Antonio Current, Aug. 4, 2015. 20 See Watanabe, How To Teach Gay Issues in 1st Grade? A New Law Requiring California Schools To Have Lessons About LGBT Americans Raises Tough Questions, L. A. Times, Oct. 16, 2011, p. A1. 21 See Goodstein, A Web of Faith, Law and Science in Evolution Suit, N. Y. Times, Sept. 26, 2005, p. A1. 22 See Golden, Defending the Faith: New Battleground in Textbook Wars: Religion in History, Wall St. J., Jan. 25, 2006, p. A1. 23 Claiming that our decision will hobble government operations, the dissent asserts that it would prevent a government employer from taking action against disruptive non-unionized employees in two carefully constructed hypothetical situations. See post, at 17–18. Both hypotheticals are short on potentially important details, but in any event, neither would be affected by our decision in this case. Rather, both would simply call for the application of the standard Pickering test. In one of the hypotheticals, teachers “protest merit pay in the school cafeteria.” Post, at 17. If such a case actually arose, it would be important to know, among other things, whether the teachers involved were supposed to be teaching in their classrooms at the time in question and whether the protest occurred in the presence of students during the student lunch period. If both those conditions were met, the teachers would presumably be violating content-neutral rules regarding their duty to teach at specified times and places, and their conduct might well have a disruptive effect on the educational process. Thus, in the dissent’s hypothetical, the school’s interests might well outweigh those of the teachers, but in this hypothetical case, as in all Pickering cases, the particular facts would be very important. In the other hypothetical, employees agitate for a better health plan “at various inopportune times and places.” Post, at 17. Here, the lack of factual detail makes it impossible to evaluate how the Pickering balance would come out. The term “agitat[ion]” can encompass a wide range of conduct, as well as speech. Post, at 17. And the time and place of the agitation would also be important. 24 No First Amendment issue could have properly arisen in those cases unless Congress’s enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements was sufficient to establish governmental action. That proposition was debatable when Abood was decided, and is even more questionable today. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40, 53 (1999); Jackson v. Metropolitan Edison Co., 419 U. S. 345, 357 (1974). Compare, e.g., White v. Communications Workers of Am., AFL–CIO, Local 13000, 370 F. 3d 346, 350 (CA3 2004) (no state action), and Kolinske v. Lubbers, 712 F. 2d 471, 477–478 (CADC 1983) (same), with Beck v. Communications Workers of Am., 776 F. 2d 1187, 1207 (CA4 1985) (state action), and Linscott v. Millers Falls Co., 440 F. 2d 14, 16, and n. 2 (CA1 1971) (same). We reserved decision on this question in Communications Workers v. Beck, 487 U. S. 735, 761 (1988), and do not resolve it here. 25 Contrary to the dissent’s claim, see post, at 19, and n. 4, the fact that “[t]he rationale of [Abood] does not withstand careful analysis” is a reason to overrule it, e.g., Lawrence v. Texas, 539 U. S. 558, 577 (2003). And that is even truer when, as here, the defenders of the precedent do not attempt to “defend [its actual] reasoning.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363 (2010); id., at 382–385 (Roberts, C. J., concurring). 26 For this reason, it is hardly surprising that chargeability issues have not arisen in many Court of Appeals cases. See post, at 22 (Kagan, J., dissenting). 27 The dissent emphasizes another type of reliance, namely, that “[o]ver 20 States have by now enacted statutes authorizing [agency-fee] provisions.” Post, at 23. But as we explained in Citizens United, “[t]his is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty ‘to say what the law is.’ ” 558 U. S., at 365 (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Nor does our decision “ ‘require an extensive legislative response.’ ” Post, at 23. States can keep their labor-relations systems exactly as they are—only they cannot force nonmembers to subsidize public-sector unions. In this way, these States can follow the model of the federal government and 28 other States. 28 Unfortunately, the dissent sees the need to resort to accusations that we are acting like “black-robed rulers” who have shut down an “energetic policy debate.” Post, at 27–28. We certainly agree that judges should not “overrid[e] citizens’ choices” or “pick the winning side,” ibid.—unless the Constitution commands that they do so. But when a federal or state law violates the Constitution, the American doctrine of judicial review requires us to enforce the Constitution. Here, States with agency-fee laws have abridged fundamental free speech rights. In holding that these laws violate the Constitution, we are simply enforcing the First Amendment as properly understood, “[t]he very purpose of [which] 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).

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 Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. certiorari to the united states court of appeals for the seventh circuit No. 16–1466. Argued February 26, 2018—Decided June 27, 2018 Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities “germane” to the union’s collective-bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends nonmembers a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois’ Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor’s side. The District Court dismissed the Governor’s challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees. The District Court granted respondents’ motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed. Held: 1. The District Court had jurisdiction over petitioner’s suit. Petitioner was undisputedly injured in fact by Illinois’ agency-fee scheme and his injuries can be redressed by a favorable court decision. For jurisdictional purposes, the court permissibly treated his amended complaint in intervention as the operative complaint in a new lawsuit. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, distinguished. . 2. The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled. . (a) Abood’s holding is inconsistent with standard First Amendment principles. . (1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees, 567 U. S. 298, 309. In Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an “exacting” scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive. . (2) Neither of Abood’s two justifications for agency fees passes muster under this standard. First, agency fees cannot be upheld on the ground that they promote an interest in “labor peace.” The Abood Court’s fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that “labor peace” can readily be achieved through less restrictive means than the assessment of agency fees. Second, avoiding “the risk of ‘free riders,’ ” Abood, supra, at 224, is not a compelling state interest. Free-rider “arguments . . . are generally insufficient to overcome First Amendment objections,” Knox, supra, at 311, and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment. As is evident in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees. And their duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative. In any event, States can avoid free riders through less restrictive means than the imposition of agency fees. . (b) Respondents’ alternative justifications for Abood are similarly unavailing. . (1) The Union claims that Abood is supported by the First Amendment’s original meaning. But neither founding-era evidence nor dictum in Connick v. Myers, 461 U. S. 138, 143, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true. . (2) Nor does Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, provide a basis for Abood. Abood was not based on Pickering, and for good reasons. First, Pickering’s framework was developed for use in cases involving “one employee’s speech and its impact on that employee’s public responsibilities,” United States v. Treasury Employees, 513 U. S. 454, 467, while Abood and other agency-fee cases involve a blanket requirement that all employees subsidize private speech with which they may not agree. Second, Pickering’s framework was designed to determine whether a public employee’s speech interferes with the effective operation of a government office, not what happens when the government compels speech or speech subsidies in support of third parties. Third, the categorization schemes of Pickering and Abood do not line up. For example, under Abood, nonmembers cannot be charged for speech that concerns political or ideological issues; but under Pickering, an employee’s free speech interests on such issues could be overcome if outweighed by the employer’s interests. . (c) Even under some form of Pickering, Illinois’ agency-fee arrangement would not survive. . (1) Respondents compare union speech in collective bargaining and grievance proceedings to speech “pursuant to [an employee’s] official duties,” Garcetti v. Ceballos, 547 U. S. 410, 421, which the State may require of its employees. But in those situations, the employee’s words are really the words of the employer, whereas here the union is speaking on behalf of the employees. Garcetti therefore does not apply. . (2) Nor does the union speech at issue cover only matters of private concern, which the State may also generally regulate under Pickering. To the contrary, union speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. . (3) The government’s proffered interests must therefore justify the heavy burden of agency fees on nonmembers’ First Amendment interests. They do not. The state interests asserted in Abood—promoting “labor peace” and avoiding free riders—clearly do not, as explained earlier. And the new interests asserted in Harris and here—bargaining with an adequately funded agent and improving the efficiency of the work force—do not suffice either. Experience shows that unions can be effective even without agency fees. . (d) Stare decisis does not require retention of Abood. An analysis of several important factors that should be taken into account in deciding whether to overrule a past decision supports this conclusion. . (1) Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. . (2) Abood’s lack of workability also weighs against it. Its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision, as even respondents recognize. See, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 519. What is more, a nonmember objecting to union chargeability determinations will have much trouble determining the accuracy of the union’s reported expenditures, which are often expressed in extremely broad and vague terms. . (3) Developments since Abood, both factual and legal, have “eroded” the decision’s “underpinnings” and left it an outlier among the Court’s First Amendment cases. United States v. Gaudin, 515 U. S. 506, 521. Abood relied on an assumption that “the principle of exclusive representation in the public sector is dependent on a union or agency shop,” Harris, 573 U. S., at ___–___, but experience has shown otherwise. It was also decided when public-sector unionism was a relatively new phenomenon. Today, however, public-sector union membership has surpassed that in the private sector, and that ascendency corresponds with a parallel increase in public spending. Abood is also an anomaly in the Court’s First Amendment jurisprudence, where exacting scrutiny, if not a more demanding standard, generally applies. Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition), see, e.g., Elrod v. Burns, 427 U. S. 347. . (4) Reliance on Abood does not carry decisive weight. The uncertain status of Abood, known to unions for years; the lack of clarity it provides; the short-term nature of collective-bargaining agreements; and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain undermine the force of reliance. . 3. For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. . 851 F. 3d 746, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and, Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.

Under the Illinois Public Labor Relations Act (IPLRA), public employees are forced to subsidize a union even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. Abood v. Detroit Bd. of Ed., 431 U. S. 209, overruled. . (a) Abood was poorly reasoned. It led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. See, e.g., Harris v. Quinn,. The District Court did not grant petitioner a motion to intervene in that lawsuit, but instead essentially treated petitioner's amended complaint as the operative complaint in a new lawsuit. When the case is viewed in that way, any Article III issue vanishes. The sole decision on which respondents relied actually works against them, United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157; Harris, supra, at ___ (slip op., at 17). Similarly, Abood failed to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees. Here, the primary question was whether Congress exceeded its power under the Commerce Clause or violated substantive due process by authorizing private union-shop arrangements under the Due Process Clause. Although Abood upheld the constitutionality of an agency-shop arrangement like the one here, in more recent cases this Court has recognized that this holding is something of an anomaly, and that Abood's analysis is questionable on several grounds. In addition to affecting how public money is spent, unions express views on a wide range of subjects, including education, child welfare, healthcare, and minority rights. But when a public employee speaks as a citizen on a matter of public concern, the employee's speech is protected unless the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees outweighs the interests of the employee. Such deference to legislative judgments is inappropriate in deciding free speech issues. And Abood is a poor fit indeed, since the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the person who does not want to pay. Pp. 431. (b) The union speech paid for by agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers or that it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay, since such duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. This Court will not overturn a past decision unless there are strong grounds for doing so. Pickering v. Harris, 391 U. S. 563, distinguished. Even if Abood were to apply some form of Pickering, Illinois, its agency-fee arrangement would not survive. Rather, it would permit the practice only if the employer's interests outweighed those of the employees. Thus, recasting Abood as an application of Harris would substantially alter the Abood scheme.. 751 F.2d 751, affirmed. MARSHALL, J., concurring in judgment and dissenting in part, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined, post, p..

2017_15-1204

https://www.oyez.org/cases/2017/15-1204

, except as to Part II.[1]*Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official “port of entry” (e.g., an international airport or border crossing) or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made.In this case we are asked to interpret three provisions of U. S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings. All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention. But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems. But a court relying on that canon still must interpret the statute, not rewrite it. Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.IATo implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering.1That process of decision generally begins at the Nation’s borders and ports of entry, where the Government must determine whether an alien seeking to enter the country is admissible. Under122Stat.867,8 U. S. C. §1225, an alien who “arrives in the United States,” or “is present” in this country but “has not been admitted,” is treated as “an applicant for admission.” §1225(a)(1). Applicants for admission must “be inspected by immigration officers” to ensure that they may be admitted into the country consistent with U. S. immigration law. §1225(a)(3).As relevant here, applicants for admission fall into one of two categories, those covered by §1225(b)(1) and those covered by §1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See §1225(b)(1)(A)(i) (citing §§1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. See §1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by §1225(b)(1) (with specific exceptions not relevant here). See §§1225(b)(2)(A), (B).Both §1225(b)(1) and §1225(b)(2) authorize the detention of certain aliens. Aliens covered by §1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to an expedited removal process. §1225(b)(1)(A)(i). But if a §1225(b)(1) alien “indicates either an intention to apply for asylum . . . or a fear of persecution,” then that alien is referred for an asylum interview. §1225(b)(1)(A)(ii). If an immigration officer determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Aliens who are instead covered by §1225(b)(2) are detained pursuant to a different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled to be admitted” into the country. §1225(b)(2)(A).Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons or significant public benefit.” §1182(d)(5)(A); see also 8 CFR §§212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an admission of the alien.”8 U. S. C. §1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” Ibid.2Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls “within one or more . . . classes of deportable aliens.” §1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. See §§1227(a)(1), (2).Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, §1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). “Except as provided in subsection (c) of this section,” the Attorney General “may release” an alien detained under §1226(a) “on bond . . . or conditional parole.” Ibid.Section 1226(c), however, carves out a statutory category of aliens who may not be released under §1226(a). Under §1226(c), the “Attorney General shall take into custody any alien” who falls into one of several enumerated categories involving criminal offenses and terrorist activities. §1226(c)(1). The Attorney General may release aliens in those categories “only if the Attorney General decides . . . that release of the alien from custody is necessary” for witness-protection purposes and “the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.” §1226(c)(2). Any release under those narrow conditions “shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.” Ibid.[2]In sum, U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§1226(a) and (c). The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c).BRespondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under §1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he was not removable and, in the alternative, that he was eligible for relief from removal. In July 2004, an Immigration Judge ordered Rodriguez deported to Mexico. Rodriguez chose to appeal that decision to the Board of Immigration Appeals, but five months later the Board agreed that Rodriguez was subject to mandatory removal. Once again, Rodriguez chose to seek further review, this time petitioning the Court of Appeals for the Ninth Circuit for review of the Board’s decision.In May 2007, while Rodriguez was still litigating his removal in the Court of Appeals, he filed a habeas petition in the District Court for the Central District of California, alleging that he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez’s case was consolidated with another, similar case brought by Alejandro Garcia, and together they moved for class certification. The District Court denied their motion, but the Court of Appeals for the Ninth Circuit reversed. See Rodriguez v. Hayes, 591 F. 3d 1105, 1111 (2010). It concluded that the proposed class met the certification requirements of Rule 23 of the Federal Rules of Civil Procedure, and it remanded the case to the District Court. Id., at 1111, 1126.On remand, the District Court certified the following class:“[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.” Class Certification Order in Rodriguez v. Hayes, CV 07–03239 (CD Cal., Apr. 5, 2010).The District Court named Rodriguez as class representative of the newly certified class, ibid., and then organized the class into four subclasses based on the four “general immigration detention statutes” under which it understood the class members to be detained: Sections 1225(b), 1226(a), 1226(c), and 1231(a). See Order Granting Plaintiff’s Motion for Class Certification in Rodriguez v. Holder, CV 07–03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodriguez v. Robbins, 715 F. 3d 1127, 1130–1131 (CA9 2013). Each of the four subclasses was certified to pursue declaratory and injunctive relief. 2011 Order. On appeal, the Court of Appeals held that the §1231(a) subclass had been improperly certified, but it affirmed the certification of the other three subclasses. See Rodriguez v. Robbins, 804 F. 3d 1060, 1074, 1085–1086 (CA9 2015).In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—§§1225(b), 1226(a), and 1226(c)—do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. In their prayer for relief, respondents thus asked the District Court to require the Government “to provide, after giving notice, individual hearings before an immigration judge for . . . each member of the class, at which [the Government] will bear the burden to prove by clear and convincing evidence that no reasonable conditions will ensure the detainee’s presence in the event of removal and protect the community from serious danger, despite the prolonged length of detention at issue.” Third Amended Complaint in Rodriguez v. Holder, CV 07–03239, p. 31 (CD Cal., Oct. 20, 2010). Respondents also sought declaratory relief. Ibid.As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, and the Court of Appeals affirmed. See 804 F. 3d, at 1065. Relying heavily on the canon of constitutional avoidance, the Court of Appeals construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under these sections. Id., at 1079, 1082. After that point, the Court of Appeals held, the Government may continue to detain the alien only under the authority of §1226(a). Ibid. The Court of Appeals then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Id., at 1085, 1087.The Government petitioned this Court for review of that decision, and we granted certiorari. 579 U. S. ___ (2016).IIBefore reaching the merits of the lower court’s interpretation, we briefly address whether we have jurisdiction to entertain respondents’ claims. We discuss two potential obstacles, 8 U. S. C. §§1252(b)(9) and 1226(e).AUnder §1252(b)(9):“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.”This provision does not deprive us of jurisdiction. We are required in this case to decide “questions of law,” specifically, whether, contrary to the decision of the Court of Appeals, certain statutory provisions require detention without a bond hearing. We assume for the sake of argument that the actions taken with respect to all the aliens in the certified class constitute “action[s] taken . . . to remove [them] from the United States.”[3] On that assumption, the applicability of §1252(b)(9) turns on whether the legal questions that we must decide “aris[e] from” the actions taken to remove these aliens.It may be argued that this is so in the sense that if those actions had never been taken, the aliens would not be in custody at all. But this expansive interpretation of §1252(b)(9) would lead to staggering results. Suppose, for example, that a detained alien wishes to assert a claim under Bivens v. Six Unknown Fed. Narcotics Agents,403 U. S. 388 (1971), based on allegedly inhumane conditions of confinement. See, e.g., Ziglar v. Abbasi, 582 U. S. ___, ___–___ (2017) (slip op., at 23–29). Or suppose that a detained alien brings a state-law claim for assault against a guard or fellow detainee. Or suppose that an alien is injured when a truck hits the bus transporting aliens to a detention facility, and the alien sues the driver or owner of the truck. The “questions of law and fact” in all those cases could be said to “aris[e] from” actions taken to remove the aliens in the sense that the aliens’ injuries would never have occurred if they had not been placed in detention. But cramming judicial review of those questions into the review of final removal orders would be absurd.Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually entered, the allegedly excessive detention would have already taken place. And of course, it is possible that no such order would ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial review.In past cases, when confronted with capacious phrases like “ ‘arising from,’ ” we have eschewed “ ‘uncritical literalism’ ” leading to results that “ ‘no sensible person could have intended.’ ” Gobeille v. Liberty Mut. Ins. Co., 577 U. S. ___, ___ (2016) (slip op., at 6) (interpreting phrase “relate to” in the Employee Retirement Income Security Act of 1974’s pre-emption provision). See also, e.g., FERC v. Electric Power Supply Assn., 577 U. S. ___, ___–___ (2016) (slip op., at 15–16) (interpreting term “affecting” in Federal Power Act); Maracich v. Spears,570 U. S. 48–61 (2013) (interpreting phrase “in connection with” in Driver’s Privacy Protection Act); Dan’s City Used Cars, Inc. v. Pelkey,569 U. S. 251–261 (2013) (interpreting phrase “related to” in Federal Aviation Administration Authorization Act); Celotex Corp. v. Edwards,514 U. S. 300,308 (1995) (interpreting phrase “related to” in Bankruptcy Act). In Reno v. American-Arab Anti-Discrimination Comm.,525 U. S. 471,482 (1999), we took this approach in construing the very phrase that appears in §1252(b)(9). A neighboring provision of the Immigration and Nationality Act refers to “any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”8 U. S. C. §1252(g) (emphasis added). We did not interpret this language to sweep in any claim that can technically be said to “arise from” the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves. American-Arab Anti-Discrimination Comm., supra, at 482–483.The parties in this case have not addressed the scope of §1252(b)(9), and it is not necessary for us to attempt to provide a comprehensive interpretation. For present purposes, it is enough to note that respondents are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances, §1252(b)(9) does not present a jurisdictional bar.[4]BWe likewise hold that §1226(e) does not bar us from considering respondents’ claims.That provision states:“The Attorney General’s discretionary judgment regarding the application of [§1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” §1226(e).As we have previously explained, §1226(e) precludes an alien from “challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore v. Kim,538 U. S. 510,516 (2003). But §1226(e) does not preclude “challenges [to] the statutory framework that permits [the alien’s] detention without bail.” Id., at 517.Respondents mount that second type of challenge here. First and foremost, they are challenging the extent of the Government’s detention authority under the “statutory framework” as a whole. If that challenge fails, they are then contesting the constitutionality of the entire statutory scheme under the Fifth Amendment. Because the extent of the Government’s detention authority is not a matter of “discretionary judgment,” “action,” or “decision,” respondents’ challenge to “the statutory framework that permits [their] detention without bail,” ibid., falls outside of the scope of §1226(e). We may therefore consider the merits of their claims.IIIWhen “a serious doubt” is raised about the constitutionality of an act of Congress, “it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson,285 U. S. 22,62 (1932). Relying on this canon of constitutional avoidance, the Court of Appeals construed §§1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien’s detention without a bond hearing. Without such a construction, the Court of Appeals believed, the “ ‘prolonged detention without adequate procedural protections’ ” authorized by the provisions “ ‘would raise serious constitutional concerns.’ ” 804 F. 3d, at 1077 (quoting Casas-Castrillon v. DHS, 535 F. 3d 942, 950 (CA9 2008)).The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez,543 U. S. 371,385 (2005). In the absence of more than one plausible construction, the canon simply “ ‘has no application.’ ” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative,532 U. S. 483,494 (2001)).The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.AAs noted, §1225(b) applies primarily to aliens seeking entry into the United States (“applicants for admission” in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under §1225(b)(1) “shall be detained for further consideration of the application for asylum.” §1225(b)(1)(B)(ii). Second, aliens falling within the scope of §1225(b)(2) “shall be detained for a [removal] proceeding.” §1225(b)(2)(A).Read most naturally, §§1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and §1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under §1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither §1225(b)(1) nor §1225(b)(2) says anything whatsoever about bond hearings.Despite the clear language of §§1225(b)(1) and (b)(2), respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible.1First, respondents argue that §§1225(b)(1) and (b)(2) contain an implicit 6-month limit on the length of detention. Once that 6-month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of §1226(a), which allows for bond hearings in certain circumstances.There are many problems with this interpretation. Nothing in the text of §1225(b)(1) or §1225(b)(2) even hints that those provisions restrict detention after six months, but respondents do not engage in any analysis of the text. Instead, they simply cite the canon of constitutional avoidance and urge this Court to use that canon to read a “six-month reasonableness limitation” into §1225(b). Brief for Respondents 48.That is not how the canon of constitutional avoidance works. Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to “choos[e] between competing plausible interpretations of a statutory text.” Clark, supra, at 381 (emphasis added). To prevail, respondents must thus show that §1225(b)’s detention provisions may plausibly be read to contain an implicit 6-month limit. And they do not even attempt to defend that reading of the text.In much the same manner, the Court of Appeals all but ignored the statutory text. Instead, it read Zadvydas v. Davis,533 U. S. 678 (2001), as essentially granting a license to graft a time limit onto the text of §1225(b). Zadvydas, however, provides no such authority.Zadvydas concerned §1231(a)(6), which authorizes the detention of aliens who have already been ordered removed from the country. Under this section, when an alien is ordered removed, the Attorney General is directed to complete removal within a period of 90 days,8 U. S. C. §1231(a)(1)(A), and the alien must be detained during that period, §1231(a)(2). After that time elapses, however, §1231(a)(6) provides only that certain aliens “may be detained” while efforts to complete removal continue. (Emphasis added.)In Zadvydas, the Court construed §1231(a)(6) to mean that an alien who has been ordered removed may not be detained beyond “a period reasonably necessary to secure removal,” 533 U. S., at 699, and it further held that six months is a presumptively reasonable period, id., at 701. After that, the Court concluded, if the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the Government must either rebut that showing or release the alien. Ibid.The Zadvydas Court justified this interpretation by invoking the constitutional-avoidance canon, and the Court defended its resort to that canon on the ground that §1231(a)(6) is ambiguous. Specifically, the Court detected ambiguity in the statutory phrase “may be detained.” “ ‘[M]ay,’ ” the Court said, “suggests discretion” but not necessarily “unlimited discretion. In that respect the word ‘may’ is ambiguous.” Id., at 697. The Court also pointed to the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Ibid.Zadvydas represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals in this case went much further. It failed to address whether Zadvydas’s reasoning may fairly be applied in this case despite the many ways in which the provision in question in Zadvydas, §1231(a)(6), differs materially from those at issue here, §§1225(b)(1) and (b)(2). Those dif- ferences preclude the reading adopted by the Court of Appeals.To start, §§1225(b)(1) and (b)(2), unlike §1231(a)(6), provide for detention for a specified period of time. Section 1225(b)(1) mandates detention “for further consideration of the application for asylum,” §1225(b)(1)(B)(ii), and §1225(b)(2) requires detention “for a [removal] proceeding,” §1225(b)(2)(A). The plain meaning of those phrases is that detention must continue until immigration officers have finished “consider[ing]” the application for asylum, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). By contrast, Congress left the permissible length of detention under §1231(a)(6) unclear.Moreover, in Zadvydas, the Court saw ambiguity in §1231(a)(6)’s use of the word “may.” Here, by contrast, §§1225(b)(1) and (b)(2) do not use the word “may.” Instead, they unequivocally mandate that aliens falling within their scope “shall” be detained. “Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a requirement.” Kingdomware Technologies, Inc. v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9). That requirement of detention precludes a court from finding ambiguity here in the way that Zadvydas found ambiguity in §1231(a)(6).Zadvydas’s reasoning is particularly inapt here because there is a specific provision authorizing release from §1225(b) detention whereas no similar release provision applies to §1231(a)(6). With a few exceptions not relevant here, the Attorney General may “for urgent humanitarian reasons or significant public benefit” temporarily parole aliens detained under §§1225(b)(1) and (b)(2).8 U. S. C. §1182(d)(5)(A). That express exception to detention implies that there are no other circumstances under which aliens detained under §1225(b) may be released. See A. Scalia & B. Garner, Reading Law 107 (2012) (“Negative-Implication Canon[:] The expression of one thing implies the exclusion of others (expressio unius est exclusio al- terius)”). That negative implication precludes the sort of implicit time limit on detention that we found in Zadvydas.[5]In short, a series of textual signals distinguishes the provisions at issue in this case from Zadvydas’s interpretation of §1231(a)(6). While Zadvydas found §1231(a)(6) to be ambiguous, the same cannot be said of §§1225(b)(1) and (b)(2): Both provisions mandate detention until a certain point and authorize release prior to that point only under limited circumstances. As a result, neither provision can reasonably be read to limit detention to six months.2In this Court, respondents advance an interpretation of the language of §§1225(b)(1) and (b)(2) that was never made below, namely, that the term “for,” which appears in both provisions, mandates detention only until the start of applicable proceedings rather than all the way through to their conclusion. Respondents contrast the language of §§1225(b)(1) and (b)(2) authorizing detention “for” further proceedings with another provision’s authorization of detention “pending” further proceedings. See8 U. S. C. §1225(b)(1)(B)(iii)(IV) (“Any alien . . . shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”). According to respondents, that distinction between “for” and “pending” makes an enormous difference. As they see things, the word “pending” authorizes detention throughout subsequent proceedings, but the term “for” means that detention authority ends once subsequent proceedings begin. As a result, respondents argue, once the applicable proceedings commence, §§1225(b)(1) and (b)(2) no longer authorize detention, and the Government must instead look to §1226(a) for continued detention authority.That interpretation is inconsistent with ordinary English usage and is incompatible with the rest of the statute. To be sure, “for” can sometimes mean “in preparation for or anticipation of.” 6 Oxford English Dictionary 24 (2d ed. 1989). But “for” can also mean “[d]uring [or] throughout,” id., at 26, as well as “with the object or purpose of,” id., at 23; see also American Heritage Dictionary 709 (3d ed. 1992) (“Used to indicate the object, aim, or purpose of an action or activity”; “Used to indicate amount, extent, or duration”); Random House Dictionary of the English Language 747 (2d ed. 1987) (“with the object or purpose of”; “during the continuance of”); Webster’s Third New International Dictionary 886 (1993) (“with the purpose or object of”; “to the . . . duration of”). And here, only that second set of definitions makes sense in the context of the statutory scheme as a whole.For example, respondents argue that, once detention authority ends under §§1225(b)(1) and (b)(2), aliens can be detained only under §1226(a). But that section authorizes detention only “[o]n a warrant issued” by the Attorney General leading to the alien’s arrest. §1226(a). If respondents’ interpretation of §1225(b) were correct, then the Government could detain an alien without a warrant at the border, but once removal proceedings began, the Attorney General would have to issue an arrest warrant in order to continue detaining the alien. To put it lightly, that makes little sense.Nor does respondents’ interpretation of the word “for” align with the way Congress has historically used that word in §1225. Consider that section’s text prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,110Stat.3009–546. Under the older version of §1225(b), “[e]very alien” within its scope “who may not appear . . . to be clearly and beyond a doubt entitled to [entry] shall be detained for further inquiry to be conducted by a special inquiry officer.”8 U. S. C. §1225(b) (1994 ed.). It would make no sense to read “for further inquiry” as authorizing detention of the alien only until the start of the inquiry; Congress obviously did not mean to allow aliens to feel free to leave once immigration officers asked their first question.In sum, §§1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin. Of course, other provisions of the immigration statutes do authorize detention “pending” other proceedings or “until” a certain point. See post, at 22–23 (Breyer, J., dissenting) (quoting §1225(b)(1)(B)(iii)(IV)). But there is no “canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing.” Kirtsaeng v. John Wiley & Sons, Inc.,568 U. S. 519,540 (2013). We decline to invent and apply such a canon here.BWhile the language of §§1225(b)(1) and (b)(2) is quite clear, §1226(c) is even clearer. As noted, §1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities.8 U. S. C. §1226(c)(1). Section 1226(c) then goes on to specify that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. §1226(c)(2) (emphasis added).Like §1225(b), §1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, §1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. And together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision on whether the alien is to be removed from the United States.” §1226(a).In a reprise of their interpretation of §1225(b), respondents argue, and the Court of Appeals held, that §1226(c) should be interpreted to include an implicit 6-month time limit on the length of mandatory detention. Once again, that interpretation falls far short of a “plausible statutory construction.”In defense of their statutory reading, respondents first argue that §1226(c)’s “silence” as to the length of detention “cannot be construed to authorize prolonged mandatory detention, because Congress must use ‘clearer terms’ to authorize ‘long-term detention.’ ” Brief for Respondents 34 (quoting Zadvydas, 533 U. S., at 697). But §1226(c) is not “silent” as to the length of detention. It mandates detention “pending a decision on whether the alien is to be removed from the United States,” §1226(a), and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-avoidance canon does not countenance such textual alchemy.Indeed, we have held as much in connection with §1226(c) itself. In Demore v. Kim, 538 U. S., at 529, we distinguished §1226(c) from the statutory provision in Zadvydas by pointing out that detention under §1226(c) has “a definite termination point”: the conclusion of removal proceedings. As we made clear there, that “definite termination point”—and not some arbitrary time limit devised by courts—marks the end of the Government’s detention authority under §1226(c).Respondents next contend that §1226(c)’s limited authorization for release for witness-protection purposes does not imply that other forms of release are forbidden, but this argument defies the statutory text. By expressly stating that the covered aliens may be released “only if” certain conditions are met,8 U. S. C. §1226(c)(2), the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.Finally, respondents point to a provision enacted as part of the PATRIOT Act[6] and contend that their reading of §1226(c) is needed to prevent that provision from being superfluous. That argument, however, misreads both statutory provisions. Although the two provisions overlap in part, they are by no means congruent.Two differences stand out. First, §1226(c) and the PATRIOT Act cover different categories of aliens. Both apply to certain terrorist suspects, but only §1226(c) reaches aliens convicted of other more common criminal offenses. See §§1226(c)(1)(A)–(C) (aliens inadmissible or deportable under §1182(a)(2); §§1227(a)(2)(A)(ii), (A)(iii), (B), (C), and (D); and §1227(a)(2)(A)(i) under certain conditions). For its part, the PATRIOT Act casts a wider net than §1226(c) insofar as it encompasses certain threats to national security not covered by §1226(c). See §1226a(a)(3) (aliens described in §§1182(a)(3)(A)(i), (iii), and 1227(a)(4)(A)(i), (iii), as well as aliens “engaged in any other activity that endangers the national security of the United States”). In addition, the Government’s detention authority under §1226(c) and the PATRIOT Act is not the same. Under §1226(c), the Government must detain an alien until “a decision on whether the alien is to be removed” is made. §1226(a) (emphasis added). But, subject to exceptions not relevant here, the PATRIOT Act authorizes the Government to detain an alien “until the alien is removed.” §1226a(a)(2) (emphasis added).Far from being redundant, then, §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways. There is thus no reason to depart from the plain meaning of §1226(c) in order to avoid making the provision superfluous.We hold that §1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings “only if” the alien is released for witness-protection purposes.CFinally, as noted, §1226(a) authorizes the Attorney General to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” §1226(a). As long as the detained alien is not covered by §1226(c), the Attorney General “may release” the alien on “bond . . . or conditional parole.” §1226(a). Federal regulations provide that aliens detained under §1226(a) receive bond hearings at the outset of detention. See 8 CFR §§236.1(d)(1), 1236.1(d)(1).The Court of Appeals ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations—namely, periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nothing in §1226(a)’s text—which says only that the Attorney General “may release” the alien “on . . . bond”—even remotely supports the imposition of either of those requirements. Nor does §1226(a)’s text even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released.IVFor these reasons, the meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals. But the dissent is undeterred. It begins by ignoring the statutory language for as long as possible, devoting the first two-thirds of its opinion to a disquisition on the Constitution. Only after a 19-page prologue does the dissent acknowledge the relevant statutory provisions.The dissent frames the question of interpretation as follows: Can §§1225(b), 1226(c), and 1226(a) be read to require bond hearings every six months “without doing violence to the statutory language,” post, at 20 (opinion of Breyer, J.)? According to the dissent, the answer is “yes,” but the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma. Thus, when Congress mandated that an “alien shall be detained,” §1225(b)(1)(B)(ii), what Congress really meant, the dissent insists, is that the alien may be released from custody provided only that his freedom of movement is restricted in some way, such as by “the imposition of a curfew,” post, at 21. And when Congress stressed that “[t]he Attorney General may release an alien . . . only if . . . release . . . from custody is necessary” to protect the safety of a witness, §1226(c)(2) (emphasis added), what Congress meant, the dissent tells us, is that the Attorney General must release an alien even when no witness is in need of protection—so long as the alien is neither a flight risk nor a danger to the community, see post, at 25–27. The contortions needed to reach these remarkable conclusions are a sight to behold.Let us start with the simple term “detain.” According to the dissent, “detain” means the absence of “unrestrained freedom.” Post, at 21. An alien who is subject to any one of “numerous restraints”—including “a requirement to obtain medical treatment,” “to report at regular intervals,” or even simply to comply with “a curfew”—is “detained” in the dissent’s eyes, even if that alien is otherwise free to roam the streets. Ibid.This interpretation defies ordinary English usage. The dictionary cited by the dissent, the Oxford English Dictionary (OED), defines “detain” as follows: “[t]o keep in confinement or under restraint; to keep prisoner.” 4 OED 543 (2d ed. 1989) (emphasis added); see also OED (3d ed. 2012), http://www.oed.com/view/Entry/51176 (same). Other general-purpose dictionaries provide similar definitions. See, e.g., Webster’s Third New International Dictionary 616 (1961) (“to hold or keep in or as if in custody ”); Webster’s New International Dictionary 710 (2d ed. 1934) (“[t]o hold or keep as in custody”); American Heritage Dictionary 508 (def. 2) (3d ed. 1992) (“To keep in custody or temporary confinement”); Webster’s New World College Dictionary 375 (3d ed. 1997) (“to keep in custody; confine”). And legal dictionaries define “detain” the same way. See, e.g., Ballentine’s Law Dictionary 343 (3d ed. 1969) (“To hold; to keep in custody; to keep”); Black’s Law Dictionary 459 (7th ed. 1999) (“The act or fact of holding a person in custody; confinement or compulsory delay”).How does the dissent attempt to evade the clear meaning of “detain”? It resorts to the legal equivalent of a sleight-of-hand trick. First, the dissent cites a passage in Blackstone stating that arrestees could always seek release on bail. Post, at 8–9. Then, having established the obvious point that a person who is initially detained may later be released from detention, the dissent reasons that this means that a person may still be regarded as detained even after he is released from custody. Post, at 21. That, of course, is a nonsequitur. Just because a person who is initially detained may later be released, it does not follow that the person is still “detained” after his period of detention comes to an end.If there were any doubt about the meaning of the term “detain” in the relevant statutory provisions, the context in which they appear would put that doubt to rest. Title 8 of the United States Code, the title dealing with immigration, is replete with references that distinguish between “detained” aliens and aliens who are free to walk the streets in the way the dissent imagines. Section 1226(a), for instance, distinguishes between the power to “continue to detain the arrested alien” and the power to “release the alien on . . . bond.” But if the dissent were right, that distinction would make no sense: An “alien released on bond” would also be a “detained alien.” Here is another example: In §1226(b), Congress gave the Attorney General the power to “revoke” at any time “a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.” It beggars belief that Congress would have given the Attorney General the power to detain a class of aliens who, under the dissent’s reading, are already “detained” because they are free on bond. But that is what the dissent would have us believe. Consider, finally, the example of §1226(c). As noted, that provision obligates the Attorney General to “take into custody” certain aliens whenever they are “released, without regard to whether the alien is released on parole, supervised release, or probation.” On the dissent’s view, however, even aliens “released on parole, supervised release, or probation” are “in custody”—and so there would be no need for the Attorney General to take them into custody again.[7]Struggling to prop up its implausible interpretation, the dissent looks to our prior decisions for aid, but that too fails. The best case it can find is Tod v. Waldman,266 U. S. 547 (1925), a grant of a petition for rehearing in which the Court clarified that “[n]othing in [its original] order . . . shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Id., at 548. According to the dissent, that two-page decision from almost a century ago supports its reading because the underlying immigration statute in that case—like some of the provisions at issue here—mandated that the relevant class of aliens “ ‘shall be detained’ ” pending the outcome of an inspection process. See post, at 21–22 (quoting Act of Feb. 5, 1917, §16,39Stat.886).That reads far too much into Waldman. To start, the Court did not state that the aliens at issue were entitled to bail or even that bail was available to them. Instead, the Court merely noted that its decision should not “prejudice” any application the aliens might choose to file. That is notable, for in their petition for rehearing the aliens had asked the Court to affirmatively “authorize [them] to give bail.” Petition for Rehearing in Tod v. Waldman, O. T. 1924, No. 95, p. 17 (emphasis added). By refusing to do so, the Court may have been signaling its skepticism about their request. But it is impossible to tell. That is precisely why we, unlike the dissent, choose not to go beyond what the sentence actually says. And Waldman says nothing about how the word “detain” should be read in the context of §§1225(b), 1226(c), and 1226(a).[8]Neither does Zadvydas. It is true, as the dissent points out, that Zadvydas found “that the words ‘ “may be detained” ’ [are] consistent with requiring release from long-term detention,” post, at 23 (quoting 533 U. S., at 682), but that is not because there is any ambiguity in the term “detain.” As we have explained, the key statutory provision in Zadvydas said that the aliens in question “may,” not “shall,” be detained, and that provision also failed to specify how long detention was to last. Here, the statutory provisions at issue state either that the covered aliens “shall” be detained until specified events take place, see8 U. S. C. §1225(b)(1)(B)(ii) (“further consideration of the application for asylum”); §1225(b)(2)(A) (“a [removal] proceeding”), or provide that the covered aliens may be released “only if” specified conditions are met, §1226(c)(2). The term that the Zadvydas Court found to be ambiguous was “may,” not “detain.” See 533 U. S., at 697. And the opinion in that case consistently used the words “detain” and “custody” to refer exclusively to physical confinement and restraint. See id., at 690 (referring to “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint” (emphasis added)); id., at 683 (contrasting aliens “released on bond” with those “held in custody”).[9]The dissent offers no plausible interpretation of §§1225(b), 1226(c), and 1226(a). But even if we were to accept the dissent’s interpretation and hold that “detained” aliens in the “custody” of the Government include aliens released on bond, that would still not justify the dissent’s proposed resolution of this case. The Court of Appeals held that aliens detained under the provisions at issue must be given periodic bond hearings, and the dissent agrees. See post, at 2 (“I would interpret the statute as requiring bail hearings, presumptively after six months of confinement”). But the dissent draws that 6-month limitation out of thin air. However broad its interpretation of the words “detain” and “custody,” nothing in any of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail. So if the dissent’s interpretation is right, then aliens detained under §§1225(b), 1226(c), and 1226(a) are entitled to bail hearings as soon as their detention begins rather than six months later. “Detained” does not mean “released on bond,” and it certainly does not mean “released on bond but only after six months of mandatory physical confinement.”The dissent’s utterly implausible interpretation of the statutory language cannot support the decision of the court below.VBecause the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” Cutter v. Wilkinson,544 U. S. 709, n. 7 (2005), we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.Before the Court of Appeals addresses those claims, however, it should reexamine whether respondents can continue litigating their claims as a class. When the District Court certified the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, it had their statutory challenge primarily in mind. Now that we have resolved that challenge, however, new questions emerge.Specifically, the Court of Appeals should first decide whether it continues to have jurisdiction despite8 U. S. C. §1252(f )(1). Under that provision, “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§1221–1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Section 1252(f )(1) thus “prohibits federal courts from granting classwide injunctive relief against the operation of §§1221–123[2].” American-Arab Anti-Discrimination Comm., 525 U. S., at 481. The Court of Appeals held that this provision did not affect its jurisdiction over respondents’ statutory claims because those claims did not “seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.” 591 F. 3d, at 1120. This reasoning does not seem to apply to an order granting relief on constitutional grounds, and therefore the Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g., Rule 23(b)(2) (requiring “that final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)).The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes,564 U. S. 338 (2011). We held in Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id., at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g., 804 F. 3d, at 1082; 715 F. 3d, at 1139–1141 (citing, e. g., Shaughnessy v. United States ex rel. Mezei,345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “ ‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’ ” Dukes, supra, at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).Similarly, the Court of Appeals should also consider on remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer,408 U. S. 471,481 (1972); see also Landon v. Plasencia,459 U. S. 21,34 (1982).VIWe reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings.It is so ordered.Justice Kagan took no part in the decision of this case. Notes 1 * Justice Sotomayor joins only Part III–C of this opinion. 2 Anyone who believes that he is not covered by §1226(c) may also ask for what is known as a “Joseph hearing.” See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). At a Joseph hearing, that person “may avoid mandatory detention by demonstrating that he is not an alien, was not convicted of the predicate crime, or that the [Government] is otherwise substantially unlikely to establish that he is in fact subject to mandatory detention.” Demore v. Kim,538 U. S. 510, n. 3 (2003). Whether respondents are entitled to Joseph hearings is not before this Court. 3 It is questionable whether this is true for aliens who are detained under8 U. S. C. §1225(b)(1)(B)(ii) for consideration of their asylum applications. 4 The concurrence contends that “detention is an ‘action taken . . . to remove’ an alien” and that therefore “even the narrowest reading of ‘arising from’ must cover” the claims raised by respondents. Post, at 6. We do not follow this logic. We will assume for the sake of argument that detention is an action taken “to remove an alien,” i.e., for the purpose of removing an alien, rather than simply an action aimed at ensuring that the alien does not flee or commit a crime while his proceedings are pending. But even if we proceed on the basis of that assumption, we do not see what it proves. The question is not whether detention is an action taken to remove an alien but whether the legal questions in this case arise from such an action. And for the reasons explained above, those legal questions are too remote from the actions taken to fall within the scope of §1252(b)(9). 5 According to the dissent, we could have applied the expressio unius canon in Zadvydas as well because there was also an “alternative avenue for relief, namely, bail,” available for aliens detained under §1231(a)(6). Post, at 25 (opinion of Breyer, J.). But the dissent overlooks the fact that the provision granting bail was precisely the same provision that the Court purported to be interpreting, so the canon was not applicable. See 533 U. S., at 683. 6 See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act),115Stat.272. 7 As the dissent notes, §1158(d)(2) regulates employment authorization for certain “applicant[s] for asylum.” Were all asylum applicants detained, the dissent says, that provision would make no sense, because detained aliens do not need work authorizations. Post, at 23–24. But §1158(d)(2) applies not only to aliens seeking asylum status “in accordance with . . . section 1225(b)” (and thus aliens who are detained), but also to all aliens already “physically present in the United States.” §1158(a)(1). Many of those aliens will be in the country lawfully, and thus they will not be detained and will be able to work pending the outcome of their asylum application. For example, an alien may apply for asylum after being admitted into the country on a short-term visa. While the application is pending, §1158 may offer a way for that alien to find employment. In response, the dissent accuses us of “apply[ing] this provision to some asylum applicants but not the ones before us.” Post, at 23–24. That is not remotely what we are doing. We do not doubt that §1158(d)(2) “applies” to all “applicant[s] for asylum” as it says, even if some of those applicants are not as likely to receive an employment authorization (for instance, because they are detained) as others. 8 It should not be surprising by this point that even the aliens in Waldman understood “detention” in contradistinction to “bail.” See Petition for Rehearing in Tod v. Waldman, O. T. 1924, No. 95, pp. 17–18 (“[T]he Court’s mandate should authorize relators to give bail, instead of having [them] go to Ellis Island and remain there in custody pending an appeal . . . which may involve very long detention pending hearing of the appeal . . .” (capitalization omitted and emphasis added)). 9 The dissent argues that because “the question at issue [in Zadvydas] was release from detention,” “the key word was consequently ‘may.’ ” Post, at 23. We agree but fail to see the point. If, as the dissent admits, Zadvydas was about “release from detention” and not about what qualifies as “detention,” then it is unclear why the dissent thinks that decision supports its unorthodox interpretation of the word “detention.”

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 Jennings et al. v. Rodriguez et al., individually and on behalf of all others similarly situated certiorari to the united states court of appeals for the ninth circuit No. 15–1204. Argued November 30, 2016—Reargued October 3, 2017—Decided February 27, 2018 Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country. For example, §1225(b) of Title 8 of the U. S. Code authorizes the detention of certain aliens seeking to enter the country. Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation, and to certain other aliens designated by the Attorney General in his discretion. Section 1225(b)(2) is a catchall provision that applies to most other applicants for admission not covered by §1225(b)(1). Under §1225(b)(1), aliens are normally ordered removed “without further hearing or review,” §1225(b)(1)(A)(i), but an alien indicating either an intention to apply for asylum or a credible fear of persecution, §1225(b)(1)(A)(ii), “shall be detained” while that alien’s asylum application is pending, §1225(b)(1)(B)(ii). Aliens covered by §1225(b)(2) in turn “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled” to admission. §1225(b)(2)(A). The Government is also authorized to detain certain aliens already in the country. Section 1226(a)’s default rule permits the Attorney General to issue warrants for the arrest and detention of these aliens pending the outcome of their removal proceedings. The Attorney General “may release” these aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities, §1226(c)(1), and specifies that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk, §1226(c)(2). After a 2004 conviction, respondent Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the United States, was detained pursuant to §1226 while the Government sought to remove him. In May 2007, while still litigating his removal, Rodriguez filed a habeas petition, claiming that he was entitled to a bond hearing to determine whether his continued detention was justified. As relevant here, he and the class of aliens he represents allege that §§1225(b), 1226(a), and 1226(c) do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that detention remains justified. The District Court entered a permanent injunction, and the Ninth Circuit affirmed. Relying on the canon of constitutional avoidance, the Ninth Circuit construed §§1225(b) and 1226(c) as imposing an implicit 6-month time limit on an alien’s detention under those sections. After that point, the court held, the Government may continue to detain the alien only under the authority of §1226(a). The court then construed §1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified. Held: The judgment is reversed, and the case is remanded. 804 F. 3d 1060, reversed and remanded. Justice Alito delivered the opinion of the Court, except as to Part II, concluding that §§1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. . (a) The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one [plausible] construction.” Clark v. Martinez, 543 U. S. 371 . The Ninth Circuit’s interpretations of the provisions at issue, however, are implausible. . (b) Read most naturally, §§1225(b)(1) and (b)(2) mandate detention of applicants for admission until certain proceedings have concluded. Until that point, nothing in the statutory text imposes a limit on the length of detention, and neither provision says anything about bond hearings. . (1) Nothing in the text of §1225(b)(1) or §1225(b)(2) hints that those provisions have an implicit 6-month time limit on the length of detention. Respondents must show that this is a plausible reading in order to prevail under the canon of constitutional avoidance, but they simply invoke the canon without making any attempt to defend their reading. The Ninth Circuit also all but ignored the statutory text, relying instead on Zadvydas v. Davis, 533 U. S. 678 , as authority for grafting a time limit onto §1225(b)’s text. There, this Court invoked the constitutional-avoidance canon, construing §1231(a)(6)—which provides than an alien subject to a removal order “may be detained” beyond the section’s 90-day removal period—to mean that the alien may not be detained beyond “a period reasonably necessary to secure removal,” id., at 699, presumptively six months, id., at 701. The Court detected ambiguity in the statutory phrase “may be detained” and noted the absence of any explicit statutory limit on the length of permissible detention following the entry of an order of removal. Several material differences distinguish the provisions at issue in this case from Zadvydas’s interpretation of §1231(a)(6). To start, the provisions here, unlike §1231(a)(6), mandate detention for a specified period of time: until immigration officers have finished “consider[ing]” the asylum application, §1225(b)(1)(B)(ii), or until removal proceedings have concluded, §1225(b)(2)(A). Section 1231(a)(6) also uses the ambiguous “may,” while §§1225(b)(1) and (b)(2) use the unequivocal mandate “shall be detained.” There is also a specific provision authorizing temporary parole from §1225(b) detention “for urgent humanitarian reasons or significant public benefit,” §1182(d)(5)(A), but no similar release provision applies to §1231(a)(6). That express exception implies that there are no other circumstances under which aliens detained under §1225(b) may be released. . (2) Respondents also claim that the term “for” in §§1225(b)(1) and (b)(2) mandates detention only until the start of applicable proceedings. That is inconsistent with the meanings of “for”—“[d]uring [or] throughout,” 6 Oxford English Dictionary 26, and “with the object or purpose of,” id., at 23—that make sense in the context of the statutory scheme as a whole. Nor does respondents’ reading align with the historical use of “for” in §1225. . (c) Section 1226(c)’s language is even clearer. By allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, that provision reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute. Together with §1226(a), §1226(c) makes clear that detention of aliens within its scope must continue “pending a decision” on removal. Section 1226(c) is thus not silent as to the length of detention. See Demore v. Kim, 538 U. S. 510 . The provision, by expressly stating that covered aliens may be released “only if” certain conditions are met, also unequivocally imposes an affirmative prohibition on releasing them under any other conditions. Finally, because §1226(c) and the PATRIOT Act apply to different categories of aliens in different ways, adopting §1226(c)’s plain meaning will not make any part of the PATRIOT Act, see §1226a(a)(3), superfluous. . (d) Nothing in §1226(a), which authorizes the Attorney General to arrest and detain an alien “pending a decision” on removal and which permits the Attorney General to release the alien on bond, supports the imposition of periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that continued detention is necessary. Nor does it hint that the length of detention prior to the bond hearing must be considered in determining whether an alien should be released. . (e) The Ninth Circuit should consider the merits of respondents’ constitutional arguments in the first instance. But before doing so, it should also reexamine whether respondents can continue litigating their claims as a class. . Alito, J., delivered the opinion of the Court, except as to Part II. Roberts, C. J., and Kennedy, J., joined that opinion in full; Thomas and Gorsuch, JJ., joined as to all but Part II; and Sotomayor, J., joined as to Part III–C. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined except for footnote 6. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined. Kagan, J., took no part in the decision of the case.

U.S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2) of the Immigration and Nationality Act. The primary issue is the proper interpretation of §§1226(a), 1226(c), and (c). The language of those provisions serves as a catchall provision that applies to all applicants for admission not covered by the provisions. As relevant here, the Immigration Judge ordered respondent deported to Mexico, but five months later the Board agreed that respondent was subject to mandatory removal. Respondents, a Mexican citizen and a lawful permanent resident of the United States, filed a habeas corpus petition in the District Court, alleging that they were entitled to a bond hearing. The court denied the petition, and the Court of Appeals reversed, holding that the class was certified to pursue declaratory and injunctive relief, but affirmed certification of the other three subclasses. Held: 1. By relying on the canon of constitutional avoidance, which permits a court to shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems, the court below erred in holding that detained aliens have a statutory right to periodic bond hearings under the provisions at issue. . (a) Under §1252(b), judicial review of all questions of law and fact, including interpretation and application of constitutional provisions and statutory provisions arising from any action taken to remove an alien from the country, including removal proceedings, does not require judicial review. This interpretation is not supported by the language of the statutory provisions or by this Court's prior decisions for aid. See, e.g., Zadvydas v. Davis, 533 U. S. 678. Moreover, a series of textual signals distinguishes §§1231(a)(6), which applies to certain types of aliens, from §1226 (c), which covers only those aliens who have already been ordered removed, and which, inter alia, provides that the relevant class of aliens "shall be detained for further consideration of the application for asylum....," which, in turn, authorizes detention of aliens only if the alien satisfies the Government that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. Thus, even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly could not transmute existing statutory language into its polar opposite. Furthermore, the canon permits the court to select between competing plausible interpretations of a statutory text. To prevail, respondents must show that the detention provisions may plausibly be read to contain an implicit 6 months limit. And they do not even attempt to defend that reading of the text. (b) In the absence of more than one plausible construction, the statutory language simply has no application. In this Court, respondents advance an interpretation of the language and the legislative history that was never made below, namely, that the term "for," which appears in both provisions, mandates detention only until the start of applicable proceedings, rather than all the way through to their conclusion. That interpretation defies ordinary English usage, since the word "for" means that detention authority ends once subsequent proceedings begin, and since the Government must look to the statute for guidance on the length of detention to be met. And it is not implausible to hold that the language mandates detention as long as the alien is detained under the authority of the statute itself. Here, nothing in the statutory text even remotely supports the imposition of either of the two limiting interpretations offered by respondents. Nor does the provision granting bond hearings, which requires detention only for narrow witness-protection purposes, align with the way Congress has historically used that word in §1225. Moreover, the provision provides that, once removal proceedings have begun, the Attorney General may detain an alien only if he decides that, under certain circumstances, he will have to issue an arrest warrant in order to continue detaining the alien.. 2. The courts below do not have jurisdiction to entertain respondents' claims, since they have not addressed the scope of §12(b)'s removal provisions, and thus are not required to do so. Tod v. Waldman, 66, distinguished. Pp. 468 U.S.. 804 F. 3d 1060, 1074, 1085, affirmed. Justice Kagan took no part in the decision of this case. Reported below: (1) In Part III-A of this opinion, he joined only Part III of which he was joined by a companion post, at which he also joined Part III (C). He filed an opinion concurring in part and dissenting in part, in which he and the others joined, and in Parts III-B and III-C, which he noted were not specific to removal proceedings. The court held that